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UNITED STATES REPORTS
VOLUME 382
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1965
October 4, 1965 (Beginning of Term)
Through January 31, 1966
HENRY PUTZEL, jr.
REPORTER OF DECISIONS
UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1966
For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C., 20402 - Price $5 (Buckram)
Un 3
v. 3U
Errata.
290 U. S. 600, No. 124, last line: “42 F. (2d) 765” should be “13 F. Supp. 24.”
305 U. S. xxix, line 8: “514” should be “415.”
306 U. S. 227, lines 8-9: “Schenck v. United States” should be “United States v. Schenck.”
310 U. S. 448, n. 5: “1049” should be “1409.”
332 U. S. 88, line 3: “1627” should be “1637.”
336 U. S. 929, last line: “62 Cal. 2d” should be “32 Cal. 2d.”
372 U. S. 196, line 10: Delete “either.”
381 U. S. 931, No. 13, Original: In lieu of the material dealing with counsel on the motion, substitute the following: “Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, Stanton Stone, Executive Assistant Attorney General, and J. C. Davis and W. O. Shultz II, Assistant Attorneys General, on the motion.”
il

JUSTICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS.1
EARL WARREN, Chief Justice.
HUGO L. BLACK, Associate Justice.
WILLIAM O. DOUGLAS, Associate Justice.
TOM C. CLARK, Associate Justice.
JOHN M. HARLAN, Associate Justice.
WILLIAM J. BRENNAN, Jr., Associate Justice.
POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice.
ABE PORTAS, Associate Justice.2
RETIRER.3
STANLEY REED, Associate Justice.
NICHOLAS deB. KATZENBACH, Attorney General. THURGOOD MARSHALL, Solicitor General.4 JOHN F. DAVIS, Clerk.
HENRY PUTZEL, jr., Reporter of Decisions.
T. PERRY LIPPITT, Marshal.
HENRY CHARLES HALLAM, Jr., Librarian.5
Notes on p. iv.
m
NOTES.
1	Mr. Justice Goldberg resigned on July 26, 1965. See post, p. VII.
2	The Honorable Abe Fortas, of Tennessee, was nominated by President Johnson on July 28, 1965, to be an Associate Justice of this Court; the nomination was confirmed by the Senate on August 11, 1966; he was commissioned on the same date; and he took the oaths and his seat on October 4, 1965.
3	Mr. Justice Whittaker, who retired on April 1, 1962 (369 U. S. iv, vu), resigned effective September 30, 1965. See post, p. xvn.
4	The Honorable Thurgood Marshall, of New York, formerly a Judge of the United States Court of Appeals for the Second Circuit, was nominated by President Johnson to be Solicitor General on July 13, 1965; the nomination was confirmed by the Senate on August 11, 1965; he was commissioned on the same date and took the oath on August 24, 1965. See also post, p. xv. He succeeded the Honorable Archibald Cox, who resigned effective July 31, 1965.
6	Mr. Hallam was appointed Librarian on November 8, 1965. See post, pp. xlvii, 898. He succeeded Miss Helen Catherine Newman, who died July 21, 1965. Sec post, p. xlvii.
iv
SUPREME COURT OF THE UNITED STATES.
Allotment of Justices.
It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, viz.:
For the District of Columbia Circuit, Earl Warren, Chief Justice.
For the First Circuit, Abe Fortas, 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 O. Douglas, Associate Justice.
For the Tenth Circuit, Byron R. White, Associate Justice.
October 11, 1965.
(For next previous allotment, see 371 U. S., p. v.)
v
RESIGNATION OF MR. JUSTICE GOLDBERG.
Suprême Court of the United States.
MONDAT, OCTOBER 4, 1965.
Présent: 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.
The Chief Justice said:
“With the concurrence of my colleagues, I announce the résignation of Mr. Justice Goldberg who resigned as an Associate Justice of this Court since we last met to become the United States Représentative to the United Nations.
“Justice Goldberg is a native of Chicago, Illinois. He attended the public schools of that city and Northwestern University where he graduated from the Law School with highest honors.
“With the exception of the time he served with distinction in the Armed Forces during World War II, he prac-ticed law for over thirty years in Chicago and in Washington, D. C. During ail of that time he pursued good causes and without regard as to whether they were popular or not.
“In 1961, he was appointed Secretary of Labor by the late lamented President John F. Kennedy, and served in that capacity until October 1, 1962, when he was appointed an Associate Justice of this Court. His service here was brief but distinguished, and he has left an indelible mark on our jurisprudence.
VII
VIII RESIGNATION OF MR. JUSTICE GOLDBERG.
“The Court would make this announcement with deep regret except for the fact that Justice Goldberg has accepted another post of duty in our Government which he in conscience felt he could not décliné. We wish him every happiness and success in his new position.
“Our appréciation of our association with Justice Goldberg and for his fine service to the Court is amplified in a letter to him which, together with his letter to the members of the Court, will be spread upon the Minutes of the Court.”
RESIGNATION OF MR. JUSTICE GOLDBERG. ix
Suprême Court of the United States, Chambers of Justice Arthur J. Goldberg,
Washington, D. C., 205/fi, July 26, 1965.
My Dear Brethren:
It is with the deepest of regrets that I take my leave of you. These three short but eventful years hâve been the happiest and most rewarding of my life, not only because service here is the dream of every man of law and because of the opportunities for créative and useful work, but also because of the kindness and fellowship which each of you has shown to me.
As you must know, only the most compelling call to duty could bring me to leave this Court and your dedi-cated and joyous company. But that call did corne, and I could not refuse.
In those days and years ahead allotted to me, my thoughts will often be of you and your unstinting efforts to bring equal justice under law to ail of our countrymen. And I trust that I shall enjoy the benefit of your prayers as I undertake my part in our country’s striving to bring peace and the rule of law to ail mankind.
Sincerely yours,
Arthur J. Goldberg.
The Mr. Mr. Mr. Mr. Mr. Mr. Mr.
Chief Justice Justice Justice Justice Justice Justice Justice
Justice Black Douglas Clark Harlan Brennan Stewart White
x RESIGNATION OF MR. JUSTICE GOLDBERG.
Suprême Court of the United States, Chambers of The Chief Justice, Washington, D. C., 20543, October 4, 1965.
Honorable Arthur J. Goldberg,
United States Représentative to the United Nations, New York, New York.
Dear Ambassador Goldberg:
Your letter advising us of your résignation from the Court was received with deep regret. In the three years you were with us, you became so much a part of the Court and of our lives that we shall miss you greatly.
We fully realize that your decision to leave was a diffi-cult one to make. And we also realize that in making that decision you wTere moved by a profound sense of duty to our country and to the world of which we are ail a responsible part. Men of your stature do not resist a call to duty in times of crisis regardless of the sacrifice involved, and we honor you for obeying the demand of your conscience. Also, we believe that those great qualifies which made you an invaluable member of this Court will guide you in your efforts to achieve honorable peace for everyone in this troubled world.
Our heartfelt good wishes will always be with you, and we will feel that as you pursue your cause our ties to you will be continuously strengthened regardless of the time or distance between us.
Sincerely,
Earl Warren
Hugo L. Black
William O. Douglas Tom C. Clark John M. Harlan William J. Brennan, Jr. Botter Stewart Byron R. White
APPOINTMENT OF MR. JUSTICE PORTAS.
Suprême Court of the United States.
MONDAY, OCTOBER 4, 1965.
Présent: 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.
The Chief Justice [after announcing the résignation of Mr. Justice Goldberg, ante, p. ni] said:
“We are fortunate, however, that his successor was appointed to fill the vacancy before the opening of our 1965 Term. We welcome him today.
“The President, with the advice and consent of the Senate, has appointed the Honorable Abe Portas of Tennessee an Associate Justice of the Suprême Court. Justice Portas has taken the Constitutional Oath admin-istered by the Chief Justice. He is now présent in Court. The Clerk will read his commission. He will then take the Judicial Oath, to be administered by the Clerk, after which the Marshal will escort him to his seat on the Bench.”
The Clerk then read the commission as follows:
Lyndon B. Johnson,
PRESIDENT OF THE UNITED STATES OF AMERICA,
To AU Who Shall See These Présents, Greeting:
Know Ye: That reposing spécial trust and confidence in the Wisdom, Uprightness, and Learning of Abe Portas of Tennessee I hâve nominated, and, by and with the advice and consent of the Senate, do appoint him Associ-
XI
XII APPOINTAIENT OF MR. JUSTICE FORTAS.
ate Justice of the Suprême Court of the United States and do authorize and empower him to execute and fulfill the duties of that Office according to the Constitution and Laws of the said United States, and to Hâve and to Hold the said Office, with ail the powers, privilèges and émoluments to the same of right appertaining, unto Him, the said Abe Fortas, during his good behavior.
In testimony whereof, I hâve caused these Letters to be made patent and the seal of the Department of Justice to be hereunto affixed.
Done at the City of Washington this eleventh day of August, in the year of our Lord one thousand nine hun-dred and sixty-five, and of the Independence of the United States of America the one hundred and ninetieth.
[seal]	Lyndon B. Johnson.
By the President:
Nicholas deB. Katzenbach, Attorney General.
The oath of office was then administered by the Clerk, and Mr. Justice Fortas was escorted by the Marshal to his seat on the bench.
The oaths taken by Mr. Justice Fortas are in the following words, viz.:
I, Abe Fortas, do solemnly swear that I will support and defend the Constitution of the United States against ail enemies, foreign and domestic ; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental réservation or purpose of évasion ; and that I will well and faithfully discharge the duties of the office on which I am about to enter.
So help me God.	.	_
Abe Fortas.
Subscribed and sworn to before me this 4th day of October A. D., 1965.
Earl Warren,
Chief Justice of the United States.
APPOINTMENT OF MR. JUSTICE PORTAS, xm
I, Abe Portas, do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform ail the duties incum-bent upon me as Associate Justice of the Suprême Court of the United States according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.
So help me God.	Abe Portas.
Subscribed and sworn to before me this 4th day of October A. D., 1965.
John F. Davis,
Clerk of the Suprême Court of the United States.
PRESENTATION OF THE SOLICITOR GENERAL.
Suprême Court of the United States.
MONDAY, OCTOBER 11, 1965.
Présent: Mr. Chief Justice. Warren, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Portas.
Mr. Attorney General Katzenbach presented the Honorable Thurgood Marshall, of New York, Solicitor General of the United States.
The Chief Justice said:
“Mr. Solicitor General, the Court welcomes you to the performance of the important duty with which you are specially charged, the duty of representing the Government at the Bar of this Court in ail cases in which it asserts an interest. Your commission will be recorded by the Clerk.”
xv
RESIGNATION OF MR. JUSTICE WHITTAKER.
Suprême Court of the United States.
MONDAY, OCTOBER 18, 1965.
Présent: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Portas.
The Chief Justice said:
“On behalf of the Court, I announce that Honorable Charles E. Whittaker, who retired on April 1, 1962, because of disability, has resigned his commission as an Associate Justice of the Suprême Court (retired) effective September 30, 1965.
“In his letter to the President, Justice Whittaker advised that since his retirement he has regained his health, and he now wishes to be freed from the occupa-tional restrictions that necessarily inhere in his retired status, so that he may, with propriety, engage in other activities.
“We are very pleased to know that Justice Whittaker has recovered his health to such an extent that he is able to résumé other activities, and we wish for him success and happiness in ail of his future endeavors.”
XVII
786-211 0-66—2
PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES IN MEMORY OF
MR. JUSTICE FRANKFURTER.*
MONDAY, OCTOBER 2 5, 1965.
Présent: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Fortas.
Mr. Soliciter General Marshall addressed the Court as follows :
“Mr. Chief Justice, may it please the Court:
“A meeting of the Bar of the Suprême Court was held at 11:00 this morning in honor of the memory of Mr. Justice Félix Frankfurter. Former Solicitor General Cox, who initiated and completed the plans for that meeting, was selected as chairman, and the Honorable John F. Davis was selected as secretary of that meeting. Resolutions were adopted and will be read by Honorable Dean Acheson, chairman of the Resolutions Committee.”
The Honorable Dean Acheson addressed the Court as follows :
“The résolutions unanimously adopted are as follows:
“ ‘Resolutions
“ ‘Mr. Justice Frankfurter because of grave impair-ment of his health retired on August 28, 1962, from active service on the bench. For three years he gallantly bore his afflictions and died on February 22, 1965, in his eighty-third year.
*Mr. Justice Frankfurter, who retired August 28, 1962 (371 U. S., iv, vu), died in Washington, D. C., on February 22, 1965. The services were private. (380 U. S., iv, vu.)
XIX
XX MR. JUSTICE FRANKFURTER.
“ ‘Félix Frankfurter’s birth on November 15, 1882, to Jewish parents in Vienna, Austria, little betokened a career in America as legal scholar, teacher, and jurist. The family, the Justice has said, was an intellectual one, though he admits to having been “more bookish” than the others, excepting his paternal uncle, an “oppressively learned man,” the “librarian-in-chief of the great library of the University of Vienna.” His Viennese origin was treasured by the Justice. Though time had dimmed memory of detail, he delighted in attributing to it his joie de vivre—what he called the Blue Danube side of his nature.
“ ‘When at the âge of twelve Félix Frankfurter landed in New York, he had never heard a word of English spoken. Two years later, on graduation from Public School 25, he was reciting Chatham’s speech on the con-flict with America. At the school his beloved bene-factress, Miss Hogan, had threatened with the rod any boy caught speaking German with him. He read omniv-orously. At Cooper Union the periodical room brought on that addiction to newspapers from which he could never free himself. There, too, were lectures and, above ail, debates—ecstatic fare. The reading rooms at the Ottendorfer, the Astor and the Lenox libraries ail knew him.
“ ‘His vocabulary, over the years, became immense and exotic. Many of us hâve often turned from one of his pages to the dictionary to look up gallimaufry, for example, or hagiolater or palimpsest. He delighted in English words; but was not so happy with English style. His continued to be involved, often ornate, carrying a touch of the baroque. His best writing is his speech transcribed.
“‘Once he had firm grasp of the language, nothing could stop the flood of achievement. What enables one to be sympathetic with such continuous and unqualified success is an initial failure. He had set his heart on winning a Pulitzer scholarship to the Horace Mann School. But he failed. Looking back on this disap-
MR. JUSTICE FRANKFURTER.
XXI
pointment, he found a curions ground for comfort in accepting kismet. “But if I had gone to Horace Mann, I would doubtless hâve gone to Columbia, and beyond that I don’t know—Columbia Law I suppose . . . . These people who plan their careers—I hâve so little respect for them . . . .” His path was laid out for him. He followed it with submission and with joy. It led not to Columbia but to City College and to the Harvard Law School, the absorbing love of his life.
“ ‘At the turn of the century, student life at City College was more European than American collegiate. The students lived and studied in the midst of a great city, not segregated from it but a part of it. They learned the discipline of hard work in crowded and distracting conditions, completing half of high school and ail of a college course in five years. They found relaxation in the East Side tea shops and coffee rooms, drinking tea and rum out of tall glasses and talking with ail corners until dawn. The course was prescribed and rigid. Young Frankfurter completed it with high honors, gathering on the way yet another joy from language. He found great interest in the delicacy and précision of Greek until, unhappily, poor teaching stifled it. For the most part he taught himself in his usual way. “I read a lot,” he has reported, “a terrible lot.”
“ ‘After City College there was no money for law school, so a year was set aside to earn some as a clerk in the Tenement House Department of the City of New York. Again he toyed with fate. One fine spring day in 1903, with ten dollars in his pocket, he set out on foot for Morningside Heights to matriculate at Columbia Law School. But kismet would no longer be denied and events moved quickly to settle the matter.
“ ‘The prospective matriculant had not gone far when he met a friend who persuaded him to spend so fine a day—and the matriculation fee—more fittingly at Coney Island. Soon afterwards the family doctor, examining his lungs, advised strongly against continuing in New York and in favor of country air. Finally, a brother of
XXII
MR. JUSTICE FRANKFURTER.
a friend in the Tenement House Department, a first-year man at Harvard Law School, home for the Easter holi-day, persuaded him that Harvard was practicable finan-cially, that Cambridge was about as far into the country as a New Yorker should venture, and that they should room together the next year. Thus was fate fulfilled and Frankfurter’s distrust of those who plan their lives confirmed.
“ ‘Not only the Law School but Harvard University as a whole offered inexhaustible joys. A Lucullan banquet lay before him or, as he more earthily put it, “a free lunch counter.” “I went to this and that, went to the library, read, roamed ail around, and just satisfied a gluttonous appetite for lectures, exhibitions, concerts.” His roommate protested; mid-year tests brought him up with a jerk. In ail three years he led his class, still stub-bornly, but more moderately, insisting that “I don’t think law requires that I stifle ail other interests.” It never did.
“ ‘One would not go wrong in thinking that Félix Frankfurter’s years before coming to the bench were his happiest, as they were his freest, years. He never thought of them as years of préparation. They were years of gloriously self-justifying life in action. None-theless, they gave him rare insights into the changing social and économie facts of life in this country, whether he represented the fédéral government on the legal and social frontier, or, at the Law School, inspired young men to adventure by the taies he brought back from his forays into the surrounding battle.
“ ‘Hardly had Frankfurter left the Law School in 1906 for the law offices of Hornblower, Byrne, Miller and Botter in Manhattan, when he was lured away by an offer of a 25% réduction in salary and unlimited work. The offer came from Henry L. Stimson, President Théodore Roosevelt’s newly appointed United States Attorney for the Southern District of New York. Frankfurter was inclined to worry about the ethics of this désertion until
MR. JUSTICE FRANKFURTER.
XXIII
Professer Ames wrote him to “follow the dominant impulses of your nature,” which, of course, he was about to do anyway.
“ ‘Rarely can a decision or event in a man’s life be called crucial. This was one. Colonel Stimson was a noble man, of towering integrity, an old Roman of the days of the Republic. Frankfurter’s standards of work, of fairness, of integrity—as he himself often said—were forged in his years with Stimson.
“ ‘The times, too, were moving : The Progressive Era was in gestation. The United States Attorney’s office, a storm center in itself, brought actions against the rail-roads for rebates, against sugar companies for customs frauds, against Mr. Charles W. Morse for banking manipulations disclosed by the panic of 1907. Mr. E. H. Harriman was haled before a United States court to answer questions of the Interstate Commerce Commis-sion about his acquisition of control of railroads. The fédéral government had moved against business. This was révolution. People spoke of it, said Frankfurter, as they might hâve of the attack on the Bastille. But not ail the work involved great matters. The young assistant tried run-of-the-mill criminal cases on his own and was assigned responsibility for the troubles of the 100,000 immigrants a month who passed through Ellis Island, since Stimson thought he was “likely to hâve more understanding of these problems than some of the other lads in the office.”
“‘Soon the scene shifted. Stimson left office with Roosevelt and ran for Governor of New York. Frankfurter was soon in the fight, too, traveling with both the candidate and his supporter, the former President, and finding politics as absorbing as the law courts. Stimson lost the élection of 1910. Almost at once he went to Washington as Secretary of War, taking Frankfurter with him.
Again a new life opened vistas onto a new world. In 1910 the War Department was not only the War Office but the Colonial Office and Office of Public Works as
XXIV
MR. JUSTICE FRANKFURTER.
well. Its jurisdiction had foliowed the flag in its un-planned course from the Caribbean, across the Isthmus of Panama, to the Southwest Pacific. Manifest destiny brought in its train governmental, administrative, and constitutional problems beyond the farthest imagination of the framers at Philadelphia. In two administrations Félix Frankfurter was engaged in adapting eighteenth-and nineteenth-century constitutional conceptions to the world-encompassing needs of an impérial power.
“ When this country entered the First World War, President Wilson called him back to Washington for a task as different as it was tough. Industrial disorder in the West and Southwest was paralyzing war production. A syndicalist movement, the Industrial Workers of the World, had taken over labor at the copper mines, lumber camps, and some other vital industries. It was being met by organized vigilantes using arms and déportation. The President’s Médiation Commission, a group of realists under the chairmanship of Secretary of Labor William B. Wilson and with Félix Frankfurter as Coun-sel, plunged into this cauldron of hatred. One situation after another yielded to calmness and persistence. CounseFs contribution, it is not surprising to learn, was his resourcefulness in diminishing “hated words” and “the irrationalities of strife.” When Counsel for the Commission went back to the Law School to résumé teaching, he had had rare schooling in the realities of American industrial life.
“ ‘It is accepted belief that the invitation which came in 1914 to join the faculty of the Harvard Law School posed a difficult decision for him between the active and the contemplative life. The Justice himself gave cur-rency to the idea and, indeed, made public a long mémorandum of his own to himself on the pros and cons. But the difficulty was largely theoretical, since, in fact, Frankfurter never chose; he embraced both alternatives; he lived two lives without skimping either one—the life of the teacher and scholar and life on the firing line of ail
MR. JUSTICE FRANKFURTER.
XXV
the conflicts of his time. He rolled them into one. Scholarship for him was concernée! not only with the his-tory of the past but with the most current reports. Sig-nificantly one of his first efforts was with other lawyers to indict the witch-hunting excesses of Attorney General A. Mitchell Palmer.
“ ‘For twenty-five years Félix Frankfurter’s prodigious energies were concentrated on the growing edge of the law. With Dean Roscoe Pound he directed the Cleve-land Survey of the administration of criminal justice, a pioneering study. What brought home to Félix Frankfurter with searing intensity the responsibility of the state in criminal prosecution were the murder convictions of Sacco and Vanzetti, a shoe worker and a fish peddler. He believed that their trial had been unfair and their convictions due to their political and économie beliefs. He threw himself passionately into the attempt to set aside the convictions. The controversy rose to international proportions, but the men were executed.
“ ‘Gradually his interest centered on the law applicable to public agencies, resulting in a phénoménal outpouring of papers, some by his pupils, some in collaboration with several of them, and others his own work. These dealt with labor injunctions, judicial review of administrative decisions, evidence and procedure before administrative bodies, the history of diversity jurisdiction, and so on. His own work centered on the constitutional views of Justices Holmes and Brandeis and Chief Justice Taney, and, in collaboration with James M. Landis, on a book and annual articles on The Business of the Suprême Court.
“ ‘Professer Alexander Bickel has written :
“There were great scholars of the Constitution before Mr. Frankfurter, but he was the first scholar of the Suprême Court. The study he pursued was not constitutional law, but institutional law. . . . He studied the sources, the volume, and the nature of the Court’s business, over time and contemporaneously, and
XXVI
MR. JUSTICE FRANKFURTER.
perceived anew the Court’s rôle in American gov-ernment. . . Félix Frankfurter: A Tribute, p. 197 (Mendelson ed. 1964).
11	‘The very nature of the Court’s position in the scheme of American government called upon it to be wisely sélective in the choice and restrained in the num-ber of cases it heard and decided. He had no patience with charges that in denying review the Court was, as the press put it, “ducking the issue.” The Court was not a knight-errant sworn to search out and right wrongs and slay dragons of precedent. It was far better to leave a decision unreviewed than for the Suprême Court to décidé it wrongly or prematurely. He believed that the issues the Court chose to review should be ripe for decision and needed time for collective deliberation and decision, and for careful and persuasive exposition of the decision so necessary for its acceptance by the country. Congress had responded most generously to the Court’s request for power to control and limit its own docket; to use the power effectively required, so he thought, stern selectivity.
“ ‘In 1939 Félix Frankfurter’s life seemed firmly and happily settled in its course at Harvard. Without hésitation he had declined Governor Ely’s ofïer of an ap-pointment to the Suprême Judicial Court of Massachusetts and without regret heard from President Roosevelt that he could not appoint him to the vacancy on the Suprême Court left by Justice Cardozo’s death. Then without warning or explanation Roosevelt reversed that decision and sent his nomination to the Senate. Curi-ously, for one so frequently in the storm center of con-troversy, only- a few cranks opposed the nomination. The Senate unanimously confirmed it. The new Justice took his seat on January 30, 1939.
“ ‘The year was a turning point in history as well as in the history of the Suprême Court. Time had just ended the thirty-year war between judicial conceptions of the nineteenth century and social and économie con
MR. JUSTICE FRANKFURTER.
XXVII
ditions of the twentieth, a war into which Professer Frankfurter had thrown on the side of modernity his professorial and polemical power. When Justice Roberts freed himself from the bonds of stare decisis in West Coast Hôtel Co. v. Parrish, 300 U. S. 379 (1937), the last of the minimum wage cases, “freedom of contract” became an obsolète phrase and social législation in the United States could move forward again. Another pow-erful obstacle, the Commerce Clause, was outflanked by doctrines, not new but long neglected, which Professor Frankfurter had advocated. See the chapter on Taney in The Commerce Clause Under Marshall, Taney and Waite.
“ ‘Just as an epoch had ended in the history of the Court, one was ending in the history of the world. The epoch of the nineteenth century, long undermined and tottering, the epoch of One World, of Pax Europa, was about to corne crashing down about our ears. What-ever the new issues of the post-war world and the post-war Court would be, they would not be those in which the new Justice had served with such zest under his great heroes and captains, Stimson, Holmes, and Brandeis.
11	‘The issues changed, but not the nature of the Court or the impératives of its function and of its position in the American government, and not the ultimates of the démocratie faith. More specifically, the séparation of powers, federalism, the First Amendment, procédural due process, and the integrity and independence of the act of judging, and even a measure of substantive due process and equal protection—for Justice Frankfurter as for Professor Frankfurter, these were constants.
“ ‘There is a remarkable cohérence and consistency in his outlook before and after his change of title—most remarkable for one who, before his accession, was so ardently engaged in the pursuit of immédiate practical ends, who before and after spoke so often on almost ail important aspects of the Court’s work, and whose pro-fessional lifetime spanned two sharply divided periods in
xxvin MR. JUSTICE FRANKFURTER.
the Court’s history. No doubt, in his journalism espe-cially, sparks were sometimes struck off which were extinguished and vanished as they rose. But his basic convictions, and of course his temperamental inclinations, endured and had décisive effect on issues old and new, because they were not drawn from the issues of the day.
“ ‘By nature an impatient man, and equally naturally a reformer, he managed somehow not to be both together. The struggle to change social, économie, and political conditions was for him the struggle to conserve the institutions and the values of the society in changed conditions. What is to be conserved must first be understood, and understood afresh, time and again, for its essence and its necessities are not conveyed by verbal formulas; they reveal themselves only in the full factual context of the past and présent. History and a willingness to know that the conditions of life change in response to forces that the law does not create but must recognize—these are the tools of the true conservative. They were Justice Frankfurter’s, as they had been Justice Brandeis’s. In using them, the conservative is a créative reformer.
“ ‘During the twenty-three years of Justice Frankfurter’s tenure, the Court not only abandoned old con-stitutional restraints on social and économie reform, but adopted fresh and hospitable habits of statutory construction. And it opened for itself new and important lines of influence under the First Amendment, in the administration of criminal justice, and in effectuating equal treatment of the races. In these enterprises Justice Frankfurter participated and often led. The reap-portionment case of 1962, Baker v. Carr, 369 U. S. 186, was the only major new departure against which the Justice wholly and firmly set his face, and perhaps the final word has not yet been said.
“ ‘Justice Frankfurter participated and led, but after his fashion, subject to the cautions and restraints that were deeply imbedded in his view of the judicial func-
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tion and in his philosophy of history and of government. Whether he led or participated or dissented, he left his mark on the évolution of the principles announced by the Court, and, therefore, on their content, on the timing and manner of their announcement, and on the methods chosen to enforce them.
“ ‘From the beginning to the end of his service, in an unrelenting line of decisions, he faithfully realized the promise of the Fifteenth Amendment. Lane v. Wilson, 307 U. S. 268 (1939); Terry v. Adams, 345 U. S. 461 (1953); Gomillion v. Lightjoot, 364 U. S. 339 (1960). His apt sentence, in the first of these cases, “The Amendment nullifies sophisticated as well as simple-minded modes of discrimination” (307 U. S., at 275), can serve as a chapter heading for the Court’s achievements under both the Fourteenth and Fifteenth Amendments.
“ Tn the field of criminal law, Justice Frankfurter insisted upon civilized standards of justice in the fédéral courts, objecting to procedures which he believed im-paired basic liberties. See Harris v. United States, 331 U. S. 145, 155 (1947). He was not troubled that consti-tutional safeguards were so often invoked by dubious characters (id., at 156), insisting upon “conviction of the guilty by methods that commend themselves to a progressive and self-confident society.” McNabb v. United States, 318 U. S. 332, 344 (1943). In the McNabb case and in Mallory v. United States, 354 U. S. 449 (1957), Justice Frankfurter, speaking for the Court, held inadmissible confessions obtained in protracted post-arrest interrogation before arraignment and without counsel for the defense.
“ ‘The rôle of the Suprême Court in reviewing state-court criminal proceedings he saw as limited to guaran-teeing that “fondamental principles of liberty and justice” are upheld. McNabb v. United States, supra, p. 340. He acknowledged that there were many issues on which sincere exponents of constitutional rights could differ; resolution of these issues he believed to be the
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province of the State courts in the exercise of their judg-ment. See id., at 340; Wolf v. Colorado, 338 U. S. 25 (1949). Where, however, state courts refused to protect individuals from conduct offending the basic canons of decency and fairness, Justice Frankfurter did not hesi-tate to act. Rochin v. California, 342 U. S. 165 (1952).
“ ‘Courts in a démocratie society, he thought, should defer to elected officiais who had resolved conflicting legislative policies, retaining only the détermination whether législation is so unrelated to the expérience and feelings of the community as to be destructive of pop-ular rights. American Fédération of Ldbor v. American Sash & Door Co., 335 U. S. 538, 542 (1949) (concurring opinion). Popular rule he saw as a moral and practical impérative, a view which led him to support the consti-tutionality of the Smith Act, Dennis v. United States, 341 U. S. 494, 517 (1951) (concurring in affirmance), and of the compulsory flag salute in West Virginia’s public schools, required without regard to réligious scruples, Flag Salute Cases, 310 U. S. 586 (1940), 319 U. S. 624, 646 (1943) (dissenting opinion).
“ ‘He often said that “the most fundamental principle of constitutional adjudication is not to face constitu-tional questions but to avoid them, if at ail possible.” United States v. Lovett, 328 U. S. 303, 320 (1946) (concurring opinion). That this is not a négative principle in the hands of a resourceful judge, the Justice showed when he found a way to départ for the first time in over half a century from the judicial practice of “hands off” congressional investigations. United States v. Rumely, 345 U. S. 41 (1953).
“ ‘Yet when time and occasion were ripe, he did not shrink from the duty of judicial review. The historian of the Court will find Justice Frankfurter solidly aligned in the great collegial effort of school desegregation cases, Brown v. Board of Education, 347 U. S. 483 (1954), 349 U. S. 294 (1955) ; Cooper v. Aaron, 358 U. S. 1, 20 (1958) (concurring opinion). He insisted that a mature and
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self-reliant people were not meant to be insulated from the printed word as if they were children, Butler v. Mich^ igan, 352 U. S. 380 (1957); and in the same spirit that the college classroom may not be the object of official intrusion, Sweezy v. New Hampshire, 354 U. S. 234, 255 (1957).
“ ‘Idealist, optimist, and teacher, he found in Justice Holmes, his hero, his inspiration, a joy and spur to his spirit. Justice Brandeis was his mentor and guide. Like the latter he saw himself performing an educational rôle. He was a teacher because of his faith in democracy. With rare exceptions, he accepted the conséquences of popular rule, and did not lightly brandish the Constitution to ward them off. If the people erred, the remedy for the most part was éducation.
“ ‘But he was a professor as well as a teacher, and could not shed the habits of the classroom, which are not perhaps the most useful or becoming for the teachqr-at-large. He delighted in recounting how more than once Chief Justice Hughes at Conférence would begin to address him as “Professor Frankfurter” before quickly correcting himself to “Justice Frankfurter.” Character-istically this ended on one occasion with the Justice tell-ing the Chief Justice that he need not apologize in correcting himself. “I know of no title that I deem more honorable than that of Professor of the Harvard Law School.” (Of Law and Life and Other Things That Matter, p. 28.) It is a safe surmise that the teacher and practitioner of communicable reason, and the professor, manifested themselves not only in published opinions but in Conférence and in the other intimate relations of the Justices. An independent and even a surprisingly pri-vate person, he had a religious respect for the inde-pendence of others. But the Court is in its way a con-tinuous seminar, in and out of session, and we may be sure that Justice Frankfurter was a vigorous and con-tinuous participant.
XXXII MR. JUSTICE FRANKFURTER.
“ ‘As much as any of the men who hâve sat here, no less than Justices Brandeis or Van Devanter or Chief Justice Taft, he was painstakingly interested in the Court’s methods and routines of conducting its business. In a small group of self-reliant men working with very little staff, he thought nothing too trivial for improve-ment, nor any effort too great to foster the most favorable atmosphère for maturing the Court’s deliberative process. Only those who served with him can yet know the full value of his contribution to the inner organiza-tion and procedure of the Court. Outsiders may speak however of Justice Frankfurter’s deep attachment to an institution, which was the focus of his professional life for over half a century.
“ ‘The attachment was passionate and idealistic. He loved the Court not so much for what it was as for what it could be. If he felt on occasion that it fell short of his idéal, he scolded, pointing to what he believed to be faults and defects. For in the Court, the object of his passion, he could find no shortcomings tolerable. He had a vision, at once splendid and précisé, restricted and magisterial, of the greatness of the Court’s calling. Greatness for this Court, he held, was not a mere aspiration, but a duty and a necessity: Wherefore, it is
“ ‘Resolved, That we, the Bar of the Suprême Court of the United States, deeply saddened by the death of Mr. Justice Frankfurter, record our loss of the guidance and inspiration of a mentor who led some of us into the study of the law and whose influence from the Bench has brought out the professional best in ail of us, both by his clear delight in it and by his impatience with less ; of a judge who joined learning in the law and its history with love and respect for it, and added to his profound knowledge of this Court, its history and its business, vénération for its unique and powerful place in our gov-ernment; of a fellow citizen whose intense love of our country compelled complété dévotion to its precious and
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unique values and to the préservation of the institutions designed to safeguard them: It is further
“ ‘Resolved, That the Chairman of our Committee on Resolutions be directed to présent these Resolutions to the Court with the prayer that they be embodied in its permanent records.’ ”
Mr. Attorney General Katzenbach addressed the Court as follows:
“Mr. Chief Justice, may it please the Court:
“The Bar of this Court met this morning in memory of Félix Frankfurter, who was an Associate Justice of the Court from January 30, 1939, until August 28, 1962, and who died on February 22, 1965. Few men hâve devoted as much of themselves to this Court—it was, as the Justice said in expressing to the President his réluctance at leaving the Court, ‘the institution whose concerns hâve been the abiding interest of my life’—and few men hâve had so much of themselves to give: His was a towering intellect; he had the keenest of minds and the most facile of pens; he brought to the Court his boundless love of life and his work; and his understanding of the Nation and respect for its institutions could not hâve been more profound. Unquestionably, his service here was the triumphant culmination of the life of one of the great public men of the Century, as well as one of the brightest chapters in this Court’s distinguished history.
“I need not remind those who are gathered here of the emptiness which his passing has left. In this room espe-cially we recall the vivid and crackling excitement which was inevitably generated when he questioned counsel— challenged would perhaps be more appropriate—or deliv-ered an opinion. Those marks of the Justice are lost to us except in memory. Nor shall I attempt to speak of his rich and varied life and accomplishments outside the Court. Let me speak rather of what I believe to be his
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principal legacy to this and later générations—his force-fully articulated conception of the rôle of courts, and in particular of this Court, in the American political System.
“We should first understand something of the back-ground and expérience of the man. As a poor immigrant boy who by sheer force of intellect and character achieved great eminence in the public life of his adopted country, he knew at first hand, and passionately believed in, the promise of American life. The years before he came to the Court, moreover, coincided with the great reform era of the first décades of this century—a period when Con-gress and the President, and even more, perhaps, State législatures, were embarking upon programs of bold expérimentation in social justice and reform. In that day, judicial decisions which took a restrictive view of the regulatory powers of the State and Nation were a major stumbling block. Himself an impassioned reformer, Justice Frankfurter saw that the American ex-periment with democracy is a workable one—that govern-ment by the people through their elected représentatives can be vital and progressive; and he saw that the courts of that day, in contrast, were remote from popular cur-rents, and consequently ill adapted to function as an independent organ of social policy.
“His career in government and as a professer of law at Harvard confirmed the lessons of his youth. He came into contact with Holmes, Brandeis and Learned Hand, whom he revered and whose fundamental views he shared, although he imbued those views both with his own pas-sionate nature and with his own unique sense of the values of American institutions. His own researches added to his knowledge. His brilliant pioneering study of the labor injunction, for example, showed that there might be areas of social conflict to the resolution of which the processes of the courts were inherently ill suited. More important, at Harvard he became the first sys-tematic student of the Suprême Court as an institution. He acquired a scholar’s understanding of its strengths
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and limitations, and came to believe in the Court’s indispensable historié rôle as the arbiter of fundamental con-flicts of power within the American political System, concluding that its success in this rôle depended in very significant measure upon scrupulous adhérence to the procedures and limitations of a court of law.
“Perhaps the most important resuit of his years as a law professer specializing in the study of this Court was that he became imbued with a tenacious faith in reason, and in this Court as its embodiment in the political structure. Almost a quarter century of brilliant and lively teaching, scholarship, and polemics did not fail to instill in him a profound belief in the efficacy of the rational processes of the law and a reverence for this Court as the institution of government pre-eminently fitted to bring these processes to beaf upon the Nation’s fundamental problems—which, as de Tocqueville observed, are in-evitably presented sooner or later in judicial questions.
“These thèmes—faith in the American démocratie experiment and reverence for this Court as the embodiment of reason applied to the problems of government— explain, I think, much of Justice Frankfurter’s matured conception of the Court’s rôle. Congress and the State législatures, the basic organs of représentative government, were, in his view, designed to make social policy; the Court was not. The Court must, therefore, in Justice Frankfurter’s view, be most cautious in the exercise of its power to invalidate législation on constitutional grounds.
“The same resuit followed by a slightly different route. If the Court were truly to exemplify the application of reason to government, it would hâve to respect the com-petencies of the other organs of government—Congress and the President; State courts and législatures, fédéral trial judges and the fédéral regulatory agencies. If it went too far afield, in the long run it would only weaken itself. To the same end of preserving the Court’s prestige and effectiveness, he felt that it should adhéré
xxxvi MR. JUSTICE FRANKFURTER.
scrupulously to the procedures and traditions of a court of law, declining to pass upon any but cases in which the issues were focused and the facts digested in accordance with the strict requirements of the adjudicative process, and discharging its duties at ail times with meticulous craftsmanship and impartiality.
“It is popular today to speak of Justice Frankfurter’s philosophy of the rôle of courts as one of ‘judicial self restraint.’ Thus phrased, the Justice’s ideology becomes a négative conception and, indeed, a most implausible one in light of the man. For Félix Frankfurter was not a man who was either restrained or detached; he was, quite to the contrary, both deeply passionate and con-sumingly involved. ‘He was,’ as Prof essor Mansfield (a former law clerk) said on the occasion of his death, ‘the most unreserved of men.’ His view of his proper rôle as a judge did, it is true, require him more than once to sustain policies and results irreconcilably at war with his personal prédilections, and in this particular sense he may be said to hâve been restrained. A sharp example of such a dilemma early in his judicial career oc-curred in the second flag salute case, where the Justice found himself in dissent from a decision holding that a member of Jehovah’s Witnesses could not constitution-ally be compelled by a State législature to participate in a patriotic ceremony contrary to his religious beliefs. Recognizing, with unusual candor and éloquence, the line between his personal views and those he believed to be imposed upon the State législature by the Constitution, the Justice said:
“ ‘One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedom guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe
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equal attachment to the Constitution and are equally bound by our judicial obligations whether we dérivé our citizenship from the earliest or the latest immigrants to these shores.’
“That he nevertheless did not veer from his conception of the proper limitations of the Court bespeaks his fidelity to principle and his strong intellectual self-discipline. But it reflects much more as well—and I corne now to a second important aspect of his contribution to our political and judicial philosophy. It was his belief that the Court’s circumscribed rôle was a necessary corollary to the vigorous and progressive exercise of the policy-making function by the political organs of gov-ernment, to which that function has been primarily entrusted by the Constitution, as it must be in a free society. To be sure, he did not hesitate to invalidate laws fundamentally incompatible with democracy; his consistent position in the civil rights area bears witness to that. He taught not a universal solvent for constitu-tional problems, but, rather, a fundamental attitude : To equate strong distaste for a statute with its unconstitu-tionality would unduly stifle, and might ultimately de-stroy, the créative forces of democracy—upon which, responsibly exercised, we ultimately dépend for prog-ress and for liberty. Courts cannot undertake compre-hensively to exercise a policy-making rôle, and they must take care not to destroy the responsibility of those who do.
“These principles received a severe test near the close of Justice Frankfurter’s judicial career, in the reappor-tionment case (Baker v. Carr). The ill which the Court was asked to confront was a malady of représentative government itself, a malady, moreover, of the utmost gravity and nationwide in scope. Since a malappor-tioned législature could hardly be expected voluntarily to reapportion itself equitably, Justice Frankfurter was faced with the hardest of choices: between judicial action that in his view would only harm the Court without
xxxvm MR. JUSTICE FRANKFURTER.
promising a satisfactory solution to the problem of un-equal représentation (a problem that he considered po-litical rather than judicial in character) ; and judicial inaction which would leave the problem without fore-seeable solution. He chose the first horn of this dilemma. He spoke in these words:
“‘. . . [T]here is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers carefully and with deliberate forethought refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a démocratie society like ours, relief must corne through an aroused popular conscience that sears the conscience of the people’s représentatives.’
“I shall not présumé to appraise the choice made. My point is that for hiin this was no empty rhetoric; the principles of séparation of power and federalism were living guidelines, not mere clichés.
“In short, Justice Frankfurter’s conception of judicial self-restraint was not solely, or even primarily, focused upon inhibiting judicial power as such. To be sure, he was concerned that expanding the Courtes rôle beyond what he conceived to be its proper limits would deflect the Court from more basic duties, and impair its ability to discharge them adequately, and also that, outside the limited sphere of its competency, the Court would not be able to provide viable solutions to social and political problems. But he viewed the problem, at the same time, in the positive light of promoting a démocratie and just society. The choice to abstain in many vital areas was for him a practical and acceptable, and, if painful, still not intolérable, choice, because he believed that in the final reckoning the représentative organs of government must be relied upon to do, not shirk, their job. And he was convinced that the Court, if it took upon itself the task of righting ail of the Nation’s social wrongs, would
MR. JUSTICE FRANKFURTER. xxxix
find itself ill-equipped, while at the same time encourag-ing the political organs to shed their rightful burdens. They could be expected to act most responsibly only if accorded the full and awesome responsibility for mak-ing policy and political judgments; the best thing the Court could do, therefore, was to place the responsibility squarely where it belonged.
“I hâve tried to suggest that Justice Frankfurter’s view of the Court as an institution constrained to act within rigorous limits rested not so much on a négative view of the Court’s power and compétence, but more on an affirmative faith in reason, democracy, and the genius and fortune of the American political System to secure just solutions for essentially social or political problems outside the judicial arena. This faith did not exclude an important rôle for the Court. On the contrary, it suggested several important Creative functions. Let me mention, in the first place, the Court’s unique function as a teacher (as the Justice himself had been) and exemplar. We see this in the form and texture of his opinions. Written to instruct, explicit about their assumptions and implications, freighted with history and learning, they set a new style in judicial opinion-writing. We saw it too in his probing questions from the bench and his lively exchanges with counsel. The Court, he said, is ‘a tribunal not designed as a dozing audience for the rendering of soliloquies’ but ‘a questioning body, utilizing oral arguments as a means for exposing the difficulties of a case with a view towards meeting them.’
“As another example of the Court’s créative rôle, con-sider his consistent attitude toward the other organs of government whose actions or enactments he was called upon to enforce and review. While vigorously uphold-ing their autonomy (as in his famous Pottsvïlle opinion), and reluctant to second-guess their substantive déterminations, he was aggressive in interpreting statutes so as to effectuate Congress’ basic purpose (however imper-fectly expressed in the statutory language), and in en-
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forcing procédural regularity to compel the policy-making organs to act responsibly.
“As a reader of statutes—really the bulk of the Court’s business—Justice Frankfurter drew upon his great under-standing of the Nation and its processes. He was impatient with mechanical literalism divorced from the underlying purpose. In speaking of the Fourth Amend-ment, he once wrote: ‘These words are not just a literary composition. They are not to be read as they might be read by a man who knows English but has no knowledge of the history that gave rise to the words.’ He was realis-tic in his assessment of the practical limitations of the legislative process—the inability to provide for every contingency of statutory application; the difficulty of verbal précision in instruments whose phrasing is inev-itably a product of compromise. He also refused to abandon hope of finding behind a statute a cohérent legislative design that would give meaning and direction to the search for the ‘intent’ of Congress. This quest for purpose involved much more, of course, than resort to the committee reports and the record of debate. To him the legislative history of an Act comprised the history of prior enactments in the field, the mood and tem-per of the legislators, the events that gave rise to the legislative proposais, the changes the bill underwent be-fore it assumed its final enacted form. Above ail, he tried to understand the nature of the problem that had called forth the legislative response. If the Court could divine the legislators’ problem and trace in the rough the indicated fines of their solution, it was obligated to give the statute a construction that would help to achieve their end.
“This Creative and masterful sensitivity in the interprétation of statutes was surely one of the most fruitful products of his conception of the Court’s rôle. I empha-size that it was, indeed, rooted in that conception. His faith in représentative government implied to him a commitment to use the spécial resources of the judici-
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ary—power and skill in analysis and clarification—to help make the legislative process viable and productive, and his faith in Reason committed him to bring to the task of meaningful statutory construction ail the tools of cogent analysis: history and scholarship, imagination and understanding, practical expérience and common sense. The bold results of his approach are particularly évident in his famous opinions in the labor field, from Phelps Dodge to the second Garmon case.
“Justice Frankfurter’s view of the Court’s rôle also underlay his pioneering approach to cases involving a challenge to the validity of official action. He showed that the Court had a salutary rôle to play in encourag-ing responsible action. We see this most clearly in his opinions reviewing administrative decisions. In the early years of his career on the Court, such review had already gone through two phases. In the first, agency action that seemed to exceed lawful bounds had been unhesi-tatingly struck down, without more. In the second phase—a reaction to the first—the tendency had been to uphold agency action almost as a matter of course, and to exercise little judicial control over the administrative process. Justice Frankfurter found a middle ground between the extremes of judicial supervision and abdication—requiring that the agencies conform to procedures calculated to maximize the prospects for wise and rational decisions, while refusing in general to review the substantive wisdom of a decision responsibly made.
“His view of the Court’s function in such cases is ex-emplified by his landmark opinion in the first Chenery case. The agency, in its opinion, had placed decision on one ground ; in defending the decision in the Suprême Court, the agency’s appellate staff relied heavily on a different ground. Speaking for the Court, Mr. Justice Frankfurter held such a procedure impermissible. Con-gress had lodged the responsibility for decision in the members of the agency, and not in their appellate law-yers. If agency action was to be upheld, it should be
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on a ground considered and adopted by the agency itself. Only then would there be assurance that agency policy was being formulated deliberately and that responsibility was being assumed, not evaded, by those whom Congress made responsible.
“This notion is epitomized in a mémorable sentence from Justice Frankfurter’s McNdbb opinion: ‘The history of liberty has largely been the history of observance of procédural safeguards.’ What he meant, I believe, was that if the courts did no more than compel officiais to follow fair and proper procedures in enforcing the law—procedures that would require them to reason before deciding and to explain the basis of their actions— substantive rights would inevitably flourish.
“Consider also Justice Frankfurter’s devout insistence that the Court must never permit itself to become a party to injustice; never allow its image as an institution of reason and conscience to become tarnished. This lies at the root of the Justice’s steadfast stand against the admission of confessions obtained by the third degree or other illégal means. A conviction based on such methods could not be upheld without condoning wilful disregard of our society’s basic norms of fair procedure, and hence should not, he reasoned, be tolerated by the Court. The same idea explains his frank refusai to uphold convictions based on methods shocking to the conscience. His standard in the famous stomach-pump case (Rochin v. California) rested on a bold and forth-right, not a négative or passive, view of the Court’s rôle in the American govemmental System—as the keeper of the public conscience.
“His emphasis on procedure and on the Court’s duty to avoid injustice led him to play an active and forward rôle in the area of fédéral criminal justice. For example, it was Justice Frankfurter who, in the McNdbb case, significantly advanced the fertile concept that this Court has a broad ‘supervisory authority’ over the procedures of the lower fédéral courts in criminal cases. And in other
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areas where the élaboration of policy was peculiarly appropriate for courts—such as the enforcement of the Fourth Amendment—he was also in the forefront.
“In these remarks, I hâve made no effort to encompass or evaluate ail of Justice Frankfurter’s rich contributions to the law, this Court, and the Nation. I hâve concen-trated on his view of the Court’s rôle in society because it seems to me that there may be a particular value in reminding ourselves of the fullness, the maturity, and the affirmativeness of his view. To be sure, his philos-ophy is open to challenge both generally and in its application to spécifie cases. Men of originality and great-ness are inevitably men of controversy, and the Justice relished such battles. The heart of the matter lies be-yond agreement or disagreement. Justice Frankfurter contributed to the jurisprudence of this Court a cohérent, articulate, and rounded conception of its place and func-tion in the firmament of the American System. And to the law as a whole he brought a dévotion to the process of achieving justice through reason. Few hâve left so rich a legacy.
“May it please this Honorable Court: In the name of the lawyers of this Nation, and particularly of the Bar of this Court, I respectfully request that the resolution presented to you in memory of the late Justice Félix Frankfurter be accepted by you, and that it, together with the chronicle of these proceedings, be ordered kept for ail time in the records of this Court.”
The Chief Justice said:
“Mr. Attorney General:
“You and Mr. Acheson honor the Court in presenting to us these Resolutions of the Bar concerning the life and passing of our late-lamented Brother, Félix Frankfurter, and your felicitous words honor the profession of which we are ail a part and in which he so greatly distinguished
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himself for more than a half century as scholar, teacher, advocate, administrator and jurist.
“Félix Frankfurter was the 77th Justice appointed to this Court. Only 18 Justices served longer than did he, and none with gréa ter dévotion or distinction. In the 23 years he graced this Bench, he wrote 263 opinions for the Court, 171 concurring opinions, and 291 dissenting opinions, making a total of 725, thus bringing into sharp focus, as he was admirably equipped to do, the argumentative issues in the problems which confront us. These opinions cover a myriad of facets of American jurisprudence and are to be found in Volumes 306 to 369 of the United States Reports. Some of these hâve already been noted in the Resolutions which you présent and still others in your personal remarks. You hâve pointed up sharply both his legal philosophy and his application of it to the problems of his day.
“It would serve no good purpose to elaborate on them further at these proceedings because they are already recorded with us in a manner that will make them avail-able to the Bench, the Bar, and legal scholars so long as constitutional principles are a matter of concern in this and other lands. And so long as they are scrutinized, they will command respect and strike sparks of interest that otherwise might be overlooked. It should, therefore, be sufficient to say that in composite they portray his profound belief in and knowledge of constitutional principles, his deep sense of patriotism, and his lifelong dévotion to the Court as an institution.
His patriotism was of a passionate kind. Like many others who hâve corne here from other lands to live their lives in freedom, he had the deep-seated and abiding appréciation of the institutions of his adopted country. While so many others who are born here accept freedom as their birthright and fail to appreciate the necessity of guarding it zealously, he acted always as a sentinel on watch. Félix Frankfurter was ever grateful for his citizenship.
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“He was accustomed to telling young people that they, too, should be grateful for it and that, like the Romans, they should consider citizenship as an office. He always asserted that the basis of good citizenship is discipline— self-discipline—and that government, like individuals, should be self-disciplined. He believed fervently in the séparation of powers and in the division of powers, and that every branch of the government as well as every level of government should respect the others, and that by self-discipline each should confine its own activities strictly to its assigned functions. He believed that trou-blesome as some of the problems inhérent in it are, Fed-eralism is the genius of our institutions, and that it must be preserved in pristine form.
“Justice Frankfurter started early in life to discipline himself for citizenship. Two years after his arrivai in this country at the âge of twelve, he mastered the English language, and in due time graduated from college and Harvard School of Law. He was an assiduous student and an indefatigable reader. In neither capacity did he confine himself to the law; in neither did he hâve any bounds for his research. The économie, social and politi-cal problems of the day, the history behind them, as well as the current news were of equal interest to him. Ail of this later was reflected in his work on the Court.
“He believed citizens should serve their Government, and he did so avidly whenever called upon to do so, either full time or part time, both before and during the quarter of a century he was a Professor at Harvard. His govern-mental assignments were many and varied. The subjects he taught at the Law School and his writings were equally varied, but he always focused on the Suprême Court, its jurisprudence, its procedures, and its place in our Government. It is doubtful if anyone who has sat on this Court came to it better prepared for his task. In his twenty-three years here, his interest in our problems and ail of life never flagged.
XLVI
MR. JUSTICE FRANKFURTER.
“How he loved knotty problems ! He liked to research them; he delighted in enlightening the Court with his memoranda on difficult questions ; he reveled in discussing them at Conférence. His last active hour on the Court was spent lecturing on the history of the Interstate Commerce Commission on the occasion of the 75th anniversary of that agency. He never ceased to be a teacher. He believed implicitly in Mr. Justice Holmes’ statement that a page of history is worth a volume of logic.
“Yes, we miss him greatly. We miss his spontaneity; we miss his wit, his charm, and his fellowship. We also miss his occasional impatience when he thought the Court was departing from the standards he conceived for it. It was always therapeutic. He was a génial colleague as well as a great Justice.
“I believe Justice Frankfurter would hâve approved of this kind of Memorial Session of the Court where his friends are gathered in such numbers and where they not only déploré his loss to the Nation as one of its great public servants, but also where they give vent to their joy and satisfaction of having had the privilège of know-ing him and basking in the warm glow of his friendship.
“Mr. Attorney General; Mr. Acheson: On behalf of the Court, I thank you for your fine présentations today, and I ask you to convey, if you will, please, to ail the friends of Mr. Justice Frankfurter and his family our concurrence with them in their dévotion to his memory.
“Let the Resolutions be spread upon the Minutes of this Court.”
DEATH OF THE LIBRARIAN AND APPOINT-MENT OF SUCCESSOR.
Suprême Court of the United States.
MONDAY, NOVEMBER 8, 1965.
Présent: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Fortas.
The Chief Justice said:
“On behalf of the Court, I announce with deep regret the death of our Librarian, Miss Helen Catherine Newman, on July 21, 1965.
“Miss Newman, a native Washingtonian, received her bachelor of laws and master of laws degrees from George Washington University Law School. After her graduation, she served for 15 years as Law Librarian at her Alma Mater. In 1942, she came to the Court as an Assistant Librarian. Five years la ter, on March 31, 1947, she was appointed Librarian, and in 1948 became an officer of the Court by law.
“During her long service with the Court and prior thereto, Miss Newman was active in library, legal, and academie affairs, and particularly in matters concerning the American Association of Law Libraries. She was in every sense of the word a professional librarian, and in her quiet, dignified manner rendered loyal and efficient service to the Court. She was devoted to the Court, and brought to it many fine qualifies which won for her the respect of the Justices under whom she served as well as the admiration and friendship of those with whom she came in contact in the course of her varied duties.
XLVII
xlviii SUCCESSION OF LIBRARIANS.
“The Court records its appréciation of Miss Newman’s able and conscientious service and extends to her surviv-ing relatives its sincere sympathy.
“On a happier note, I am pleased to announce for the Court the appointment of Henry Charles Hallam, Jr., to be Librarian of the Court succeeding Miss Newman.
“Mr. Hallam has long been a trusted and faithful employée of the Court. He first came here as a Page in 1928, and began his service with our Library as a Junior Library Assistant in 1935. In 1947, he was appointed Associate Librarian and has served in that capacity to the présent time. We are confident that Mr. Hallam will continue to serve efficiently and effectively and that he will be a worthy successor to the four other individuals who hâve preceded him in this very important position with the Court.”
For order of appointment of Mr. Hallam, see post, p. 898.
DEATH OF MR. HENRY A. WALLACE.
Suprême Court of the United States.
THURSDAY, NOVEMBER 18, 1965.
Présent: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Fortas.
The Chief Justice said:
“It is with great regret that I announce the Court has just heard the sad news of the passing of the Honorable Henry A. Wallace, former Vice President of the United States.
“Mr. Wallace was a great American who performed invaluable public service to the Nation as Secretary of Agriculture, Secretary of Commerce, and Vice President of the United States. He was a public-spirited man and a useful citizen throughout his long and purposeful life.
“The Court will now adjourn out of respect to his memory.”
786-211 0-66—4
XLIX
TABLE OF CASES REPORTED
Note: Cases reported before page 801 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 801 et seq. are those in which orders were entered.
Page
A and B v. C and D........................................ 926
Abbamonte v. United States................................ 982
Abe v. Richardson......................................... 807
Accardi v. Pennsylvania R. Co............................. 808
Accardi v. United States.................................. 954
Acosta v. Fitzharris...................................... 850
Acufif v. Cook Machinery Co.......................... 805,1003
Adamowski, Bennett v...................................... 895
Adams v. Rundle........................................... 912
Adams v. United States.................................... 975
Adams Dairy, Labor Board v............................... 1011
Addabbo v. Donovan........................................ 905
Adderley v. Florida...................................... 1023
Adelman v. Lower Minn. River Watershed Dist............... 108
Aderholdt, Lewis v...................................... 4	872
Adjmi v. United States..............,..................... 823
Adley Corp., McFaddin Express v...................... 912,1026
Aetna Ins. Co., DeRosa v.................................. 980
Aetna Ins. Co. v. United States........................... 979
Aircraft & Engine Employées	v.	I.	E.	Schilling	Co....	972
Aircraft & Engine Employées	v.	Oolite	Concrète	Co.....	972
Air Line Pilots Assn., Oling v.............................	926
Alabama, Armstrong	v................................... 991
Alabama, Lang v........................................... 911
Alabama, Mills v.......................................... 936
Alabama, Snell v.......................................... 896
Alabama, Streeter v...................................... 1028
Alabama, Swain v.......................................... 944
Alabama, United States v.............................. 889,897
Alabama Bar Comm’rs, Griffith v........................... 988
Alabama Highway Express*v. United States.................. 106
Alabama Revenue Comm’r, Harrigan v...................	981
ni
lu TABLE OF CASES REPORTED.
Page
Alamo Express, Inc. v. United States...................... 19
Alaska, Merrill v....................................... 1020
Albanese v. N. V. Nederl. Amerik Maats............... 283,1000
Albanese, N. V. Nederl. Amerik Maats. v.................. 283
Albertson v. Subversive Act. Cont. Bd..................... 70
Albritton Eng. Corp. v. Labor Board...................... 815
Alexander, Bowens v...................................... 899
Alexander v. United States............................... 993
Alford v. Arizona....................................... 1020
Allen v. Rundle.......................................... 857
Allen, Vetere v.......................................... 825
Allstate Ins. Co., Merrick v............................. 957
Ail States Investors, Bankers Bond Co. v............. 830,922
Alsip Village v. United States........................... 906
Altiere v. United States................................. 367
Altman, Stevenson v...................................... 930
Aluminum Co. of America v. United States.................. 12
Amalgamated. For labor union, see name of trade.
Amaral v. Florida........................................ 990
Ambold v. Seaboard Air Line R. Co........................ 831
Amell v. United States................................... 810
American Airlines, Arber v............................... 907
American Bakery Workers v. Labor Board................... 827
American Compress Warehouse v. Labor Board............... 982
American Cyanamid Co., Rosenblatt v................. 110,1002
American Légion v. United States......................... 824
American Nat. Bank, Dewey v.............................. 821
American Society of Composers, Metromedia v........... 38,877
American Tech. Mach. Corp., Caparotta v.................. 842
American Tech. Mach. Corp., Kings Brush Co. v............ 842
American Trucking Assns. v. United States............ 372,373
Ammex Warehouse Co., Texas Liquor Control Bd. v.........	977
Anderson, Bey v.......................................... 804
Anderson, Halko v....................................... 1011
Anderson v. Harris....................................... 894
Anderson, Parson v....................................... 806
Anderson v. United States........................ 880,922,991
Andrews v.	Murphy...................................... 999
Andrews v.	San Bernardino.............................. 978
Andrews v.	Smith...................................... 1029
Andrews v.	United States........................... 956,1021
Andrews Van Lines v. United States........................ 67
Angelini v. United States................................ 838
TABLE OF CASES REPORTED.
LUI
Page
Anonymous, In re v. Co-ordinating Committee................. 902
Anthony Grâce & Sons, United States v....................... 901
Aranda v. California........................................ 952
Arber v. American Airlines.................................. 907
Arceneaux, Hudson v......................................... 858
Archie v. New Mexico........................................ 804
Arizona, Alford v....................................... 1020
Arizona, LeVar v............................................ 948
Arizona, Miranda v.......................................... 925
Arizona, Schantz v......................................... 1015
Arkansas, Ridgeway v........................................ 902
Armenta v. Dunbar........................................... 965
Armstrong v. Alabama........................................ 991
Arnebergh, California Démocratie Council v.......s.........	202
Arnold v. Bostick........................................... 858
Arnold, Schwinn & Co., United States v...................	936
Arrien, Michigan Mutual Liability Co.	v...................	835
Arwine v. Bannan............................................ 882
A/S Glittre, Tjonaman v..................................... 873
Ashlock Co., Atlas-Pacific Eng. Co. v......................	842
Ashton v. Kentucky.......................................... 971
A/S Skaugaas v. Dredge Cartegena............................ 918
Associated Press v. Cincinnati Times-Star Co................ 820
Associated Press v. Taft-Ingalls Corp....................... 820
Associated Press, Taft-Ingalls Corp. v................... J. 820
Association. For labor union, see name of trade.
Atchison, T. & S. F. R. Co., Canada Packers v............... 803
Atchison, T. & S. F. R. Co., Chance v....................... 939
Atkins v. Kansas....................................... 964,1002
Atkinson v. United States................................... 867
Atlantic Gulf & Pac. Co. v. Gerosa.......................... 368
Atlantic & Gulf Stevedores v. Ellerman Lines................ 812
Atlantic Ref. Co. v. Fédéral Trade Comm’n.......... 873,939,1000
Atlas-Pacific Eng. Co.	v. Ashlock Co........................ 842
Atlass, Darr v.............................................. 988
Atlass, Muth v.............................................. 988
Atomic Oil Co. of Okla. v. Bardahl Oil Co.................. 1010
Attorney General, Earnshaw v................................ 969
Attorney General, Evans v................................... 969
Attorney General, Ivy v..................................... 958
Attomey General, Louisiana v................................ 950
Attorney General v. Morgan................................. 1007
Attorney General,	O’Callahan	v............................ 1017
LIV
TABLE OF CASES REPORTED.
Page
Attorney General, South Carolina v.................... 898,967
Attorney General of Massachusetts, “John Cleland’s Memoirs”
v........................................... 900,934,951,968
Attorney General of New Hampshire, DeGregory v...........	877
Attorney General of South Carolina, Beck v................ 454
Aubel v. United States................................... 1015
Auerbach v. United States................................. 958
Austin v. Maine.......................................... 1018
Austin Presbyterian Theological Seminary, Moorman v......	957
Auth v. New York.......................................... 863
Automatic Feeder Co., Automation Devices v................ 974
Automation Devices v. Automatic Feeder Co................. 974
Automation Devices v. Smalenberger........................ 974
Automobile Workers v. Fafnir Bearing Co................... 205
Automobile Workers v. Hoosier Cardinal Corp............... 808
Automobile Workers v. Scofield............................ 205
Avallone v. United States................................. 826
Avgikos v. Louisiana...................................... 873
Ayres, Smith v............................................ 367
Babare, Fernandez v....................................... 107
Babcock Blvd. Land Co. v. Pennsylvania.................... 906
Babineaux, Seacat Marine Drilling Co. v.................... 16
Bâche v. Engelmohr........................................ 950
Baer, Rosenblatt v........................................ 802
Bailey, Lyons v........................................... 965
Bailey v. Rhay............................................ 963
Bain v. Nicodemus......................................... 891
Baker v. Illinois........................................ 1029
Baker v. Simmons Co....................................... 820
Bakery Workers v. Labor Board............................. 827
Baies v. Hayes...........................................  857
Baies v. Heinze........................................... 896
Bail v. United States..................................... 907
Ballentine Produce, Glick v............................... 891
Baltimore & O. R. Co., Haley v............................ 861
Baltimore & O. R. Co., Taylor	v.......................... 831
Baltimore Police Dept., Kaufman v................... i...	849
Bankers Bond Co. v. Ail States	Investors.............. 830,922
Bank of America v. Fédéral Reserve Bank................... 984
Bank of America v. United States..................... 927,1000
Banks v. California....................................... 420
Banks v. United States.................................... 818
Bannan, Arwine v.......................................... 882
TABLE OF CASES REPORTED.	lv
Page
Bannan, Crawford v....................................... 873
Bar Assn. of New York City, Schildhaus v................. 370
Bardahl Oil Co., Atomic Oil Co. v....................... 1010
Barksdale v. Louisiana................................... 921
Bamard v. United States............................. 948,1002
Bames v. Missouri........................................ 953
Bames v. Sind............................................ 891
Bames v. United States................................... 851
Barnosky v. Maroney...................................... 963
Barrios v. Florida....................................... 969
Barwick Mills, Mohasco Industries v......................	847
Batchelor v. United States............................... 870
Bâtes v. Board of Liquor Control......................... 822
Bâtes v. United States................................... 984
Bâtes v. Wilson.......................................... 964
Battaglia v. United States.......................... 955,1021
Baxstrom v. Herold....................................... 968
Baylor v. United States.................................. 852
Beasley v. Texas......................................... 990
Beasley v. Texas Casualty Ins. Co........................ 994
Beatty v. United States................................. 1028
Beazley v. Orsinger...................................... 932
Beck v. McLeod........................................... 454
Becker v. California..................................... 999
Becker v. Matteawan State Hosp. Supt................ 947,1002
Bell v. Kentucky........................................ 1020
Bell v. Texas........................................... 1023
Bell v. United States..................................   882
Bencel v. Frost.......................................... 831
Bendix Corp., Nyyssonen v............................ 847,934
Bennett v. Adamowski..................................... 895
Bennett, Farrant v.............................4........	868
Bennett v. Pâte.......................................... 895
Benny Skou, The, Pisano v................................ 938
Bent v. United States.................................... 869
Bentley v. Kentucky...................................... 995
Benveniste v. Denno...................................... 864
Berata v. United States.................................. 812
Berdecia, Nicole v....................................... 826
Berg, Midwest Laundry Equip. Corp. v..................... 974
Berman v. Fay............................................ 874
Berman v. Herrick........................................ 892
Berman v. Lewis Tower Bldg............................... 892
LVI
TABLE OF CASES REPORTED.
Page
Berner v. British Commonwealth Pac. Airlines.................. 983
Berry v. State Tax Comm’n.................................. 16
Bertrand v. Louisiana...................................... 960
Beto, Cruz v.................................................. 804
Beto, Davis v........................................... 804,922
Beto, Fletcher v............................................. 868
Beto, Hollis v.............................................. 1020
Beto, Muench v............................................... 852
Beto, Reed v................................................ 1025
Bettilyon’s, Inc. v. Utah Road Comm’n....................... 1010
Bey v. Anderson............................................ 804
Bianchi, Griffing v.............................;............. 15
Bianchi & Co. v. United States............................... 841
Biggs, Miller v............................................... 805
Billings, Chisholm v......................................... 839
Billy Mitchell Village v. New York Ins. Co................... 941
Birdsell v. United States.................................... 963
Birdwell, Pearson v.......................................... 858
Birmingham, Shuttlesworth v................................... 87
Black v. United States......................................  854
Blackwell, Wright v.......................................... 880
Blair, Wolf v................................................ 941
Blanchard v. St. Paul Ins. Co................................ 829
Blanchard Const. Co. v. St. Paul Ins. Co..................... 829
Blankenship, Williamson v............................... 923,1030
Blasetti v. Warden........................................... 921
Blau v. Max Factor &	Co................................. 892
Bloombaum v. Maryland........................................ 973
Blue, United States v........................................ 971
Blunt v. New York............................................ 881
Boan v. Idaho................................................ 952
Board of Comm’rs of Alabama Bar, Griffith v.................. 988
Board of Education, Parker v................................ 1030
Board of Liquor Control, Bâtes v............................. 822
Board of Liquor Control, Fratelli’s Restaurant v............. 822
Board of Parole, Saylor v.................................... 909
Board of Regents, Ciofalo v.................................. 942
Board of Regents, Stemfels v................................. 901
Board of Supervisors v. Bianchi............................... 15
Bohanon v. New	York	Central R. Co........................ 948
Boire, Miami Herald	Pub.	Co. v.............................. 824
Boles, Cephas v.............................................. 969
Boles, Sheftic v............................................. 970
TABLE OF CASES REPORTED.
LVII
Page
Boles v. Texas............................................ 930
Boles, Truslow v.......................................... 970
Bomar, Davis v............................................ 883
Bomar, Dillard v.......................................... 883
Bomar, Segars v........................................... 960
Bond v. Twin Lakes Réservoir	Co.......................... 902
Book “John Cleland’s Memoirs” v. Attorney General of
Massachusetts ................................ 900,934,951,968
Bookwalter v. California Adult Authority.................. 931
Borden Co., Fédéral Trade	Comm’n v........................ 807
Borough. See name of borough.
Borst v. Brenner.......................................... 973
Bostick, Arnold v......................................... 858
Boston Redevelopment Auth., Moskow v...................... 983
Bouas, Sociedad Maritima San Nicholas v.................. 1025
Boughner v. Schulze....................................... 919
Bouligny, Inc., Steelworkers v............................ 145
Bowden v. California Adult Authority...................... 965
Bowens v. Alexander....................................... 899
Bowers v. United States................................... 863
Bowman v. Lake County Pub. Bldg. Comm’n.................... 13
Braadt v. New York Dept. of Sanitation..................... 21
Brabson v. Wilkins........................................ 997
Bracer v. United States................................... 954
Bradford v. Commissioner.................................. 868
Bradley v. School Bd. of Richmond.*....................... 103
Bradley v. United States................................. 1016
Branch v. Mills & Lupton Supply Co........................ 997
Brandano v. Handman....................................... 841
Brasch v. State Compensation	Ins. Fund............... 942,1000
Bratt v.	Crouse.......................................... 932
Brenner,	Borst	v......................................... 973
Brenner,	Eckel	v......................................... 907
Brenner, Hazeltine Research	v................. 252,876,1000
Brenner,	Mack	v......................................... 983
Brick, Lloyd v............................................ 366
Bridges v. Florida........................................ 854
Briggs, M & J Diesel Corp. v.............................. 801
British Commonwealth Pac.	Airlines, Berner v............ 983
Broadnax v. United	States............................... 974
Broadwell v. United	States............................... 825
Brookhart v. Ohio................................. 810,899,968
Brooks v. Florida........................................ 1015
lviii
TABLE OF CASES REPORTED.
Page
Brooks v. Illinois.......................................  945
Brooks v. United States................................... 963
Brotherhood. For labor union, see name of trade.
Brough, Brown v....................................... 910,962
Brown v. Brough....................................... 910,962
Brown, Deniers v...................................... 818,933
Brown v. Florida.......................................... 804
Brown, Grimble v.......................................... 861
Brown, Hargrove v......................................... 883
Brown v. Thompson......................................... 940
Brown v. United States............................ 848,904,1028
Brown v. West Virginia.................................... 945
Brown v. Zuckert.......................................... 998
Brown Shoe Co., Fédéral Trade Comm’n v.................... 808
Bruce v. Pennsylvania....................................  868
Bruchon v. United States.................................. 946
Bruzee, Harris v.......................................... 866
Bryan, Pepperidge Farm v.................................. 824
Bryant, Fair v............................................ 862
Bryant v. Fay............................................. 990
Brye v. Wainwright.................................... 930,1002
Buchanan, Husk v......................................	954
Buck v. Superior Court of Calif........................... 834
Buckeye Cellulose Corp., Hodges	v....................... 160
Budner v. New York.................................... 860,933
Buffington v. Martin...................................... 910
Bullock v. Virginia.................................. 927,1000
Bumb v. Hartwell Corp..................................... 891
Bumb v. Suhl.............................................. 938
Bund v. LaVallee.......................................... 867
Burchinal v. United States................................ 843
Bureau of Employées Comp., Michigan Mutual Co. v...............	835
Bureau of Fédéral Prisons, Bowens v....................... 899
Burge v. United States.................................... 829
Burke v. United States..................................   880
Burlington Broad. Co. v. Fédéral Com. Comm’n.............. 892
Bumette v. Davis........................................... 42
Bumham Van Service v. Pentecost........................... 106
Bums, Fair v.............................................. 996
Bums v. Harris............................................ 960
Bums v. Richardson........................................ 807
Burton v. Indiana......................................... 858
Burton v. United States................................... 932
Bush v. United States..................................... 995
TABLE OF CASES REPORTED.
LIX
Page
Butler v. United States.......................................... 847
Butler v. Weakley................................................ 994
Butte City Council, Dawson v..................................... 863
Butts v. Harrison................................................ 806
Buzard, California v............................................. 386
Byers v. Crouse.............................................. 860,933
Byrd v. Oregon................................................... 865
Bymes v. United States........................................... 997
Cagle v. Harris.................................................. 965
Caldwell v. Underwood............................................ 805
Calhoun v. Pâte............................................. 945,1002
California, Aranda v............................................. 952
California, Banks t»............................................. 420
California, Becker v............................................. 999
California v. Buzard............................................. 386
California, Carreon v..........................................   995
California, Corcoran v..................................... 1019
California, Crâne v......................................... 856
California, Davis v......................................... 881
California, Derfus v.......................................  955,1021
California, Ellhamer v...................................	877
California v. El Paso Nat. Gas Co................................ 970
California, Fairfax Family Fund v........................	1
California v. Fédéral Power Comm’n.......................... 941
California, Feist v...........................................   1030
California, Fields v........................................ 858
California, Fierro v............................................  999
California, Finley v...................................... 1017,1019
California, Frazier v....................................... 988
California, Gallagher v..................................... 994
California, Gharibians v.................................... 954
California, Gilmore v...................................... 1017
California, Gray v.......................................... 989
California, Green v......................................... 993
California, Heaps v............................... 4 .....	.	955
California, Henriques v..................................... 813
California, Hensel v........................................ 942
California, Hernandez v..................................... 909
California, Hunt v.......................................... 920
California, Irving v............................................  962
California, James v........................................ 1022
California, Johnson v....................................... 999
California, Keller v........................................ 43
California, Kirk v.......................................... 989
lx TABLE OF CASES REPORTED.
Page
California, Lyons v.......................................... 866,995
California, Machel v.............................................. 839
California, Macias v.............................................. 993
California, Madden	v........................................ 969
California, McCoy v............................................... 846
California, Menacho	v........................................ 960
California, Meyes v.......................................... 962,998
California, Miller v.............................................. 990
California, Millwood	v........................................ 949
California, Montoya	v........................................ 930
California, Moore v............................................... 861
California, Moss v............................................... 1018
California, Nauton v.............................................. 864
California, Nelson v......................................... 964
California, Nuole v......................................... 1013
California, Olguin v......................................... 859
California, Postell v........................................ 963
California, Powers v......................................... 908
California, Rahmoeller	v.................................. 975
California, Reid v........................................... 995
California, Robbins v....................................... 1017
California, Ross v.....................................j.	998
California, Schmerber v..........................................  971
California, Selz v.......................................... 1013
California, Silver v......................................... 856
California, Sims v................................................ 947
California, Smith v.......................................... 804
California v. Stewart..................................... 937,952,969
California, Summers v........................................ 857
California, Tahtinen v....................................... 920
California, Tillman v........................................ 962
California, Traganza v....................................... 995
California, United States v..................................  448,889
California, Waltreus v....................................... 853
California, Wellman v....................................... 1029
California, White v..........................i............	994
California, Williams v....................................... 1007,1028
California, Wilson v......................................... 882
California Adult Authority, Bookwalter v.......................... 931
California Adult Authority, Bowden v.....................	965
California Adult Authority, Muza v........................... 870,921
California Co. v. Kuchenig........................................ 985
California Démocratie Council v. Amebergh......................... 202
California Dist. Court of Appeal, Herring v....................... 935
TABLE OF CASES REPORTED.
LXI
Page
California Industrial Accident Comm’n, Smith v............	860
California Pub. Util. Comm’n, Green v.................. 1006,1009
California Pub. Util. Comm’n, Jim Green’s Trucking v.. 1006,1009
California Pub. Util. Comm’n, Northwestern P. R. Co. v.....	370
California Pub. Util. Comm’n, Victoria Water Co. v.........	940
California Superior Court, Buck v............................ 834
California Superior Court, Rudick v.......................	976
California Superior Court, Walker v................. 875,923,1001
California Superior Court, Watkins v.................... 935,1010
Callery Properties, Fédéral Power Comm’n v.............. 223,1001
Callery Properties, Public Serv. Comm’n of N. Y. v...... 223,1001
Callery Properties, United Gas Improvement Co. v........ 223,1001
Calumet Harbor Terminais v. Norfolk & W. R. Co............... 913
Calvert, El Paso Elec. Co. v.................................. 18
Calzavara v. United States................................... 829
Camco, Inc. v. Labor Board................................... 926
Cameron, Lake v.............................................. 863
Cameron, Whittington v....................................... 855
Campbell v. Kemer............................................ 996
Campbell v. United States................................... 1024
Campbell Soup Co., Hesmer Foods, Inc. v..................	839
Canada Packers v. Atchison, T. & S. F. R. Co................. 803
Canady v. Wilkins............................................ 867
C and D, A and B v........................................... 926
Cantrell v. Maxwell.......................................... 895
Caparotta v. American Tech. Mach. Corp....................... 842
Capital Airlines, Goranson v................................. 984
Capital Airlines, Skahill v.................................. 878
Capolino v. Kelly............................................ 858
Capson v. United States...................................... 911
Cardarella v. United States............................ 1017,1020
Cardona v. Power............................................ 1008
Cargill, Inc., Clark Marine Corp. v......................... 1011
Carlo Bianchi & Co. v. United States......................... 841
Caïman, Thomson v............................................ 940
Carpenter v. Kansas.......................................... 948
Carpenter Body Works v. McCulley............................. 979
Carpenters v. Reynolds Elec. & Eng. Co....................... 905
Carreon v. California........................................ 995
Carrier Corp., J. E. Schechter Corp. v....................... 904
Carroll v. U. S. District Court.............................. 981
Cartegena, A/S Skaugaas	v................................ 918
Carter, Gravley v............................................ 848
Carter v. United States.............................. 857,888,949
LXII
TABLE OF CASES REPORTED.
Page
Carter v. Winter......................................... 825
Carter Paint Co., Fédéral Trade Comm’n v...............	46
Cascade Nat. Gas Corp. v. El Paso Gas Co................. 970
Casco Prod. Corp., Knapp-Monarch Co. v................... 828
Cassese v. Peyton......................................... 21
Castille, Simon v........................................ 932
Castillo v. Fay......................................... 1019
Castle v. United States.................................. 874
Castro v. United States................................. 1029
Catena v. Gennetti....................................... 866
Catherwood, Port Chester v............................... 818
Catto, United States v............................... 925,968
Cavanaugh, Whaley v...................................... 872
Central of Georgia R. Co., Locomotive Firemen v.........	841
Central Packing Co. v. Ryder	Truck Rental................ 827
Cephas v. Boles.......................................... 969
Cephus v. United States.................................. 897
Cerrano v. Fleishman..................................... 855
Cervantes v. Rhay....................................... 1019
Chance v. Atchison, T. & S. F. R. Co....................  939
Chance v. Kansas........................................ 1019
Chandler v. David........................................ 977
Chandler v. Judicial Council of	lOth	Circuit.......... 1003
Chandler,	Wallach v..................................... 806
Chaparro	v. Jackson	& Perkins Co....................... 931
Chapman	v. Russell.................................... 999
Chapman	v. United	States.......................... 909
Chase v.	Robbins...................................... 1029
Chase Manhattan Bank, Klebanow	v...................... 890
Chatsworth Market. Assn. v. Interstate Com. Comm’n... 938,1000
Cheff v. Schnackenberg................................... 917
Chernivsky, Welsh Co. v.................................. 842
Cherrin Corp. v. Labot Board............................. 981
Cheyenne River Indians v. United States.................. 815
Chicago, B.	&	Q. R. Co., Chicago & N. W. R. Co.	v.....	422
Chicago, B.	&	Q. R. Co., Interstate Com. Comm’n	v.....	422
Chicago & N. W. R. Co. v. Chicago, B. & Q. R. Co........	422
Chicago, R.	I.	& P. R. Co., Hardin v........ 423
Chicago, R.	I.	& P. R. Co., Locomotive Engineers	v.....	423
Chicago, R. I. & P. R. Co. v. McConnell Hauling.......... 927
Chief Justice of 111. Sup. Ct., DeSimone v............... 805
Chisholm v. Billings..................................... 839
Choy v. United States.................................... 871
Christian & Assoc. v. United States...................... 821
TABLE OF CASES REPORTED.
LXIII
Page
Chrysler Corp., Tradeways, Inc. v........................	832
Chung Leung v. Esperdy..................................... 891
Cimino v. United States................................... 1015
Cincinnati Times-Star Co., Associated Press v.............. 820
Ciofalo v. Board of Regents................................ 942
Circuit Judge. See U. S. Circuit Judge.
City. See also name of city.
City Council of Butte, Dawson v.........................	863
Civil Aeronautics Bd., Railway Express Agency v............ 879
Civil Service Comm’n, Higginbotham v....................... 853
Civil Service Comm’n Chainnan, Stebbins v............... 41,949
Civil Service Comm’n Chairman, Studemeyer v................ 834
Clark v. Illinois...................................... 910,966
Clark v. Payne............................................. 874
Clark v. Wainwright........................................ 989
Clark Marine Corp.	v. Cargill, Inc........................ 1011
“Cleland’s, John, Memoirs” v. Attorney General of Massachusetts ...................................... 900,934,951,968
Cléments v. Illinois................................... 827
Gemmons, White v....................................... 994
Clerk of Cook County Court, Stevenson	v............... 930
Clerk of U. S. Suprême Court, Morrison v................ 1022
Clerk of U. S. Suprême Court, Thomas	v................ 875
Cleveland v. Public Util. Comm’n of	Ohio............... 982
Cline v. Dunbar....................................... 804,1003
Close v. United States................................. 992
Coash, Doster v.........................................	805
Coast Guard Commandant, Pew v.......................... 421
Cobey, Curtis v........................................ 947
Coe v. Helmerich & Payne............................... 980
Coggins v. United States.............................. 1017
Cohen, Finfer v....................................... 883,949
Cohn, Dempster Bros, v................................. 878
Coil v. United States.................................. 821
Cole v. Russell........................................ 952
Coleman v. McGettrick.................................. 834
Collier v. United States............................. 890,936
Colligan v. New York................................... 880
Collins v. Kentucky.................................... 881
Collins v. Klinger..................................... 997
Collins v. Markley..................................... 946
Colorado, Cruz v....................................... 869
Colorado, Gomez v...................................... 920
Colorado, Kansas v..................................... 801
LXIV
TABLE OF CASES REPORTED.
Page
Colorado, Martinez	v.................................... 866
Colorado, Melton v...................................... 1014
Colorado, Quintana	v................................... 1013
Colorado, Ruark v........................................ 882
Colorado, Salardino	v.................................. 1012
Colorado, Smaldone	v.................................. 1012
Colorado Milling Co. v. Terminal Railroad Assn........... 989
Colson Corp. v. Labor Board.............................. 904
Coïter v. United States.................................. 920
Columbus Bar Assn., Dargusch v........................... 845
Comfy Babe Co., Welsh Co. v.............................. 842
Commerce Loan Co., Perry v............................	889
Commissioner, Bradford v.............................. 868
Commissioner v. Fender Sales.......................... 813
Commissioner, Finfer v............................... 883,949
Commissioner, Gardens of Faith, Inc. v................... 927
Commissioner,	Geiger	Estate v.......................... 1012
Commissioner,	Harris	v.................................. 931
Commissioner, Indiana Broad.	Corp.	v........ 1027
Commissioner,	Marth	v.................................. 844
Commissioner,	Miller	v.................................. 888
Commissioner, Overlakes Corp.	v....................... 988
Commissioner, Randall v.................................. 873
Commissioner, Shamrock Oil & Gas Corp. v................. 892
Commissioner, Shephard v................................. 813
Commissioner v. Sperling Estate.......................... 827
Commissioner v. Tellier..........K....................... 808
Commissioner, Tellier v.................................. 817
Commissioner, United Draperies	v....................... 813
Commissioner, Van Zandt v................................ 814
Commissioner, Willow Terrace Dev. Co. v.................. 938
Commissioner, Wilson v.............................. 108,1021
Commissioner of Agriculture & Markets, Swift & Co. v....	111
Commissioner of Internai	Revenue.	See Commissioner.
Commissioner of Patents,	Borst v...................... 973
Commissioner of Patents,	Eckel v..................... 907
Commissioner of Patents,	Goodyear	Co. v....... 973
Commissioner of Patents,	Hazeltine	Research	v. 252,876,1000
Commissioner of Patents,	Mack v...................... 983
Commissioner of Patents,	Pollack v.................. 893,949
Commissioner of Revenue	of Ala., Harrigan v......... 981
Commonwealth. See name of Commonwealth. Communications Commission. See Fédéral Com. Comm’n.
Comptroller of New York City, Atlantic Gulf Co. v.......	368
TABLE OF CASES REPORTED.
LXV
Page
Conerly v. United States.................................. 1018
Conley, McCarthy v......................................... 838
Conneaut Lake Park, Wood v................................. 865
Connecticut, McNally v..................................... 948
Conner v. United States.................................... 908
Conover v. Herold...................................... 912,990
Consolidated Freightways Corp. v. United States............ 802
Conte v. United States..................................... 926
Continental Baking Co., Utah Pie Co. v..................... 914
Continental Grain Co. v. Washington........................ 978
Continental Oil Co., Great Lakes Carbon Corp. v............ 905
Convoy Co. v. United States................................ 371
Conway v: Virginia......................................... 958
Cook, United States v...................................... 953
Cook County Court Clerk, Stevenson v....................... 930
Cook Machinery Co., Acuff v......................... 805,1003
Cooper v. Florida.......................................... 953
Cooper v. United States.-................................. 1029
Coor v. United States..................................... 1013
Co-ordinating Comm. on Discipline, Anonymous v............. 902
Co-ordinating Comm. on Discipline, Fata v.................  917
Copestick v. Rhay......................................... 1020
Copestick v. Washington................................... 1016
Corcoran v. California.................................... 1019
Corcoran v. Yorty..................................... 966,1002
Corey v. United States..................................... 911
Corporation Comm’n, Vogel v................................ 815
Corpus Christi, Hammonds	v.......................   837
Cottonwood Creek Conserv.	Dist., Snyder v.................. 943
County. See name of county.
Court of Appeals. See U. S. Court of Appeals.
Cox, Lucero v.............................................. 964
Cox, Peters v863
Cox, Salazar v............................................. 964
Cox, Sanchez v............................................. 965
Craig v. Nebraska.......................................... 802
Crain v. Texas............................................. 853
Crance v. United States.................................... 815
Crâne v. California........................................ 856
Crâne Co. v. Evans-Hailey Co............................... 801
Cravalho v. Richardson..................................... 807
Crawford v. Bannan......................................... 873
Creamer Industries v. United States........................ 957
Creason v. North Carolina.................................. 864
786-211 0-66—5
LXVI
TABLE OF CASES REPORTED.
Page
Creswell v. Texas........................................ 866
Crider v. Zurich Ins. Co................................ 1000
Crombie v. Crombie................................... 812,933
Croom v. Follette....................................... 1018
Cross v. Labor Board..................................... 918
Crossley v. Tahash....................................... 861
Cross Poultry Co. v. Labor Board......................... 918
Crouch v. Shields........................................ 907
Crouch, Smith v.......................................... 838
Crouse, Bratt v.......................................... 932
Crouse, Byers v...................................... 860,933
Crouse, Downs v.......................................... 866
Crouse, Grimes v...................................:. 882,949
Crouse, McGee v........................................... 67
Crouse, Ratley v.......................................... 42
Crowder v. United States................................. 909
Crown Life Ins. Co. v. Varas............................. 827
Cruz v. Beto............................................. 804
Cruz v. Colorado......................................... 869
Cuban Truck & Equipment Co. v. United States............. 844
Cudia v. United States.............................. 955,1021
Cuevas v. Sdrales......................................... 1014
Cuevas v. Seventy-Three Inn..............................   1014
Cummings v. United States.................................. 895
Cunningham, Root v......................................... 866
Cunningham v. United States.............................. 992
Curley v. McMann........................................... 995
Curry v. Weakley........................................  850
Curtis v. Cobey.......................................... 947
Customs Agent, Cerrano	v............................... 855
Customs Collector,	Capolino v............................ 858
Cyronne-De Virgin v. Missouri.............................. 895
Daly v. United States...................................... 853
D’Ambrosio v. Fay.......................................... 921
Danforth Foundation v. United States....................... 955
Dangler v. Wainwright...................................... 804
Daniel Const. Co. v. Labor Board.......................   831
D’Antonio v. New York...................................... 865
Dargusch v. Columbus Bar Assn.............................. 845
Darling Co., Space Aero Prod. Co. v........................ 843
Darr v. Atlass............................................. 988
Dash v. LaValIee........................................... 865
David, Chandler v.......................................... 977
David v. Phinney........................................... 983
TABLE OF CASES REPORTED.
LXVII
Page
Davidson Rubber Co., Hulsenbusch v....................... 977
Davis v. Beto........................................ 804,922
Davis v. Bomar........................................... 883
Davis, Bumette	v........................................ 42
Davis v.	California..................................... 881
Davis v.	Dunbar......................................... 993
Davis v.	Hoover......................................... 906
Davis v.	Keamey......................................... 899
Davis v.	Maryland....................................... 945
Davis, Morrison	v...................................... 1022
Davis v. North Carolina.................................. 953
Davis v. Ohio............................................ 871
Davis v. Peyton......................................... 1016
Davis, Thomas v.......................................... 875
Davis, Thomton v................................... # i.	42
Davis v. United States................................... 852
Davis v. Wilson...................................... 866,961
Dawson v. City Council of Butte.......................... 863
Deckert v. Maroney...................................... 1018
DeGregory v. Attorney General of New Hampshire..........	877
DeGregory v. United States........................... 850,933
DeGroat v. New York State Suprême Court.................. 989
DeLong Corp. v. Oregon Highway Comm’n.................... 877
Delta Drilling Co., Ross v..............................4	966
DeLucia v. New York...................................... 821
De Lucia v. Yeager....................................... 966
Demers v. Brown.....................................  818,933
De Monge v. United States................................ 992
Dempster Bros. v. Cohn................................... 878
Dennis v. United States.................................. 915
Denno, Benveniste v...................................... 864
Dept. of Rev. of Ky., Stitzel-Weller Distillery v........ 846
Derfus v. California................................ 955,1021
DeRosa v. Aetna Ins. Co.................................. 980
Desilu Productions, Maritote v...........................	883
DeSimone v. Chief Justice of 111. Sup. Ct................ 805
Detroit, Detroit Edison Co. v............................ 107
Detroit, Michigan Bell Tel. Co. v........................ 107
Detroit Edison Co. v. Detroit............................ 107
Detroit Newspaper Publishers, Newspaper Drivers v.......	374
Deutsch v. New York...................................... 918
De Vaughn v. United States............................... 856
DeWelles v. United States................................ 833
Dewey v. American Nat. Bank.............................. 821
lxviii TABLE OF CASES REPORTED.
Page
Dexter v. United States................................... 1027
Diamond Crystal Sait Co. v. United States................... 44
Diaz v. United States.................................. 822,933
Dickerson, Kadans v..........................>.............. 22
Dielectric Prod. Eng. Co., Penzion v....................... 822
Dietz v. Toledo............................................ 956
DiFronzo v. United States.................................. 829
Dillard v. Bomar........................................... 883
Dillon v. United States.................................... 978
Di Piazza, Edell v.................................... 931,1002
Di Piero v. Pennsylvania................................... 992
Director of Immigration. See Immigration Director.
Director of Internai Revenue. See Commissioner; District Director of Internai Revenue.
Di Silvestro v. United States.............................. 870
District Court. See U. S. District Court.
District Court of Appeal of Calif., Herring v.............. 935
District Director of Immigration. See Immigration Director.
District Director	of	Internai	Revenue,	David	v............. 983
District Director	of	Internai	Revenue,	Ewing	v............. 918
District Director	of	Internai	Revenue,	Frank	v............ 1028
District Director	of	Internai	Revenue,	Malat	v............. 900
District Director of Internai Revenue, McCarthy v.........	838
District Director of Internai Revenue, Melcher v........... 977
District Director of Internai Revenue, Zamaroni v.......... 903
District Judge. See U. S. District Judge.
District Lodge. For labor union, see name of trade.
Donovan, Addabbo v......................................... 905
Doster v. Coash............................................ 805
Doub v. United States...................................... 851
Downing v. United States................................... 901
Downs v. Crouse............................................ 866
Doyle v. United States..................................... 843
Draper v. Rhay............................................. 996
Draper v. Washington....................................... 961
Dream Shell Homes v. Mills & Lupton Supply Co.............. 997
Dredge Cartegena, A/S Skaugaas v........................... 918
Dredge Cartegena, The Skaustrand v.....................	918
Drexel & Co. v. Hall....................................... 816
Duarte, In re.......................................... 883,934
Dunbar, Armenta	v...................................... 965
Dunbar, Cline v....................................... 804,1003
Dunbar, Davis v............................................ 993
Dunbar, Hutchins	v..................................... 1021
TABLE OF CASES REPORTED.
LXIX
Page
Dun & Bradstreet v. Nicklaus............................... 825
Duncanson, Williams v...................................... 996
Dunscombe v. Sayle......................................... 814
Durham	v. Missouri...................................... 857
Duriron	Co. v. Stephenson................................ 956
Durovic	v. Palmer........................................ 820
Duval v. United States................................. 854,922
Dworak,	Marsh v..................................... 899,1021
Eamshaw v. Katzenbach...................................... 969
East Bay Union, Fibreboard	Corp. v......................... 826
Easter v. Ziff............................................  957
Eastern Air Lines v. Flight Engineers...................... 811
Eastem Air Lines v. Northeast Airlines..................... 845
Eaton v. United States..................................... 931
Eby Constr. Co., Neely v................................... 914
Eckel v. Brenner..........................................  907
Economy Forms Corp. v. Trinity Universal Ins. Co.........	813
E.	C. Publications, Stuff v............................... 822
Eddy, Holmes v...........................................   892
Edell v. Di Piazza.................................... 931,1002
Edmondson v. Nash.......................................... 950
Edwards, Rhodes v.......................................... 943
Edwards v. Warden.........................................  896
Edwards v. Weakley......................................... 876
E.	Home’s Market, Switzerland Cheese Assn. v............. 1025
Eklund, Vanhook v.......................................... 965
Eldridge v. United States.................................. 994
Electrical Workers v. Labor Board.......................... 366
Electric Ry. Employées, Trailways of New England v......... 879
Elfbrandt v. Russell....................................... 810
Elksnis v. Fay............................................. 858
Ellerman Lines, Atlantic & Gulf Stevedores v............... 812
EUhamer v. California...................................... 877
Ellington, Smith v......................................... 998
El Paso Elec. Co. v. Calvert................................ 18
El Paso Nat. Gas Co., California v........................	970
El Paso Nat. Gas Co., Cascade Gas Corp. v.................. 970
El Paso Nat. Gas Co., Southern Cal. Edison Co. v.........	970
Engelmohr, Bâche	v...................................... 950
England v. United	States................................. 986
Englewood, McGraw	v.................................... 934
Equitable Life Assur. Soc., United States v..............   972
Erlanger, Jobe v............................................ 12
Escalera v. Suprême Court of Puerto Rico................... 421
LXX
TABLE OF CASES REPORTED.
Page
Eskridge v. Rhay.......................................... 996
Esperdy, Chung Leung v.................................... 891
Estate. See name of estate. Estes v. Texas............................................ 875
Estwing Mfg. Co. v. Singer................................ 905
E.	T. Barwick Mills, Mohasco Industries v................ 847
Evans v. Kennedy.......................................... 969
Evans v. Newton........................................... 296
Evans v. United States.................................... 881
Evans-Hailey Co., Crâne	Co. v............................ 801
Evening Star Newspaper Co., Johnson v..................... 910
Everist v. Illinois....................................... 854
Ewell, United States v.................................... 802
Ewing v. Rountree......................................... 918
Exchange Nat. Bank of Olean v. Ins. Co. of N. A........... 816
Eyman, Garvey v.......................................... 1007
Eyman, Tynan v............................................ 969
Factor & Co., Blau v...................................... 892
Fafnir Bearing Co., Automobile Workers v.................. 205
Fair v. Bryant............................................ 862
Fair v. Bums.............................................. 996
Fair v. Tampa............................................. 888
Fairfax Family Fund v. California........................... 1
“Fanny Hill” (“John Cleland’s Memoirs”) v. Attorney Gen-
eral of Mass................................ 900,934,951,968
Farber, Inc. v. Texas Instruments, Inc.................... 843
Farrant v. Bennett........................................ 868
Farrell v. Gardner........................................ 921
Fata v. Co-ordinating Comm. on Discipline................. 917
Fawcett v. Missouri Pac. R. Co............................ 907
Fay, Berman v............................................. 874
Fay, Bryant v............................................. 990
Fay, Castillo v.......................................... 1019
Fay, D’Ambrosio v......................................... 921
Fay, Elksnis v............................................ 858
Fay, Olivo v.............................................. 869
Fay, Peguese v............................................ 966
Fay, Robinson v........................................... 997
Fay, Romano v............................................. 931
Fay, Turner v............................................. 909
Fédéral Bureau of Investigation, Davis v.................. 906
Fédéral Com. Comm’n, Burlington Broad. Co. v.............. 892
Fédéral Com. Comm’n, Florida-Georgia TV Co. v............. 893
Fédéral Com. Comm’n, Halpem v............................. 892
TABLE OF CASES REPORTED.
LXXI
Page
Fédéral Com. Comm’n, Mid-Florida TV Corp. v..............   893
Fédéral Com. Comm’n, South Florida TV Corp. v.............. 987
Fédéral Power Comm’n, California v.....................	941
Fédéral Power Comm’n v. Callery Properties............ 223,1001
Fédéral Power Comm’n, Frankel v........................ 985
Fédéral Power Comm’n, Idaho Power Co. v................ 957
Fédéral Power Comm’n, J. Ray McDermott & Co. v...........	985
Fédéral Power Comm’n, Océan Drilling Co. v............. 223
Fédéral Power Comm’n, Panhandle Eastem Pipe Line v.......	944
Fédéral Power Comm’n, Rochester Gas Corp. v............ 832
Fédéral Power Comm’n, Superior Oil Co. v..............	985
Fédéral Power Comm’n, Turlock Irrig. Dist. v............... 941
Fédéral Reserve Bank, Bank of America v.................... 984
Fédéral Trade Comm’n, Atlantic Ref. Co. v.......... 873,939,1000 Fédéral Trade Comm’n v. Borden Co.................. 807
Fédéral Trade Comm’n v. Brown Shoe Co...................... 808
Fédéral Trade Comm’n, Foremost Dairies v................... 959
Fédéral Trade Comm’n, General Auto Supplies	v.......... 923
Fédéral Trade Comm’n, Goodyear Tire & Rubber Co. v........	873
Fédéral Trade Comm’n, J. C. Martin Corp. v................. 975
Fédéral Trade Comm’n v. Mary Carter Paint Co................ 46
Fédéral Trade Comm’n, Monroe Auto Equip. Co.	v....... 1009
Fédéral Trade Comm’n, Sun Oil Co. v......................   982
Fédéral Trade Comm’n, Waltham Watch Co. v...............813,922
Fédéral Trade Comm’n, W. M. R. Watch Case Corp. v.........	873
Feist v. California....................................... 1030
Fender Sales, Commissioner v.............................. 813
Fennell v. United States................................... 852
Fenton v. Heinze........................................... 964
Fernandez v. Babare........................................ 107
Fernandez v. Klinger....................................... 895
Fernandez v. Wilson........................................ 865
Fibreboard Paper Prod.	v. East Bay Machinists.............. 826
Field Enterprises v. United States........................ 1009
Fields v. California....................................... 858
Fieldsmith v. Texas Bd. of Dental Examiners................ 977
Fierro v. California......................................... 999
Fifth Avenue Coach Lines, Rucker v......................	815
Filister v. Minneapolis..................................... 14
Finfer v. Cohen........................................ 883,949
Fink, Warriner v....................................... 871,922
Finley v. California................................. 1017,1019
First Nat. Bank of Chicago, Republic of Iraq v............. 982
First Nat. Bank of Glens Falls, Reoux v................... 1012
LXXII
TABLE OF CASES REPORTED.
Page
First Nat. City Bank, Republic of Iraq v...................... 1027
First Sec. Nat. Bk. of Lexington v. United States............... 34
Fitzharris, Acosta v........................................... 850
Fitzharris, Gorham v.......................................... 1022
508 Chestnut, Inc. v. St. Louis................................ 203
Fjellhammer v. United States................................... 869
Fleishman, Cerrano v........................................... 855
Fletcher v. Beto............................................... 868
Flight Engineers, Eastem Air Lines v........................... 811
Florida, Adderley v........................................... 1023
Florida, Amaral v.............................................. 990
Florida,	Barrios v....................................... 969
Florida,	Bridges v....................................... 854
Florida,	Brooks v....................................... 1015
Florida,	Brown v......................................... 804
Florida,	Cooper v........................................ 953
Florida,	Grant v........................................ 1016
Florida,	Harper v........................................ 867
Florida, Herb v.............................................. 1022
Florida,	Kemp v.......................................... 948
Florida,	Knight v........................................ 991
Florida,	Maisonave v..........j. ........................	952
Florida,	Mitchell v................................... 804,910,912
Florida,	Murray v........................................ 970
Florida,	Oksten v........................................ 867
Florida,	Purifoy v....................................... 849
Florida,	Schack v....................................... 804,1016
Florida,	Smith v......................................... 952
Florida,	Stanley v..........;............................ 952
Florida,	Wellington	v................................... 869
Florida,	Westmore v...................................... 952
Florida,	Whitworth	v................................... 857
Florida,	Williams v......................................  913,963
Florida E. C. R. Co., Interstate Com. Comm’n v................. 154
Florida E. C.	R.	Co. v. Martin County........................ 834
Florida E. C.	R.	Co., Railway & Steamship Clerks v......... 1008
Florida E. C.	R.	Co., Stager v............................... 878
Florida E. C.	R.	Co. v. United States.................. 161,1008
Florida E. C. R. Co., United States v......................... 1008
Florida-Georgia TV Co. v. Fédéral Com. Comm’n.................. 893
Florida-Georgia TV Co., Jacksonville Broad. Corp. v..........	893
Florida Govemor, Fair v...................................  862,996
Florida Greenheart Corp., Gautier v............................ 825
Flowers v. United States.....................................   994
TABLE OF CASES REPORTED. lxxiii
Page
Flying Tiger Line v. Mertens............................816,933
Follette, Croom v......................................... 1018
Follette, Williams v....................................... 969
Food Mach. & Chem. Corp., Walker Equip. v.................. 172
Ford City v. United States................................. 902
Foremost Dairies v. Fédéral Trade Comm’n................... 959
Foster v. Parker..........................................  862
Foster, Walker v.......................................812,934
Fotochrome, Inc. v. Labor Board............................ 833
Frace	v.	Russell.................................. 863
Frady	v.	United States.................................. 909
Frank	v.	Tomlinson................................. 1028
Frank	v.	.United States.................................. 923
Frankel v. Fédéral Power Comm’n............................ 985
Franklin v. United States.................................. 844
Fratelli’s Restaurant v. Board of Liquor Control........... 822
Frazier v. California...................................... 988
Freeman v. Maxwell........................................ 1017
Freeman, Windham Creamery v.........................	979
Friedman v. United States.................................. 946
Fripp, Gadsden v...................................... 921,1002
Froehlich v. U. S. District Judges......................... 837
Frost, Bencel v............................................ 831
Frost-Whited Co. v. Labor Board............................ 982
Fry Roofing Co. v. Volasco Products........................ 904
Fuentes-Torres v. Immigration and Nat. Service............. 846
Fuller Co., Rainey v....................................... 983
Fulton, Ginsberg v......................................... 805
Furr’s, United Specialty Advertising Co. v................. 824
Furtak v. New York......................................... 997
Gadsden v. Fripp...................................... 921,1002
Gagnon, Smith v............................................ 899
Gaines v. United States................................ 866,912
Gallagher v. California.................................... 994
Gamble-Skogmo, Inc. v. Western Auto Supply................. 987
Garcia-Gonzales v. Immigration	and Nat. Service............ 840
Gardens of Faith v. Commissioner........................... 927
Gardiner	v, United States................................. 818
Gardner,	Farrell	v........................................ 921
Gardner,	Hahiska	v........................................ 844
Gardner,	Kemer	v........................................ 861
Gardner, McMulIen v.................................... 854,922
Gardner, Schatz v. . j.. ,	871
Gardner v. United States.................................. 1015
lxxiv TABLE OF CASES REPORTED.
Page
Garment Workers, Scherer & Sons v.......................... 820
Garvey v. Eyman....................................... 1007
Gautier v. Florida Greenheart Corp..................... 825
Geiger Estate v. Commissioner............................... 1012
General Auto Supplies v. Fédéral Trade	Comm’n....... 923
General Contractors of America v. Labor	Board...... 1026
General Motors Corp., Gottesman v.	875
General Motors Corp., United States v....................	936
General Petroleum Corp., Leh v......................... 54,1001
Gennetti, Catena v........................................  866
George v. United States..................................... 1010
George A. Fuller Co., Rainey v............................. 983
George F. Hazelwood Co.	v. Pitsenbarger................. 201
Geo. W. Ashlock Co., Atlas-Pacific Eng. Co. v.............. 842
Georgia v. Rachel.......................................... 808
Georgia, Shelton v......................................... 917
Georgia Railroad & Banking Co. v. United States............ 973
Gerosa, Atlantic Gulf & Pac. Co. v......................... 368
Gerrity, Nehring v......................................... 202
Get Up Corp., Seven-Up	Co. v.............................. 901
Gharibians v. California..................................... 954
Giaccio v. Pennsylvania...................................... 399
Giancana v. United States.................................... 959
Gibbs, Mine Workers v........................................ 809
Gibraltar Amusements v. Wurlitzer Co....................... 981
Gilliam v. School Bd. of Hopewell.........................  103
Gilmore v. California..................................... 1017
Ginsberg v. Fulton......................................... 805
Ginzburg v. United States.............................. 803,951
Giraud v. United States................................... 1015
Gish v. Missouri...................................... 919,1000
Giuliano v. United States...................................   946
Gladden, Grenfell v.......................................... 998
Gladden, Holland v........................................... 868
Glass, Shapiro & Son Curtain Corp. v......................... 942
G.	L. Christian & Assoc. v. United States................. 821
Glick v. Ballentine Produce.................................. 891
Glittre, A/S, Tjonaman v..................................... 873
Globe-Democrat Pub. Co., St. Louis Mailers v............... 979
Glover v. LaVallee........................................... 964
Glover v. United States...................................... 862
Goerlich’s, Inc., Livernois Auto Parts v....................	830
Goerlich’s, Inc., Sherman v.................................. 830
Gojack v. United States.....................................  937
TABLE OF CASES REPORTED.
LXXV
Page
Goldberg v. Office Employés............................... 874
Golden, Tomiyasu v........................................ 844
Golden v. United States................................... 910
Golden Gâte Hop Ranch, Velsicol Chemical Corp. v....... 1025
Goldstein v. Washington.............................. 895,1003
Golenbock v. Wallack...................................... 870
Gomez v. Colorado......................................... 920
Gondeck v. Pan American World Airways...................... 25
Gonzales v.	Texas....................................... 992
Gonzalez v.	United	States............................... 894
Goodman v.	United	States............................... 910
Goodwin v.	United	States............................... 920
Goodyear Tire & Rubber Co. v. Comm’r of Patents........	973
Goodyear Tire & Rubber Co. v. Fédéral Trade Comm’n.....	873
Goodyear Tire & Rubber Co., Johnson v...................	904
Goranson v. Capital Airlines.............................. 984
Gorham v. Fitzharris..................................... 1022
Gori v. United States..................................... 848
Gorman v. Kings Mercantile Co............................ 1019
Gosser v. United States............................... 819,922
Gottesman v. General Motors Corp.......................... 875
Gottone v. United States.................................. 901
Government Employées Ins. Co. v. United States........... 1026
Govemor. See name of State.
Grâce & Sons, United States v............................. 901
Gradsky v. United States.................................. 846
Graham Post No. 119 v. United States...................... 824
Granieri v. Sait Lake City................................. 23
Grant v. Florida......................................... 1016
Grant v. New York.......................................... 975
Grant, White v..........•................................. 963
Gravley v. Carter.......................................... 848
Gray v. California......................................... 989
Gray v. United States.....................................   874
Gray v. Wilson............................................ 919
Great Coastal Express v. United States..................... 369
Greater New Orléans Exp. Comm’n, Jahncke Serv. v....... 967,974
Great Lakes Carbon Corp. v. Continental Oil Co............ 905
Great Lakes Eng. Works, Wiper v........................... 812
Green v. California....................................... 993
Green v. New York......................................... 962
Green v. Pub. Util. Comm’n of Cal................... 1006,1009
Green, Saulsbury v......................................   882
Green v. United States.................................... 930
lxxvi TABLE OF CASES REPORTED.
Page
Green’s Trucking Co. v. Pub. Util. Comm’n of Cal.... 1006,1009
Greenwood v. Peacock..................................... 971
Greenwood, Peacock v..................................... 971
Grene v. United States................................... 823
Grenfell v. Gladden...................................... 998
Gridiron Steel Co., Jones & Laughlin Corp. v.............. 32
Griffing v. Bianchi......................................  15
Griffith v. Board of Comm’rs of Alabama Bar.............. 988
Grimble v. Brown......................................... 861
Grimes v. Crouse...................................   882,949
Grisham v. United States................................. 894
Grizzell v. Wainwright................................... 852
Grossi v. Heinze........................................ 1013
Groza v. Lemmon...................................... 895,949
Gunston v. United States................................  874
Gunther v. San Diego & A. E. R. Co................... 257,898
Gusow v. United States................................... 906
Hackett v. United States................................ 1029
Haddad v. United States.................................. 896
Hafiz v. Maxwell........................................ 1018
Hagel v. Illinois........................................ 942
Hainsworth v. Martin................................ 109,1002
Hairston v. United States................................ 856
Halbert, Schlette v.....................................  919
Haley v. Baltimore & O. R. Co............................ 861
Halko v. Anderson....................................... 1011
Hall, Drexel & Co. v..................................... 816
Hall v. Pinto............................................ 875
Hall v. United States............................ 812,910,947
Hallett, Skolnick v...................................... 996
Halpem v. Fédéral Com. Comm’n............................ 892
Halpem, Kasharian v....................................... 23
Haluska v. Gardner....................................... 844
Halyshyn v. United States................................ 874
Hamadeh v. Immigration and Naturalization Service.......	838
Hamm, Harrigan v......................................... 981
Hammonds v. Corpus Christi............................... 837
Hammons v. Oregon........................................ 917
Hammons v. Texas •& N. O. R.	Co........................ 832
Handman, Brandano v...................................... 841
Hanna Min. Co. v. Marine Eng.	Assn....................... 181
Hanovich v. Maxwell...................................... 868
Hansen, Siebring v....................................... 943
Hanson, Luros v............................... i........	956
TABLE OF CASES REPORTED. lxxvii
Page
Hanson v. No-Joint Concrète Pipe Co........................ 843
Hardin v. Chicago, R. I. & P. R. Co........................ 423
Hargrove v. Brown.......................................... 883
Harper v. Florida.......................................... 867
Harper v. Virginia Bd. of Elections........................ 951
Harrigan v. Hamm........................................... 981
Harris, In re.............................................. 924
Harris, Anderson v......................................... 894
Harris v. Bruzee........................................... 866
Harris, Bums v............................................. 960
Harris, Cagle v............................................ 965
Harris v. Commissioner..................................,.	931
Harris v. Myers............................................ 857
Harris v. Pâte............................................. 864
Harris v. United States.................................... 162
Harrison, Butts v.......................................... 806
Hartwell Corp., Bumb v..................................... 891
Harvey v. Lyons....................................... 918,1003
Hasbrook v. United-States.................................. 834
H.	A. Seinscheimer Co., Kamsler v.......................	837
Haskins, Rollins v......................................... 895
Hatcher v. United States.................................. 1030
Hawaii Govemor v. Richardson............................... 807
Hawkes v. Warden........................................... 930
Hayden v. United States.................................... 828
Hayes, Baies v............................................. 857
Hayes v. LaVallee.......................................... 867
Hayes v. Pâte.............................................. 804
Hazeltine Research v. Brenner..................... 252,876,1000
Hazelwood Co. v. Pitsenbarger.............................. 201
Heaps v. California........................................ 955
Heider v. United States.................................... 974
Heinze, Baies v............................................ 896
Heinze, Fenton v........................................... 964
Heinze, Grossi v.......................................... 1013
Heinze, Macfadden v........................................ 874
Heinze, Rector v........................................... 997
Heinze, Shobe v............................................ 864
Heinze, Smart v............................................ 896
Heinze, Thompson v........................................  857
Heinze, Williams v......................................... 859
Helmerich & Payne, Coe v................................... 980
Helms v. United States....................................  814
Henderson v. Maxwell................................... 804,922
lxxviii TABLE OF CASES REPORTED.
Page
Henninger v. United States................................. 979
Henriques v. California..................................   813
Hensel v. California......................................  942
Hensley v. Kansas.......................................... 998
Hensley v. Texas........................................... 882
Herald Pub. Co. v. Whitehead-Donovan Corp................... 13
Herb v. Florida........................................... 1022
Herman v. United States.................................... 860
Hernandez v. California.................................... 909
Herold, Baxstrom v......................................... 968
Herold, Conover v...................................... 912,990
Herold, Passante v......................................... 866
Herr v. United States...................................... 999
Herrick, Berman v.......................................... 892
Herrick, Scott Const. Co. v................................ 892
Herring v. District Court of Appeal of Calif............... 935
Hesmer Foods, Inc. v. Campbell Soup Co..................... 839
Higginbotham v. U. S. Civil Service Comm’n................. 853
Hilbrich v. United States.................................. 874
Hill, Time, Inc. v......................................... 936
Hill v. United States................................. 956,1021
“Hill, Fanny” (“John Cleland’s Memoirs”) v. Attorney Gen-
eral of Mass................................. 900,934,951,968
Hilton Hotels Corp., Sûrowitz v............................ 809
Hitai v. Immigration and Naturalization Service............ 816
Hobbs v. Maryland........................................... 998
Hobbs v. United States...................................... 908
Hodges v. Buckeye Cellulose Corp............................ 160
Hoffa v. United States..................................... 1024
Holland v. Gladden.......................................... 868
Holland Fumace Co. v. Schnackenberg......................... 873
Hollis v. Beto............................................ 1020
Holman, Maddox v............................................ 858
Hohnan, Richardson v........................................ 881
Holmes v. Eddy.............................................. 892
Holmes v. Myers............................................. 888
Home Fed. Sav. & Loan Assn., Mundt v...................... 1019
Home News Pub. Co. v. Wirtz................................. 823
Hooper v. United States..................................... 986
Hoosier Cardinal Corp., Automobile Workers v................ 808
Hoover, Davis v............................................. 906
Hopewell School Bd., Gilliam v.............................. 103
Home’s Market, Switzerland Cheese Assn. v................. 1025
Hostetter, Joseph E. Seagram & Sons v...................... 924
TABLE OF CASES REPORTED. lxxix
Page
Houghton v. Pike............................................ 819
Hourihan v. Mahoney...................................... 17,922
Houston, Standard-Triumph Motor	Co. v................... 974
Houston Chapter, Gen. Contractera v. Labor Board.......... 1026
Howard v. United States..................................... 838
Howard v. Wisconsin......................................... 863
Howard Johnson’s, Williams v............................ 814,933
Howard Price & Co. v. State Road Comm’n of W. Va..........	20
Huck Mfg. Co., United States	v..........................	197
Hudson v. Arceneaux......................................... 858
Huffman v. Maroney.......................................... 804
Hughes v. Kropp........................................ 872,1002
Hughes Tool Co. v. Trans World	Airlines..................... 842
Hulburt Oil Co. of Ill. v. Hulburt Oil Co. of Pa............ 835
Hulburt Oil Co. of Pa., Hulburt Oil Co. of Ill. v........... 835
Hullum v. St. Louis S. R. Co............................ 906,949
Hulsenbusch v. Davidson Rubber Co........................... 977
Humble Oil & Ref. Co., Stevens v............................ 978
Hunt v. California.......................................... 920
Hunt v. Nebraska............................................ 994
Hunter v. Talbot............................................ 919
Hurley v. United States............................. 881,953,965
Humey, Scalzo v............................................. 849
Husk v. Buchanan............................................ 954
Hutcherson v. United States................................. 894
Hutchins v. Dunbar......................................... 1021
Hyde v. McMann.............................................. 849
Hyde Constr. Co., Koehring Co. v....................... 4	362
Hyman v. United States...................................... 973
Idaho, Boan v............................................... 952
Idaho Power Co. v. Fédéral	Power Comm’n..................... 957
I.	E. Schilling Co., Aircraft	& Engine Employées v......... 972
Illinois, Baker v...................................... 1029
Illinois, Brooks v...................................... 945
Illinois, Clark v..................................... 910,966
Illinois, Cléments v...................... k...............	827
Illinois, Everist v..................................... 854
Illinois, Hagel v....................................... 942
Illinois, Lehman v..................................... 1016
Illinois, Lewis v....................................... 848
Illinois, McFadden v.................................... 871
Illinois v. Missouri................................... 803,1022
Illinois, Smith v....................................... 961
Illinois, Steenbergen	v................................. 853
LXXX
TABLE OF CASES REPORTED.
Page
Illinois, Tomaszek v......................................... 827
Illinois Central R. Co. v. Norfolk & W. R. Co................ 913
Illinois Florist, V. L. Smithers Mfg. Co. v.................. 841
Illinois Govemor, Campbell v................................. 996
Illinois Sup. Ct. Justice, DeSimone v......................	805
Immigration and Naturalization Service. See also Immigra-
tion Director.
Immigration and Nat. Service, Fuentes-Torres v............... 846
Immigration and Nat. Service, Garcia-Gonzales v.............. 840
Immigration and Nat. Service, Hamadeh v...................... 838
Immigration and Nat. Service, Hitai v...................	816
Immigration and Nat. Service, Kelly v........................ 932
Immigration and Nat. Service, Millan-Garcia v................. 69
Immigration and Nat. Service, Pavgouzas v.................... 816
Immigration and Nat. Service, Ramirez-Villa v................ 908
Immigration and Nat. Service, Soric v.....................	285
Immigration Director, Chung Leung v.................... 891 Immigration Director, Scalzo v...........................	849
Indiana, Burton v........................................ 858
Indiana, Paneitz v....................................... 883
Indiana, Walker v........................................ 991
Indiana Broad. Corp. v. Commissioner.................... 1027
Industrial Accident Comm’n, Smith v...................... 860
Industrial Indemnity Co., Lynch v........................ 844,949
In re. See name of party.
In-Sink-Erator Mfg. Co. v. Waste King Corp................... 835
Insurance Co. of North America, Exchange Bank v.............. 816
Interlake S. S. Co. v. Nielsen............................... 873
Internai Revenue Service. See also Commissioner; District
Director of Internai Revenue.
Internai Revenue Service, Boughner v......................... 919
Internai Revenue Service, Walker v........................... 911
International. For labor union, see name of trade.
International Bus. Mach., United States v................... 1028
International Term. Co. v. Nederl. Amerik Maats........ 283,1030 Interstate Com. Comm’n, Chatsworth Market. Assn. v... 938,1000 Interstate Com. Comm’n v. Chicago, B. & Q. R. Co........ 422
Interstate Com. Comm’n v. Florida E. C. R. Co................ 154
Interstate Com. Comm’n v. Northwest Agr. Coop............... 1011
lowa, Woodson v.............................................. 962
I. Posner, Inc. v. Labor Board............................... 837
Iraq v. First Nat. Bank of Chicago........................... 982
Iraq v. First Nat. City Bank................................ 1027
Irving v. California......................................... 962
TABLE OF	CASES REPORTED. lxxxi
Page
Ivey v. United States..................................... 903
Ivy v. Katzenbach......................................... 958
Jaben v. United States.................................... 873
Jachimiec v. Schenley Industries,	Inc..................... 841
Jackson v. New York....................................... 872
Jackson v. United States.................................. 880
Jackson & Perkins Co., Chaparro v......................... 931
Jacksonville Broad. Corp. v. Florida-Georgia TV........... 893
Jacobs v. Tennessee....................................... 823
Jahncke Service v. Gréa ter New Orléans Comm’n....... 967,974
James v. California...................................... 1022
James v. Louisiana......................................... 36
James H. Matthews & Co. v. Labor Board.................... 832
James Talcott, Inc., Matthews v........................... 837
Jamison v. Keamey......................................... 804
Janigan v. Taylor........................................  879
Jarvis v. United States................................... 831
J. A. Tobin Const. Co. v. United States................... 830
J. C. Martin Corp. v. Fédéral Trade Comm’n................ 975
Jefferson v. McGee........................................ 998
Jenkins Bros. v. Steelworkers............................. 819
Jerrold Electronics Corp. v, Wescoast Broad. Co........... 817
J. E. Schecter Corp. v. Carrier Corp...................... 904
Jesse v. Washington....................................... 890
Jett, Williams v.......................................... 921
Jim Green’s Trucking Co. v. Pub. Util. Comm’n........ 1006,1009
Jobe v. Erlanger........................................... 12
Jodon v. Russell......................................... 1018
Joe Graham Post No. 119 v. United States.................. 824
John v. John.............................................. 371
“John Cleland’s Memoirs” v. Atty. Gen. of Mass.. 900,934,951,968
Johnson v. California..................................... 999
Johnson v. Evening Star Newspaper Co...................... 910
Johnson v. Goodyear Tire & Rubber Co....................... 904
Johnson v. Lloyd......................................... 1030
Johnson v. Maryland...................................... 1013
Johnson v. Maxwell......................................... 889
Johnson v. New Jersey...................................... 925
Johnson v.	Pennsylvania.................................. 859
Johnson v.	Russell....................................... 996
Johnson v.	Tinsley.....................................  1016
Johnson v.	United States................ 836,851,870,923,1000
Joint Council. For labor union, see name of trade. Jones v. McFaddin.......................................... 15
786-211 0-66—6
lxxxii TABLE OF CASES REPORTED.
Page
Jones v. United States................................... 975
Jones, Wheeler v......................................... 926
Jones & Laughlin Steel Corp. v. Gridiron Co............... 32
Jones Stevedoring Co., Pacific Far East Line v........... 919
Jordan v. Louisiana...................................... 954
Joseph v. United States.................................. 828
Joseph E. Seagram & Sons v.	Hostetter............... 924
J.	Ray McDermott & Co. v. Fédéral Power Comm’n........	985
Judicial Council of lOth Circuit,	Chandler v............ 1003
Kadans v. Dickerson....................................... 22
Kalishman, United States v............................... 968
Kamsler v. H. A. Seinscheimer	Co................... 837
Kansas, Atkins v..................................... 964,1002
Kansas, Carpenter v...................................... 948
Kansas, Chance v........................................ 1019
Kansas v. Colorado....................................... 801
Kansas, Hensley v........................................ 998
Kansas, Kelly v...................................... 881,922
Kansas, Lesco v......................................... 1015
Kansas, Talbert. v....................................... 868
Kansas Govemor v. Harris................................. 894
Kanton v. United States.................................. 860
Kapsalis v. United States................................ 946
Kasharian v. Halpem....................................... 23
Kasharian v. Metropolitan Life	Ins. Co.................... 38
Kasharian v. South Plainfield	Baptist Church.............. 40
Kasharian v. Wilentz..................................... 161
Katchen v. Landy.......................................   323
Katschke v. United States................................ 976
Katzenbach, Earnshaw v................................... 969
Katzenbach, Ivy v........................................ 958
Katzenbach, Louisiana v.................................. 950
Katzenbach v. Morgan.................................... 1007
Katzenbach, South Carolina	v................. 898,967
Kaufman v. Taxicab Bur................................... 849
Kawasaki Kisen, K. K., Thompson v........................ 987
Keamey, Davis v.......................................... 899
Keamey, Jamison v........................................ 804
Keamey, Langston v....................................... 804
Keaton v. United States.................................. 920
Keeble v. United States.................................. 940
Keeling v. Ohio.......................................... 939
Keller v. California...................................... 43
Kelly, Capolino v.......................................  858
TABLE OF CASES REPORTED. lxxxiii
Page
Kelly v. Immigration and Nat. Service.................... 932
Kelly v. Kansas...................................... 881,922
Kemp v. Florida.......................................... 948
Kennedy, Evans v......................................... 969
Kenney v. Trinidad Corp................................. 1030
Kent v. United States.................................... 803
Kentucky, Ashton	v.................................... 971
Kentucky, Bell v........................................ 1020
Kentucky, Bentley	v.................................... 995
Kentucky, Collins	v.................................... 881
Kentucky, Lambert	v.................................... 932
Kentucky, Warner	v................................... 1020
Kentucky Dept. of Rev., Stitzel-Weller Distillery v...... 846
Kemer, Campbell v............................. 4...;. .i 996
Kemer v. Gardner......................................... 861
Ketchum, Milgram Food Stores v........................... 801
Keys v. United States.................................... 869
Kiesling v. United States................................ 939
King v. United States........................... 926,985,1024
Kings Brush Co. v. American Tech. Mach. Corp............. 842
Kings Mercantile Co., Gorman v.......................... 1019
Kirk v. California....................................... 989
Klatte, Lyons v.......................................... 805
Klebanow v. Chase Manhattan Bk...................-....... 890
Klein v.	United States.................................. 850
Klinger,	Collins v....................................... 997
Klinger,	Fernandez	v.................................... 895
Klinger,	Kousick v...................................... 1018
Knapp-Monarch Co. v. Casco Prod. Corp.................... 828
Knight v. Florida........................................ 991
Knippel v. United States............................ 948,1002
Koehring Co. v. Hyde Constr. Co.......................... 362
Kohler Co. v. Labor Board................................ 836
Kountis v. United States................................. 980
Kousick v. Klinger...................................... 1018
Krennrich v. United States............................... 870
Kropp, Hughes v...................................... 872,1002
Kross, Privitera v....................................... 911
Krystoforski v. United States............................ 835
Kuchenig, California Co. v............................... 985
Labor Board v. Adams Dairy.............................. 1011
Labor Board, Albritton Eng. Corp. v......................	815
Labor Board, American Bakery Workers v................... 827
Labor Board, American Compress Warehouse v............... 982
lxxxiv TABLE OF CASES REPORTED.
Page
Labor Board, Camco, Inc. v............................... 926
Labor Board, Cherrin Corp. v............................. 981
Labor Board, Colson Corp. v.............................. 904
Labor Board, Cross v..................................... 918
Labor Board, Cross Poultry Co. v........................	918
Labor Board, Daniel Const. Co. v.........................	831
Labor Board, Electrical Workers v........................ 366
Labor Board, Fotochrome, Inc. v.........................	833
Labor Board, Frost-Whited Co. v.........................	982
Labor Board, Houston Chap., Gen. Contractors v.......... 1026
Labor Board, I. Posner, Inc. v........................... 837
Labor Board, James H. Matthews & Co. v................... 832
Labor Board, Kohler Co. v................................ 836
Labor Board, Longshoremen v.............................. 891
Labor Board, Machinery Workers v......................... 822
Labor Board, Maritime Union	v.................. 835,840,933
Labor Board, Matthews & Co.	v.......................... 832
Labor Board, Memer Lumber	& Hdw. Co. v............... 942
Labor Board, Miami Herald Pub. Co. v....................	824
Labor Board, Milk Drivers v.............................. 816
Labor Board, My Store, Inc.	v.......................... 927
Labor Board, Nat. Maritime Union v............... 835,840,933
Labor Board, Posner, Inc. v.............................. 837
Labor Board, Primrose Super Market v...................	830
Labor Board, Signal Mfg. Co. v........................... 985
Labor Board, SNC Mfg. Co. v.............................. 902
Labor Board, Teamsters v..............................816,822
Labor Board, Theatrical Employées v...................... 822
Labor Board, Vega v...................................... 862
Labor Board, Winn-Dixie Stores v......................... 830
Labor Union. See name of trade.
Lake v. Cameron.......................................... 863
Lake County Pub. Bldg. Comm’n, Bowman v................... 13
Lambert v. Kentucky...................................... 932
Lambertsen, Walston v.................................... 980
Lamma v. United States................................... 947
Landy, Katchen v......................................... 323
Lane, Plunkett v......................................... 804
Lane, Rice v............................................. 991
Lane, Rogers v........................................... 991
Lang v. Alabama.......................................... 911
Langlois, Reynolds v..................................... 962
Langston v. Keamey....................................... 804
Largo v. United States................................... 904
TABLE OF CASES REPORTED. lxxxv
Page
Larkin, Murphy v............................................ 903
Lassiter v. United States.............................. 948,1002
Lauritzen v. Spann..................................... 938,1000
LaVallee, Bund v............................................ 867
LaVallee, Dash v............................................ 865
LaVallee, Glover v.......................................... 964
LaVallee, Rayes v........................................... 867
LaVallee, Lewis v.......................................... 1029
LaVallee, Smith v........................................... 865
Laverick v. United States................................... 940
Law v. Texas................................................ 959
Leak v. New York............................................ 855
Lebron v. Warden............................................ 848
Lee v. Wilson............................................... 999
Lee Shops, Schatten-Cypress Co. v........................... 980
Leh v. General Pet. Corp................................ 54,1001
Lehman v. Illinois........................................  1016
Lemmon, Groza v......................................... 895,949
Lepiscopo v. United States.................................. 864
Lemer, List v............................................811,933
Lemer & Co., List	v...................................811,933
LeRoy, Sabena Belgian World Airways v....................... 878
Lesco v. Kansas............................................ 1015
Leung v. Esperdy............................................ 891
LeVar v. Arizona............................................ 948
Levin v. United States.................................. 159,876
Levin, Williams v........................................... 859
Levy, Polikoff v............................................ 903
Levy v. United States................................... 862,922
Lewis v. Aderholdt.......................................... 872
Lewis v. Illinois........................................... 848
Lewis v. LaVallee.......................................... 1029
Lewis v. United States...................................   1024
Lewis Tower Bldg., Berman v................................. 892
Lewis Tower Bldg., Scott Const. Co. v....................... 892
Leyde v. Rhay............................................... 911
Lichota v. United States................................... 1027
Lichtenstein v. United States........................... 821,933
Lieberman, Sun Ray Drug Co. v............................... 819
Liggett & Myers Tobacco Co. v. Pritchard.................... 987
Lillo v. United States...................................... 975
Linn v. Plant Guard Workers...............................   912
Lion Dry Goods, Inc., Retail Clerks v....................... 839
Lippi v. United States.................................. 815,904
lxxxvi TABLE OF CASES REPORTED.
Page
Lipscomb v. Stevens........................................ 993
Lishey v. Wilson.......................................... 1022
List v. Lemer.......................................... 811,933
List v. Lemer & Co......................................811,933
Littell v. Nakai....................................... 804,986
Litterio v. United States.................................. 965
Livemois Auto Parts v. Goerlich’s,	Inc.................... 830
Livingston, Marchev v..................................	201
Lloyd v. Brick............................................. 366
Lloyd, Johnson v.......................................... 1030
Lloyd v. United States..................................... 874
Lloyd A. Fry Roofing Co. v.	Volasco Prod................... 904
Lluveras v. New York....................................... 868
Local. For labor union, see name of trade.
Locomotive Engineers v. Chicago, R. I. & P. R. Co........	423
Locomotive Firemen v. Central of Georgia R. .Co............ 841
Lodge. For labor union, see name of trade.
Lombard v. United	States................................ 823
Lomenzo, Screvane	v....................................... 11
Lomenzo, Travia	v.....................................9,287
Lomenzo, WMCA,	Inc. v..................................  4
Long v. Pâte........................................... 881,922
Longshoremen v. Labor Board................................ 891
Losinger v. Michigan...................................... 1000
Lott v. Michigan............................................ 879
Louisiana,	Avgikos v...................................... 873
Louisiana,	Barksdale v.................................... 921
Louisiana,	Bertrand v..................................... 960
Louisiana,	James v........................................  36
Louisiana,	Jordan v....................................... 954
Louisiana	v. Katzenbach................................... 950
Louisiana v. Mississippi.................................... 876
Louisiana,	Oliver v....................................... 862
Louisiana,	Tyson v........................................ 942
Louisiana,	United States v......................... 288,889,897
Louisiana,	Wilson v....................................... 833
Louisville & N. R. Co., Palisi v............................ 834
Loux v. Rhay................................................ 996
Love v. New Jersey.......................................... 960
Lower Minn. River Watershed Dist., Adehnan v............	108
Lowther v. Maxwell.......................................... 881
Luaces v. May.............................................    851
Lucas v. McMann............................................   850
Lucas v. United States...................................... 862
TABLE OF	CASES REPORTED. lxxxvii
Page
Lucero v. Cox............................................ 964
Lujan v.	United States.................................. 889
Luros v.	Hanson......................................... 956
Luster v.	United States.................................. 819
Lux Art Van Service v. Pollard........................... 837
Lynch v.	Industrial Indemnity	Co.................... 844,949
Lyons v.	Bailey......................................... 965
Lyons v. California.................................. 866,995
Lyons, Harvey v...................................... 918,1003
Lyons v. Klatte.......................................... 805
Mac. See also Mc. MacDougall, Scott v...................................... 920
Macfadden v. Heinze...................................... 874
Machel v. California..................................... 839
Machinery Workers v. Madden.............................. 822
Machinists, Fibreboard Corp. v........................... 826
Macias v. California..................................... 993
Macieiski, Thompson v.................................... 952
Mack v. Brenner.......................................... 983
Mackay, In re............................................ 803
Mackey v. United States.................................. 824
Macy, Stebbins v.......................................41,949
Macy, Studemeyer v....................................... 834
Madden v. California..................................... 969
Madden, Machinery Workers v.............................. 822
Madden, Teamsters v...................................... 822
Madden, Theatrical Employées v........................... 822
Maddox v. Holman......................................... 858
Maddox v. Willis...................................... 18,922
Magette v. New York...................................... 965
Mahoney, Hourihan v................................... 17,922
Mailers’ Union v. Globe-Democrat Pub. Co................. 979
Maimonides Hospital, Zanca v............................ 1020
Maine, Austin v......................................... 1018
Maisonave v. Florida..................................... 952
Malat v. Riddell......................................... 900
Mallory v. North Carolina................................. 22
Malvern Gravel Co., Mitchell v........................... 828
Manduchi, Tracy v.....................................	943
Manhattan-Bronx Postal Union v. O’Brien.................. 978
Marcella v. United States............................... 1016
Marchese v. United States................................ 817
Marchev v. Livingston.................................... 201
Marine Eng. Assn., Hanna Min. Co. v...................... 181
lxxxviii TABLE OF CASES REPORTED.
Page
Maritime Union v. Labor Board................... 835,840,933
Maritote v. Desilu Productions.......................... 883
Markham Co., Thacker v.............................. 865,934
Markley,	Collins v.................................... 946
Markley,	Richardson v................................. 851
Markley,	Stames v................................. 908,949
Markley,	Stirone v.................................... 829
Marks, Stevens v................................. 809,933,967
Maroney, Bamosky v...................................... 963
Maroney, Deckert v............................»........ 1018
Maroney, Huffman	v................................... 804
Maroney, Orlando v...................................... 995
Maroney, Watts v....................................... 1014
Maroney, Wilson v.............................  992,993,1019
Marsh v. Dworak.................................... 899,1021
Marshall v. Mayor and Board of Selectmen................ 836
Marshall v. United States.............................. 1010
Martens v. Winder....................................... 937
Marth v. Commissioner................................... 844
Martin, Buffington v.................................... 910
Martin, Hainsworth v............................... 109,1002
Martin v. New York...................................... 828
Martin v. Texas......................................... 928
Martin Corp. v. Fédéral Trade Comm’n.................... 975
Martin County, Florida E. C. R. Co. v................... 834
Martinez v. Colorado.................................... 866
Martinez v. Wilson...................................... 804
Martin K. Eby Constr. Co., Neely v...................... 914
Mary Carter Paint Co., Fédéral Trade Comm’n v............ 46
Maryland,	Bloombaum	v................................ 973
Maryland,	Davis v....................................   945
Maryland,	Hobbs v...................................... 998
Maryland,	Johnson v................................... 1013
Maryland,	Rather v..................................... 896
Maryland,	Wiesner v.................................... 955
Maryland for use of Levin v. United States.......... 159,876
Maryland for use of Meyer, United States v.......... 158,1001
Massachusetts Attorney General, “John Cleland’s Memoirs" v........................................... 900,934,951,968
Massari v. United States........................... 931,1002
Massengill v. United States............................. 833
Matlock v. United States..............................   966
Matteawan State Hosp. Supt., Becker v............... 947,1002
Matthews v. James Talcott, Inc.......................... 837
TABLE OF CASES REPORTED. lxxxix
Page
Matthews & Co. v. Labor Board............................. 832
Max Factor & Co., Blau v.................................. 892
Maxwell, Cantrell v....................................... 895
Maxwell, Freeman v....................................... 1017
Maxwell, Hafiz v......................................... 1018
Maxwell, Hanovich v....................................... 868
Maxwell, Henderson	v............................... 804,922
Maxwell, Johnson v........................................ 889
Maxwell, Lowther v........................................ 881
Maxwell, Parker v......................................... 804
Maxwell, Powell v........................................ 1019
Maxwell, Russell v........................................	998
Maxwell, Sheppard v................................. 916,951
Maxwell v. Stephens................................. 944,1000
Maxwell, Turpin v......................................... 896
May, Luaces v............................................. 851
Mayberry v. Pennsylvania.................................. 286
Mayor and Board of Selectmen, Marshall v.................. 836
Mc. See also Mac.
McAbee v. United States................................... 854
McCarthy v. Conley........................................ 838
McClelland v. Texas....................................... 928
McClenny v. United States................................. 863
McCloskey, Stevens v.............................. 809,933,967
McCloskey & Co. v. Wymard................................. 823
McComb Mayor and Board of Selectmen, Marshall v.......	836
McConnell Hauling, Chicago, R. I. & P. R. Co. v........... 927
McCoy v. California....................................... 846
McCulley, Carpenter Body Works v.......................... 979
McCullough v. United States............................... 901
McDaniel v. United States................................. 826
McDermott & Co. v.	Fédéral Power Comm’n................... 985
McDonald v. Rhay.......................................... 960
McFadden v. Illinois...................................... 871
McFaddin, Jones v.......................................... 15
McFaddin Express v. Adley Corp....................... 912,1026
McFarland v. United	States......................... 1030
McGann v. Richardson..................................... 1007
McGee v. Crouse............................................ 67
McGee, Jefferson v........................................ 998
McGee, Wilson v...................................... 849,912
McGettrick, Coleman v..................................... 834
McGraw v. Englewood......................................  934
McGuire v. United States.................................. 826
xc TABLE OF CASES REPORTED.
Page
Mclntosh v. United States.......................... 875,1029
McKenna v. Myers........................................ 857
McKinney v. New York.................................... 947
McLeod, Beck v........................................	454
McLeod v. Ohio.......................................... 874
McMann, Curley v........................................ 995
McMann, Hyde v.......................................... 849
McMann, Lucas v......................................... 850
McMaster v. United States...........................818,1000
McMullen v. Gardner................................. 854,922
McNally v. Connecticut.................................. 948
Megge v. United States.................................. 831
Melcher v. Riddell...................................... 977
Melton v. Colorado..................................... 1014
Menacho v. California................................... 960
Memer Lumber & Hdw. Co.	v.	Labor Board...... 942
Merrick v. Allstate Ins. Co............................. 957
Merrill v. Alaska...................................... 1020
Mertens, Flying Tiger Line v.........................816,933
Messier, Sylvester v................................... 1011
Métal Products Workers v. Torrington Co................. 940
Metromedia, Inc. v. American Soc. of Composers....... 38,877
Metropolitan Life Ins. Co., Kasharian	v.................. 38
Metzger Dairies, North Texas	Producers Assn. v.......... 977
Meunier v. United States................................ 801
Meyer, Teamsters v........... * k.. 4.....................	897
Meyer, United States v.............................. 158,1001
Meyes v. California................................. 962,998
Miami Herald Pub. Co. v. Boire.......................... 824
Michigan, Losinger v................................... 1000
Michigan, Lott v........................................ 879
Michigan, Nawrocki v.................................... 455
Michigan, Stewart v..................................... 874
Michigan, Thompson v.................................... 867
Michigan Bell Tel. Co. v.	Detroit....................... 107
Michigan Mutual Liability Co.	v. Arrien................. 835
Mickels v. Rhay........................................ 1019
Mid-Florida Télévision Corp. v. Fédéral Com. Comm’n....	893
Midwest Laundry Equip. Corp. v. Berg.................... 974
Miguel v. United States............................. 859,922
Milgram Food Stores v. Ketchum.......................... 801
Milk Drivers v. Labor Board............................. 816
Millan-Garcia v. Immigration and Nat. Service............ 69
Miller v. Biggs......................................... 805
TABLE OF CASES REPORTED.
xci
Page
Miller	v. California..................................... 990
Miller	v. Commissioner.................................... 888
Miller	v. New Mexico..................................... 959
Miller	v. New York...................................... 817
Miller	v. United States............................... 852,1027
Milligan v. Wilson.......................................... 1020
Mills v. Alabama............................................. 936
Mills & Lupton Supply Co., Branch v.......................... 997
Mills & Lupton Supply Co., Dream Shell Homes v.............	997
Millwood v. California....................................... 949
Milne v. Milne............................................... 896
Mine Workers v. Gibbs........................................ 809
Mine Workers, Moody v................................... 285,1002
Minneapolis, Filister v....................................... 14
Minnesota, Richter v......................................... 860
Minnesota, Robinson v........................................ 948
Minnesota, Wisconsin v....................................... 935
Minnesota Comm’r of Corrections, Polk v...................... 921
Minnesota Min. & Mfg. Co., Platt v........................... 456
Miranda v. Arizona........................................... 925
Misani v. Ortho Pharmaceutical Corp.......................... 203
Mishkin v. New York.......................................... 951
Mississippi, Louisiana v..................................... 876
Mississippi, Ortega v........................................ 997
Mississippi, United States v............................. 889,897
Mississippi, Yates v......................................... 931
Mississippi Attorney General, Pure-Vac Dairy v................ 14
Mississippi ex rel. Patterson, Pure-Vac Dairy v............... 14
Missouri, Bames v............................................ 953
Missouri, Cyronne-De Virgin v................................ 895
Missouri, Durham v........................................... 857
Missouri, Gish v........................................ 919,1000
Missouri, Illinois v.................................... 803,1022
Missouri, Morris v........................................... 847
Missouri, Richardson v....................................... 953
Missouri, Shields v.......................................... 966
Missouri, Tillett v.......................................... 961
Missouri, Woody v............................................ 857
Missouri Dept. of Liquor Control, Milgram Stores v.........	801
Missouri-Kansas-Texas R. Co., Shelton v...................... 845
Missouri Pac. R. Co., Fawcett v.............................. 907
Missouri State Highway Comm’n, Mohr v........................ 846
Mitchell v. Florida.................................. 804,910,912
Mitchell v. Malvern Gravel Co................................ 828
XCII
TABLE OF CASES REPORTED.
Page
Mitchell v. United States................................. 920
M & J Diesel Corp. v. Briggs.............................. 801
Mobil Oil Co. v. Oil, Chemical & Atomic Workers........... 986
Mohasco Industries v. E. T. Barwick Mills................. 847
Mohr v. State Highway Comm’n of Missouri.................. 846
Monroe Auto Equip. Co. v. Fédéral Trade Comm’n.......... 1009
Montana Eastem Pipe Line Co. v. Shell Oil Co.............. 975
Montgomery v. New York.................................... 853
Montoya v. California..................................... 930
Moody v. Mine Workers................................ 285,1002
Moore v. California....................................... 861
Moore v. P. W. Publishing Co.............................. 978
Moore v. Rodak..........................................   899
Moorman v. Austin Presbyterian Theological Seminary.....	957
Moots v. Secretary of	HEW................................. 996
Moran v. Penan....................................... 943,1000
Morgan, Katzenbach	v................................... 1007
Morgan, New York City Bd. of Elections v................. 1007
Morris v. Missouri........................................ 847
Morrison v. Davis.........‘.............................. 1022
Morrison v. United States................................. 905
Morrison, Watwood v....................................... 905
Mortimer v. United States................................. 842
Morton Sait Co. v. United States........................... 44
Moskow v. Boston Redevelopment Auth....................... 983
Moss v. California....................................... 1018
Motor Coach Employées, Trailways	of New England v.......	879
Mountjoy v. Mountjoy...................................... 910
Mt. Mansfield Télévision v. United	States................. 818
Muench v. Beto............................................ 852
Mullins, Schultz v.......................................  868
Mundt v. Home Fed. Sav. & Loan Assn...................... 1019
Murchison, Willheim v..................................... 840
Murchison Bros., Willheim v............................... 840
Murphy, Andrews v......................................... 999
Murphy v. Larkin.......................................... 903
Murray v. Florida......................................... 970
Muth v. Atlass............................................ 988
Muza v. California Adult Authority.................... 870,921
Myartt v. Wisconsin....................................... 855
Myers, Harris v........................................... 857
Myers, Holmes v..........................................  888
Myers, McKenna v.......................................... 857
Myers, Neal v............................................. 932
TABLE OF CASES REPORTED.
xcni
Page
Myers, Strickland v......................................... 868
Myers, Twyman v............................................ 1018
My Store, Inc. v. Labor Board............................... 927
Nakai, Littell v......................................... 804,986
Nash, Edmondson v........................................... 950
Nassau, The, Schwartz v..................................... 919
National Assn. for Colored People v. Overstreet............. 937
National Bulk Carriers v. United States..................... 873
National Bus Traffic Assn. v. United States................. 369
National Labor Relations Board. See Labor Board.
National Maritime Union v. Labor Board.............. 835,840,933
National Traiter Convoy v. United States..................... 40
Natural Resources, Inc. v.	Wineberg....................... 1010
Naumkeag Théâtres Co. v. New England Théâtres............... 906
Nauton v. California......................................... 864
Nawrocki v. Michigan......................................... 455
Neal v. Myers............................................... 932
Neal, Snapp v............................................... 397
Nebraska, Craig v........................................... 802
Nebraska, Hunt v............................................ 994
Nebraska Secretary of State v. Dworak.................. 899,1021
Neely v. Martin K. Eby Constr. Co........................... 914
Nehring v. Gerrity.........................................  202
Nelms v. United States...................................... 874
Nelson v. California........................................ 964
Nevada, Rainsberger v....................................... 455
Newcombe v. New York.......................................  883
New England Elec. System, Sec. and Exch. Comm’n v........	953
New England Théâtres, Naumkeag Théâtres Co. v............	906
New Hampshire Attorney General, DeGregory v................. 877
New Jersey, Johnson v....................................... 925
New Jersey, Love v.......................................... 960
New Jersey, Ring v.....................................  812,933
New Jersey, Sullivan v...................................... 990
New Jersey, Tiesi v......................................... 954
New Jersey, Trantino v...................................... 993
New Jersey, Von Atzinger v...........................i.4;	851
New Jersey, Williams v...................................... 964
New Jersey, Wright v........................................ 993
Newman v. New York.......................................... 989
New Mexico, Archie v........................................ 804
New Mexico, Miller v........................................ 959
New Orléans Exp. Comm’n, Jahncke Service v..........j 967,974
New Orléans Gen. Contractons, United States v............ 17,933
XCIV
TABLE OF CASES REPORTED.
Page
Newspaper Drivers v. Detroit Newspaper Publishers......	374
Newton, Evans v.......................................... 296
New York, Auth	v...................................... 863
New York, Blunt	v...................................... 881
New York,	Budner	v............................... 860,933
New York,	Colligan	v................................... 880
New York, D’Antonio v.................................... 865
New York,	DeLucia	v................................... 821
New York,	Deutsch	v................................... 918
New York, Furtak v....................................... 997
New York, Grant v........................................ 975
New York, Green v........................................ 962
New York, Jackson v...................................... 872
New York, Leak v855
New York, Lluveras v..................................... 868
New York, Magette v...................................... 965
New York, Martin v....................................... 828
New York, McKinney v.................................	947
New York, Miller v....................................... 817
New York, Mishkin v...................................... 951
New York, Montgomery	v............................... 853
New York, Newcombe v..................................... 883
New York, Newman v....................................... 989
New York, Northern Lights Shopping Center v.............. 826
New York, Paine Drug Co. v............................... 838
New York, Portelli v....................... ri............ 1009
New York, Pugach v........................................ 20
New York, Rhodes v....................................... 859
New York, Ritter v....................................... 932
New York, Robinson v..................................... 998
New York, Rosenberg v.................................   1009
New York, Ross v......................................... 867
New York, Savino v....................................... 991
New York, Schwartz v..................................... 980
New York, Seymore v...................................... 869
New York, Shisoff v...................................... 881
New York, Spiesel v.................................. 856,922
New York, Stanley v...................................... 802
New York, Stevenson v.................................... 864
New York, Thompson v...................................... 24
New York, Tyson v........................................ 947
New York, Vignera v...................................... 925
New York, Williams v..................................... 882
New York Central R. Co., Bohanon v....................... 948
TABLE OF CASES REPORTED.
xcv
Page
New York City Bar Assn., Schildhaus v................. 370
New York City Bd. of Elections v. Morgan............. 1007
New York City Comptroller, Atlantic Gulf Co. v........ 368
New York City Council President v. Lomenzo............ 11
New York Comm’r of Education, Vetere v................ 825
New York Corporation Counsel, Murphy v...........*..................................... 903
New York Dept. of Sanitation, Braadt v................ 21
New York Govemor v. Orans........................... 10,934
New York Life Ins. Co., Billy Mitchell Village v...... 941
New York Pub. Serv. Comm’n v. Callery Properties... 223,1001
New York Secretary of State, Screvane v............... 11
New York Secretary of State, Travia v...................	9,287
New York Secretary of State, WMCA, Inc. v.............. 4
New York State Bd. of Regents, Ciofalo v................	942
New York State Bd. of Regents, Stemfels v............. 901
New York State Liquor Authority, Seagram & Sons v.......	924
New York State Suprême Court, DeGroat v............... 989
New York Suprême Court Justice, Stevens v........... 809,933,967
Nicholas v. United States.................................... 971
Nichols v. Randolph................................................................... 1016
Nicklaus, Dun & Bradstreet	v.............................. 825
Nicodemus, Bain v............................................ 891
Nicole v. Berdecia........................................... 826
Nielsen, Interlake S. S. Co. v......................................................... 873
93 Court Corp. v. United States.............................. 984
No-Joint Concrète Pipe Co., Hanson v................................................... 843
Noonkester v. Washington..................................... 964
Norfolk & W.	R. Co., Calumet Harbor Terminais	v.......	913
Norfolk & W.	R.	Co., Illinois	Central R. Co. v........... 913
Norfolk & W.	R.	Co., United	States v.....................	913
Norris v. United	States............................................................... 850
North Carolina,	Creason	v............................................................ 864
North Carolina,	Davis v............................................................... 953
North Carolina,	Mallory	v...............................	22
North Carolina,	Rising v............................................................. 895
North Carolina Highway Comm’n, Wofford v............................................... 822
Northeast Airlines, Eastern Air Lines v................................................ 845
Northeast Airlines, World Airways v.................................................... 984
Northern Lights Shopping Center v. New York............................................ 826
North Texas Producers Assn. v. Metzger Dairies......................................... 977
Northwest Agr. Coop., Interstate Com. Comm’n v........................................ 1011
Northwestern P. R. Co. v. Public Util. Comm’n.......................................... 370
Nuole v. California................................................................... 1013
N. V. Nederl. Amerik Maats. v. Albanese................................................ 283
XCVI
TABLE OF CASES REPORTED.
Page
N. V. Nederl. Amerik Maats., Albanese v................ 283,1000
N. V. Nederl. Amerik Maats., Int’l Term. Co. v......... 283,1030 Nyyssonen v. Bendix Corp............................... 847,934
O’Brien, Manhattan-Bronx Postal Union v.................... 978
O’Brien v. United States............................... 1007
O’Brien, V. L. Smithers Mfg. Co. v......................... 841
O’Callahan v. Attorney General............................ 1017
Océan Drilling Co. v. Fédéral Power Comm’n................. 223
O’Connor v. Ohio.................................... 19,286,912
Odell v. State Dept. of Pub. Welfare	of Wis................ 420
Office Employés, Goldberg v................................ 874
Ohio, Brookhart v.................................. 810,899,968
Ohio, Davis v.............................................. 871
Ohio, Keeling v............................................ 939
Ohio, McLeod v............................................. 874
Ohio, O’Connor v.................................... 19,286,912
Ohio, Phipps v............................................. 957
Ohio, Verzi v.............................................. 835
Ohio, Wears v.............................................. 853
Ohio Pub. Util. Comm’n, Cleveland	v...................... 982
Oil, Chemical & Atomic Workers, Mobil Oil Co. v............ 986
Oklahoma Corporation Comm’n,	Vogel v................... 815
Oksten v. Florida.......................................... 867
Olguin v. California....................................... 859
Oling v. Air Line Pilots Assn.............................. 926
Oliver v. Louisiana........................................ 862
Oliver v. United States.................................... 908
Olivo v. Fay............................................... 869
Oison v. Tahash............................................ 858
O’Malley, United States v.................................. 810
Oolite Concrète Co., Aircraft & Engine Employées v..............	972
Orans, Rockefeller v.................................... 10,934
Oregon, Byrd v............................................. 865
Oregon, Hammons v.......................................... 917
Oregon, Ponton v........................................   1014
Oregon, Unsworth v........................................ 1014
Oregon State Highway Comm’n,	DeLong Corp. v................ 877
Orlando v. Maroney......................................... 995
Orsinger, Beazley v........................................ 932
Ortega v. Mississippi...................................... 997
Ortega v. Thomton.......................................... 930
Ortega v. Warden........................................... 969
Ortho Pharmaceutical Corp., Misani	v..................... 203
Osbom v. United States.................................... 1023
TABLE OF CASES REPORTED.
XCVII
Page
Oshinsky, Stein v......................................... 957
Oswald, Simmons v......................................... 866
Overlakes Corp. v. Commissioner........................... 988
Overstreet, National Assn. for Colored People v........... 937
Owens v. United States........................... 878,956,1021
Oyler v. Willingham....................................... 847
Pabst Brewing Co., United States v........................ 900
Pacific Coast European Conf. v. United States............. 958
Pacific Far East Line v. Jones Stevedoring Co............. 919
Page v. Pan American Pet. Corp............................ 820
Page v. United States..................................... 979
Paine Drug Co. v. New York................................ 838
Palisi v. Louisville & N. R. Co........................... 834
Palmer, Durovic v......................................... 820
Palmer v. United States................................... 903
Palomera v. Willingham.................................... 946
Pan American Pet. Corp., Page v........................... 820
Pan American Pet. Corp., Wallis v......................... 810
Pan American World Airways, Gondeck v....................... 25
Paneitz v. Indiana........................................ 883
Panhandle Eastern Pipe Line v. Fed. Power Comm’n.........	944
Pappadio v. United States................................. 916
Parada-Gonzalez v. United States......................... 1009
Paramount Film Distrib. Corp., Viking Theatre v.......... 1001
Pardo-Bolland v. United States............................ 944
Parker v. Board of Education, Prince George’s Co......... 1030
Parker, Foster v.......................................... 862
Parker v. Maxwell......................................... 804
Parks v. United States................................... 1024
Parson v. Anderson........................................ 806
Pasadena, Shakespeare v................................ 39,966
Pasquinzo v. United States................................ 912
Passante v. Herold........................................ 866
Pâte, Bennett v........................................... 895
Pâte, Calhoun v....................................... 945,1002
Pâte, Harris v............................................ 864
Pâte, Hayes v............................................. 804
Pâte, Long v.......................................... 881,922
Pâte v. Robinson.......................................... 890
Pâte, Witherspoon v....................................... 861
Patents Comm’r, Borst v................................... 973
Patents Comm’r, Eckel v................................... 907
Patents Comm’r, Goodyear Co. v............................ 973
Patents Comm’r, Hazeltine Research v............. 252,876,1000
786-211 0-66—7
xcvm TABLE OF CASES REPORTED.
Page
Patents Comm’r, Mack v..................................... 983
Patents Comm’r, Pollack v.............................. 893,949
Patterson, Pure-Vac Dairy Prod. Corp. v..................... 14
Paul, Rogers v............................................. 198
Pavgouzas v. Immigration and Nat. Service.................. 816
Payne, Clark v............................................. 874
Peacock v. Greenwood....................................... 971
Peacock, Greenwood v....................................... 971
Pearson v. Birdwell........................................ 858
Peerless Ins. Co. v. United States......................... 832
Peguese v. Fay............................................. 966
Penan, Moran v......................................... 943,1000
Pennsylvania, Babcock Blvd.	Land	Co.	v................... 906
Pennsylvania, Bruce v.............................. i. L»	868
Pennsylvania, Di Piero v................................... 992
Pennsylvania, Giaccio v.................................... 399
Pennsylvania, Johnson v.................................... 859
Pennsylvania, Mayberry v................................... 286
Pennsylvania, Stello v..................................... 988
Pennsylvania Pub. Util. Comm’n v. Pennsylvania R. Co....	281
Pennsylvania R. Co., Accardi v............................. 808
Pennsylvania R. Co., Pennsylvania Pub. Util. Comm’n v.....	281
Pennsylvania R. Co., Rollins v............................. 980
Pennsylvania R. Co. v. United States................... 368,372
Pentecost, Bumham Van Service v............................ 106
Penzien v. Dielectric Prod. Co............................. 822
Pepperidge Farm v. Bryan................................... 824
Perry v. Commerce Loan Co.................................. 889
Perry v. United States..................................... 959
Perry v. Zysset............................................ 837
Peters v. Cox.............................................. 863
Peterson v. United States.................................. 852
Pew v. Commandant of U. S. Coast Guard..................... 421
Peyton, Cassese v........................................... 21
Peyton, Davis v........................................... 1016
Peyton, Ward v............................................. 995
Pheaster v. United States.................................. 861
Phelper v. Texas........................................... 943
Pheribo v. United	States.................................. 871
Phillips v. United	States.................................. 893
Philpott, Zamaroni v....................................... 903
Phinney, David v........................................... 983
Phipps v. Ohio............................................. 957
Photon, Inc., Tansel v.................................... 1011
TABLE OF CASES REPORTED.
XCIX
Page
Pike, Houghton v.......,.................................... 819
Pinciotti v. United States............................... 819,933
Pinedo v. United States..................................... 976
Pinto, Hall v............................................... 875
Pisano v. The Benny Skou.................................... 938
Pitsenbarger, George F. Hazelwood Co. v..................... 201
Pittman v. United States.................................... 941
Plant Guard Workers, Linn v.................. Z......... i .	912
Platt v. Minnesota Min. & Mfg. Co........................... 456
Plunkett v. Lane............................................ 804
Polikoff v. Levy............................................ 903
Polk v. Minnesota Comm’r of Corrections..................... 921
Pollack v. Commissioner of Patents...................... 893,949
Pollard, Lux Art Van Service v.............................. 837
Ponton v. Oregon........................................... 1014
Pool v. United States....................................... 832
Port Chester v. Catherwood.................................. 818
Portelli v. New York....................................... 1009
Posner, Inc. v. Labor Board................................. 837
Postal Union v. O’Brien..................................... 978
Postell v. California....................................... 963
Postell v. United States............................... 956,1021
Postmaster Gen., Manhattan-Bronx Union v.................... 978
Potter v. United States..................................... 817
Potter’s Caméra Store v. United States...................... 817
Powell v. Maxwell.......................................... 1019
Power, Cardona v............................. .s/.11...;.. 1008 Power Commission. See Fédéral Power Comm’n.
Powers v. California........................................ 908
Prater v. United States..................................... 894
President of New York City Council v. Lomenzo................ 11
Prezioso	v. United States............................. 939,1000
Price v.	Price............................................. 820
Price v.	State Road Comm’n of W. Va......................... 20
Price v.	United States................................. 888,949
Primrose Super Market v. Labor Board.......................  830
Prince George’s County Bd. of Education, Parker v........ 1030 Pritchard, Liggett .& Myers Tobacco Co. v................ 987
Privitera v. Kross.......................................... 911
Prysock v. Weakley.......................................... 851
Public Serv. Comm’n of N. Y. v. Callery Prop........... 223,1001
Public Util. Comm’n, Victoria Water Co.	v................. 940
Public Util. Comm’n of Cal., Green v.................. 1006,1009
Public Util. Comm’n of Cal., Jim Green’s	Trucking v... 1006,1009
c TABLE OF CASES REPORTED.
Page
Public Util. Comm’n of Cal.,	Northwestern P. R. Co. v...	370
Public Util. Comm’n of Ohio, Cleveland	v................. 982
Puckett v. Tennessee..................................... 966
Puerto Rico Suprême Court,	Escalera v.................. 421
Pugach v. New York.......................................  20
Pugliano v. United States..............................   939
Pure Oil Co. v. Suarez................................... 972
Pure-Vac Dairy Prod. v. Mississippi....................... 14
Purifoy v. Florida....................................... 849
P. W. Publishing Co., Moore v............................ 978
Quartes v. Texas......................................... 829
Quilès v. United States.................................. 992
Quintana v. Colorado.................................... 1013
Rachel, Georgia v.......................................  808
Rahmoeller v. California................................. 975
Railroad Retirement Board, Ruhl v........................ 836
Railway Express Agency v. Civil Aeronautics Bd........... 879
Railway & Steamship Clerks v. Florida E. C. R. Co....... 1008
Rainey v. George A. Fuller Co............................ 983
Rainsberger v. Nevada...................................... 455
Ramirez-Villa v. Immigration and Nat. Serv................. 908
Rance v. Sperry & Hutchinson	Co......................... 945
Randall v. Commissioner.................................. 873
Randolph, Nichols v..................................... 1016
Rather v. Maryland......................................... 896
Ratke v. United States..................................... 873
Ratley v. Crouse.......................................... 42
Rector v. Heinze......................................... 997
R.	E. Darling Co., Space Aero Prod. Co. v............... 843
Reece v. Rhay............................................ 911
Reed v. Beto............................................ 1025
Reed v. United States............................ 849,922,993
Reeves, Rivera v......................................... 997
Reid v. California....................................... 995
Reincke, Swanson v....................................... 869
Releford v. United States................................ 984
Reoux v. First Nat. Bank of Glens Falls................. 1012
Republic of Iraq v. First Nat. Bank of Chicago........... 982
Republic of Iraq v. First Nat. City Bank................ 1027
Retail Clerks v. Lion Dry Goods, Inc..................... 839
Reynolds v. Langlois..................................... 962
Reynolds, Wells v......................................... 39
Reynolds Elec. & Eng. Co., Carpenters v.................. 905
Reynolds Metals Co. v. Washington.......................... 160
TABLE OF CASES REPORTED.	ci
Page
Rhay, Bailey v............................................ 963
Rhay, Cervantes v........................................ 1019
Rhay, Copestick v........................................ 1020
Rhay, Draper v............................................ 996
Rhay, Eskridge v.......................................... 996
Rhay, Leyde v............................................. 911
Rhay, Loux v.............................................. 996
Rhay, McDonald v.......................................... 960
Rhay, Mickels v.......................................... 1019
Rhay, Reece v..........................................	911
Rhay, Runnels v........................................... 867
Rhay, Sawyer v............................................ 861
Rhay, Saylors v........................................... 895
Rhay, Stahlman v.......................................... 963
Rhay, Stiltner v..................................... 997,1012
Rhay, Wright v............................................ 963
R. H. Bouligny, Inc., Steelworkers v...................... 145
Rhodes v. Edwards......................................... 943
Rhodes v. New York........................................ 859
Rhodes v. Tinsley......................................... 962
Rice v. Lane.............................................. 991
Richard v. United States.................................. 908
Richardson, Abe v......................................... 807
Richardson, Burns v....................................... 807
Richardson, Cravalho v.................................... 807
Richardson v. Holman...................................... 881
Richardson v. Markley..................................... 851
Richardson, McGann v..................................... 1007
Richardson v. Missouri.................................... 953
Richmond v. Wainwright.................................... 855
Richmond School Bd., Bradley v............................ 103
Richmond Télévision Corp. v. United States................. 68
Richter v. Minnesota...................................... 860
Riddell, Malat v.......................................... 900
Riddell, Melcher v........................................ 977
Ridgeway v. Arkansas...................................... 902
Riffle v. U. S. District Court............................ 859
Rinaldi v. Yeager........................................ 1007
Ring v. New Jersey.................................... 812,933
Rising v. North Carolina.................................. 895
Ritacco v. United States.................................. 976
Ritter v. New York........................................ 932
Rivera v. Reeves.......................................... 997
Robbins v. California.................................... 1017
Cil TABLE OF CASES REPORTED.
Page
Robbins, Chase v. 1029 Robins v. Texas........................................... 961
Robinson v. Fay........................................... 997
Robinson v. Minnesota..................................... 948
Robinson v. New York...................................... 998
Robinson, Pâte v.......................................... 890
Robinson v. United States................................. 839
Rochelle, Segal v......................................... 375
Rochelle, Segal Cotton Products v.......................	375
Rochester Gas & Elec. Corp. v. Fed. Power Comm’n.........	832
Rockefeller v. Orans................................... 10,934
Rodak, Moore v............................................ 899
Rogers v. Lane............................................ 991
Rogers v. Paul............................................ 198
Rollins v. Haskins........................................ 895
Rollins v. Pennsylvania R. Co............................. 980
Romano v. Fay............................................. 931
Romano, United States v................................... 136
Root v. Cunningham......................................   866
Rosenberg v. New York.................................... 1009
Rosenblatt v. American Cyanamid Co................... 110,1002
Rosenblatt v. Baer........................................ 802
Ross	v.	California..................................... 998
Ross	v.	Delta Drilling Co.............................. 966
Ross	v.	New York....................................... 867
Ross	v.	Stanley....................................... 1026
Roth, Vida v.............................................. 996
Rountree, Ewing v......................................... 918
Ruark v. Colorado......................................... 882
Rubio v. Wilson........................................... 951
Rucker v. Fifth Avenue Coach Lines........................ 815
Rudick v. Superior Court of California.................... 976
Ruhl v. Railroad Ret. Board............................... 836
Rundle, Adams v........................................... 912
Rundle, Allen v........................................... 857
Runnels v. Rhay........................................... 867
Rusk, Zemel v............................................. 873
Russell, Chapman v........................................ 999
Russell, Cole v........................................... 952
Russell, Elfbrandt v...................................... 810
Russell, Frace v.......................................... 863
Russell, Jodon v......................................... 1018
Russell, Johnson v........................................ 996
Russell v. Maxwell........................................ 998
TABLE OF CASES REPORTED.
cm
Page
Ruud v. United States......................................  1014
Ryder Truck Rental, Central Packing Co. v.................... 827
Sabena Belgian World Airways v. LeRoy........................ 878
St. Louis, 508 Chestnut, Inc. v.............................. 203
St. Louis Mailers’ Union v. Globe-Democrat Co................ 979
St. Louis S. R. Co., Hullum v............................ 906,949
St. Louis Terminal Railroad Assn., Colorado Co. v.........	989
St. Paul Fire & Marine Ins. Co., Blanchard v................. 829
St. Paul Ins. Co., Blanchard Constr. Co. v................... 829
Salardino v. Colorado.................................. 1012
Salazar v. Cox.......................................... 964
Salgado v. United States..................................... 870
Sait Lake City, Granieri v.............................. 23
Salzano v. United States................................ 870
Samurine v. United States............................. 849,922
San Bemardino, Andrews v................................ 978
Sanchez v. Cox.......................................... 965
Sanchez v. United States.............................. 856,860
San Diego & A. E. R. Co., Gunther v...................... 257,898
Santos v. United States................................. 894
Santos v. Wilson........................................ 952
Saulsbury v. Green...................................... 882
Savino v. New York...................................... 991
Sawyer v. Rhay.......................................... 861
Sayle, Dunscombe v....................i................	814
Saylor v. U. S. Board of Parole......................... 909
Saylors v. Rhay......................................... 895
Scalza v. United States................................. 973
Scalzo v. Hurney........................................ 849
Schack v. Florida...................................... 804,1016
Schaeffer v. United States.............................. 940
Schantz v. Arizona..................................... 1015
Schatten-Cypress Co. v. Lee Shops....................... 980
Schatz v. Gardner....................................... 871
Schecter Corp. v. Carrier Corp.......................... 904
Schenley Industries, Inc., Jachimiec v.......................	841
Scherck v. United States................................ 882
Scherer & Sons v. Garment Workers....................... 820
Schildhaus v. Bar Assn. of New York City..................... 370
Schilling Co., Aircraft & Engine Employées v................. 972
Schlette v. Halbert.......................................... 919
Schmerber v. California...................................... 971
Schnackenberg, Cheff v....................................... 917
Schnackenberg, Holland Fumace Co. v.......................... 873
CIV
TABLE OF CASES REPORTED.
Page
School Bd. of Hopewell, Gilliam v........................... 103
School Bd. of Richmond, Bradley v........................... 103
Schultz v. Mullins.......................................... 868
Schultz v. United States.................................... 880
Schulze, Boughner v......................................... 919
Schwartz v. New York........................................ 980
Schwartz v. The Nassau...................................... 919
Scofield, Automobile Workers v.............................. 205
Scott v. MacDougall......................................... 920
Scott v. United States..................................... 1017
Scott Const. Co. v. Herrick................................. 892
Scott Const. Co. v. Lewis Tower Bldg........................ 892
Screvane v. Lomenzo.......................................... 11
Sdrales, Cuevas v.......................................... 1014
Seaboard Air Line R. Co., Ambold v.......................... 831
Seaboard Air Line R. Co. v. United States................... 154
Seacat Marine .Drilling Co. v. Babineaux..................... 16
Seagram & Sons v. Hostetter................................. 924
Sealy, Inc., United States v................................ 806
Secretary of Agriculture, Windham Creamery v................ 979
Secretary of Air Force, Brown v............................. 998
Secretary of HEW, Farrell v................................. 921
Secretary of HEW, Haluska v................................. 844
Secretary of HEW, Kemer v................................... 861
Secretary of HEW, McMullen v........................ 854,922
Secretary of HEW, Moots v................................... 996
Secretary of HEW, Schatz v..................... 4........	871
Secretary of Labor, Home News Pub. Co. v.................... 823
Secretary of State, Zemel v................................. 873
Secretary of State of Nebraska v. Dworak............... 899,1021
Secretary of State of New York, Screvane v................... 11
Secretary of State of New York, Travia v...................9,287
Secretary of State of New York, WMCA, Inc. v.................. 4
Secretary of State of Texas, Hainsworth v.............. 109,1002
Securities and Exch. Comm’n v. New England Elec. System..	953
Segal v. Rochelle........................................... 375
Segal Cotton Products v. Rochelle........................... 375
Segars v. Bomar............................................. 960
Seinscheimer Co., Kamsler v................................. 837
Selz v. California......................................... 1013
Semel v. United States.................................. 840,933
Serman v. United States..................................... 873
Service Trucking Co. v. United States........................ 43
Sessoms v. Union Sav. & Trust Co............................ 821
TABLE OF CASES REPORTED. cv
Page
Seventy-Three Inn, Cuevas v................................ 1014
Seven-Up Co. v. Get Up Corp................................. 901
Seymore v. New York......................................... 869
Shakespeare v. Pasadena.................................. 39,966
Shamrock Oil & Gas Corp. v. Commissioner.................... 892
Shapiro & Son Curtain Corp. v. Glass........................ 942
Sheftic v. Boles............................................ 970
Shell Oil Co., Montana Eastem Pipe Line Co. v............... 975
Shelton v. Georgia.......................................... 917
Shelton v. Missouri-Kansas-Texas R. Co...................... 845
Shelton v. United States.................................... 856
Shephard v. Commissioner.................................... 813
Sheppard v. Maxwell..................................... 916,951
Sherman v. Goerlich’s, Inc.................................. 830
Shields, Crouch v........................................... 907
Shields v. Missouri......................................... 966
Shillitani v. United States................................. 913
Shipp v. Wilson............................................ 1012
Shisoff v. New York......................................... 881
Shively v. United States.................................... 883
Shobe v. Heinze............................................. 864
Shores v. United States.................................... 1029
Shott, Tehan v.............................................. 406
Shuttlesworth v. Birmingham.................................. 87
Sibley v. United States..................................... 945
Siebring v. Hansen.......................................... 943
Sigal v. United States...................................... 811
Signal Mfg. Co. v. Labor Board.............................. 985
Sill Corp. v. United States................................. 840
Silver v. California........................................ 856
Silverman, Stevenson v...................................... 833
Silverstein v. United States................................ 828
Simmons v. Oswald........................................... 866
Simmons v. Union News Co.................................... 884
Simmons Co., Baker v........................................ 820
Simon v. Castille........................................... 932
Simpson v. United States................................... 1025
Sims v. California.......................................... 947
Sind, Bames v............................................... 891
Singer, Estwing Mfg. Co. v.................................. 905
Singer, Tatum v............................................. 845
Skahill v. Capital Airlines................................. 878
Skaustrand, The v. Dredge Cartegena......................... 918
Skolnick v. Hallett......................................... 996
cvi TABLE OF CASES REPORTED.
Page
Smaldone v. Colorado..................................... 1012
Smalenberger, Automation Devices v...................... 974
Smart v. Heinze........................................... 896
Smayda v. United States................................... 981
Smith, Andrews v........................................  1029
Smith	v. Ayres.......................................... 367
Smith	v. California..................................... 804
Smith	v. Crouch......................................... 838
Smith	v. Ellington...................................... 998
Smith	v. Florida........................................ 952
Smith	v. Gagnon......................................... 899
Smith	v. Illinois....................................... 961
Smith	v. Industrial	Accident Comm’n..................... 860
Smith	v. LaVallee....................................... 865
Smith,	Stewart v........................................ 1017
Smith v. Taylor..........................................  848
Smith v. United States........................ 824,861,878,880
Smithers Mfg. Co. v. Illinois Florist....................  841
Smithers Mfg. Co. v. O’Brien.............................. 841
Snapp v. Neal............................................. 397
SNC Mfg. Co. v. Labor Board............................... 902
Snell v. Alabama.......................................... 896
Snipe v. United States.................................... 960
Snyder v. Cottonwood Creek Conserv. Dist.................. 943
Sociedad Maritima San	Nicholas v. Bouas.................. 1025
Société Anonyme Belge v. LeRoy............................ 878
Solomon v. South Carolina.................................. 204
Soric v. Immigration and Nat. Service..................... 285
South	Carolina	v. Katzenbach........................ 898,967
South	Carolina,	Solomon v............................... 204
South	Carolina	Atty. Gen., Beck v....................... 454
South	Dakota,	Zobel v................................... 833
Southern Cal. Edison Co. v. El Paso Gas Co................ 970
South Florida TV Corp. v. Fédéral Com. Comm’n............. 987
South Plainfield Baptist Church, Kasharian v............... 40
Southwest Eng. Co. v. United States....................... 819
Space Aero Prod. Co. v. R. E. Darling Co.................. 843
Spann, Lauritzen v. 938,1000
Speers, United States v................................... 266
Spencer v. Texas.......................................   1022
Sperling Estate v. Commissioner........................... 827
Sperry & Hutchinson Co., Rance v.......................... 945
Spiesel v. New York................................... 856,922
Spino v. United States.................................... 825
TABLE OF CASES REPORTED.
cvn
Page
Stager v. Florida E. C. R. Co.............................. 878
Stahlman v. Rhay........................................... 963
Standard Oil Co., United States v.......................... 807
Standard-Triumph Motor Co. v. Houston...................... 974
Stanley	v. Florida........................................ 952
Stanley	v. New York....................................... 802
Stanley,	Ross v.......................................... 1026
Stames	v. Markley.................................... 908,949
Star Newspaper Co., Johnson v.............................. 910
State. See name of State.
State Compensation Ins. Fund, Brasch v................ 942,1000
State Dept. of Pub. Welfare of Wis., Odell v............... 420
State Farm Mutual Ins. Co., Yenowine v..................... 830
State Highway Comm’n of Missouri, Mohr	v............... 846
State Road Comm’n, Howard Price & Co.	v................ 20
State Road Comm’n, Price v.................................. 20
State Road Comm’n, Wetherall v.............................. 45
State Tax Comm’n, Berry v..................................  16
Stebbins v. Macy...................................... 41,949
Steelworkers, Fibreboard Corp.	v....................... 826
Steelworkers, Jenkins Bros, v........................... 819
Steelworkers v. R. H. Bouligny,	Inc..................... 145
Steenbergen v. Illinois................................. 853
Stein v. Oshinsky....................................... 957
Stello v. Pennsylvania.................................. 988
Sten v. United States.................................*854,949
Stephens, Maxwell v................................... 944,1000
Stephens v. United States............................... 932
Stephenson, Duriron Co., Inc. v......................... 956
Stephenson v. United States............................. 814
Stemfels v. Board of Regents............................ 901
Stevens v. Humble Oil & Ref. Co............................ 978
Stevens, Lipscomb v........................................ 993
Stevens v. Marks................................... 809,933,967
Stevens v. McCloskey............................... 809,933,967
Stevenson v. Altman.......................................  930
Stevenson v. New York...................................... 864
Stevenson v. Silverman..................................... 833
Stewart, California v.............................. 937,952,969
Stewart	v. Michigan..................................... 874
Stewart	v. Smith.................................... 1017
Stiltner	v. Rhay................................ 997,1012
Stiltner	v. Washington..................................... 864
Stirone	v. Markley..................................... 829
CVIII
TABLE OF CASES REPORTED.
Page
Stitzel-Weller Distillery v. Dept. of Revenue................ 846
Street Employées, Trailways of New England v...........	879
Streeter v. Alabama......................................... 1028
Strickland v. Myers.......................................... 868
Strollo v. United States..................................... 873
Studemeyer v. Macy........................................... 834
Stuff v. E. C. Publications.................................. 822
Stuffed Turkey Case.......................................... 111
Stupak v. United States.................................. 829,933
Sturgis v. United States..................................... 879
Suarez, Pure Oil Co. v....................................... 972
Subversive Act. Cont. Bd., Albertson v........................ 70
Suffolk Co. Bd. of Supervisors v. Bianchi..................... 15
Suhl, Bumb v................................................. 938
Sullivan v. New Jersey....................................... 990
Summers v. California........................................ 857
Summers v. Washington........................................ 907
Sunkist Growers, Winckler & Smith Citrus Prods. v..........	958
Sun Oil Co. v. Fédéral Trade Comm’n.......................... 982
Sun Ray Drug Co. v. Lieberman................................ 819
Superior Court of California, Buck v......................... 834
Superior Court of California, Rudick v....................... 976
Superior Court of California, Walker v.............. 875,923,1001
Superior Court of California, Watkins v................. 935,1010
Superior Oil Co. v. Fédéral Power Comm’n..................... 985
Suprême Court of Puerto Rico, Escalera v..................... 421
Surowitz v. Hilton Hotels Corp............................... 809
Swain v. Alabama............................................. 944
Swanner v. Thomas............................................ 865
Swanson v. Reincke........................................... 869
Sweney, Wolenski v........................................... 868
S.	W. Farber, Inc. v. Texas	Instruments, Inc................ 843
Swift & Co. v. Wickham....................................... 111
Switzerland Cheese Assn. v.	E. Horne’s Market.............. 1025
Sylvester v. Messier........................................ 1011
Syverson v. United States............................... 961,1021
Taft-Ingalls Corp. v. Associated	Press....................... 820
Taft-Ingalls Corp., Associated	Press	v...................... 820
Tahash, Crossley v........................................... 861
Tahash, Oison v.............................................. 858
Tahtinen v. California....................................... 920
Talbert v. Kansas............................................ 868
Talbot, Hunter v............................................. 919
Talcott, Inc., Matthews v.................................... 837
TABLE OF CASES REPORTED.
cix
Page
Tampa, Fair v.............................................. 888
Tansel v. Photon, Inc..................................... 1011
Tatum v. Singer..........................................   845
Taxicab Bureau, Kaufman v.................................. 849
Taylor v. Baltimore & O. R. Co............................. 831
Taylor, Janigan v.......................................... 879
Taylor, Smith v............................................ 848
Taylor v. United States.................................... 847
Taylor v. Walker.......................................... 1021
Taylor v. Ward............................................. 856
Teamsters v. Detroit Newspaper Publishers.................. 374
Teamsters v. I. E. Schilling Co............................ 972
Teamsters v. Labor Board................................... 816
Teamsters v. Madden........................................ 822
Teamsters v. Meyer......................................... 897
Teamsters v. Oolite Concrète Co............................ 972
Tecon Engineers v. United States........................... 976
Tehan v. Shott............................................. 406
Teitelbaum v. United States................................ 831
Tellier v. Commissioner.................................... 817
Tellier, Commissioner v.................................... 808
Tennessee, Jacobs v.....................................	823
Tennessee, Puckett v....................................... 966
Tennessee, Williams v...................................... 961
Tennessee Gas Trans. Co., Violet Trapping Co. v............ 902
Tenth Circuit Judicial Council,	Chandler v................ 1003
Terminal Railroad Assn., Colorado Milling Co. v............ 989
Texas, Beasley v........................................... 990
Texas, Bell v............................................ 1023
Texas, Boles v............................................. 930
Texas, Crain v............................................. 853
Texas, Creswell v...............................s. s......	866
Texas, Estes v............................................. 875
Texas, Gonzales v.......................................... 992
Texas, Hensley v........................................... 882
Texas, Law v....................J......................	959
Texas,	Martin	v.......................................... 928
Texas, McClelland v......................................   928
Texas,	Phelper	v.......................................... 943
Texas,	Quartes	v.......................................... 829
Texas,	Robins	v.......................................... 961
Texas,	Spencer	v......................................... 1022
Texas Board for Professional Engineers, Trimble v........	817
Texas Board of Dental Examiners, Fieldsmith v.............. 977
ex TABLE OF CASES REPORTED.
Page
Texas Casualty Ins. Co., Beasley v..................... 994
Texas Instruments, Inc., S. W. Farber, Inc. v.......... 843
Texas Liquor Control Bd. v. Ammex Warehouse............ 977
Texas & N. O. R. Co., Hammons v........................ 832
Texas Secretary of State, Hainsworth v............. 109,1002
Thacker v. Ward Markham Co......................... 865,934
Theatrical Employées v. Madden......................... 822
Thomas v. Davis........................................ 875
Thomas, Swanner	v.................................... 865
Thomas v. United	States............................... 855
Thompson, Brown v....................................... 940
Thompson v. Heinze.....................................   857
Thompson	v.	Kawasaki	Kisen, K. K.................... 987
Thompson	v.	Macieiski............................... 952
Thompson	v.	Michigan................................ 867
Thompson	v.	New York................................. 24
Thomson v. Carman....................................... 940
Thomton v. Davis........................................ 42
Thomton, Orteg^,	v.................................... 930
Tiesi v. New Jersey..................................... 954
Tillamook Creamery Assn. v. Tillamook Dairy Assn......	903
Tillamook Dairy Assn., Tillamook Creamery Assn. v.....	903
Tillett v. Missouri.................................... 961
Tillman v. California.................................. 962
Time, Inc. v. Hill...................................... 936
Timmons v. United States............................... 995
Tinsley, Johnson v..................................... 1016
Tinsley, Rhodes v...................................... 962
Tjonaman v. A/S Glittre................................ 873
Tobin Const. Co. v. United States...................... 830
Toledo, Dietz v......................................... 956
Tom v. United States................................... 912
Tomaszek v. Illinois.................................... 827
Tomiyasu v. Golden...................................... 844
Tomlinson, Frank v.................................... 1028
Torrington Co., Métal Prod.	Workers v................... 940
Township. See name of township.
Tracy v. Manduchi...................................... 943
Trade Commission. See Fédéral Trade Comm’n.
Tradeways, Inc. v. Chrysler	Corp...................... 832
Traganza v. California................................. 995
Trailways of New England v.	Street Employées............ 879
Trans World Airlines, Hughes Tool Co. v................ 842
Trantino v. New Jersey.................................. 993
TABLE OF CASES REPORTED.
cxi
Page
Travia v. Lomenzo...................................... 9,287
Trest v. United States.................................. 1018
Trew v. Wainwright....................................... 899
Trimble v. Texas Board	of Registration................... 817
Trinidad Corp., Kenney	v......................... 1030
Trinity Universal Ins. Co. v. Economy Forms Corp.......	813
Truslow v. Boles......................................... 970
Tucker, In re........................................... 1006
Turlock Irrig. Dist. v. Fédéral Power Comm’n............. 941
Turner v. Fay............................................ 909
Turpin v. Maxwell........................................ 896
Tuttle v. Utah........................................... 872
20th Century-Fox Film Corp., Winchester Drive-In v..... 1011
Twin Lakes Réservoir Co., Bond	v....................... 902
Twyman	v. Myers...................................... 1018
Tynan v.	Eyman......................................... 969
Tyson v.	Louisiana...................................... 942
Tyson v.	New York....................................... 947
Underwood, Caldwell v..................................	805
Union. For labor union, see name of trade. Union News Co., Simmons v................................ 884
Union Sav. & Tr. Co., Sessoms v.......................... 821
United. For labor union, see name of trade. United Draperies v. Commissioner......................... 813
United Gas Improvement Co. v. Callery Properties..... 223,1001
United Spec. Adv. Co. v. Furr’s.......................... 824
United Spec. Adv. Co. v. Webster, Harris & Welbom......	824
United States, Abbamonte v............................... 982
United States, Accardi v................................. 954
United States, Adams v.................ij........c......	975
United States, Adjmi v................................. 823
United States, Aetna Ins. Co. v...........................	979
United States v. Alabama............................. 889,897
United States, Alabama Highway Express v................. 106
United States, Alamo Express, Inc. v......................	19
United States, Alexander v..............................  993
United States, Alsip Village v........................... 906
United States, Altiere v................................. 367
United States, Aluminum Co. of America v.................. 12
United States, Amell v................................... 810
United States, American Légion v......................... 824
United States, American Trucking Assns. v............ 372,373
United States, Anderson v...................... J 880,922,991
United States, Andrews v............................ 956,1021
CXII
TABLE OF CASES REPORTED.
Page
United States, Andrews Van Lines v............................... 67
United States, Angelini v....................................... 838
United States v. Anthony Grâce & Sons........................... 901
United States v. Arnold, Schwinn & Co........................... 936
United States, Atkinson	v.................................... 867
United States, Aubel v......................................... 1015
United States, Auerbach v....................................... 958
United States, Avallone	v.................................... 826
United States, Bail v........................................... 907
United States, Bank of America v........................... 927,1000
United States, Banks v.........................................  818
United States, Barnard v................................... 948,1002
United States, Bames v.......................................... 851
United States, Batchelor	v................................... 870
United States, Bâtes v.......................................... 984
United States, Battaglia v................................  955,1021
United States, Baylor v......................................... 852
United States, Beatty v........................................ 1028
United States, Bell v........................................... 882
United States, Bent v........................................... 869
United States, Berata v......................................... 812
United States, Bianchi & Co. v.................................. 841
United States, Birdsell v....................................... 963
United States, Black v.......................................... 854
United States v. Blue........................................... 971
United States, Bowers v......................................... 863
United States, Bracer v......................................... 954
United States, Bradley v....................................... 1016
United States, Broadnax v....................................... 974
United States, Broadwell	v.................................. 825
United States, Brooks v......................................... 963
United States,	Brown v.............................. 848,904,1028
United States,	Bruchon v...................................... 946
United States,	Burchinal	v................................... 843
United States,	Burge v........................................ 829
United States,	Burke v........................................ 880
United States,	Burton v....................................... 932
United States,	Bush v......................................... 995
United States,	Butler v....................................... 847
United States,	Bymes v........................................ 997
United States v. California................................. 448,889
United States,	Calzavara	v................................... 829
United States,	Campbell	v.................................. 1024
United States,	Capson v....................................... 911
TABLE OF CASES REPORTED.
CXIII
Page
United States, Cardarella v............................... 1017,1020
United States, Carlo Bianchi & Co. v............................ 841
United States, Carter v................................. 857,888,949
United States, Castle v......................................... 874
United States, Castro v........................................ 1029
United States v. Catto...................................... 925,968
United States, Cephus v......................................... 897
United States, Chapman v........................................ 909
United States, Cheyenne River Indians v......................... 815
United States, Choy v........................................... 871
United States,	Christian & Assoc. v.5.	821
United States,	Cimino v...................................... 1015
United States,	Close v........................................ 992
United States,	Coggins v..................................... 1017
United States,	Coil v......................................... 821
United States,	Collier v.................................. 890,936
United States,	Coïter v....................................... 920
United States,	Conerly v..................................... 1018
United States,	Conner v....................................... 908
United States,	Consolidated Freightways Corp. v............... 802
United States,	Conte v........................................ 926
United States,	Convoy Co.	v................................. 371
United States v. Cook........................................... 953
United States, Cooper v........................................ 1029
United States, Coor v........................................   1013
United States, Corey v.......................................... 911
United States, Crance v......................................... 815
United States, Creamer Industries v............................. 957
United States, Crowder v...........................;............ 909
United States, Cuban Truck & Equip. Co. v....................... 844
United States, Cudia v..................................... 955,1021
United States, Cummings v......................................  895
United States, Cunningham v..................................... 992
United States, Daly v........................................... 853
United States, Danforth Foundation v............................ 955
United States, Davis v.......................................... 852
United States, DeGregory v.................................. 850,933
United States, De Monge v....................................... 992
United States, Dennis v......................................... 915
United States, De Vaughn v...................................... 856
United States, DeWelles v....................................... 833
United States, Dexter v........................................ 1027
United States, Diamond Crystal Sait Co. v........................ 44
United States, Diaz v....................................... 822,933
786-211 0-66—8
CXIV
TABLE OF CASES REPORTED.
Page
United States, DiFronzo v.................................. 829
United States, Dillon v.................................... 978
United States, Di Silvestro v.............................. 870
United States, Doub v.............................. i.....	851
United States, Downing v................................... 901
United States, Doyle v..................................... 843
United States, Duval v................................... 854,922
United States, Eaton v.......................... J........	931
United States, Eldridge v.................................. 994
United States, England v................................... 986
United States v. Equitable Life Assur.	Soc............... 972
United States, Evans v..................................... 881
United States v. Ewell..................................... 802
United States, Fennell v................................... 852
United States, Field Enterprises v........................ 1009
United States, First Sec. Bk. of Lexington v............... 34
United States, Fjellhammer v............................... 869
United States v. Florida E. C. R. Co...................... 1008
United States, Florida E. C. R. Co. v.................... 161,1008
United States,	Flowers v..................................... 994
United States,	Ford City	v.................................. 902
United States,	Frady v....................................... 909
United States,	Frank v....................................... 923
United States,	Franklin v.................................... 844
United States,	Friedman v.................................... 946
United States,	Gaines v.................................. 866,912
United States,	Gardiner v.................................... 818
United States,	Gardner v.................................... 1015
United States v. General Motors Corp........................... 936
United States,	George v...................................... 1010
United States, Georgia Railroad & Banking Co. v................ 973
United States,	Giancana	v.................................... 959
United States,	Ginzburg	v................................ 803,951
United States,	Giraud v....................................   1015
United States, Giuliano v...................................... 946
United States, G. L. Christian & Assoc. v...................... 821
United States, Glover v........................................ 862
United States, Gojack v.......................................  937
United States,	Golden v...................................... 910
United States,	Gonzalez	v................................... 894
United States,	Goodman	v................................... 910
United States,	Goodwin v..................................... 920
United States,	Gori v........................................ 848
United States, Gosser v.................................... 819,922
TABLE OF CASES REPORTED.
cxv
Page
United States, Gottone v....................................... 901
United States, Government Employées Ins. Co. v................ 1026
United States, Gradsky v....................................... 846
United States, Graham Post No. 119 v........................... 824
United States, Gray v.......................................... 874
United States, Great Coastal Express v......................... 369
United States, Green v......................................... 930
United States, Grene v......................................... 823
United States, Grisham v....................................... 894
United States, Gunston v................................	874
United States, Gusow v............................ o...	906
United States, Hackett v...................................... 1029
United States, Haddad v........................................ 896
United States, Hairston v...................................... 856
United States, Hall v...................................812,910,947
United States, Halyshyn v...................................... 874
United States, Harris v........................................ 162
United States, Hasbrook v...................................... 834
United States, Hatcher v...................................... 1030
United States,	Hayden	v.................................... 828
United States, Heider v........................................ 974
United States, Helms v......................................... 814
United States, Henninger v..................................... 979
United States,	Herman	v.................................... 860
United States,	Herr v....................................... 999
United States,	Hilbrich v..................................   874
United States,	Hill v................................... 956,1021
United States,	Hobbs v................................... 908
United States,	Hoffa v.................................. 1024
United States,	Hooper v.................................. 986
United States,	Howard v.................................. 838
United States v. Huck Mfg. Co.................................. 197
United States,	Hurley v.............................. 881,953,965
United States,	Hutcherson	v............................ 894
United States,	Hyman v.................................. 973
United States	v. International Bus. Mach............... 1028
United States,	Ivey v.................................... 903
United States,	Jaben v.................................. 873
United States,	Jackson v................................. 880
United States,	Jarvis v................................. 831
United States,	J. A. Tobin	Const. Co. v...................	830
United States,	Joe Graham	Post No. 119 v................. 824
United States,	Johnson v.................... 836,851,870,923,1000
United States,	Jones v................................... 975
CXVI
TABLE OF CASES REPORTED.
Page
United States, Joseph v....................................... 828
United States v. Kalishman.................................... 968
United States,	Ranton v...................................... 860
United States,	Kapsalis v.................................... 946
United States,	Katschke v................................... 976
United States,	Keaton v...................................... 920
United States,	Reeble v...................................... 940
United States,	Kent v........................................ 803
United States,	Keys v....................................... 869
United States,	Riesling v.................................... 939
United States,	Ring v.............................. 926,985,1024
United States,	Rlein v....................................... 850
United States,	Rnippel v............................... 948,1002
United States,	Rountis v.................................... 980
United States,	Rrennrich v.................................. 870
United States,	Rrystoforski v............................... 835
United States, Lamma v........................................ 947
United States, Largo v........................................ 904
United States, Lassiter v................................ 948,1002
United States, Laverick v..................................... 940
United States, Lepiscopo v.................................... 864
United States, Levin v.................................... 159,876
United States, Levy v..................................... 862,922
United States, Lewis v................................... 1024
United States, Lichota v..................................... 1027
United States, Lichtenstein v........................... 821,933
United States, Lillo v........................................ 975
United States, Lippi v.................................... 815,904
United States, Litterio v..................................... 965
United States, Lloyd v........................................ 874
United States, Lombard v...................................... 823
United States v. Louisiana............................ 288,889,897
United States,	Lucas	v..................................... 862
United States,	Lujan	v..................................... 889
United States,	Luster	v..................................... 819
United States,	Mackey v....................................... 824
United States, Marcella v.................................... 1016
United States, Marchese v...............................	817
United States, Marshall v.................................... 1010
United States, Maryland for	use	of	Levin	v.............. 159,876
United States v. Maryland for	use	of	Meyer............. 158,1001
United States, Massari v................................. 931,1002
United States, Massengill v................................... 833
United States, Matlock v...................................... 966
TABLE OF CASES REPORTED.
CXVII
Page
United States, McAbee v...................................... 854
United States, McClenny v.................................... 863
United States, McCullough v.................................. 901
United States, McDaniel v.................................... 826
United States, McFarland v.................................. 1030
United States, McGuire v................................... 826
United States, Mclntosh v.............................. 875,1029
United States, McMaster v.............................. 818,1000
United States, Megge v....................................... 831
United States, Meunier v..................................... 801
United States v. Meyer.................................. 158,1001
United States, Miguel v.................................. 859,922
United States, Miller v................................ 852,1027
United States v. Mississippi............................. 889,897
United States, Mitchell v.................................... 920
United States, Morrison v.................................... 905
United States, Mortimer v.................................... 842
United States, Morton Sait Co. v.............................. 44
United States, Mt. Mansfield Télévision v.................... 818
United States, Nat. Bulk Carriers v.......................... 873
United States, Nat. Bus Traffic Assn. v...................... 369
United States, Nat. Trader Convoy	v........................ 40
United States, Nehns v....................................... 874
United States v. New Orléans Contractors.................. 17,933
United States, Nicholas v.................................... 971
United States, 93 Court Corp. v.............................. 984
United States v. Norfolk & W. R. Co.......................... 913
United States, Norris v...................................... 850
United States, O’Brien v..........................;......... 1007
United States, Oliver v...................................... 908
United States v. O’Malley.................................... 810
United States, Osborn v................................;.... 1023
United States, Owens v.............................. 878,956,1021
United States v. Pabst Brewing	Co........................... 900
United States, Pacific Coast European Conf. v................ 958
United States, Page v........................................ 979
United States, Palmer v...................................... 903
United States, Pappadio v.................................... 916
United States, Parada-Gonzalez	v.......................... 1009
United States, Pardo-Bolland v............................... 944
United States, Parks v...................................... 1024
United States, Pasquinzo v................................... 912
United States, Peerless Ins. Co.	v........................... 832
cxvm TABLE OF CASES REPORTED.
Page
United States, Pennsylvania	R.	Co.	v.................... 368,372
United States, Perry v.......................................... 959
United States, Peterson v....................................... 852
United States, Pheaster v....................................... 861
United States, Pheribo v........................................ 871
United States, Phillips v....................................... 893
United States, Pinciotti v.................................. 819,933
United States, Pinedo v.................................	976
United States, Pittman v........................................ 941
United States, Pool v........................................... 832
United States, Postell v................................... 956,1021
United States, Potter v......................................... 817
United States, Potter’s Caméra	Store	v....................... 817
United States, Prater v......................................... 894
United States, Prezioso v.................................. 939,1000
United States, Price v...................................... 888,949
United States, Pugliano v....................................... 939
United States, Quilès v......................................... 992
United States, Ratke v.......................................... 873
United States, Reed v................................... 849,922,993
United States, Releford v....................................... 984
United States, Richard v........................................ 908
United States, Richmond Télévision Corp. v....................... 68
United States, Ritacco v........................................ 976
United States, Robinson v....................................... 839
United States v. Romano......................................... 136
United States, Ruud v........................................   1014
United States, Salgado v........................................ 870
United States, Salzano v........................................ 870
United States, Samurine v................................... 849,922
United States,	Sanchez v.................................. 856,860
United States, Santos v......................................... 894
United States, Scalza v......................................... 973
United States, Schaeffer v...................................... 940
United States,	Scherck v...................................... 882
United States,	Schultz v...................................... 880
United States,	Scott v....................................... 1017
United States,	Seaboard Air Line R. Co. v..................... 154
United States	v. Sealy, Inc................................... 806
United States, Semel v...................................... 840,933
United States, Serman v......................................... 873
United States, Service Trucking Co. v............................ 43
United States, Shelton v........................................ 856
United States, Shillitani v..................................... 913
TABLE OF CASES REPORTED.
CXIX
Page
United States, Shively v....................................... 883
United States, Shores v....................................... 1029
United States, Sibley v......................................   945
United States, Sigal v......................................... 811
United States, Sill Corp. v.................................... 840
United States, Silverstein v................................... 828
United States,	Simpson	v.......................... 1025
United States,	Smayda	v................................	981
United States,	Smith v........................... 824,861,878,880
United States,	Snipe v.............................. 960
United States,	Southwest Eng.	Co. v........ i.............	819
United States	v. Speers...................................... 266
United States,	Spino v........................................ 825
United States v. Standard Oil Co............................... 807
United States, Sten v...................................... 854,949
United States, Stephens v...................................... 932
United States, Stephenson v.................................... 814
United States, Strollo v....................................... 873
United States, Stupak v.................................... 829,933
United States, Sturgis v....................................... 879
United States, Syverson v................................. 961,1021
United States, Taylor v........................................ 847
United States, Tecon Engineers	v............................ 976
United States, Teitelbaum v.................................... 831
United States, Thomas v........................................ 855
United States, Timmons v....................................... 995
United States, Tobin Const. Co.	v............................ 830
United States, Tom v........................................... 912
United States, Trest v......................................   1018
United States, Uselding v...................................... 874
United States v. Utah Const. &	Min. Co......................... 900
United States, Valcarcel v..................................... 874
United States,	Vasquez-Ochoa	v................ 1027
United States,	Vaughn v................................... 855,920
United States,	Veney v....................................... 865
United States,	Vesay v.................................. 859,922.
United States, Vitasafe Corp. v................................ 918
United States v. Von’s Grocery	Co............................ 806
United States, Wade v...................................... 834,933
United States, Wagner v........................................ 828
United States, Walker v........................................ 859
United States, Waterman S. S. Corp. v.......................... 873
United States, Watson v........................................ 976
United States, Wells v............................. 821,874,899,933
cxx
TABLE OF CASES REPORTED.
Page
United States, Western Pac. R. Co. v...................... 237,803
United States, Westover v................................. 924,969
United States, Whalem v................................... 862,912
United States, White v................................... 871,1014
United States, Williams v................ 857,858,909,920,962,964
United States, Wilson v............................... 860,864,934
United States	v. Wilson	& Co................................ 454
United States,	Winter v..................................... 955
United States,	Wolff v.................................. 818,1000
United States,	Wright v.................................... 1015
United States,	Wynder v..................................... 999
United States	v. Yazell..................................... 341
United States,	Young v....................................... 867
U. S.	Board of Parole, Saylor v.............................. 909
U. S.	Circuit Judge, Cheff v................................. 917
U. S.	Circuit Judge, Holland Fumace Co. v.................... 873
U. S.	Civil Serv. Comm’n, Higginbotham v.................... 853
U. S.	Civil Serv. Comm’n Chainnan, Stebbins v............. 41,949
U. S.	Civil Serv. Comm’n Chairman, Studemeyer v..........	834
U. S.	Coast Guard Commandant, Pew v.......................... 421
U. S. Court of Appeals Chief Judge, Miller v.................. 805
U. S. District Court, Carroll v............................... 981
U. S.	District Court, Riffle v............................... 859
U. S.	District Court, U. S. Industries v..................... 814
U. S.	District Court, White v................................ 964
U. S. District Court Chief Judge v. Minnesota Min............	456
U. S. District	Court Chief Judge,	Wallach v.................. 806
U. S. District	Judge, Caldwell v.............................. 805
U. S. District	Judge, Ginsberg v.............................. 805
U. S. District	Judge v. Judicial Council.................... 1003
U. S. District Judge, Luros v956
U. S. District Judge, Ortega v...........................	930
U. S. District Judge, Pepperidge Farm v...................	824
U. S. District Judge, Schlette v.............................. 919
U. S. District Judge, Stewart v.............................. 1017
U. S.	District Judge,	Vida v................................ 996
U. S.	District Judge,	White v............................... 963
U. S.	District Judge,	Williams	v............................. 859
U. S.	District Judges,	Froehlich	v........................... 837
U. S. ex rel. See name of real party in interest.
U. S. Fidelity & Guaranty Co. v. Winckler.................... 1026
U. S. Industries v. U. S. District Court...................... 814
U. S. Suprême Court Clerk, Morrison v........................ 1022
U. S. Suprême Court Clerk, Thomas v.....................	875
TABLE OF CASES REPORTED.
CXXI
Page
Unsworth v. Oregon......................................... 1014
Uselding v. United States...................................  874
Utah, Tuttle v............................................... 872
Utah Const. & Min. Co., United States v..................... 900
Utah Pie Co. v. Continental Baking Co....................... 914
Utah Road Comm’n, Bettilyon’s, Inc. v...................... 1010
Utility Comm’n v. Pennsylvania R. Co........................ 281
Valcarcel v. United States........................,........  874
Vanhook v. Eklund..........................................  965
Van Zandt v. Commissioner................................... 814
Varas, Crown Life Ins. Co. v................................ 827
Vasquez-Ôchoa v. United States............................. 1027
Vatelli v. Wilson........................................... 848
Vaughn v. United States................................. 855,920
Vega v. Labor Board.......................................   862
Velsicol Chemical Corp. v. Golden Gâte Hop Ranch.......... 1025
Veney v.	United	States.................................... 865
Verzi v.	Ohio.............................................. 835
Vesay v.	United	States................................ 859,922
Vetere v.	Allen............................................ 825
Victoria Mut. Water Co. v. Public Util. Comm’n.............. 940
Vida v. Roth................................................ 996
Vignera v. New York......................................... 925
Viking Theatre Corp. v. Paramount Film Corp................ 1001
Village. See name of village.
Violet Trapping Co. v. Tennessee Gas Co..................... 902
Virginia, Bullock v.................................... 927,1000
Virginia, Conway v.......................................... 958
Virginia Bd. of Elections, Harper v......................... 951
Virginia Govemor, Butts v................................... 806
Vitasafe Corp. v. United	States........................... 918
V.	L. Smithers Mfg. Co. v. Illinois Florist................ 841
V.	L. Smithers Mfg. Co. v. O’Brien......................... 841
Vogel v. Corporation Comm’n of Okla......................... 815
Volasco Prod. Co., Lloyd A. Fry Co. v....................... 904
Von Atzinger v. New Jersey.................................. 851
Von’s Grocery Co., United	States v.......................... 806
Wade v. United States................................... 834,933
Wagner v. United States..................................... 828
Wainwright, Brye v..................................... 930,1002
Wainwright, Clark v......................................... 989
Wainwright, Dangler v....................................... 804
Wainwright, Grizzell v...................................... 852
Wainwright, Richmond v...................................... 855
Wainwright, Trew v.......................................... 899
cxxn TABLE OF CASES REPORTED.
Page
Wainwright, Whitlow v................................ 935
Walker v. Foster................................... 812,934
Walker v. Indiana.................................... 991
Walker v. Internai Revenue Service................... 911
Walker v. Superior Court of California.......... 875,923,1001
Walker, Taylor v.................................... 1021
Walker v. United States.............................. 859
Walker Equipment v. Food Mach. &	Chemical Corp.........	172
Wallach v. Chandler.................................. 806
Wallack, Golenbock v................................. 870
Wallis v. Pan American Pet. Corp..................... 810
Walston v. Lambertsen................................ 980
Waltham Watch Co. v. Fédéral Trade Comm’n..........813,922
Waltreus v. California............................... 853
Ward v. Peyton....................................... 995
Ward, Taylor v....................................... 856
Warden. See also name of warden.
Warden, Blasetti v................................... 921
Warden, Edwards v.................................... 896
Warden, Hawkes v..................................... 930
Warden, Lebron v..................................... 848
Warden, Ortega v..................................... 969
Ward Markham Co., Thacker v........................ 865,934
Warner v. Kentucky.................................. 1020
Warriner v. Fink................................... 871,922
Washington, Continental Grain Co. v.................. 978
Washington, Copestick v............................. 1016
Washington, Draper v................................. 961
Washington, Goldstein v............................. 895,1003
Washington, Jesse v.................................. 890
Washington, Noonkester v........................ ..*1....	964
Washington, Reynolds Metals Co. v.................... 160
Washington, Stiltner v............................... 864
Washington, Summers v................................ 907
Washington, Wells v.................................. 967
Washington, Young v.................................. 963
Waste King Corp., In-Sink-Erator Mfg. Co. v.......... 835
Waterman S. S. Corp. v. United States................ 873
Watkins v. Superior Court of California............. 935,1010
Watson v. United States.............................. 976
Watts v. Maroney.................................... 1014
Watwood v. Morrison.................................. 905
Weakley, Butler v.................................... 994
Weakley, Curry v..................................... 850
TABLE	OF CASES REPORTED. cxxm
Page
Weakley,	Edwards v....................................  876
Weakley,	Prysock v..................................... 851
Weakley,	Whittington	v................................. 969
Wears v.	Ohio.......................................... 853
Webster, Harris & Welborn Agency, United Adv. Co. v____	824
Wellington v. Florida................................... 869
Welbnan v. California.................................. 1029
Wells v. Reynolds........................................ 39
Wells v. United States...................... 821,874,899,933
Wells v. Washington..................................... 967
Welsh Co. v. Chemivsky.................................. 842
Welsh Co. v. Comfy Babe Co.............................. 842
Wescoast Broad. Co., Jerrold Corp. v.................... 817
Western Auto Supply, Gamble-Skogmo, Inc. v.............. 987
Western Pac. R. Co. v. United States................ 237,803
Westmore v. Florida..................................... 952
Westover v. United States........................... 924,969
West Virginia, Brown v.................................. 945
West Virginia, Young v.................................. 964
West Va. Road Comm’n, Howard Price & Co. v............... 20
West Va. Road Comm’n, Price v............................ 20
West Va. Road Comm’n, Wetherall v.....................	45
Wetherall v. State Road Comm’n of W. Va.................. 45
Whalem v. United	States............................ 862,912
Whaley v. Cavanaugh...................................   872
Wheeler v. Jones........................................ 926
White	v.	California.................................. 994
White	v.	Clemmons.................................... 994
White	v.	Grant.....................................   963
White	v.	United States...........................871,1014
White	v.	U. S. District Court........................ 964
White v. Wilson......................................... 863
Whitehead-Donovan Corp., Herald Pub. Co. v............... 13
Whitestone Public School Principal, Stein v............. 957
Whitlow v. Wainwright................................... 935
Whittington v. Cameron.................................. 855
Whittington v. Weakley.................................. 969
Whitworth v. Florida.................................... 857
Wickham, Swift & Co. v.................................. 111
Wiesner v. Maryland..................................... 955
Wilentz, Kasharian	v................................... 161
Wilkins, Brabson v...................................... 997
Wilkins, Canady v....................................... 867
Willheim v. Murchison................................... 840
cxxiv TABLE OF CASES REPORTED.
Page
Willheim v.	Murchison Bros................................. 840
Williams v.	California............................. 1007,1028
Williams v.	Duncanson...................................... 996
Williams v.	Florida.................................... 913,963
Williams v.	Follette....................................... 969
Williams v.	Heinze.......................................   859
Williams v.	Howard Johnson’s............................ 814,933
Williams v.	Jett............................................ 921
Williams v.	Levin.......................................... 859
Williams v.	New Jersey...................................... 964
Williams v.	New York........................................ 882
Williams v.	Tennessee....................................... 961
Williams v.	United States.............. 857,858,909,920,962,964
Williamson v. Blankenship.............................. 923,1030
Willingham, Oyler v......................................... 847
Willingham, Palomera v...................................... 946
Willis, Maddox v.......	è.........................t....;.	18,922
Willow Terrace Dev. Co. v.	Commissioner..................... 938
Wilson, Bâtes v..............................r.^........	964
Wilson v. California........................................ 882
Wilson v. Commissioner.............................. 108,1021
Wilson, Davis v......................................... 866,961
Wilson, Fernandez v......................................... 865
Wilson, Gray v.............................................. 919
Wilson, Lee v............................................... 999
Wilson, Lishey v........................................... 1022
Wilson v. Louisiana......................................... 833
Wilson v. Maroney.................................. 992,993,1019
Wilson, Martinez v.......................................... 804
Wilson v. McGee......................................... 849,912
Wilson,	Milligan v........................................ 1020
Wilson,	Rubio	v........................................... 951
Wilson,	Santos	v........................................... 952
Wilson,	Shipp	v.......................................... 1012
Wilson v. United States............................. 860,864,934
Wilson, Vatelli v........................................... 848
Wilson, White v.............................863
Wilson & Co., United States v............................... 454
Winchester Drive-In v. 20th Century-Fox Film	Corp.......... 1011
Winckler, U. S. Fidelity & Guaranty Co. v.................. 1026
Winckler & Smith Citrus Prods. v. Sunkist Growers......	958
Winder, Martens v........................................... 937
Windham Creamery v. Freeman................................. 979
Wineberg, Natural Resources, Inc. v...................... 1010
TABLE OF CASES REPORTED.
cxxv
Page
Winn-Dixie Stores v. Labor Board.......................... 830
Winter, Carter v.......................................... 825
Winter v. United States................................... 955
Wiper v. Great Lakes Eng. Works........................... 812
Wirtz, Home News Pub. Co. v............................... 823
Wisconsin, Howard v....................................... 863
Wisconsin v. Minnesota.................................... 935
Wisconsin, Myartt v....................................... 855
Wisconsin Dept. of Pub. Welfare, Odell v.................. 420
Witherspoon v. Pâte....................................... 861
WMCA, Inc. v. Lomenzo....................................... 4
W.	M. R. Watch Case Corp. v. Fédéral Trade Comm’n.....	873
Wofford v. North Carolina Highway Comm’n.................. 822
Wolenski v. Sweney........................................ 868
Wolf v. Blair............................................. 941
Wolfif v. United States...............................818,1000
Wood v. Conneaut Lake Park................................ 865
Woodson v. lowa........................................... 962
Woody v. Missouri......................................... 857
World Airways v. Northeast Airlines....................... 984
Wright	v.	Blackwell.................................... 880
Wright	v.	New Jersey................................... 993
Wright	v.	Rhay......................................... 963
Wright	v.	United States............................... 1015
Wurlitzer Co., Gibraltor Amusements v..................... 981
Wymard, McCloskey & Co. v................................. 823
Wynder v. United States................................... 999
Yates v. Mississippi...................................... 931
Yazell, United States v..................................  341
Yeager, De Lucia v........................................ 966
Yeager, Rinaldi v........................................ 1007
Yenowine v. State Farm Mutual Ins. Co..................... 830
Yorty, Corcoran v. 966,1002
Young v.	United States.................................. 867
Young v.	Washington..................................... 963
Young v.	West Virginia.................................. 964
Zamaroni	v. Philpott.................................... 903
Zanca v.	Maimonides Hospital............................ 1020
Zemel v.	Rusk............................................ 873
Ziff, Easter v.............................................. 957
Zobel v. South Dakota....................................... 833
Zuckert, Brown v............................................ 998
Zurich Ins. Co., Crider v................................ 1000
Zysset, Perry v............................................. 837
TABLE OF CASES CITED
Page
Adams v. Champion, 294
U. S. 231	328
Adamson v. California, 332
U. S. 46	411,412
Aero Mayflower v. Railroad
Comm’rs, 332	U.	S.	495	91
A. H. Bull S. S. Co. v.
NMEBA, 250	F.	2d	332	149
Alexander v. Hillman, 296
U. S. 222	335,336,338,339
Alexander v. United States,
201 U. S. 117	76
Alexander Milburn Co. v.
D a v i s-Boumonville Co., 270 U. S. 390	254-256
Aluminum Ore Co. v. Labor
Board, 131 F. 2d 485	217
Amalgamated. For labor union, see name of trade.
American Fed. of Musicians
v. Stein, 213 F. 2d 679	149
American Newspaper Pub.
v. Labor Board, 190 F. 2d 45	211
American Ship Bldg. Co. v.
Labor Board, 380 U. S.
300	374
American Tobacco v. United
States, 328 U. S. 781	44
American Travelers Club v.
Hostetter, 219 F. Supp.
95	124
Anderson v. Dunn, 6 Wheat.
204	165
Association. For labor union, see name of trade.
Atchison, T. & S. F. R. Co.
v. United States, 218 F.
Supp. 359	246
Atlantic C. L. R. Co. v.
United States, 284 U. S.
288	242,243,250
Atlantic Ref. Co. v. Pub.
Serv. Comm’n, 360 U. S.
378	225,228,229
Page
Automobile Workers v. Sco-field, 382 U. S. 205	366
Avery & Sons v. Davis, 192
F. 2d 255	326,338
Baggett v. Bullitt, 377 U. S.
360	90,403
Bailey v. Alabama, 219 U. S.
219	139
Bailey v. Glover, 21 Wall. 342	329
Baldwin v. Commonwealth, 26 Pa. 171	404
Baltimore Mayor v. Dawson, 350 U. S. 877	297
Bank of the U. S. v. De-veaux, 5 Cranch 61	148
Barrett v. United States, 322
F. 2d 292	141
Bartlett & Co. v. Kan. Corp.
Comm’n, 223 F. Supp.
975	124
Barton v. Barbour, 104 U. S.
126	337
Beacon Théâtres v. West-over 359 U. S. 500 338,339
Bell v. Maryland, 378 U. S.
226	303
B. F. Avery & Sons v. Davis, 192 F. 2d 255	326,338
Blau v. United States, 340
U. S. 159, 332	77
Board of Comm’rs v. United
States, 308 U. S. 343	357
Borden Co. v. Liddy, 309 F. 2d 871	124
B o r o u g h. See name of borough.
Bozza v. United States, 330
U. S. 160	140-142,144
Bradley v. School Board, 382
U. S. 103	199,200
Bramblett v. Trust Co.. of
Ga., 182 Ga. 87	310
Bransford, Ex parte, 310
U. S. 354
121-124, 126, 128, 134
CXXVII
CXXVIII
TABLE OF CASES CITED.
Page
Breit v. Moore, 220 F. 97 334
Brocki v. American Express, 279 F. 2d 785	149
Bronson v. Schulten, 104 U. S. 410	28
Bronx Brass Foundry v. Ir-ving Tr. Co., 297 U. S. 230	334
Brotherhood. For labor union, see name of trade.
Brown v. Board of Education, 347 U. S. 483	104,199
Brown v. Board of Education, 349 U. S. 294	105
Brown v. Gunn, 75 Ga. 441 301
Brown v. Mississippi, 297
U. S. 278	411
Brown v. United States, 359
U. S. 41
162, 164, 165, 167-171
Brown & Adams v. United
Button Co., 149 F. 48	331
Brunner v. United States, 343 U. S. 918	78
Bruno v. United States, 308 U. S. 287	412
Brust v. Sturr, 237 F. 2d 135	269
Buder, Ex parte, 271 U. S. 461	120-124,126,128,134
Buffum v. Peter Barceloux Co., 289 U. S. 227	328
Bumb v. United States, 276
F. 2d 729	347
Burdeau v. McDowell, 256 U. S. 465	167
Burton v. Wilmington Parking Auth., 365 U. S. 715 299,300
Buzard v. Justice Court, 198 Cal. App. 2d 814	396
Cahill v. New York, N. H. &
H. R. Co., 351 U. S. 183 28-31
Calhoun v. Latimer, 377 U. S. 263	105
California v. Buzard, 382 U. S. 386	397,398
California v. Fairfax Family
Fund, 235 Cal. App. 2d 881	3
California v. Taylor, 353 U. S. 553	441
Page
California Bank v. U. S. Fid.
& Guar. Co., 129 F. 2d 751	384
California Water Serv. v. Redding, 304 U. S. 252	115
Cammer v. United States, 350 U. S. 399	165
Campbell v. Hussey, 368 U. S. 297	131
C a r e y v. Westinghouse
Corp., 375 U.	S. 261	220
Carey Mfg. Co. v. Labor
Board, 331 F.	2d 720	230
Carrier Corp. v. Labor
Board, 311 F.	2d 135	211
Carter v. Lechty, 72 F. 2d 320	337
Carter Products v. FTC, 323 F. 2d 523	49
Case v. Bowles, 327 U. S.
92	122-124,126,128
Chapman v. Bamey, 129
U. S. 677	146,149,151
Charles River Bridge v.
Warren Bridge, 11 Pet. 420	316
Chicago, I. & L. R. Co. v.
United States, 270 U. S. 287	244,246
Chicago, M. & St. P. R. Co.
v. Minnesota, 134 U. S.
418	117
Chicago, M., St. P. & P. R.
Co. v. United States, 366 U. S. 745	249
Chicago, R. I. & P. R. Co.
v. Arkansas, 219 U. S. 453 426
Chicot County Drainage
Dist. v. Baxter Bank, 308
U. S. 371	334,413
Christchurch Inclosure Act, In re, 38 Ch. D. 520	309
Christensen, In re, 101 F. 243	337
Christy, Ex parte, 3 How. 292	329
City. See name of city.
Civil Rights Cases, 109 U. S. 3	316
Clearfield Trust v. United
States, 318 U. S. 363 343,348,354,357
TABLE OF CASES CITED.
CXXIX
Page
Cline v. Kaplan, 323 U. S.
97	327,336
Clothing Workers v. Labor
Board, 324 F. 2d 228	211
Cloverleaf Co. v. Patterson, 315 U. S. 148	131-133
Cobbledick v. United States, 309 U. S. 323	76
Cohen v. Hurley, 366 U. S.
117	412
Cohens v. Virginia, 6 Wheat.
264	130,131,133,135
Coleman, In re, 87 F. 2d 753 380
Collins, Ex parte, 277 U. S.
565	129
Commissioner v. Stem, 357 U. S. 39	353
Commissioner of Internai Revenue. See Commissioner.
Commissioners for Income Tax v. Pemsel, [1891] A. C. 531	307
Commonwealth. See a 1 s o name of Commonwealth.
Commonwealth v. Daly, 11 Pa. Dist. 527	404
Commonwealth v. Tilghman, 4 S. & R. 127	404
Communist Partv v. SACB, 367 U. S. 1 ” 72,74,75,82
Communist Party v. United States, 118 U. S. App.
D. C. 61	72
Conrad, Rubin & Lesser v.
Pender, 289 U. S. 472 333,335
Cooke v. United States, 267
U. S. 517	164-166
Counsehnan v. Hitchcock, 142 U. S. 547	80,81
County. See name of county.
Cox v. Louisiana, 379 U. S. 536	90
Crutcher v. Kentucky, 141
U. S. 47	2
Custer v. McCutcheon, 283
U. S. 514	355
Cutting, Ex parte, 94 U. S.
14	209
Dairy Queen v. Wood, 369
U. S. 469	338,339
786-211 0-66—9
Page
Dameron v. Brodhead, 345
U. S. 322	393,395
Darlington Mfg. v. Labor
Board, 325 F. 2d 682	210
De Beers Mines v. United
States, 325 U. S. 212	356
Denver & R. G. W. R. Co. v.
Union P. R. Co., 351 U. S.
321	249,250
De Sylva v. Ballentine, 351
U. S. 570	353
Dillard v. Smith, 146 Tex. 227	344
Dixie Carriers v. United States, 351 U. S. 56	247
D’Oench, Duhme & Co. v.
FDIC, 315 U. S. 447	354
Dombrowski v. Pfister, 380
U. S. 479	99
Dorsey v. Stuyvesant Town, 299 N. Y. 512	321
Doughty v. Maxwell, 376
U. S. 202	416
Drabik v. Murphy, 246 F. 2d 408	365
Dwyer v. Franklin, 350 U. S.
995	326,336
East Atlanta Land Co. v.
Mower, 138 Ga. 380	300
East Newark v. United
States, 364 U. S. 828	269
Edwards v. California, 314
U. S. 160	96
Eli Lilly & Co. v. Sav-On-
Drugs, 366 U. S. 276	2
Elkins v. United States, 364
U. S. 206	418
Emich Motors v. General
Motors, 340 U. S. 558	57
England v. Louisiana Medical Examiners, 375 U. S.
411	409
Erwin v. United States, 97
U. S. 392	383
Eskridge v. Wash. Prison
Bd., 357 U. S. 214	416
Estate. See name of estate. Estes v. Texas, 381 U. S.
532	929
Ex parte. See name of party.
cxxx
TABLE OF CASES CITED.
Page
Fédéral Power Comm’n v.
Hope Nat. Gas, 320 U. S. 591	229
Fédéral Power Comm’n v.
Hunt, 376 U. S. 515 227,228,232
Fédéral Power Comm’n v. Tenn. Gas Co., 371 U. S. 145	230
Fédéral Power Comm’n v.
Texaco, 377 U. S. 33 228,229,232
Fédéral Trade Comm’n v.
C o 1 g a t e-Palmolive, 380 U. S. 374	48,49
Ferguson v. Reardon, 197 N. Y. 236	78
Fidelity Tube Corp., In re, 278 F. 2d 776	269,273
Fink v. O’Neil, 106 U. S. 272	355,358
Fisher v. Cushman, 103 F. 860	379
Florance v. Kresge, 93 F. 2d 784	336
Florida Lime Growers v.
Jacobsen, 362 U. S. 73 122,126,128,133,428
Florida Lime Growers v.
Paul, 373 U. S. 132	438
Floro Realty Co. v. Steem
Elec. Corp., 128 F. 2d 338	336
Ford v. Harris, 95 Ga. 97 300
Ford Motor v. Labor Board, 305 U. S. 364	211,213,221
Fournier v. Rosenblum, 318 F. 2d 525	377
Gaines, In re, 63 Cal. 2d 234	409
Gaines v. Canada, 305 U. S. 337	199
Gardner v. New Jersey, 329
U. S. 565	329,333,336
Garment Workers v. Don-nelly Co., 304 U. S. 243 282
Garner v. Louisiana, 368 U. S. 157	95
Gibbons v. Ogden, 9 Wheat. 1	120
Gideon v. Wainwright, 372 U. S. 335	133,416
Page
Giffin v. Vought, 175 F. 2d 186	334
Gilbert Associates, Pétition
of, 97 N. H. 411	270
Gill v. Phillips, 337 F. 2d
258	326
Goggin v. California Labor
Div., 336 U. S. 118	269
Goodman v. Mayor of Salt-ash, 7 App. Cas. 633 309,310 Goodman v. Niblack, 102
U. S. 556	382
Goss v. Board of Education, 373 U. S. 683	105
Graceffo v. United States, 46
F. 2d 852	142
Great Western Broad. v. La-
bor Board, 310 F. 2d 591 211
Green v. United States, 356
U. S. 165	171
Griffin v. California, 380
U. S. 609	286,407-
409,413-415,418-420 Griffin v. Illinois, 351 U. S.
12	416
Gutierrez v. Watennan S. S.
Corp., 373 U. S. 206	283
Hackley v. Kelly, 24 N. Y.
74	171
Haie v. Henkel, 201 U. S.
43	171
Haleston Drug Stores v. Labor Board, 190 F. 2d 1022 211 Hall v. Virginia, 335 U. S.
875	321
Harris, In re, 4 Utah 5	171
Hattiesburg Unions v.
Broome Co., 377 U. S.
126	193
Hazel-Atlas v. Hartford-Empire, 322 U. S. 238	176
Heard v. Pierce, 8 Cush.
338	171
Hildreth v. Union News Co., 315 F. 2d 548	885-887
Holmes v. Atlanta, 350 U. S.
879	299
Horton v. Moore, 110 F. 2d 189	379
Hostetter v. Idlewild Liquor, 377 U. S. 324	131
Hôtel Employées v. Leedom, 358 U. S. 99	190
TABLE OF CASES CITED.
CXXXI
Page Hourihan v. Labor Board,
91 U. S. App. D. C. 316	192
Houston v. Mills Home, 202
Ga. 540	310,317
Hughes v. WMCA, Inc., 379 U. S. 694	5
Hunt v. FPC, 306 F. 2d 334	233
Incres S. S. Co. v. Maritime Workers, 372 U. S. 24	193
Ingels v. Riley, 5 Cal. 2d 154	394
In re. See name of party.
Internai Revenue Service.
See Commissioner.
International. For labor union, see name of trade.
Interstate Bank of K. C. v.
Luther, 221 F. 2d 382	325
Interstate Circuit v. United
States, 306 U. S. 208	44
Jackson v. Denno, 378 U. S. 368	416
Johnson v. Wilson, 118 F. 2d 557	334
Jones v. Habersham, 107 U. S. 174	307
J. R. Palmenberg Sons, In re, 76 F. 2d 935	334
Kalwajtys v. FTC, 237 F. 2d 654	47,53
Katchen v. Landy, 336 F. 2d 535	339
Keamey & Trecker v. Labor
Board, 210 F. 2d 852	217
Keamey-Trecker Employées v. Labor Board, 348 U. S. 824	217
Ker v. California, 374 U. S. 23	37
Kerotest Mfg. v. C-0 Two Fire Equip., 342 U. S. 180	176
Kesler v. Dept. of Public Safety, 369 U. S. 153
115,	116, 123-125, 127-129, 133-135 Keystone Driller v. General Excavator, 290 U. S. 240 176 Kleinschmidt v. Schroeter, 94 F. 2d 707	379
Knapp v. Schweitzer, 357 U. S. 371	412
Page
Koengeter v. Holzbaugh, 332
Mich. 280	351
Kovach v. Labor Board, 229
F. 2d 138	211
Kunz v. New York, 340
U. S. 290	91
Labor Board v. B o r g-
Wamer, 236 F. 2d 898	211
Labor Board v. Budd Mfg.,
169 F. 2d 571	188
Labor Board v. Drivers, 362
U. S. 274	188
Labor Board v. Fansteel Metallurgical, 306 U. S.
240	218
Labor Board v. Johnson, 322
F. 2d 216	217
Labor Board v. Retail
Clerks, 243 F. 2d 777	217
Labor Union. See name of trade.
Lanzetta v. New Jersey, 306
U. S. 451	403
Leaf Tobacco Board, Ex parte, 222 U. S. 578	209
Le Maistre v. Leffers, 333
U. S. 1	395
Leonard v. Whaley, 91 Hun 304	384
Lesser v. Gray, 236 U. S.
70	329,334
Levin v. United States, 381
U. S. 41	158
Levine v. United States, 362
U. S. 610	168,171
Lewis v. Manufacturers
Bank, 364 U. S. 603 272,278 Lindsley v. Natural Car-bonic Gas, 220 U. S. 61	139
Linkletter v. Walker, 381
U. S. 618
409, 410, 413, 416-419 Linn v. Plant Guard Work-
ers, 337 F. 2d 68	147
Local. For labor union, see name of trade.
Local Loan Co. v. Hunt, 292
U. S. 234	327,336
Locomotive Engineers v.
Louisville & N. R. Co., 373
U. S. 33	263,264
Lombard v. Louisiana, 373
U. S. 267	300,306
CXXXII
TABLE OF CASES CITED.
Page Lopiparo v. United States,
216 F. 2d 87	171
Louisville, C. & C. R. Co. v. Letson, 2 How. 497	148
Lovell v. Griffin, 303 U. S. 444	91
Lustron Corp., In re, 184 F. 2d 789	274
Maçon Mayor v. Franklin, 12 Ga. 239	300
Majestic Radio & TV Corp., In re, 227 F. 2d 152 326,336
Malloy v. Hogan, 378 U. S.
1	407,408,412,414,417
Manley v. Georgia, 279 U. S.
1	139
Mapp v. Ohio, 367 U. S.
643	37,409,413,416-418
Marine Engineers v. Inter-lake Co., 370 U. S. 173	194
Marine Midland Tr. v. Mc-
Girl, 345 U. S. 940 326,336
Marine Workers v. Labor Board, 320 F. 2d 615	210
Marsh v. Alabama, 326 U. S.
501	299,302,320,321
Marshall v. Baltimore & O.
R. Co., 16 How. 314	148
Martin v. Nat. Surety Co., 300 U. S. 588	384
Maryland v. Baltimore Radio Show, 338 U. S. 912 929
Maryland for use of Levin
v. United States, 381 U. S.
41	158
Mason v. American Express, 334	F. 2d	392	149,152
May	v. Henderson, 268
U. S. 111	327,336
Mayor of Baltimore v. Daw-son, 350 U. S. 877	297
Mayor of Maçon v. Franklin, 12 Ga. 239	300
McFarland v. American Sugar Rfg., 241 U. S. 79 139
McFarland v. United States, 273 F. 2d 417	141
McGowan v. Maryland, 366 U. S. 420	204
McGowan v. Parish, 237 U. S. 285	338
McKay v. Trusco Finance, 198 F. 2d 431	274
Page
McLean Trucking v. United
States, 321 U. S. 67	156
McNerlin v. Denno, 378 U. S. 575	416
Méat Cutters v. Labor
Board, 267 F. 2d 169	211
Mercoid Corp. v. Mid-Con-tinent Investment, 320 U. S. 661	176
Meyer v. Teamsters, 416 Pa. 401	147
Michael, In re, 326 U. S. 224	165
Michigan Brewing Co., In re, 24 F. Supp. 430	337
Middlebrooks v. Birmingham, 42 Ala. App. 525	91,
92,96,99,100,102
Milbum Co. v. Davis-
Boumon ville Co., 270 U. S. 390	254-256
Mine Workers v. Coronado
Coal, 259 U. S. 344	153
Mine Workers v. Eagle-
Picher, 325 U. S. 335	214
Minneapolis & St. Louis R.
Co. v. United States, 361 U. S. 173	156
Minnesota v. Nat. Tea Co., 309 U. S. 551	303
Minnesota Milk v. Labor
Board, 314 F. 2d 761	211
Minnesota Mining v. N. J.
Wood, 381 U. S. 311 58,59,62,63,65
Missouri ex rel. Gaines v.
Canada, 305 U. S. 337	199
Missouri ex rel. Southern R.
Co. v. Mayfield, 340 U. S. 1	303
Missouri-Kansas Pipe Line v. United States, 312 U. S. 502	217
Missouri Pac. R. Co. v. Nor-wood, 13 F. Supp. 24	426
Missouri Pac. R. Co. v. Nor-wood, 283 U. S. 249
426,429,435
Missouri Pac. R. Co. v.
Norwood, 290 U. S. 600 426
Mitchell v. Robert DeMario
Jewelry, 361 U. S. 288	338
TABLE OF CASES CITED.
CXXXIII
Page
Mobile, J. & K. C. R. Co. v.
Tumipseed, 219 U. S. 35 139
Moore v. Dempsey, 261 U. S. 86	929
Mormon Church v. United
States, 136 U. S. 1	314
Morrison v. California, 291
U. S. 82	139
Mowrv v. Whitney, 14 Wall. 434'	175,176
Murdock v. Pennsylvania, 319 U. S. 105	2,3
Murphy v. Waterfront
Comm’n, 378 U. S. 52	414
Nathanson v. Labor Board, 344 U. S. 25	218
NAACP v. Button, 371 U. S. 415	90
National Labor Relations
Board. See Labor Board.
New Castle Common v.
Megginson, 1 Boyce 361	308
New Orléans Park v. De-
tiege, 358 U. S. 54	299
Newsom v. Starke, 46 Ga. 88	307
New York ex rel. Ferguson v. Reardon, 197 N. Y. 236	78
Nilva v. United States, 352
U. S. 385	171
Nye v. United States, 313
U. S. 33	165
O’Connor v. Ohio, 382 U. S. 286	409
Offutt v. United States, 348
U. S.11	165
O’Keeffe v. Pan American
World Airways, 338 F. 2d 319	97	31
O’Keeffe v. Smith, Hinch-man & Grylls, 380 U. S. 359	27,31
Oklahoma Gas v. Okla.
Packing, 292 U. S. 386	129
O’Leary v. Brown-Pacific-
Maxon, 340 U. S. 504	27
Orans, In re, 15 N. Y. 2d 339	6
Palko v. Connecticut, 302
U. S. 319	411
Pahnenberg Sons, In re, 76 F. 2d 935	334
Page
Pan American World Airways v. O’Heame, 335 F. 2d 70	27,30
Pennsylvania v. Board of
Trusts, 353 U. S. 230
298,299,317
Pennsylvania v. Nelson, 350 U. S. 497	132
People ex rel. Hackley v.
Kelly, 24 N. Y. 74	171
People ex rel. Phelps v.
Fancher, 4 Thompson &
Cook 467	171
Pepper v. Litton, 308 U. S.
295	327,336
Perkins v. Lukens Steel, 310 U. S. 113	349
Peters v. Hobby, 349 U. S.
331	315
Peters v. Lines, 275 F. 2d 919	326
Peterson v. Greenville, 373 U. S. 244	306
Phelps v. Fancher, 4 Thompson & Cook 467	171
Phelps Dodge v. Labor
Board, 313 U. S. 177	218
Phifer v. Birmingham, 42
Ala. App. 282	93
Philip Carey Mfg. v. Labor
Board, 331 F. 2d	720	230
Phillips v. United States,
312 U. S. 246	124,129,282
Phillips Petroleum v. Wisconsin, 347 U. S.	672	132
Pierce v. Society of Sisters, 268 U. S. 510	300
Pinch v. Maxwell, 3 Ohio St. 2d 212	409
Pirie v. Chicago Title & Tr.,
182 U. S. 438	332,337
Platt v. Minnesota Mining,
376 U. S. 240	364
Poresky, Ex parte, 290 U. S.
30	115
Porter v. Warner Co., 328 U. S. 395	338
Power Commission. See Fédéral Power Comm’n.
Précision Instrument v. Automotive Maintenance, 324 U. S. 806	175-177
CXXXIV
TABLE OF CASES CITED.
Page
Preston v. United States, 376 U. S. 364	37
Price v. State Road Comm’n of W. Va., 382 U. S. 20	45
Public Serv. Comm’n v.
FPC, 361 U. S. 195, 109
U. S. App. D. C. 292	225
Public Util. Comm’n v. Pol-lak, 343 U. S. 451
301,302,319
Puerto Rico v. Russell &
Co., 288 U. S. 476	151,152
Pugliese v. United States, 343 F. 2d 837	141
Query v. United States, 316 U. S. 486	114,122
Quinn v. United States, 349 U. S. 155	78
Railroad Trainmen v. Baltimore & O. R. Co., 331 U. S. 519	209
Railroad Trainmen v. Chicago R. & I. R. Co., 353
U. S. 30	262,263
Railway Employés v. Hanson, 351 U. S. 225	132
Reck v. Pâte, 367 U. S. 433	416
Reconstruction Finance
Corp. v. Beaver County, 328 U. S. 204	353,354,356
Reconstruction Finance Corp. v. Lustron Corp., 340 U. S. 946	274
Republic Steel v. Maddox, 379 U. S. 650	886
Rescue Armv v. Municipal
Court, 331 U. S. 549	319
Retail Clerks v. Food Em-ployers Council, 351 F. 2d 525	220
Retail Clerks v. Labor
Board, 326 F. 2d 663	211
Reynolds v. Sims, 377 U. S. 533	5
Rice v. Santa Fe Elevator, 331 U. S. 218	131
Richmond v. Bird, 249 U. S. 174	269
Robbins v. Shelby Taxing Dist., 120 U. S. 489	2
Robertson v. California, 328 U. S. 440	2
Page
Robinson v. Florida, 378
U. S. 153	306,311
Rogers v. United States, 340 U. S. 367	171
Rorick v. Board of Comm’rs, 307 U. S. 208	129
Royal Indemnity Co. v.
United States, 93 F. Supp. 891	384
Royal Indemnity Co. v.
United States, 313 U. S. 289	357
Rude, In re, 101 F. 805	337
St. Louis, I. M. & S. R. Co.
v. Arkansas, 240 U. S. 518 426
St. Louis R. Co. v. United
States, 245 U. S. 136	249
Sampsell v. Impérial Paper
Corp., 313 U. S. 215	334
Sampsell v. Straub, 194 F. 2d 228	274
San Diego Unions v. Gar-mon, 359 U. S. 236
187,190-195
Sanford Estate v. Comm’r, 308 U. S. 39	277
Sansone v. United States, 380 U. S. 343	367
Scales v. United States, 367
U. S. 203	77,80,81
Schneider v. State, 308 U. S.
147	91
Schoenthal v. Irving Tr. Co., •287 U. S. 92	328,336
Schwartz v. Levine & Malin, 111 F. 2d 81	334
Scott v. California, 364 U. S.
471	417
Scripps-Howard Radio v.
FCC, 316 U. S. 4	210
Securities & Exch. Comm’n v. Chenery Corp., 332 U. S. 194	229
Selby-Battersby & Co. v.
Labor Board, 259 F. 2d 151 211
Shaw v. Quincy Mining, 145 U. S. 444	149
Shelley v. Kraemer, 334
U. S. 1	320
Shelton v. Birmingham, 42 Ala. App. 371	93
Sheppard v. Ohio, 352 U. S. 910	929
TABLE OF CASES CITED.
cxxxv
Page
Sherbert v. Vemer, 374 U. S.
398	204
Siegel Co. v. Labor Board,
340 F. 2d 309	213
Simonson v. Granquist, 287
F. 2d 489	269
Simonson v. Granquist, 369
U. S. 38	278
Sinclair v. United States, 279
U. S. 263	138
Sipuel v. Board of Regents, 332 U. S. 631	199
Slochower v. Board of Education, 350 U. S.	551	132
Slocum v. Delaware, L. &
W. R. Co., 339 U.	S. 239	261
Smith v. Birmingham, 42
Ala. App. 467	92
Smith v. California, 361
U. S. 147	90
Smith v. Evening News
Assn., 371 U. S.	195	218
Snapp v. Neal, 250 Miss.
597	393
Snyder v. Massachusetts,
291 U. S. 97	411
Solar Mfg. Corp., In re, 200
F. 2d 327	326,336
Southern Pac. Co. v. Arizona, 325 U. S. 761	427
Southern R. Co. v. Mayfield,
340 U. S. 1	303
Southern R. Co. v. McNeill,
155 F. 756	118
Spooner v. McConnell, 22
Fed. Cas. 939	117
State. See also name of State.
State v. Corby, 28 N. J. 106 417
State v. Ferguson, 226 lowa
361	417
State v. Heno, 119 Conn.
29	417
State v. San do val, 59 N. M.
85	417
State Tax Comm’n v. Van
Cott, 306 U. S. 511	303
Steelworkers v. American
Mfg. Co., 363 U. S. 564 220
Steelworkers v. Enterprise
Corp., 363 U. S. 593	220
Steelworkers v. Labor Board,
373 Ü. S. 908	214
Page
Steelworkers v. Labor Board, 376 U. S. 492	211,214
Steelworkers v. Warrior ■&
Gulf Co., 363 U. S. 574 220
Steiner v. 20th Century-
Fox, 232 F. 2d 190
56,57,59,65
Stewart Die Casting v. Labor Board, 132 F. 2d 801 217
StoU v. Gottlieb, 305 U. S. 165	334
Stoner v. California, 376 U. S. 483	37
Storaasli v. Minnesota, 283 U. S. 57	393
Superior Derrick v. Labor Board, 273 F. 2d 891	211
Sussman, In re, 289 F. 2d 76	377
Swan v. First Church of Christ Scientist, 225 F. 2d 745	149
Sweatt v. Painter, 339 U. S. 629	199
Swift & Co. v. Wickham, 230 F. Supp. 398	113
Swift & Co. v. Wickham, 382 U. S. 111	168,282,428
Taubel - Scott - Kitzmiller v.
Fox, 264 U. S. 426	327,328
Taylor v. Voss, 271 U. S.
176	327
Taylorcraft Aviation Corp., In re, 168 F. 2d 808 269,272
Teamsters v. Morton, 377 U. S. 252	189,193,429
Teamsters v. Oliver, 358
U. S. 283	’	441
Teamsters v. Vogt, Inc., 354 U. S. 284	187
Terry, Ex parte, 128 U. S. 289	164
Terry v. Adams, 345 U. S. 461	299,302,320
Texaco v. FPC, 290 F. 2d 149	230
Texas Water Supply v.
RFC, 204 F. 2d 190	346
Textile Workers v. Allendale Co., 96 U. S. App. D. C.
401	217
Textile Workers v. Darling-ton Co., 380 U. S. 263	210
CXXXVI
TABLE OF CASES CITED.
Page
Theatre Enterprises v. Para-mount Film, 346 U. S.
537	44
Thompson v. Louisville, 362
U. S. 199	94,96
Thompson v. Magnolia Co., 309 U.	S. 478	327,336,338
Thompson v. United States, 343 U.	S. 549	243,244,249
Thomhill v. Alabama, 310
U. S. 88	90
Times-Picayune v. United States, 345 U.	S.	594	17
Tôt v. United States, 319
U. S. 463	139,141,144
T r a d e Commission. S e e Fédéral Trade Comm’n.
Travia v. Lomenzo, 381
U. S. 431	7
Travia v. Lomenzo, 382
U. S.4	287
Triangle Elec. v. Foutch, 40
F. 2d 353	339
Trinity Univ. Ins. Co. v.
First State Bk., 143 Tex. 164	384
Trustées of New Castle v.
Megginson, 1 Boy ce 361 308
Twining v. New Jersey, 211
U. S. 78
410-413, 415, 417, 419
Ullmann v. United States, 350 U. S. 422	414
Ulhnan, Stem & Krausse v.
Coppard, 246 F. 124	334
Underwood v. Maloney, 256
F. 2d 334	149
Union. For labor union, see name of trade.
Union Carbide & Carbon v.
Nisley, 300 F. 2d 561	56,57
Union News v. Hildreth, 295
F. 2d 658	885-887
Union Pac. R. Co. v. Price, 360 U. S. 601	263
United. For labor union, see name of trade.
United Button Co., In re, 140 F. 495	331
United Gas Co. v. FPC, 269
F. 2d 865, 283 F. 2d 817, 287 F. 2d 159, 290 F. 2d 133, 290 F. 2d 147	225
Page
United Hay Co. v. Ford, 124 Tex. 213	384
United States v. Aetna Sure-ty, 338 U. S. 366	382
United States v. Allegheny
County, 322 U. S.	174	354
United States v. Allen-Brad-ley Co., 352 U. S.	306	29
United States v. Aluminum
Co., 148 F. 2d 416	277
United States v. Belt, 88 F.
Supp. 510	346
United States v. Bess, 357 U. S. 51	352
United States v. Bumison, 339 U. S. 87	91
United States v. California, 381 U. S. 139	448
United States v. Castaldi, 338 F. 2d 883	167,171
United States v. Curcio, 234
F.	2d 470	171
United States v. De Vito, 68
F.	2d 837	142
United States v. El Paso Gas, 376 U. S.	651	35
United States v. England, 226 F. 2d 205	269
United States v. First Nat.
Bk., 376 U. S. 665	34
United States v. Fisher, 2
Cranch 358	277
United States v. Gainey, 380 U. S. 63	138-144
United States v. Gilbert Associates, 345 U. S. 361 269-272,274,279
United States v. Great Northern R. Co., 343 U. S.
562	157
United States v. Harpoot-lian, 24 F. 2d 646	355
United States v. Helz, 314
F.	2d 301	348
United States v. Hutcheson, 312 U. S. 219	277
United States v. Illinois C.
R. Co., 263 U. S. 515	246
United States v. Miller, 229
F.	2d 839	355
United States v. Nat. Assn.
of Real Est. Bds., 339
U. S. 485	44
TABLE OF CASES CITED.
CXXXVII
Page
United States v. New
Wrinkle, 342 U. S. 371	175
United States v. Ohio Power,
353 U. S. 98	27,29,30
United States v. Pan Ameri-
can World Airways, 299
F.	2d 74	26
United States v. Pappadio, 346 F. 2d 5	167,171
United States v. Rumely, 345 U. S. 41	315
United States v. Sands, 174
F.	2d 384	272,274
United States v. Shannon, 342 U. S. 288	385
United States v. Shillitani,
345 F. 2d 290	167,171
United States v. Shimer, 367
U. S. 374	352
United States v. Socony-
Vacuum, 310 U. S. 150	17
United States v. Standard
Oil, Civ. No. 11584-C,
D.	C. S..D. Cal. 59,65 United States v. Sullivan,
274 U. S. 259	78,79
United States v. Tramunti, 343 F. 2d 548	167,171
United States v. Universal
Ç. I. T., 344 U. S. 218	144
United States v. View Crest
Apts., 268 F. 2d 380	348
United States v. Weinberg, 65 F. 2d 394	171
U. S. Fidelity Co. v. Bray, 225 U. S. 205	327,329
Utility Workers v. Consolidated Edison, 309 U. S. 261	218,220
Van Sant v. American Express, 169 F. 2d 355	149
Vick v. United States, 216
F.	2d 228	141
Vogt, Inc. v. Teamsters, 270
Wis. 321a	187
Watchtower Soc. v. Metropolitan Ins. Co., 297 N. Y. 339	321
Watson v. Memphis, 373 U. S. 526	105,297,302,320
Western & A. R. Co. v. Hen-derson, 279 U. S. 639	139
Western Pac. R. Co. v.
United States, 230 F. Supp. 852	240
Western Union v. Ga. R. &
Banking Co., 227 F. 276 311
West Texas Util. v. Labor
Board, 184 F. 2d 233	217
White Motor v. United States, 372 U. S. 253	178
Whiting v. Portsmouth, 202 Va. 609	393
Wilson v. United States, 149 U. S. 60	412
Wilson v. United States, 221 U. S. 361	171
Winters v. New York, 333 U. S. 507	91
Wisconsin v. FPC, 373 U. S. 294	228,231
Wissner v. Wissner, 338 U. S. 655	353
Wiswall v. Campbell, 93 U. S. 347	329,334
WMCA, Inc. v. Lomenzo, 238 F. Supp. 916	5
WMCA, Inc. v. Lomenzo, 377 U. S. 633	5,7
Wolf v. Colorado, 338 U. S. 25	413,417
Wood & Henderson, In re, 210 U. S. 246	333,335,337
Yates v. United States, 356 U. S. 363	171
Young, Ex parte, 209 U. S. 123	117
Youngdahl v. Rainfair, Inc., 355 U. S. 131	191
Zdanok v. Glidden Co., 327 F. 2d 944	214
TABLE OF STATUTES CITED
(A) Statutes of the United States.
Page
1789, Sept. 24, c. 20, §11, 1 Stat. 73.................. 145
1800, Apr. 4, c. 19, 2 Stat.
19 ....................... 323
§§5, 13.................. 375
1841, Aug. 19, c. 9, 5 Stat.
440 ....-................. 323
§3		 375
1867, Mar. 2, c. 176, 14 Stat.
517....................... 323
§14	......... 375
1875, Mar. 3, c. 137, 18 Stat.
470 ...................... 145
1878, Mar. 16, c. 37, 20 Stat.
30, as amended.... 406
1887, Feb. 4, c. 104, §§ 1, 3, 24 Stat. 379, as amended.................. 237
§5 ..................... 154
§15 .................... 237
Mar. 3, c. 373, 24 Stat.
552, as amended.... 145
1888, Aug. 13, c. 866, 25 Stat. 433......... 145
1890, July 2, c. 647, § 1, 26 Stat. 200, as amended............... 34,54
§2 .................. 54,172
1898, July 1, c. 541, §1, 30 Stat. 544, as amended.................. 375
§§ 2, 19, 23, 47, 57. 323 §60 ........... 266,323
§64 ................. 266,341
§67 ..................... 266
§70 ................. 266,375
1910, June 18, c. 309, §17,
36 Stat. 539................ 111
June 25, c. 412, § 8, 36
Stat. 838 .................. 266
1913, Mar. 4, c. 160, 37 Stat.
1013 ....................... 111
Mar. 4, c. 166, 37 Stat.
1016 ....................... 266
Page
1914, Sept. 26, c. 311, §5, 38 Stat. 717, as amended.................. 46
Oct. 15, c. 323, §4, 38 Stat. 730, as amended............ 172
§§4B, 5.................. 54
§7		 54,154
1917, Mar. 2, c. 145, § 41, 39 Stat. 951............... 145
1925, Feb. 13, c. 229, 43 Stat.
936 ..................... 111
1926, May 20, c. 347, §3 First, 44 Stat. 577, as amended.........257
1927, Mar. 4, c. 509, 44 Stat.
1424, as amended.. 25
§41	......... 283
1934, June 14, c. 512, 48 Stat. 955............... 172
June 19, c. 652, §§ 203, 409, 501, 48 Stat.
1064 ....................... 162
June 21, c. 691, §3 First, 48 Stat. 1185. 257
June 27, c. 847, 48
Stat. 1246.............. 341
1935, July 5, c. 372, 49 Stat.
449, as amended....	205
§§ 2, 3, 7, 8.......... 181
§9	....... 181,184
§10	.......... 205
§14	.......... 181
1937, June 3, c. 296, 50 Stat.
246 ........................ 111
1938, Mar. 21, c. 49, § 3, 52 Stat. 111............ 46
June 21, c. 556, §§4,
5, 7, 19, 52 Stat.
821 ..................... 223
June 22, c. 575, §1,
52 Stat. 840, as amended.......... 375
cxxxix
CXL
TABLE OF STATUTES CITED.
Page
Page 1940, June 28, c. 439, § 2, 54 Stat. 670 .................. 70
Sept. 18, c. 722, § 5, 54 Stat. 898............ 237
§7		 154
§10	............. 237
Oct. 17, c. 888, §514, 54 Stat. 1178, as amended................ 386,397 1941, A u g. 16, c. 357, 55 Stat. 622, as amended................ 25
1942, Jan. 30, c. 26, 56 Stat.
23 ........................ 111
Oct. 6, c. 581, § 17, 56
Stat. 769.................. 386
1944, July 3, c. 397, 58 Stat.
722 ................... 386,397
1946,	June 11, c. 324, §10,
60 Stat. 237................ 46
1947,	June 23, c. 120, § 101,
61 Stat. 136, as amended .. 181,205,884 §301 .......... 145,	205
§303 ...................... 181
1948,	June 25, c. 646, 62
Stat. 869.................. 205
1950, Mar. 18, c. 70, §§ 1, 2,
64 Stat. 24................ 266
Sept. 21, c. 967, 64
Stat. 873.................. 341
Sept. 23, c. 1024, §§ 4, 7, 8, 13, 14, 15, 64 Stat. 987............. 70
Dec. 29, c. 1189, 64 Stat. 1129........... 205
1952, June 27, c. 477,66 Stat.
163,	as amended.... 285 1953, May 22, c. 65, § 3, 67 Stat. 29................... 448
§5		 288,448
§6		448
1955,	July 7, c. 283, 69
Stat. 282................... 54
1956,	July 26, c. 740, 70
Stat. 658.................. 145
1957,	Aug. 28, Pub. L. 85-172, §§ 1-20, 71 Stat.
441 ....................... 111
1958,	July 25, Pub. L. 85-
554,	72 Stat. 415... 145
Aug. 23, Pub. L. 85-742, 72 Stat. 835... 283
1958, Sept. 2, Pub. L. 85-
859,	72 Stat. 1275.. 136
1959,	Sept. 14, Pub. L. 86-
257,	73 Stat. 519... 205
§704 .................... 181
1962,	Oct. 9, Pub. L. 87-
771,	76 Stat. 768... 386
1963,	Aug. 28, Pub. L. 88-
108,	§§ 3, 7, 77 Stat.
132 ..s......................423
1964,	Aug. 14, Pub. L. 88-
439,	78 Stat. 445... 145
1965,	Oct. 3, Pub. L. 89-236, 79 Stat. 911.................285
Revised Statut es.
§916 ...................341
§3186 ................. 266
§3466 ................. 341
§3477 ................. 375
U. S. Code.
Title 5, §1009 ............. 46
§§1031-1042 .............. 205
Title 11, §1 .............. 375
§§11,42,46,75,93. 323 §96 ........... 266,323
§104		 266,341
§107		 266
§110	...... 266,375
Title 12, § 1702 et seq.... 341
§ 1811 et seq........... 341
Title 15, §1 ............ 34,54
§2		 54,172
§15		 172
§§ 15b, 16................ 54
§18		 54,154
§45 ..................... 46
§§ 717-717w.............. 223
Title 18, § 401 ............ 34
§1952 ................... 162
§ 2385 ................... 70
§3481 ................... 406
Title 21, §§451-469... 111
Title 26,
§ 172 .................. 375
§5601 .................. 136
§6321 .............. 266,341
§6322 .................. 266
§6323 .............. 266,341
TABLE OF STATUTES CITED.
CXLI
Page
U. S. Code—Continued.
Title 26—Continued.
§6334 ........... 341
§6411 ............... 375
Title 28,
§§294, 295.... 875,950 §332 ............ 1003
§ 452 ................ 25
§1253 . 4,111,281,423 §1254 ............. 205
§1332 ............... 145
§1404 ............... 362
§1441 ............... 145
§ 2107 ............... 32
§2201 ............... 172
§2281 ... 111,281,423 §2282 ............. 281
§2284 ............... 111
§2322 ............... 237
Title 29, § 151 et seq......205
§§ 152, 153,157,158. 181 §159 ......... 181,884
§160		 205
§164	.......... 181
§185		 145
§187		 181
Title 31, §191 ............ 341
§203		 375
Title 33, § 901 et seq.......... 25 §941 ................. 283
Title 35, §§102, 103,
122,	145....... 252
Title 42, § 1651 et seq.	25
Title 43,
§1311 ............... 448
§1313 ........... 288,448
§1314 .................448
Title 45, § 151 et seq........... 257 § 157 ................. 423
Title 47,	§§203, 409, 501 	 162
Title 48,	§863....... 145
Title 49, §§1,3............. 237
§5 ................... 154
§15 .................. 237
Title 50, §§783, 786, 787, 792-794........... 70
Title 50 App.,§ 574. 386,397
Page
Administrative Procedure
Act ....................... 46
Agricultural Marketing
Agreement Act of 1937.. 111 Bankruptcy Act... 266,323,375 Chandler Act............. 375
Clayton Act........ 54,154,172 Communications Act of 1934. 162 Declaratory Judgment Act. 172 Defense Base Act... 25 Emergency Price Control
Act of 1942............... 111
Excise Tax Technical
Changes Act of 1958_____ 136
Fédéral Deposit Insurance
Act ...................... 341
Fédéral Trade Commission
Act ....................... 46
Hobbs Act.................. 205
Immigration and National-
ity Act.................. 285
Internai Revenue Code of 1939.
§3672 .................. 266
§3691 .................. 341
Internai Revenue Code of 1954.
§172 ................... 375
§5601 .................. 136
§6321 .............. 266,341
§6322 .................. 266
§6323 .............. 266,341
§6334 .................  341
§6411 .................. 375
Interstate	Commerce
Act .................. 154,237
Judicial Code......’..... 205
Judicial Review	Act.......205
Labor Management Rela-
tions Act, 1947........... 181
Longshoremen’s and Harbor
Workers’ Compensation
Act ....................... 25
National Housing Act..... 341 National Labor Relations
Act .............. 181,205,884
Natural Gas Act.......... 223
Poultrv Products Inspection
Act ...................... 111
Railway Labor	Act....... 257
Sherman Act........ 34,54,172
CXLII
TABLE OF STATUTES CITED.
Page
Smith Act of 1940 ......... 70
Soldiers’ and Sailors’ Civil
Relief Act of 1940.. 386,397
Submerged Lands Act.. 288,448
Page
Subversive Activities Con-trol Act of 1950......... 70
Taft-Hartley Act ........205
Wagner Act.............. 205
(B)	Constitutions and Statutes of the States and Puerto Rico.
Alabama.
Laws 1880-1881, pp. 395-396 .......... 296
Laws 1882-1883, pp. 392-393 .......... 296
Code Tit. 34, §73.... 341
Alaska.
Comp. Laws 193 3, §3151 ............ 386
Arizona.
Rev. Stat. Ann. § 25-214 .............. 341
Code 1939, §66-256... 386 Arkansas.
Laws 1907, Act 116.... 423
Laws 1913, Act 67.... 423
Stat. 1937, §6615.......... 386
Stat. Ann. §§73-720— 73-722, 73-726—73-729 .............. 423
California.
Const., Art. 1, § 13.... 406
Const., Art. 17, §1.... 341
Civil Code §§ 158, 167, 171 .............. 341
Civil Code §§ 172, 172a, 1240, 1260 (Supp. 1964) ............ 341
Civil Procedure Code §§338, 340......... 54
Civil Procedure Code §§ 690-690.52 (1955 ed. and Supp. 1964). 341
Financial Code § 24206.	1
Revenue & Taxation
Code §§ 26, 10751-10758 ........ 386
Vehicle C o de 1935, §§ 140, 148, 370 . 386
Vehicle Code §§ 4000, 4750, 9250........ 386
Connecticut.
Gen. Stat. Rev. 1930, §1578 ............ 386
ueiaware.
Rev. Code 1935, § 5564. 386 Florida.
Stat. Ann. § 708.08 (Supp. 1964)......... 341
Georgia.
Code §4008 (1895).... 296
Code Ann. §53-503... 341
Code Ann. §§ 69-504, 69-505, 92-201, 108-203 ................. 296
Indiana.
Ann. Stat. §38-102... 341 lowa.
Code 1939, §5008.05... 386 Kentucky.
Rev. Stat. §§ 404.010, 404.020 ............... 341
Maine.
Rev. Stat. Ann. Tit. 14, §§4401, 4551, 4552.. 341
Michigan.
Stat. Ann. §§ 26.161, 26.181-26.183 ....... 341
Mississippi.
Code 1942, §§9352-03, 9352-19 ............. 386
Missouri.
Rev. Stat. Ann. 1942, §8369 ............... 386
Nevada.
Rev. Stat. § 123.230... 341 New Jersey.
Rev. Stat. 1937, §39:3-8 ................... 386
New York.
Const., Art. I, §6.... 809
Const., Art. III, §2.. 4,10
Laws 1964, cc. 976-979, 981 ................ 4,10
Agriculture and Markets Law, §193....... 111
North Carolina.
Gen. Stat. §52-2........... 341
TABLE OF STATUTES CITED.
CXLIII
Page Ohio.
Const., Art. I, § 10.... 406
Gen. Code § 6292 (1945
Repl. Vol.)................. 386
Rev. Code §§1707.01-1707.45, 2945.43 ..... 406
Securities Act.............. 406
Page
Puerto Rico—Continued.
Oregon.
Comp. L a w s 1940, §§115-105, 115-106. 386
28 U. S. C. § 1332........ 145
48 U. S. C. §863.......... 145
Organic Act............... 145
Tennessee.
Const., Art. 11, §11.. 341 Texas.
Pennsylvania.
1860, Mar. 31, Pub. L.
427, §62.................... 399
1939, June 24, Pub. L.
872, §716................... 399
Stat. Ann. Tit. 18, §4716 ............... 399
Stat. Ann. Tit. 19, §1222 ............... 399
Puerto Rico.
1917, Mar. 2, c. 145, §41, 39 Stat. 951.... 145
1956, July 26, c. 740, 70 Stat. 658......... 145
Const., Art. 16, §§ 50, 51 ................. 341
Acts 1963, c. 472, §6.. 341
Rev. Civ. Stat. Ann.,
Arts. 1300,3832,3833, 3835, 3836, 4000, 4614,4626,6605,6608. 341
Rev. Civ. Stat. Ann., Art. 4618 (Supp.
1964) .................... 341
Washington.
Rev. Stat. §§6312-16, 6312-102 (1937 Repl.
Vol.) .................... 386
Wyoming.
Comp. Stat. 1945, §§ 60-103, 60-104 ........ 386
(C)	Convention.
1961, Mar. 24 (Convention on Territorial Sea and Contiguous Zone), T. I. A. S. No. 5639 ............................. 448
(D)	Foreign Statute.
England. Christchurch Inclosure Act............................... 296
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1965.
FAIRFAX FAMILY FUND, INC. v. CALIFORNIA.
APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT.
No. 124. Decided October 11, 1965.
235 Cal. App. 2d 881, 47 Cal. Rptr. 812, appeal dismissed.
Herman F. Selvin for appellant.
Thomas C. Lynch, Attorney General of California, Charles E. Corker, Assistant Attorney General, and Arthur C. de Goede and H. Warren Siegel, Deputy Attorneys General, for appellee.
Per Curiam.
The motion to dismiss is grànted and the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Douglas, dissenting.
Appellant is a Kentucky corporation engaged in a mail-order loan business in thirty-two States. It has no offices, no agents, no employées, and no property in California. It solicits loans from California residents by mail; after a crédit report is prepared by a local inde-pendent contractor, the loan application is passed on by appellant’s officers in Kentucky. If the loan is approved, the check is mailed to the borrower from Kentucky.
786-2110-66—10
2	OCTOBER TERM, 1965.
Douglas, J., dissenting.	382 U. S.
Because appellant failed to obtain a license from the State of California and pay the annual $200 fee, appellee sought and obtained an injonction barring appellant from conducting its out-of-state small-loan business until the requisite California license was obtained. In order to obtain a license, the lender must display “the financial responsibility, expérience, character, and general fit-ness . . . such as to command the confidence of the com-munity and to warrant belief that the business will be operated honestly, fairly, and efficiently . . . .” Cal. Fin. Code § 24206.
Our decisions hâve heretofore precluded a State from exacting a license of a firm doing an exclusively interstate business as a condition of entry into the State. See, e. g., Robbins v. Shelby County Taxing District, 120 U. S. 489; Crutcher v. Kentucky, 141 U. S. 47; Eli Lilly & Co. v. Sav-On-Drugs, 366 U. S. 276, 278-289; see also id., at 288, 289-292 (Douglas, J., dissenting). Appellee would characterize these California statutes as primarily of a regulatory nature, invoking Robertson v. Calijomia, 328 U. S. 440, in which the majority of the Court held that a State might exclude an interstate insurance company which failed to meet certain minimum reserve requirements designed to assure that the insurer is financially solvent.
But here California exacts a $200 annual fee as a condition of obtaining and maintaining a license. As we recognized in Murdock v. Pennsylvania, 319 U. S. 105, 112: “The power to tax the exercise of a privilège is the power to control or suppress its enjoyment.” The California District Court of Appeal viewed the fee as one designed to offset the expenses of administering the licensing System itself. From California’s characteriza-tion of the fee* it is not one to “defray the cost of purely
* The charges or expenses imposed by the licensing procedure are no larger in amount than is reasonably necessary to defray the admin-
FAIRFAX FAMILY FUND v. CALIFORNIA. 3
1	Douglas, J., dissenting.
local régulations” which we indicated was permissible in Murdock, 319 U. S., at 114, n. 8. (Emphasis added.)
Because I believe that this case présents substantial and important constitutional questions, I would note probable jurisdiction and set this case down for argument.
istrative expenses involved . . . .” California v. Fairfax Family Fund, 235 Cal. App. 2d 881, 884, 47 Cal. Rptr. 812, 814.
4
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
WMCA, INC., ET AL. v. LOMENZO, SECRETARY OF STATE OF NEW YORK, et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 85. Decided October 11, 1965.
238 F. Supp. 916, affirmed.
Léo A. Larkin, Jack B. Weinstein, Leonard B. Sand, Max Gross, Morris Handel and George H. P. Dwight for appellants.
Louis J. Lefkowitz, Attorney General of New York, Thomas E. Dewey, Leonard Joseph and Malcolm H. Bell for appellees.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
Mr. Justice Portas took no part in the considération or decision of this case.
Mr. Justice Harlan, concurring.*
The Court today disposes summarily of four New York reapportionment cases; it retains jurisdiction of a fifth, Lomenzo v. WMCA, Inc., No. 81, which raises sub-stantial questions similar to some of those involved in a set of Hawaii reapportionment cases, Burns v. Richardson, No. 318; Cravalho v. Richardson, No. 323; and Abe v. Richardson, No. 409, with respect to which probable
*[This opinion applies also to No. 191, Travia et al. v. Lomenzo, Secretary of State of New York, et al.; No. 319, Rockefeller, Gov-ernor of New York, et al. v. Orans et al.; and No. 449, Screvane, President of City Council of City of New York, et al. v. Lomenzo, Secretary of State of New York, et al]
WMCA, INC. v. LOMENZO.	5
4	Harlan, J., concurring.
jurisdiction has been noted (post, p. 807). Because these cryptic dispositions risk bewildering the New York legis-lators and courts, let alone those of other States, I believe it fitting to elucidate my understanding of these dispositions, ail of which I join on the premises herein indicated. The need for clarification is particularly désirable because, through dismissal of the appeal in Rockefeller v. Orans, No. 319, and affirmance in WMCA, Inc. v. Lomenzo, No. 85, this Court signifies its approval of two decisions con-cerning the same apportionment plan, one of which (No. 85) found it acceptable and the other of which (No. 319) struck it down.
The New York Législature adopted an apportionment plan, known as “Plan A,”1 to comply with an order of a three-judge District Court, dated July 27, 1964, requiring the State to enact “a valid apportionment scheme that is in compliance with the XIV Amendment of the United States Constitution and which shall be implemented so as to effect the élection of Members of the Législature at the élection in November, 1965, Members so elected to hold office for a term of one year ending December 31, 1966 .	2
In WMCA, Inc. v. Lomenzo, 238 F. Supp. 916, the three-judge court found that Plan A satisfied this order;
1 New York Laws 1964, c. 976. The New York Législature passed three successive amendments to c. 976: New York Laws 1964, cc. 977-978 (“Plan B”), c. 979 (“Plan C”), and c. 981 (“Plan D”). The District Court in the same opinion that found Plan A constitutional, WMCA, Inc. v. Lomenzo, 238 F. Supp. 916, also held that Plans B, C, and D did not meet the requirements of the Fourteenth Amendment, as interpreted in Reynolds v. Sims, 377 U. S. 533, and WMCA, Inc. v. Lomenzo, 377 U. S. 633. This Court is retaining jurisdiction in the appeal from those déterminations, Lomenzo v. WMCA, Inc., No. 81.
2 Civil No. 61-1559, U. S. D. C. S. D. N. Y. The order of the District Court was affirmed summarily by this Court, Hughes v. WMCA, Inc., 379 U. S. 694, Mr. Justice Clark and I dissenting.
6
382 U. S.
OCTOBER TERM, 1965.
Harlan, J., concurring.
in so doing it rejected contentions that apportioning on a basis of citizen population violâtes the Fédéral Constitution, and that partisan “gerrymandering” may be subject to fédéral constitutional attack under the Fourteenth Amendment. In affirming this decision, this Court necessarily affirms these two eminently correct principles.
Quite evidently Plan A was seen by the District Court, and is also viewed by this Court, as but a temporary measure. In holding the plan federally acceptable for the purpose of electing a spécial 1966 Législature, the District Court explicitly abstained from dealing with challenges to the plan under the State Constitution. Judge Waterman also noted that although Plan A met fédéral constitutional requirements, “Of course, the ulti-mate fitness of the scheme for their needs and purposes is for the people of the State of New York, themselves, to décidé, and not for this court to mandate.” 238 F. Supp., at 927.
Subséquent to the decision below in WMCA, the New York Court of Appeals held Plan A (as well as Plans B, C, and D) unconstitutional as a matter of state law.3 In now dismissing for lack of a substantial fédéral question the appeal from that decision (Rockefeller v. Orans, No. 319) insofar as it may bear upon any apportionment plan effective after the expiration of the 1966 New York Législature, I take it that the Court is asserting that any final apportionment plan must comport with state as well as
3 In re Orans, 15 N. Y. 2d 339, 206 N. E. 2d 854. The Court of Appeals held Plans A, B, C, and D invalid under Art. III, § 2, of the New York Constitution which states, “The assembly shall consist of one hundred and fifty members.” Ail four plans provided for larger assemblies: Plan A, 165 assemblymen, c. 976, §301; Plan B, 180 assemblymen, c. 977, §301; Plan C, 186 assemblymen (having a total of 165 votes), c. 979, §301; Plan D, 174 assemblymen (having a total of 150 votes), c. 981, §301.
7
4
WMCA, INC. v. LOMENZO.
Harlan, J., concurring.
fédéral constitutional requirements.4 So much of the disposition in No. 319 I join without réservation. In dis-missing, without more, the remaining part of that appeal, I take it that the Court is simply reflecting its affirmances in Nos. 191 and 449 (post, pp. 9, 11), whereby it puts its stamp of approval on the District Court’s use of Plan A, though invalid under the New York Constitution, as a temporary measure. I acquiesce in this aspect of the disposition because of factors to which I advert below.
The Court affirms as well two appeals, Travia v. Lomenzo, No. 191, and Screvane v. Lomenzo, No. 449, from the District Court’s order of May 24, 1965, which specifically ordered a November 1965 spécial élection under Plan A after the New York Court of Appeals had already declared that plan to be in violation of the State Constitution.5 On June 1, 1965, this Court denied a motion to stay the order and to accelerate the appeal, Travia v. Lomenzo, 381 U. S. 431. In dissent I noted that a fédéral court order that a state élection be held under a plan declared invalid under the State Constitution by the highest court of that State surely presented issues of far-reaching importance for the smooth func-tioning of our fédéral System, which were deserving of plenary considération by this Court. I would hâve accel-erated the appeal, and but for the action of this Court in denying the stay which was sought I would hâve granted the further application for such a stay that was
4 The Court’s dismissal of this part of the appeal in No. 319 neces-sarily approves the Court of Appeals’ holding that from the stand-point of fédéral law the 150-member requirement of the New York Constitution was not an intégral part of the apportionment scheme invalidated in WMCA, Inc. v. Lomenzo, 377 U. S. 633.
5 The May 24, 1965, order of the District Court was in oral form. A written opinion was handed down on July 13, 1965, Civil No. 61-1559, embodying the May order.
8
382 U. S.
OCTOBER TERM, 1965.
Harlan, J., concurring.
made to me during the summer. Travia v. Lomenzo, No. 191, Mémorandum of Mr. Justice Harlan, July 16, 1965, 86 S. Ct. 7. I now acquiesce in the affirmance6 as I can see no satisfactory way to heal, at this juncture, the wounds to federal-state relations caused by the District Court’s order without inflicting even greater ones.
The upshot of what is done today is, then, to suspend New York’s 150-member constitutional provision for the one-year duration of the 1966 Législature, a resuit to which I subscribe only under the compulsion of what has gone before in this Court.
6 A decision on the merits by this Court is unavoidable. The appeal from the three-judge District Court is brought here under 28 U. S. C. § 1253 (1964 ed.), and I do not believe this case, or a fortiori any of the other New York reapportionment cases presently before the Court, is moot. Surely if this Court now held that the District Court erred in ordering the élection under Plan A, it has the power, for example, to enjoin the November 2 élection and to order the District Court to arrange for yet another élection and for other appropriate temporary reapportionment relief. The very great diffi-culties implicit in affording any such relief at this late stage go to the question of its desirability, not to the mootness of the underlying action.
DECISIONS PER CURIAM.
9
382 U. S.	October 11, 1965.
TRAVIA ET AL. v. LOMENZO, SECRETARY OF STATE OF NEW YORK, et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 191. Decided October 11, 1965.
Affirmed.
Simon H. Rifkind and Edward N. Costikyan for appellants.
Louis J. Lefkowitz, Attorney General of New York, Daniel M. Cohen, Assistant Solicitor General, Donald Zimmerman, Spécial Assistant Attorney General, George D. Zuckerman, Assistant Attorney General, and Willis Burton Lemon for appellees.
Per Curiam.
The motion to dispense with printing the jurisdictional statement is granted.
The motions to affirm are granted and the judgment is affirmed.
Mr. Justice Portas took no part in the considération or decision of this case.
[For concurring opinion of Mr. Justice Harlan, see No. 85, WMCA, Inc., et al. v. Lomenzo, Secretary of State of New York, et al., ante, p. 4.]
10
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
ROCKEFELLER, GOVERNOR OF NEW YORK, ET AL. V. ORANS ET AL.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 319. Decided October 11, 1965.
15 N. Y. 2d 339, 206 N. E. 2d 854, appeal dismissed.
Louis J. Lefkowitz, Attorney General of New York, Thomas E. Dewey, Leonard Joseph and Malcolm H. Bell for appellants.
Justin N. Feldman for appellee Orans.
Per Curiam.
On April 14,1965, the New York Court of Appeals ruled that the New York Laws of 1964, ce. 976, 977, 978, 979, 981, were invalid under the New York Constitution, Art. III, § 2. On July 13, 1965, the United States District Court for the Southern District of New York enjoined interférence with an élection of members of the New York Législature to be held on November 2,1965, based on “the scheme set forth” in the New York Laws of 1964, c. 976. Insofar as the decision of the Court of Appeals has been superseded by the order of the District Court, the appeal is dismissed. In ail other respects, the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Fortas took no part in the considération or decision of this case.
[For concurring opinion of Mr. Justice Harlan, see No. 85, WMCA, Inc., et al. v. Lomenzo, Secretary of State of New York, et al., ante, p. 4.]
DECISIONS PER CURIAM.
11
382 U. S.	October 11, 1965.
SCREVANE, PRESIDENT OF CITY COUNCIL OF CITY OF NEW YORK, et al. v. LOMENZO, SEC-RETARY OF STATE OF NEW YORK, et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 449. Decided October 11, 1965.
Affirmed.
Léo A. Larkin, Morris Handel and George H. P. Dwight for appellants.
Louis J. Lefkowitz, Attorney General of New York, Daniel M. Cohen, Assistant Solicitor General, Donald Zimmerman, Spécial Assistant Attorney General, George D. Zuckerman, Assistant Attorney General, Leonard B. Sand and Max Gross for appellees.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
Mr. Justice Fortas took no part in the considération or decision of this case.
[For concurring opinion of Mr. Justice Harlan, see No. 85, WMCA, Inc., et al. v. Lomenzo, Secretary of State of New York, et al., ante, p. 4.]
12
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
JOBE et al. v. CITY OF ERLANGER.
APPEAL FROM THE COURT OF APPEALS OF KENTUCKY.
No. 62. Decided October 11, 1965.
383 S. W. 2d 675, appeal dismissed.
James C. Ware for appellants.
Harry L. Riggs, Jr., for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted.
ALUMINUM CO. OF AMERICA et al. v. UNITED STATES.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI.
No. 84. Decided October 11, 1965.
233 F. Supp. 718; 247 F. Supp. 308, affirmed.
Herbert A. Bergson, Howard Adler, Jr., Daniel H. Margolis and William K. Unverzagt for appellants.
Soliciter General Cox, Acting Assistant Attorney General Wright, Lionel Kestenbaum, Jerry Z. Pruzansky and Edna Lingreen for the United States.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
DECISIONS PER CURIAM.
13
382 U. S.	October 11, 1965.
HERALD PUBLISHING CO. v. WHITEHEAD-DONOVAN CORP.
APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
No. 156. Decided October 11, 1965.
62 Cal. 2d 185, 397 P. 2d 426, appeal dismissed.
James G. Butler for appellant.
George G. Shapitric for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted.
BOWMAN v. LAKE COUNTY PUBLIC BUILDING COMMISSION et al.
APPEAL FROM THE SUPREME COURT OF ILLINOIS.
No. 170. Decided October 11, 1965.
31 111. 2d 575, 203 N. E. 2d 129, appeal dismissed and certiorari denied.
Paul E. Hamer for appellant.
Andrew A. Semmelman and Bruno W. Stanczak for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
14
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
PURE-VAC DAIRY PRODUCTS CORP. v. MISSISSIPPI ex rel. PATTERSON, ATTORNEY GENERAL.
APPEAL FROM THE SUPREME COURT OF MISSISSIPPI.
No. 179. Decided October 11, 1965.
251 Miss. 457, 170 So. 2d 274, appeal dismissed.
George E. Morrow for appellant.
Joe T. Patterson, Attorney General of Mississippi, and John L. Hatcher, Spécial Assistant Attorney General, for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
FILISTER et al. v. CITY OF MINNEAPOLIS et al.
APPEAL FROM THE SUPREME COURT OF MINNESOTA.
No. 184. Decided October 11, 1965.
270 Minn. 53, 133 N. W. 2d 500, appeal dismissed and certiorari denied.
Josiah E. Brill for appellants.
Arvid Falk and Kenneth W. Green for appellees.
Per Curiam.
The motion to substitute Katherine E. Bliss in place of J. J. Bliss as a party appellant is granted.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
DECISIONS PER CURIAM.
15
382 U. S.	October 11, 1965.
GRIFFING et al., CONSTITUTING BOARD OF SUPERVISORS OF SUFFOLK COUNTY, NEW YORK v. BIANCHI et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK.
No. 206. Decided October 11, 1965.
238 F. Supp. 997, appeal dismissed.
Stanley S. Corwin, Joseph L. Nellis and Allen A. Sper-ling for appellants.
Richard C. Cahn for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.
JONES et al. v. McFADDIN et al.
APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, SIXTH SUPREME JUDICIAL DISTRICT.
No. 226. Decided October 11, 1965.
382 S. W. 2d 277, appeal dismissed.
William Blum, Jr., for appellants.
George A. Weller, Ewell Strong and Major T. Bell for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Black took no part in the considération or decision of this case.
16
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
BERRY v. STATE TAX COMMISSION.
APPEAL FROM THE SUPREME COURT OF OREGON.
No. 229. Decided October 11, 1965.
241 Ore. 580, 397 P. 2d 780, 399 P. 2d 164, appeal dismissed.
Robert N. Gygi for appellant.
Robert Y. Thornton, Attorney General of Oregon, and John C. Mull and Carlisle B. Roberts, Assistant Attorneys General, for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted.
SEACAT MARINE DRILLING CO. et al. v. BABINEAUX.
APPEAL FROM THE COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT.
No. 283. Decided October 11, 1965.
170 So. 2d 518, appeal dismissed.
Marian Mayer Berkett for appellants.
Per Curiam.
The appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Harlan is of the opinion that the appeal should be dismissed for want of jurisdiction.
DECISIONS PER CURIAM.	17
382 U. S.	October 11, 1965.
UNITED STATES v. NEW ORLEANS CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA.
No. 119. Decided October 11, 1965.
238 F. Supp. 273, reversed.
Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel and Gerald Kadish for the United States.
R. Emmett Kerrigan, George W. Wise and Joseph J. Smith, Jr., for appellees.
Per Curiam.
The judgment is reversed. Times-Picayune Publish-ing Co. v. United States, 345 U. S. 594, at 623-624; United States v. Socony-Vacuum OU Co., Inc., 310 U. S. 150, at 226.
HOURIHAN v. MAHONEY.
APPEAL FROM THE SUPREME JUDICIAL COURT OF MAINE.
No. 342, Mise. Decided October 11, 1965.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
786-211 0-66—11
18
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
MADDOX v. WILLIS et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA.
No. 308. Decided October 11, 1965.
Appeal dismissed.
William G. McRae for appellant.
Jack Greenberg, James M. Nabrit III and Michael Meltsner for appellees Willis et al. Acting Solicitor General Spritzer, Assistant Attorney General Doar and Harold H. Greene for appellee Katzenbach.
Per Curiam.
The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction.
EL PASO ELECThxC CO. v. CALVERT et al.
APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS, THIRD SUPREME JUDICIAL DISTRICT.
No. 395. Decided October 11, 1965.
385 S. W. 2d 542, appeal dismissed.
William Duncan for appellant.
Waggoner Carr, Attorney General of Texas, Haw-thome Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, and Gordon C. Cass and H. Grady Chandler, Assistant Attorneys General, for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
DECISIONS PER CURIAM.
19
382 U. S.	October 11, 1965.
ALAMO EXPRESS, INC., et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS.
No. 357. Decided October 11, 1965.
239 F. Supp. 694, affirmed.
Reagan Sayers and Ewell H. Muse, Jr., for appellants.
Acting Soliciter General Spritzer, Assistant Attorney General Turner, Lionel Kestenbaum, Robert W. Ginnane and Arthur J. Cerra for the United States et al. William E. Cureton for appellees Central Freight Lines, Inc., et al.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
O’CONNOR v. OHIO.
APPEAL FROM THE SUPREME COURT OF OHIO.
No. 281, Mise. Decided October 11, 1965.
Appeal dismissed and certiorari denied.
James W. Cowell for appellant.
Harry Friberg for appellee.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
20	OCTOBER TERM, 1965.
October 11, 1965.	382 U. S.
PRICE, DBA HOWARD PRICE & CO. v. STATE ROAD COMMISSION OF WEST VIRGINIA ET AL.
APPEAL FROM THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA.
No. 144. Decided October 11, 1965.
Appeal dismissed.
Carney M. Payne and Charles W. Yeager for appellant.
C. Donald Robertson, Attorney General of West Virginia, and Philip J. Graziani and C. Robert Sarver, Assistant Attorneys General, for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed in light of the représentations of the Attorney General of West Virginia that there is open to the appellant an effective state procedure of which he has not availed himself.
PUGACH v. NEW YORK.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 12, Mise. Decided October 11, 1965.
15 N. Y. 2d 65, 204 N. E. 2d 176, appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
Mr. Justice Douglas is of the opinion that certiorari should be granted.
DECISIONS PER CURIAM.
21
382 U. S.	October 11, 1965.
BRAADT v. CITY OF NEW YORK, DEPARTMENT OF SANITATION, et al.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 358. Decided October 11, 1965.
15 N. Y. 2d 875, 206 N. E. 2d 349, appeal dismissed and certiorari denied.
William Gitnick for appellant.
Louis J. Lejkowitz, Attorney General of New York, Paxton Blair, Solicitor General, and Jean M. Coon, Assistant Attorney General, for New York State Workmen’s Compensation Board, and Léo A. Larkin, Seymour B. Quel and Benjamin Offner for City of New York, appellees.
Per Curiam.
The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
CASSESE v. PEYTON, PENITENTIARY SUPERINTENDENT.
APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA.
No. 137, Mise. Decided October 11, 1965.
Appeal dismissed and certiorari denied.
Per Curiam,
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
22
OCTOBER TERM, 1965.
October 11, 1965.	382 U. S.
MALLORY et al. v. NORTH CAROLINA.
APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA.
No. 81, Mise. Decided October 11, 1965.
263 N. C. 536, 139 S. E. 2d 870, appeal dismissed and certiorari denied.
Walter S. Haffner for appellants.
T. W. Bruton, Attorney General of North Caro-lina, and Ralph Moody, Deputy Attorney General, for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
KADANS v. DICKERSON et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA.
No. 399, Mise. Decided October 11, 1965.
Appeal dismissed.
Joseph M. Kadans, appellant, pro se.
Paul C. Parraguirre for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.
DECISIONS PER CURIAM.
23
382 U. S.	October 11, 1965.
GRANIERI v. SALT LAKE CITY.
APPEAL FROM THE SUPREME COURT OF UTAH.
No. 202, Mise. Deeided October 11, 1965.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treat-ing the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
KASHARIAN v. HALPERN et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
No. 389, Mise. Deeided October 11, 1965.
Appeal dismissed.
Per Curiam.
The appeal is dismissed for want of jurisdiction.
24	OCTOBER TERM, 1965.
October 11, 1965.	382 U. S.
THOMPSON v. CITY AND STATE OF NEW YORK.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 248, Mise. Decided October 11, 1965.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
GONDECK v. PAN AMERICAN AIRWAYS. 25
Syllabus.
GONDECK v. PAN AMERICAN WORLD AIRWAYS, INC., et al.
ON MOTION FOR LEAVE TO FILE SECOND PETITION FOR REHEARING.
No. 919, October Term, 1961. Certiorari denied June 11, 1962.— Rehearing denied October 8, 1962.—Rehearing and certiorari granted and case decided October 18, 1965.
Petitioner’s husband while off duty was killed outside an overseas defense base where he was employed. The Deputy Commissioner, Bureau of Employées’ Compensation, Department of Labor, hav-ing found that at the time of the accident decedent was subject to emergency call and was retuming from reasonable récréation, awarded petitioner death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act. The District Court set the award aside and the Court of Appeals affirmed, finding no benefit to the employer in decedent’s trip and no relation between the accident and his employment. This Court denied certiorari in the October 1961 Term and a pétition for rehearing the next Term. Thereafter another Court of Appeals upheld an award arising from another employee’s death in the same accident, relying on O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504, which held that the Deputy Commissioner’s award under the Act may be based on his finding that the obligations and conditions of employment create the “zone of spécial danger” out of which the injury or death arose. The Court of Appeals which decided this case expressed doubt in a subséquent case that its decision below conformed to Brown-Pacific-Maxon, and noted that but for a per curiam judgment (reversed last Term in O’Keefle v. Smith, Hinchman & Grylls Associates, Inc., 380 U. S. 359) the Gondeck case stood alone. Held: Since the Court of Appeals misinterpreted the standard in Brown-Pacific-Maxon and since of those eligible petitioner alone had not received compensation for the accident here involved, the “interests of justice would make unfair the strict application of [the Court’s] rules” by which the litigation here would otherwise be final. United States v. Ohio Power Co., 353 U. S. 98, 99.
Rehearing and certiorari granted; 299 F. 2d 74, reversed.
Arthur Roth for petitioner.
Léo M. Alpert for respondents.
26
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
Per Curiam.
Petitioner’s husband, Frank J. Gondeck, was killed as a resuit of a jeep accident on San Salvador Island outside a defense base at which he was employed. The accident took place in the evening as Gondeck and four others were returning from a nearby town. The Deputy Commis-sioner of the Bureau of Employées’ Compensation, United States Department of Labor, awarded death benefits to petitioner in accordance with the terms of the Longshore-men’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U. S. C. § 1651 et seq. (1958 ed.). In support of the award, the Deputy Commissioner found, among other things, that, although Gondeck had com-pleted his day’s work, he was subject to call for emer-gencies while off duty and was returning from reasonable récréation when the accident occurred. The District Court set aside the Deputy Commissioner’s order, and the Court of Appeals for the Fifth Circuit affirmed. United States y. Pan American World Airways, Inc., 299 F. 2d 74. The Court of Appeals acknowledged that Gondeck was subject to call, id., at 75, but found no benefit to the employer in Gondeck’s trip, and “no evidence that fur-nishes a link by which the activity in which Gondeck was engaged was related to his employment.” Id., at 77.
On June 11, 1962, we denied certiorari. 370 U. S. 918. On October 8, 1962, we denied a pétition for rehearing. 371 U. S. 856. We are now apprised, however, of “inter-vening circumstances of substantial ... effect,”* justi-fying application of the established doctrine that “the interest in finality of litigation must yield where the
*U. S. Suprême Ct. Rule 58 (2).
GONDECK v. PAN AMERICAN AIRWAYS. 27
25	Per Curiam.
interests of justice would make unfair the strict application of our rules.” United States v. Ohio Power Co., 353 U. S. 98,99. Subséquent to our orders in the présent case, the Court of Appeals for the Fourth Circuit upheld an award to the survivors of another employée killed in the same accident. Pan American World Airways, Inc. v. O’Hearne, 335 F. 2d 70. In upholding the award, the court cited our decision in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504. In a subséquent case the Court of Appeals for the Fifth Circuit itself expressed doubt whether its decision in the présent case had been consistent with Brown-Pacific-Maxon. O’Keeffe v. Pan American World Airways, 338 F. 2d 319, 325. The court also noted that, “The Gondeck case stands alone, except for a per curiam opinion.” Id., at 325. This Court reversed that per curiam judgment last Term, O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U. S. 359, so that the présent case now stands completely alone.
In O’Keeffe we made clear that the déterminations of the Deputy Commissioner are subject only to limited judicial review, and we reaffirmed the Brown-Pacific-Maxon holding that the Deputy Commissioner need not find a causal relation between the nature of the victim’s employment and the accident, nor that the victim was engaged in activity of benefit to the employer at the time of his injury or death. No more is required than that the obligations or conditions of employment create the “zone of spécial danger” out of which the injury or death arose. Since the Court of Appeals for the Fifth Circuit misin-terpreted the Brown-Pacific-Maxon standard in this case, and since, of those eligible for compensation from the accident, this petitioner stands alone in not receiving it, “the interests of justice would make unfair the strict application of our rules.” United States v. Ohio Power Co., supra, at 99.
28
382 U. S.
OCTOBER TERM, 1965.
Clark, J., joining in judgment.
We therefore grant the motion for leave to file the pétition for rehearing, grant the pétition for rehearing, vacate the order denying certiorari, grant the pétition for certiorari, and reverse the judgment of the Court of Appeals.
It is so ordered.
Mr. Justice Portas took no part in the considération or decision of this case.
Mr. Justice Clark, joining in the judgment.
I fully agréé with my Brother Harlan “that litiga-tion must at some point corne to an end” and “that this decision holds seeds of mischief for the future orderly administration of justice . . . .” But with Cahill v. New York, N. H. & H. R. Co., 351 U. S. 183 (1956), on our books, no other conclusion can be reached.
Up until Cahill I thought that successive pétitions for rehearing would not be received by the Court under its Rule 58 (4) J This rule took the place of the old “end of Term” rule of Bronson v. Schulten, 104 U. S. 410, 415 (1882), abolished by the Congress in 1948, 28 U. S. C. § 452 (1958 ed.). Indeed, I doubted that the Court had the power to grant a successive pétition for rehearing under a factual situation, as here, where a pétition for certiorari had been denied over three years ago, 370 U. S. 918 (1962); a pétition for rehearing had been denied, 371 U. S. 856 (1962); the mandate had issued more than three years before; and where petitioner had, about the same date, cancelled her appeal bond and been discharged of ail liability thereunder. In Cahill, how-ever, the Court through the device of a “motion to recall and amend the judgment” permitted a successive peti-
1	“Consecutive pétitions for rehearings, and pétitions for rehearing that are ont of time under this rule, will not be received.”
GONDECK v. PAN AMERICAN AIRWAYS. 29
25	Clark, J., joining in judgment.
tion not only to be received but granted, despite the fact that the judgment thereby reopened had been previously paid.2 This paved the way for the grant of a successive pétition for rehearing in United States v. Ohio Power Co., 353 U. S. 98 (1957), to make its judgment conform with this Court’s decision that same Term in United States v. Allen-Bradley Co., 352 U. S. 306 (1957), a companion case of Ohio Power in the Court of Claims.
The vice, of course, is the granting of successive pétitions for rehearing in violation of Rule 58 (4), which was done for the first time in Cahill. It makes no différence that the rejection of finality be to correct alleged errors of our own or those below. Nor does it matter that the errors be corrected in the same Term, as in Cahill, or four Terms later, as here. In each instance the action violâtes Rule 58 (4) and that is the basis of my position.
I, too, as my Brother Harlan said in Ohio Power, “can think of nothing more unsettling to lawyers and litigants, and more disturbing to their confidence in the evenhand-edness of the Court’s processes, than to be left in . . . uncertainty . . . as to when their cases may be considered finally closed in this Court.” At p. 111 (dissenting opinion). However, Cahill opened up this practice. It may be that Ohio Power and the présent case are more objec-tionable on their facts, but they merely condone Cahill’s original vice. Until we can gain the vote of the majority to the contrary we are stuck with the practice. The outlook for this appears dim. We can only hope that this rule of “no finality,” which the Court varnishes with the charms of reason, will be sparingly used, or overruled by Congress, as was the “end of Term” rule. I, therefore, join in the judgment of the Court.
2 Mr. Justice Black, joined by The Chief Justice, Mr. Justice Douglas and myself, dissented.
30
382 U.S.
OCTOBER TERM, 1965.
Harlan, J., dissenting.
Mr. Justice Harlan, dissenting.
The resuit reached in this case has been achieved at the expense of the Sound legal principle that litigation must at some point corne to an end.
I can find nothing in the train of events on which the Court relies in overturning this more than three-year-old final judgment that justifies bringing into play the dubious doctrine of United States v. Ohio Power Co., 353 U. S. 98, a case which was decided by a closely divided vote of less than a full bench,1 which deviated from long-established practices of this Court,2 and which, so far as I can find, has had no sequel in subséquent decisions of the Court.3
The judgment against this petitioner became final as long ago as June 11, 1962. 370 U. S. 918. The Court refused to reconsider it four months later when it denied rehearing on October 8, 1962. 371 U. S. 856. When some two years later, July 13, 1964, the Court of Appeals for the Fourth Circuit upheld a compensation award with respect to a co-employee of Gondeck killed in the same accident, Pan American World Airways, Inc. v. O’Heame, 335 F. 2d 70, petitioner did not even seek to file another pétition for rehearing here. A few months later the Fifth Circuit might be thought to hâve indicated some doubt about its earlier decision in the Gondeck case, O’Keeffe v. Pan American World Airways, Inc., 338 F. 2d 319, 325,
1 The vote was 4 to 3, Mr. Justice Brennan and Mr. Justice Whittaker, since retired, not participating. 353 U. S., at 99.
2 See dissenting opinion of Harlan, J., 353 U. S., at 99.
3 My Brother Clark’s citation of Cahill v. New York, N. H. & H. R. Co., 351 U. S. 183, ante, p. 28, for the proposition that this pétition for rehearing must be granted is inapposite. Cahill was an FELA case in which this Court reversed summarily a judgment of the Court of Appeals overturning a district court judgment for the plaintiff, 350 U. S. 898. Later that same Tenn, after a pétition for rehearing had been denied, 350 U. S. 943, the Court was persuaded on “a
GONDECK v. PAN AMERICAN AIRWAYS. 31
25	Harlan, J., dissenting.
but again no attempt was made to file a further pétition for rehearing here in Gondeck.
It was this Court’s decision of last Term in O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U. S. 359, which itself was a debatable innovation in this area of the law,4 that triggered the undoing of this judg-ment of four Ternis ago. It should be noted that the subject matter in O’Keeffe v. Pan American World Airways, Inc., was an entirely différent accident from the one in which petitioner’s decedent was involved.
This, then, is hardly one of those rare cases in which “ ‘the interest in finality of litigation must yield’ ” because “ ‘the interests of justice would make unfair the strict application of our rules,’ ” ante, pp. 26-27. On the contrary, the situation is one in which the prevailing party in this litigation had every reason to count on the judgment in its favor remaining firm. Believing that this decision holds seeds of mischief for the future orderly administration of justice, I respectfully dissent.
motion to recall and amend the judgment” that its mandate, which simply reinstated the District Court’s judgment, was incorrect and that the case should properly hâve been remanded to the Court of Appeals for further proceedings. It is difficult for me to see how the correction during the same Term of our own error in Cahill can be thought to compel or justify a general “rule of 'no finality’ ” (as my Brother Clark puts it, ante, p. 29) which requires the granting of a second pétition for rehearing three years after the first one was denied in a case which this Court never heard.
4 The case was decided without argument by a substantially divided Court, 380 U. S. 359. See dissenting opinion of Harlan, J., joined by Clark and White, JJ., 380 U. S., at 365. See also separate opinion of Douglas, J., 380 U. S., at 371.
32	OCTOBER TERM, 1965.
Per Curiam.	382 U. S.
JONES & LAUGHLIN STEEL CORP. v. GRIDIRON STEEL CO.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 123. Decided October 18, 1965.
Fed. Rule Civ. Proc. 6 (a) extending time limit that would other-wise expire on a Saturday, Sunday, or legal holiday to the end of next day not in that category held not inapplicable on ground that Court of Appeals had directed District Court Clerk’s office to remain open Saturday momings.
Certiorari granted and case remanded.
Walter J. Blenko, Walter J. Blenko, Jr., and Richard F. Stevens for petitioner.
Robert J. Fay for respondent.
Per Curiam.
The pétition for writ of certiorari to the Court of Appeals for the Sixth Circuit is granted, and the judg-ment dismissing petitioner’s appeal to that court is reversed. The time limited by 28 U. S. C. § 2107 and Fed. Rule Civ. Proc. 73 for the filing of the notice of appeal from the judgment appealed from was 30 days. However, Fed. Rule Civ. Proc. 6 (a), as amended, provides that in computing the period, “[t]he last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.” Since the thir-tieth day foliowing entry of the judgment appealed from was Saturday and the notice of appeal was filed the fol-lowing Monday, we hold that the filing of the notice of appeal was timely. The provision of Rule 6 (a) was not
JONES & LAUGHLIN v. GRIDIRON STEEL. 33
32
Per Curiam.
made inapplicable by the order of the Court of Appeals directing that the District Court Clerk’s offices be open for business on Saturday mornings. The case is re-manded to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
786-211 0-66—12
34
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
FIRST SECURITY NATIONAL BANK & TRUST CO. OF LEXINGTON et al. v. UNITED STATES.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY.
No. 141. Decided October 18, 1965.
This Court held that the bank merger resulting in appellant bank’s formation violated the Sherman Act and remanded the case to the District Court “for further proceedings in conformity with the opinion of this Court.” (376 U. S. 665.) After several postpone-ments of the date set by the District Court for reporting progress “in complying with the mandate of the Suprême Court,” the parties presented a proposed interlocutory decree providing for submission of a detailed divestiture plan in six months. The District Court thereupon held appellant bank and its officers in con-tempt for failure to comply with this Court’s mandate. Held: Since divestiture was not ordered within any spécifie period, appellants did not violate this Court’s judgment.
Reversed.
Paul A. Porter and Victor H. Kramer for appellants.
Solicitor General Cox, Assistant Attorney General Turner and Lionel Kestenbaum for the United States.
Per Curiam.
In United States v. First National Bank, 376 U. S. 665, this Court held that the merger of First National Bank and Trust Co. of Lexington, Kentucky, with Security Trust Co. of Lexington to form First Security National Bank and Trust Co. violated § 1 of the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1. The Court’s judgment remanded the case to the District Court “for further proceedings in conformity with the opinion of this Court.” Thereafter, on July 1, 1964, the District Court ordered the parties “to report to the court the progress made in complying with the judgment” of the Suprême Court. On application of the parties, the reporting date was thrice postponed to permit negotiations between First Security and the Government concerning an appropriate
FIRST SECURITY NAT. BANK v. U. S. 35
34	Per Curiam.
plan of divestiture. When, on the final date for report-ing, February 16, 1965, the parties jointly presented only a proposed interlocutory decree providing that the de-tailed plan for divestiture would be submitted within six months, the District Court held First Security, its executive officers and directors in contempt. Although there is some indication that the District Court was dissatis-fied with the compliance of the bank with the District Court’s order of July 1, 1964, the contempt judgment itself was entered because the delay in submitting a final plan of divestiture was a failure “to comply with the mandate of the Suprême Court ... y The court imposed a fine of $100 per day until the contempt had been purged by “full compliance with the mandate of the Suprême Court.”
The District Judge’s interprétation of this Court’s judgment was erroneous. We remanded the case for further proceedings in the District Court consistent with this Court’s opinion. Neither the opinion nor the judgment of this Court expressly dealt with the matter of remedy and neither ordered divestiture within any particular period of time. Compare United States v. El Paso Natural Gas Co., 376 U. S. 651, 662 (decided the same day as the prior appeal in this case and directing the District Court to order divestiture without delay). No order of divestiture was entered in the District Court until March 18, 1965, a month after the bank had been held in contempt. The District Court has the authority to require obedience and to punish disobedience of its lawful orders and de-crees, 18 U. S. C. § 401, but this record reveals nothing the bank did or failed to do which violated the judgment of this Court. The judgment holding the bank, its executive officers and directors in contempt is
Reversed.
Mr. Justice Fortas took no part in the considération or decision of this case.
36	OCTOBER TERM, 1965.
Per Curiam.	382 U. S.
JAMES v. LOUISIANA.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF LOUISIANA.
No. 23, Mise. Deeided October 18, 1965.
After petitioner’s arrest, he was driven by police to his home, more than two blocks away, where an intensive search without a warrant yielded the narcotics and equipment which were the basis for his conviction for possession of narcotics. Héld: The search was not incident to the arrest which occurred more than two blocks away and it was constitutional error to admit the fruits of the illégal search into evidence.
Certiorari granted; 246 La. 1033, 169 So. 2d 89, reversed and remanded.
G. Wray Gill, Sr., for petitioner.
Jack P. F. Gremillion, Attorney General of Louisiana, M. E. Culligan, Assistant Attorney General, and Jim Garrison for respondent.
Per Curiam.
The petitioner was convicted by a Louisiana jury of possession of narcotics and was sentenced to imprison-ment for 10 years. The Suprême Court of Louisiana set aside the conviction on the ground that it was based upon evidence seized without a warrant during an illégal search. 246 La. 1033, 169 So. 2d 89. Upon rehearing, however, that court affirmed the conviction by a divided vote. 246 La. 1053, 169 So. 2d 97. We grant the motion to proceed in forma pauperis and the pétition for certiorari and reverse the judgment.
Police officers arrested the petitioner near the intersection of Camp Street and Jackson Avenue in the City of New Orléans, after he had alighted from an automobile driven by another man. The officers then drove the petitioner to his home, more than two blocks away.
JAMES v. LOUISIANA.
37
36	Per Curiam.
They broke open the door and for several hours conducted an intensive search which finally yielded the narcotics equipment and single morphine tablet that constituted the basis of the petitioner’s subséquent conviction.
The Suprême Court of Louisiana found that the officers had probable cause to arrest the petitioner at the time they apprehended him, and the validity of his arrest is not here in issue. In the circumstances of this case, how-ever, the subséquent search of the petitioner’s home cannot be regarded as incident to his arrest on a Street corner more than two blocks away. A search “can be incident to an arrest only if it is substantially contem-poraneous with the arrest and is confined to the immédiate vicinity of the arrest.” Stoner v. California, 376 U. S. 483, 486. See also Preston v. United States, 376 U. S. 364.
Under the doctrine of Mapp v. Ohio, 367 U. S. 643, see also Ker v. California, 374 U. S. 23, it was constitutional error to admit the fruits of this illégal search into évidence at the petitioner’s trial. Accordingly, the pétition for certiorari is granted, the judgment is reversed, and the case is remanded to the Suprême Court of Louisiana for further proceedings not inconsistent with this opinion.
It is so ordered.
38
OCTOBER TERM, 1965.
October 18, 1965.
382 U. S.
METROMEDIA, INC. v. AMERICAN SOCIETY OF COMPOSEES, AUTHORS &
PUBLISHERS et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 212. Decided October 18, 1965.
Appeal dismissed.
Robert A. Dreyer and George A. Katz for appellant.
Simon H. Rijkind, Herman Finkelstein and Jay H. Topkis for American Society of Composers, Authors & Publishers, and Acting Solicitor General Spritzer, Assistant Attorney General Turner, Lionel Kestenbaum and I. Daniel Stewart, Jr., for the United States, appellees.
Per Curiam.
The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction.
KASHARIAN et al. v. METROPOLITAN LIFE INSURANCE CO. et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
No. 446, Mise. Decided October 18, 1965.
Appeal dismissed.
Appellants pro se.
Nicholas Conover English for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.
DECISIONS PER CURIAM.
39
382 U. S.	October 18, 1965.
WELLS ET AL. v. REYNOLDS et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA.
No. 258. Decided October 18, 1965.
238 F. Supp. 779, affirmed.
Jack Greenberg and James M. Nabrit III for appel-lants.
Per Curiam.
The judgment is affirmed.
Mr. Justice Douglas, Mr. Justice Brennan and Mr. Justice Fortas dissent.
SHAKESPEARE et al. v. CITY OF PASADENA.
APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
No. 281. Decided October 18, 1965.
Appeal dismissed and certiorari denied.
Appellants pro se.
Allyn H. Barber for appellee.
Per Curiam.
The motion to dispense with printing the jurisdictional statement is granted.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
40
OCTOBER TERM, 1965.
October 18, 1965.
382 U. S.
NATIONAL TRAILER CONVOY, INC. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA.
No. 373. Decided October 18, 1965.
240 F. Supp. 286, affirmed.
Jack N. Hays and Harold G. Hemly for appellant.
Acting Solicitor General Spritzer, Assistant Attorney General Turner, Robert B. Hummel, Robert W. Ginnane and Thomas H. Ploss for the United States et al.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
KASHARIAN et al. v. SOUTH PLAINFIELD BAPTIST CHURCH et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
No. 433, Mise. Decided October 18, 1965.
Appeal dismissed.
Per Curiam.
The appeal is dismissed for want of jurisdiction.
DECISIONS PER CURIAM.	41
382 U. S.	October 18, 1965.
STEBBINS v. MACY, CHAIRMAN, U. S. CIVIL SERVICE COMMISSION, et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
No. 384. Decided October 18, 1965.
Appeal dismissed.
Appellant pro se.
Acting Soliciter General Spritzer for appellees.
Per Curiam.
The appeal is dismissed for want of jurisdiction.
42
OCTOBER TERM, 1965.
October 25, 1965.
382 U. S.
BURNETTE et al. v. DAVIS et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.
No. 241. Decided October 25, 1965*
245 F. Supp. 241, affirmed.
Aubrey R. Boules, Jr., and Aubrey R. Boules III for appellants in No. 241. Samuel W. Tucker and Henry L. Marsh III for appellants in No. 424.
Robert Y. Button, Attorney General of Virginia, R. D. Mclluaine III, Assistant Attorney General, David J. Mays and Henry T. Wickham for appellees.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
Mr. Justice Portas took no part in the considération or decision of these cases.
RATLEY v. CROUSE, WARDEN.
APPEAL FROM THE SUPREME COURT OF KANSAS.
No. 551, Mise. Decided October 25, 1965.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treat-ing the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
*Together with No. 424, Thomton et al. v. Davis et al., also on appeal from the same court.
DECISIONS PER CURIAM.
43
382 U. S.	October 25, 1965.
SERVICE TRUCKING CO., INC. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND.
No. 422. Decided October 25, 1965.
239 F. Supp. 519, affirmed.
Francis W. Mclnemy and Robert G. Miller for appel-lant.
Soliciter General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Robert W. Ginnane and Betty Jo Christian for the United States et al.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
KELLER v. CALIFORNIA.
APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT.
No. 522, Mise. Decided October 25, 1965.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treat-ing the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
44
OCTOBER TERM, 1965.
October 25, 1965.	382 U. S.
MORTON SALT CO. v. UNITED STATES.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA.
No. 275. Decided October 25, 1965*
Affirmed.
L. M. McBride and John P. Ryan, Jr., for appellant in No. 275. R. William Rogers for appellant in No. 276.
Acting Solicitor General Spritzer, Assistant Attorney General Turner and Robert B. Hummel for the United States.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed. United States v. National Association of Real Estate Boards, 339 U. S. 485, 493, 494; Interstate Circuit, Inc. v. United States, 306 U. S. 208, 221-227; American Tobacco Co. v. United States, 328 U. S. 781, 809-810; Theatre Enterprises v. Paramount Film Dis-tributing Corp., 346 U. S. 537, 540-542.
Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted.
*Together with No. 276, Diamond Crystal Sait Co. v. United States, also on appeal from the same court.
DECISIONS PER CURIAM.
45
382 U. S.
October 25, 1965.
WETHERALL et al. v. STATE ROAD COMMISSION OF WEST VIRGINIA et al.
APPEAL FROM THE CIRCUIT COURT OF WEST VIRGINIA, KANAWHA COUNTY.
No. 428. Decided October 25, 1965.
Appeal dismissed.
Camey M. Layne and Charles W. Yeager for appel-lants.
C. Donald Robertson, Attorney General of West Virginia, Philip J. Graziani, Deputy Attorney General, and C. Robert Sarver, Assistant Attorney General, for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed. Price, dba Howard Price & Co. v. State Road Commission of West Virginia, ante, p. 20.
46
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
FEDERAL TRADE COMMISSION v. MARY CARTER PAINT CO. et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 15. Argued October 21, 1965.—Decided November 8, 1965.
Respondent paint company had a practice of advertising that for every can of paint purchased the buyer would be given a “free” can of equal quality and quantity. The Fédéral Trade Commission (FTC) ordered the paint company to cease and desist from the practice as being deceptive under § 5 of the Fédéral Trade Commission Act since the paint company had no history of selling single cans of paint; it had been marketing two cans; and had misrepresented by allocating to one can what was in fact the price of two cans. The Court of Appeals set aside the FTC’s order. Held : There was substantial evidence in the record to support the finding of the FTC; its conclusion that the practice was deceptive was not arbitrary and must be sustained. Pp. 46-49.
333 F. 2d 654, reversed and remanded.
Nathan Lewin argued the cause for petitioner. With him on the briefs were Soliciter General Marshall, Ralph S. Spritzer, James Md. Henderson and Charles C. Moore, Jr.
David W. Peck argued the cause and filed a brief for respondents.
Mr. Justice Brennan delivered the opinion of the Court.
Respondent Mary Carter Paint Company1 manufactures and sells paint and related products. The Fédéral Trade Commission ordered respondent to cease and desist from the use of certain représentations found by the Commission to be deceptive and in violation of § 5 of
1 Hereinafter Mary Carter or respondent.
FTC v. MARY CARTER PAINT CO.
47
46	Opinion of the Court.
the Fédéral Trade Commission Act, 38 Stat. 719, as amended, 52 Stat. 111, 15 U. S. C. § 45 (1964 ed.). 60 F. T. C. 1830, 1845. The représentations appeared in advertisements which stated in varions ways that for every can of respondent’s paint purchased by a buyer, the respondent would give the buyer a “free” can of equal quality and quantity. The Court of Appeals for the Fifth Circuit set aside the Commission’s order. 333 F. 2d 654. We granted certiorari, 379 U. S. 957. We reverse.
Although there is some ambiguity in the Commission’s opinion, we cannot say that its holding constituted a departure from Commission policy regarding the use of the commercially exploitable word “free.” Initial efforts to define the term in decisions2 were followed by “Guides Against Deceptive Pricing.” 3 These informed businessmen that they might advertise an article as “free,” even though purchase of another article was required, so long as the terms of the offer were clearly stated, the price of the article required to be purchased was not increased, and its quality and quantity were not diminished. With spécifie reference to two-for-the-price-of-one offers, the Guides required that either the sales price for the two be “the advertiser’s usual and customary retail price for the single article in the recent, regular course of his business,” or where the advertiser has not previously sold the article, the price for two be the “usual and customary” price for one in the relevant trade areas. These, of
2 Book-oj-the-Month Club, Inc., 48 F. T. C. 1297 (1952); Walter J. Black, Inc., 50 F. T. C. 225 (1953); Puro Co., 50 F. T. C. 454 (1953); Book-oj-the-Month Club, Inc., 50 F. T. C. 778 (1954); Ray S. Kalwajtys, 52 F. T. C. 721, enforced, 237 F. 2d 654 (1956).
3 Guides Against Deceptive Pricing, Guide V, adopted October 2, 1958, 23 Fed. Reg. 7965; see also policy statement, December 3, 1953, 4 CCH Trade Reg. Rep. 40,210. For the current guide, Guide IV, effective January 8, 1964, see 29 Fed. Reg. 180.
48
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
course, were guides, not fixed rules as such, and were de-signed to inform businessmen of the factors which would guide Commission decision. Although Mary Carter seems to hâve attempted to tailor its offer to corne within their terms, the Commission found that it failed; the offer complied in appearance only.
The gist of the Commission’s reasoning is in the hear-ing examiner’s finding, which it adopted, that
“the usual and customary retail price of each can of Mary Carter paint was not, and is not now, the price designated in the advertisement [$6.98] but was, and is now, substantially less than such price. The second can of paint was not, and is not now, ‘free,’ that is, was not, and is not now, given as a gift or gratuity. The offer is, on the contrary, an offer of two cans of paint for the price advertised as or purporting to be the Est price or customary and usual price of one can.” 60 F. T. C., at 1844.
In sum, the Commission found that Mary Carter had no history of selling single cans of paint; it was marketing twins, and in allocating what is in fact the price of two cans to one can, yet calling one “free,” Mary Carter mis-represented. It is true that respondent was not per-mitted to show that the quality of its paint matched those paints which usually and customarily sell in the $6.98 range, or that purchasers of paint estimate quality by the price they are charged. If both daims were estab-lished, it is arguable that any déception was limited to a représentation that Mary Carter has a usual and customary price for single cans of paint, when it has no such price. However, it is not for courts to say whether this violâtes the Act. “[T]he Commission is often in a better position than are courts to détermine when a practice is ‘deceptive’ within the meaning of the Act.” Fédéral Trade Comm’n v. Colgate-Palmolive Co., 380 U. S. 374,
FTC v. MARY CARTER PAINT CO. 49
46	Harlan, J., dissenting.
385. There was substantial evidence in the record to support the Commission’s finding ; its détermination that the practice here was deceptive was neither arbitrary nor clearly wrong. The Court of Appeals should hâve sus-tained it. Fédéral T rade Comm’n v. Colgate-Palmolive Co., supra; Carter Products, Inc. v. Fédéral Trade Comm’n, 323 F. 2d 523, 528.
The Commission advises us in its brief that it believes it would be appropriate here “to remand the case to it for clarification of its order.” The judgment of the Court of Appeals is therefore reversed and the case is remanded to that court with directions to remand to the Commission for clarification of its order.
It is so ordered.
Mr. Justice Stewart took no part in the decision of this case.
Mr. Justice Harlan, dissenting.
In my opinion the basis for the Commission’s action is too opaque to justify an upholding of its order in this case. A summary discussion of the facts and Commission proceedings will suffice to show why I cannot subscribe to the majority’s disposition.
Since 1951 the enterprise now known as Mary Carter Paint Company has been manufacturing paint products for direct distribution through its own outlets and fran-chised dealers. For most or ail of this period, its practice has been to establish its prices on a per-can basis but to give each customer a second can without further charge for each can purchased. Mary Carter’s advertisements, while disclosing that the first can of each pair must be bought at the listed price, hâve always described the second can as “free”; typical slogans are: “Buy one get one free” and “Every second can free.” It is this adver-tising which the Commission now condemns as unfair and
786-211 0-66—13
50	OCTOBER TERM, 1965.
Harlan, J., dissenting.	382 U. S.
deceptive under § 5 of the Fédéral Trade Commission Act, as amended, 52 Stat. 111, 15 U. S. C. § 45 (1964 ed.).
To the extent that the Commission’s order may rest on the proposition that the second can is not “free” because its receipt is “tied” to the purchase of the first can, it is manifestly inconsistent with the rules govem-ing use of the word “free” maintained by the Commission for over a decade. No one suggests that the addi-tional can of Mary Carter paint is free in the sense that no conditions are attached to its receipt, but the FTC forsook this commercially unrealistic définition in 1953. In that year, first by its decision in Walter J. Black, Inc., 50 F. T. C. 225, and then a general policy statement, 4 CCH Trade Reg. Rep. H 40,210, it sanctioned use of the word “free” to describe an item given without extra charge on condition of another purchase so long as the condition was plainly stated and the “tying” product was not increased in price for the occasion or decreased in quantity or quality. The FTC prefaced these rules in Black by saying that “[t]he businessmen of the United States are entitled to a clear and unequivocal answer” and it represented that its new position would be maintained until either Congress or the courts decided otherwise. 50 F. T. C., at 232, 235.
There is presently no charge by the Commission that Mary Carter failed to comply with this general statement which continued in force through the proceedings and decision affecting Mary Carter. Rather, for the greater period of its advertising operations Mary Carter could properly claim to hâve relied on the FTC’s official pro-nouncement while it was establishing its “every second can free” slogan in the public mind, an investment now seemingly lost. Without inflexibly holding the Commission to its promise and avowed position, certainly solid justification should be demanded before the courts agréé
FTC v. MARY CARTER PAINT CO.
51
46	Harlan, J., dissenting.
that this departure is not “arbitrary, capricious, [or] an abuse of discrétion.” Administrative Procedure Act § 10 (e), 60 Stat. 243, 5 U. S. C. § 1009 (e) (1964 ed.).
At the very least the Commission should be required to demonstrate real déception and public in jury in a decision that allows the courts to evaluate its reasoning and businessmen to comply with assurance with its latest views ; these standards are not met by the FTC’s opinion in this case. The Department of Justice suggests that the FTC regards the advertisements as implying that Mary Carter regularly sells its paint for the présent per-can price without giving an extra can free;1 from this premise, it might be argued, the buyer may then conclude that each can of Mary Carter is the equal of simi-larly priced rivais with whom it has regularly competed on equal terms in the past, making the présent “free” can offer appear an excellent bargain. But the advertising in the présent case does not really suggést that the “free” can is a departure from Mary Carter’s usual pricing policy. Certainly nothing in any of the publicity States that the extra can is a “new” bargain or asserts that the opportunity may lapse in the near future. To the con-trary, a number of Mary Carter advertisements, not sep-arately treated by the Commission, affirmatively suggest that the extra-can offer has been and will continue to be
1 Such an implication might be thought to run counter to the spirit of the now-superseded Guide V, Guides Against Deceptive Pricing, 23 Fed. Reg. 7965 (1958), requiring that the sales price for two articles in a two-for-the-price-of-one sale must be the usual and customary price for one. Mary Carter can, of course, reasonably daim to hâve complied with the letter of Guide V; assuming that it is making a two-for-the-price-of-one offer in substance, the advertised sum is the usual and customary price which a purchaser has to pay in order to acquire a single can. There is evidence that on at least a few occasions customers took only one can, paying the advertised per-can price. There is no evidence that Mary Carter permitted or tolerated sales of single cans at less than the advertised per-can price.
52
382 U. S.
OCTOBER TERM, 1965.
Harlan, J., dissenting.
the sales policy. Far from trying to imply that its extra-can offer represents a temporary saving for the customer, Mary Carter has striven over a number of years to associate itself irrevocably in the public mind with the notion that every second can is free; the catch phrase appears in one form or another in nearly ail the ads before us and is even imprinted on the top of Mary Carter paint cans. Finally, it is not without irony that the Commission, presumably seeking to protect the consumer from any unfounded ultimate conclusions that a can of Mary Carter is as good as its high-priced rivais, rejected an offer of proof from the company that a single can of Mary Carter is scientifically equal or superior to the leading paints that sell at the same per-can price level without giving bonus cans. Actually, there is no suggestion that any volume of consumer complaints has been received, which further deepens the mystery why this frail proceeding was ever initiated.2
The temptation to gloss over the analytical failings of the rationale now asserted for the FTC by relying on agency expertise must be short-lived in this case. Any findings by the FTC as to what the public may conclude from particular phrasings are most inexplicit, no distinction is taken between the various ads in question, and the conduct proscribed is never sharply identified. Surely there can be no resort to uninvoked expertise to buttress an unarticulated theory.
The opaqueness of the Commission’s opinion and order makes their approval difficult for yet other reasons. The
2 I put aside the argument that might arise from Mary Carter’s practice of selling its paint in both gallon and quart cans. Con-ceivably, one might order a gallon and receive an unneeded extra gallon, never realizing that two quarts purchased plus two quarts free could be had for a smaller sum. The FTC ignored and the Government expressly disclaims reliance on any such argument. Moreover, many ads seem to give both quart and gallon prices.
FTC v. MARY CARTER PAINT CO.
53
46
Harlan, J., dissenting.
bite of the FTC decision is in its order, which even the Commission recognizes to be unclear; how the Commission order can be upheld before this Court is told what exactly it means is indeed a puzzling question. Addi-tionally, by failing to spell out its rationale the FTC decision breeds the suspicion that it is not merely ad hoc 3 but quite possibly irreconcilable with the Black case seemingly reaffirmed by the Commission in this very pro-ceeding. If the Commission is able to write an opinion and order that can cure these defects and draw the plain distinctions necessary to assure fair warning and equal treatment for other advertisers, it has not done so yet.
In administering § 5 in the context of the many elusive questions raised by modem advertising, it is the duty of the Commission to speak and rule clearly so that law-abiding businessmen may know where they stand. In proscribing a practice uncomplained of by the public, effectively harmless to the consumer, allowed by the Commission’s long-established policy statement, and only a hairbreadth away from advertising practices that the Commission will continue to permit, I think that the Commission in this instance has fallen far short of what is necessary to entitle its order to enforcement.
For these reasons I would not disturb the judgment of the Court of Appeals setting aside the Commission’s order.
3 Of the post-1952 cases cited in the majority’s note 2 {ante, p. 47), none is authority for condemning Mary Carter’s advertising. Puro Co., 50 F. T. C. 454 (1953), and Ray S. Kalwajtys, 52 F. T. C. 721, enforced, 237 F. 2d 654 (1956), both involved plain déceptions as to the usual prices of the items in question. Book-oj-the-Month Club, Inc., 50 F. T. C. 778 (1954), and the Black case both exculpate sellers under the rule finally appearing in the 1953 policy statement, with whose terms Mary Carter has complied.
54
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
LEH et al. v. GENERAL PETROLEUM CORP. et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 4. Argued October 11, 1965.—Decided November 8, 1965.
Petitioners’ private antitrust suit against seven gasoline producers was dismissed as untimely and not entitled to the benefit of § 5 (b) of the Clayton Act, which provides for tolling the statute of limitations during the pendency of an antitrust suit brought by the United States where the private action is “based in whole or in part on any matter complained of” in the govemment suit. The Court of Appeals, upholding the District Court, held that the statute of limitations was not suspended because there were different overt acts charged, and different conspiracies, occurring at different times between different parties. Held:
1.	Petitioners’ action here was based in part on matters complained of in the govemment suit and the § 5 (b) tolling provision was therefore applicable. Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, followed. Pp. 58-65.
(a)	There was substantial identity of parties, six of the seven défendants here being défendants also in the govemment suit. Pp. 63-64.
(b)	Though there was not complété overlap in the time periods of the two conspiracies alleged, and though the géographie areas covered were not coterminous (the southem California area involved in this action being only a part of the Pacific States area with which the Govemment’s suit was concemed), these disparities are without legal significance. P. 64.
2.	In general, the applicability of § 5 (b) is determined by a comparison of the two complaints on their face, and is not based on proof of the allégations made therein. Pp. 65-66.
330 F. 2d 288, reversed.
Richard G. Harris argued the cause for petitioners. With him on the brief was Maxwell Keith.
Francis R. Kirkham argued the cause for respondents. With him on the brief were Jack E. Woods, Moses Lasky,
LEH v. GENERAL PETROLEUM CORP. 55
54	Opinion of the Court.
Edmund D. Buckley, Wayne H. Knight, Howard Painter, William E. Mussman, Thomas E. Haven and George W. Jansen.
Mr. Justice White delivered the opinion of the Court.
On September 28, 1956, petitioners, a partnership engaged in Wholesale distribution of refined petroleum Products and one of the partners, filed in the Southern District of California a treble-damage action charging violations of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2 (1964 ed.), against seven companies engaged in producing, refining, and marketing gasoline and other hydrocarbon substances in interstate commerce. Défendants contended that the action was barred by the California one-year statute of limitations applicable to suits for statutory penalties or forfeitures, Cal. Code Civ. Proc. §340 (1). Plaintiffs conceded that their cause of action accrued no later than February 1954, and that the four-year limitation provision added to the Clayton Act in 1955, Clayton Act § 4B, 69 Stat. 283, 15 U. S. C. § 15b (1964 ed.), was not applicable to a right of action accruing in 1954. But plaintiffs contended that the governing provision was the California three-year statute of limitations respecting actions on a statutory liability other than a penalty, Cal. Code Civ. Proc. § 338 (1), and that in any event the running of the statute of limitations was tolled by § 5 (b) of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 16 (b) (1964 ed.), because of a civil antitrust proceed-ing that was commenced by the United States in 1950 and was still pending when plaintiffs filed their com-plaint. Section 5 (b) provides that during the pendency of a civil or criminal proceeding instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, the running of the statute of limitations shall be suspended in respect of every private right of action “based in whole or in part on any matter
56
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
complained of in said proceeding.” 1 The lower courts upheld the defense of limitations and dismissed the com-plaint, holding that the one-year statute governed and that plaintiffs were not entitled to the benefit of § 5 (b). 208 F. Supp. 289 (D. C. S. D. Cal. 1962), aff’d, 330 F. 2d 288 (C. A. 9th Cir. 1964). We granted certiorari limited to the question of the applicability of § 5 (b), 379 U. S. 877, because of an apparent conflict between this case and Union Carbide & Carbon Corp. v. Nisley, 300 F. 2d 561 (C. A. lOth Cir. 1962), dismissed under Rule 60 sub nom. Wade v. Union Carbide & Carbon Corp., 371 U. S. 801, concerning interprétation of the statutory re-quirement that the private action for which the benefit of the tolling provision is sought be “based in whole or in part on any matter complained of” in the govern-ment proceeding. We conclu de that the lower courts misapplied § 5 (b), and we reverse the judgment below.
Prior to the présent case, the Court of Appeals for the Ninth Circuit had declared a restrictive interprétation of § 5 (b). In Steiner v. 20th Century-Fox Film Corp., 232 F. 2d 190 (1956), that court ruled that the scope of § 5 (b) was determined by th& principles of collateral estoppel applicable under § 5 (a) of the Clayton Act, as amended, 69 Stat. 283, 15 U. S. C. § 16 (a) (1964 ed.), which provides that a final judgment or decree
1 Section 5 (b), 15 U. S. C. § 16 (b), provides:
“(b) Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.”
LEH v. GENERAL PETROLEUM CORP. 57
54	Opinion of the Court.
rendered in a suit by the United States and holding a défendant in violation of the antitrust laws shall be prima facie evidence in a private antitrust action against such défendant “as to ail matters respecting which said judgment or decree would be an estoppel as be-tween the parties thereto.”2 Accordingly, the court declared in Steiner that “[a] greater similarity is needed than that the same conspiracies are alleged. The same means must be used to achieve the same objectives of the same conspiracies by the same défendants.” 232 F. 2d, at 196. In the présent case the Court of Appeals purported to follow Steiner and concluded that the run-ning of the statute of limitations was not suspended because here, in the court’s opinion, “there were not only different overt acts charged, but different conspiracies, occurring at different times, between different parties.” 330 F. 2d, at 301; see also 208 F. Supp., at 294-295. Conflicting with Steiner and the présent case is Union Carbide de Carbon Corp. v. Nisley, supra, which held that the evidentiary rules of estoppel are not determinative and that the running of the period of limitations is tolled by § 5 (b) if there is “substantial identity of subject matter.” 300 F. 2d, at 570.
2 Section 5 (a), 15 U. S. C. § 16 (a), provides:
“(a) A final judgment or decree heretofore or hereafter rendered in any civil or criminal proceeding brought by or on behalf of the United States under the antitrust laws to the effect that a défendant has violated said laws shall be prima facie evidence against such défendant in any action or proceeding brought by any other party against such défendant under said laws or by the United States under section 15a of this title, as to ail matters respecting which said judgment or decree would be an estoppel as between the parties thereto : Provided, That this section shall not apply to consent judg-ments or decrees entered before any testimony has been taken or to judgments or decrees entered in actions under section 15a of this title.”
See generally Emich Motors Corp. v. General Motors Corp., 340 U. S. 558.
58	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Minnesota Mining & Mjg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, which was decided in the intérim between the granting of certiorari and oral argument in the présent case, establishes certain basic prin-ciples for the construction of § 5 (b) that are to be fol-lowed here. The questions presented for decision in Minnesota Mining were whether proceedings by the Fédéral Trade Commission under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18 (1964 ed.), activate § 5 (b) to the same extent as judicial proceedings and, if so, whether the claim of New Jersey Wood, the private plaintiff, was based on “any matter com-plained of” in the Commission action. One of the arguments advanced with respect to the first question was that Commission proceedings did not suspend the run-ning of limitations because, it was asserted, any Commission order that might issue would not be admissible under § 5 (a). We rejected this contention that § 5 (a) and § 5 (b) were coextensive.
“It may be . . . that when it was enacted the tolling provision was a logical backstop for the prima facie evidence clause of § 5 (a). But even though § 5 (b) compléments § 5 (a) in this respect by per-mitting a litigant to await the outcome of govern-ment proceedings and use any judgment or decree rendered therein . . . it is certainly not restricted to that effect. As we hâve pointed out, the textual distinctions as well as the policy basis of § 5 (b) indicate that it was to serve a more comprehensive function in the congressional scheme of things. The Government’s initial action may aid the private litigant in a number of other ways. The pleadings, transcripts of testimony, exhibits and documents are available to him in most instances. . . . Moreover, difficult questions of law may be tested and defini-
LEH v. GENERAL PETROLEUM CORP. 59
54	Opinion of the Court.
tively resolved before the private litigant enters the fray. The greater resources and expertise of the Commission and its staff render the private suitor a tremendous benefit aside from any value he may dérivé from a judgment or decree. Indeed, so use-ful is this service that government proceedings are recognized as a major source of evidence for private parties.” 381 U. S., at 319.
Minnesota Mining sweeps away much of the founda-tion for the Steiner view of the scope of § 5 (b). The private plaintiff is not required to allégé that the same means were used to achieve the same objectives of the same conspiracies by the same défendants. Rather, effect must be given to the broad terms of the statute itself—“based in whole or in part on any matter com-plained of” (emphasis added)—read in light of Con-gress’ “belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws.” 381 U. S., at 318. Doubtlessly, care must be exercised to insure that reliance upon the government proceeding is not mere sham and that the matters com-plained of in the government suit bear a real relation to the private plaintiff’s claim for relief. But the courts must not allow a legitimate concern that invocation of § 5 (b) be made in good faith to lead them into a nig-gardly construction of the statutory language here in question. With those matters in mind we now turn to a comparison of plaintiffs’ complaint with the complaint in the government proceeding on which plaintiffs rely, United States v. Standard OU Co. of California, Civil No. 11584-C, D. C. S. D. Cal.3
3 The case has since been terminated by consent judgments entered into by ail défendants except the Conservation Committee of California Oil Producers and Texaco, Inc., as to each of which the case was dismissed. See 1958 CCH Trade Cases, 1 69,212; 1959 CCH Trade Cases, T 69,240 ; 1959 CCH Trade Cases, 169,399.
60
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
The complaint of the United States charged that seven Petroleum companies and the Conservation Committee of California Oil Producers had conspired together to restrain and to monopolize Interstate commerce in the Pacific States area in violation of §§ 1 and 2 of the Sherman Act, beginning in or about the year 1936, and con-tinuing up to and including the date suit was filed in 1950. The complaint divided the conspiracy into two principal branches: (1) agreement by the défendants to eliminate compétition among themselves in the Pacific States area and (2) agreement by the défendants to utilize their control of the production, transportation, refining, and marketing of crude oil and refined Petroleum products to restrict and to eliminate the compétition of independent producers, refiners and marketers in the Pacific States area. In furtherance of the first branch of the conspiracy, the complaint further charged, défendants had conspired to do and had actually accom-plished the following things, among others: sharing Wholesale and retail markets with each other by selling gasoline and other refined petroleum products at iden-tical prices, thus confining effective compétition among themselves to the advertising of brand names and to the offering of free services in their retail outlets; fixing and maintaining uniform and noncompetitive prices for the sale of gasoline and other refined petroleum products at Wholesale and at retail ; refusing to sell their petroleum products to any Wholesale or retail distributor who failed or refused to follow the prices fixed by them; and refusing to sell their petroleum products to any Wholesale distributor, jobber, or retail dealer except on a “full-require-ments” or “exclusive-dealer” basis. Among acts and agreements charged as having been accomplished in furtherance of the second branch of the conspiracy were the following: coercing independent producers into limiting production of crude oil through production quotas estab-
LEH v. GENERAL PETROLEUM CORP- 61
54	Opinion of the Court.
lished by the défendant Conservation Committee ; limit-ing the supply of crude oil available to independent re-finers and refusing to sell crude oil to such refiners; acquiring control of independent refiners; inducing independent refiners to shut down their productive capacity or to dismantle their refining facilities in return for an agreement to furnish such independent refiners with their full requirements of gasoline and other refined Petroleum products; foreclosing independent Wholesale and retail markets otherwise available to the independent refiners by requiring independent jobbers, wholesalers, and retailers to handle exclusively the refined petroleum products of défendants.
Plaintiffs’ amended complaint in the présent case also charged a conspiracy to violate § § 1 and 2 of the Sherman Act. The period of the conspiracy of which plaintiffs complained varied somewhat from that charged in the government action, plaintiffs alleging that the conspiracy herein commenced in or about the year 1948 (the year in which plaintiffs commenced business) and continued until the date of the filing of the complaint in 1956. The défendants were the same as those in the government proceeding, except that Shell Oil Company and the Conservation Committee of California Oil Producers were named as défendants in the government suit and were not défendants here, and Olympic Oil Company was named as a défendant here and was not a défendant in the government proceeding.4 The complaint charged that de-fendants had agreed to restrain and to monopolize the Wholesale and retail distribution of refined gasoline throughout the Southern California area by excluding independent jobbers from such distribution and by elim-inating the jobbers’ customers, i. e., retail outlets, and
4 Olympic was dismissed from the case prior to the ruling on défendants’ statute of limitations defense.
62
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
preventing those customers from competing with retail outlets owned and operated by défendants. In partic-ular, défendants were alleged to hâve accomplished their unlawful purposes by the following acts: controlling the sale and distribution of refined gasoline in the Southern California area; denying independent jobbers access to a source of supply of refined gasoline; preventing independent jobbers from obtaining refined gasoline from other sources; preventing the customers of independent jobbers from obtaining gasoline with which to compete with retail service stations and outlets operated or con-trolled by défendants; maintaining fixed, artificial, and noncompetitive prices for the Wholesale and retail sale of refined gasoline in the Southern California area and fixing the price at which gasoline would be sold, if at ail, to independent dealers and jobbers; and generally controlling the sources of refined gasoline in the Southern California area and preventing and precluding independent jobbers from obtaining a source of supply. Plaintiffs claimed in jury to their independent jobber business through a loss of profits resulting from price-fixing and from the destruction of their business because of the termination of their source of supply.
The lower courts found that plaintiffs’ complaint was not based in whole or in part on any matter complained of in the government proceeding principally because of the différences in the défendants named in the two suits and in the period of the conspiracies alleged. See 330 F. 2d, at 301; 208 F. Supp., at 294-295. We cannot agréé that these différences bar resort to the tolling provision in this case.
Here too we may find guidance in Minnesota Mining. In that case, the plaintiff, a manufacturer of electrical insulation materials, brought suit against Minnesota Mining and Manufacturing Company and the Essex Wire Corporation, the complaint alleging violations of § 7 of
LEH v. GENERAL PETROLEUM CORP. 63
54	Opinion of the Court.
the Clayton Act and §§ 1 and 2 of the Sherman Act. The substance of the complaint concerned the acquisition by Minnesota Mining from Essex of Insulation and Wires, Inc., which thereafter ceased to distribute plain-tiff’s products, and an alleged conspiracy between Minnesota Mining and Essex to restrain trade in electrical insulation products. The action upon which plaintiff relied as suspending the running of limitations was a Fédéral Trade Commission proceeding under § 7 against Minnesota Mining but not against Essex. Essex was not a party to the interlocutory appeal in the private action and no contention was made here that the différence in parties prevented tolling of limitations as to Minnesota Mining. Minnesota Mining did argue that because of the greater burden of proof under the Sherman Act, plaintiff’s Sherman Act daims could not be held to be based in part on any matter complained of in the Clayton Act proceeding before the Commission. This Court found that “both suits set up substantially the same daims,” 381 U. S., at 323, and rejected Minnesota Mining’s argument.
Just as in Minnesota Mining the différences between Sherman Act and Clayton Act proceedings were held not to require the conclusion that the private action under the Sherman Act was not based in part on any matter complained of in the Government’s § 7 suit, so here we can-not conclude that a private claimant may invoke § 5 (b) only if the conspiracy of which he complains has the same breadth and scope in time and participants as the conspiracy described in the government action on which he relies. Here there is substantial identity of parties, six of the seven défendants in this case being défendants in the government suit as well. In suits of this kind, the absence of complété identity of défendants may be explained on several grounds unrelated to the question of whether the private claimant’s suit is based on mat-
64
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
ters of which the Government complained. In the intérim between the filing of the two actions it may hâve become apparent that a party named as a défendant by the Government was in fact not a party to the antitrust violation alleged. Or the private plaintiff may prefer to limit his suit to the défendants named by the Government whose activities contributed most directly to the in jury of which he complains. On the other hand, some of the conspirators whose activities injured the private claimant may hâve been too low in the conspiracy to be selected as named défendants or co-conspirators in the Government’s necessarily broader net. The over-lap in the time periods of the two conspiracies is less complété, but this disparity is equally without signifi-cance. That plaintiffs alleged a conspiracy corresponding in time to the period during which they were in business obviously does not mean that this conspiracy is not based in part on matters complained of by the Government. Nor can that conclusion be drawn from the fact that plaintiffs focus on the Southern California area, which is only a part of the Pacific States area with which the Government was concerned.
It is obvious from a comparison of the two complaints that plaintiffs’ suit is based in part on matters of which the Government complained. The Government charged that défendants had conspired to eliminate the compétition of independent marketers; plaintiffs charged a conspiracy to eliminate independent jobbers and retailers. Both the plaintiffs and the Government alleged that de-fendants had fixed prices at Wholesale and at retail. The Government alleged that défendants had conspired to eliminate the compétition of independent refiners by acquiring such refiners, limiting the supply of crude oil available to them, and inducing them to shut down their refining facilities; plaintiffs complained that défendants had denied them a source of supply and prevented them
LEH v. GENERAL PETROLEUM CORP. 65
54	Opinion of the Court.
from obtaining gasoline from other sources. To require more detailed duplication of daims would be to resur-rect the collateral estoppel approach declared in Steiner and rejected by this Court in Minnesota Mining.
Défendants contend, however, that during the extensive discovery proceedings that preceded the ruling on the motion to dismiss, plaintiffs made certain concessions establishing that, whatever the complaint may allégé, plaintiffs’ claim in fact is not based at ail on any matter complained of by the Government in Standard OU. Plaintiffs’ real claim, défendants say, is that they had an arrangement with Olympic Refining Company under which they were to be supplied with gasoline as long as Olympic was in turn supplied by défendant General Petroleum Corporation, that défendant Standard Oil Company of California replaced General Petroleum Corporation as Olympic’s supplier in February 1954, and that plaintiffs’ supply was thereby terminated. The attorney for plaintiffs stated in a hearing before the trial court that General Petroleum Corporation had the abso-lute right to terminate its supply to Olympic at any time and that if General had in this case done so unilaterally plaintiffs would not be in court. But plaintiffs con-tended that défendants conspired together to effect the termination of General’s supplier relationship with Olympic. Défendants argue that this conspiracy to terminate a particular supply contract is far removed from the matters with which the government complaint was concerned.
In general, considération of the applicability of § 5 (b) must be limited to a comparison of the two complaints on their face. Obviously suspension of the running of the statute of limitations pending resolution of the government action may not be made to turn on whether the United States is successful in proving the allégations of its complaint. Minnesota Mining & Mjg. Co. v. New
786-211 0-66—14
66	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Jersey Wood Finishing Co., 381 U. S. 311, 316. Equally, the availability of § 5 (b) to the priva te claimant may not be made dépendent on his ability to prove his case, however fatal failure may prove to his hopes of success on the merits.
Moreover, défendants’ argument contains a basic flaw in that it does not take account of ail that plaintiffs’ counsel said. The relationship between plaintiffs and General was one of subdistributorship, and there were accordingly two levels in the chain of distribution between General and the ultimate retail outlet. Plaintiffs claimed, counsel said, that pressure was exerted to terminale the relationship between General and Olympic, and thereby between Olympic and plaintiffs, as the resuit of an industry commitment to do away with subdistributorship operations “because the sub-distributorship could not be controlled. The gasoline could be controlled, ob-viously, when General Petroleum sold it directly at retail. The gasoline could be controlled if you had a good company as opposed to a bad company, which was acting as a distributor. But the gasoline could not be controlled when it went to the sub-distributorship level.” Clearly this is a claim that in order to obtain and to maintain control of distribution and retail marketing, including the control and fixing of uniform Wholesale and retail prices of which the government action complained, de-fendants agreed to tighten control of the chain of distribution through élimination of independent jobbers acting as subdistributors. Counsel’s statements simply filled out the details of the general allégations of the complaint.
As we hâve concluded that the running of the statute of limitations was suspended, the judgment must be
Reversed.
Mr. Justice Harlan and Mr. Justice Portas took no part in the considération or decision of this case.
DECISIONS PER CURIAM.	67
382 U. S.	November 8, 1965.
ANDREWS VAN LINES, INC., et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA.
No. 438. Decided November 8, 1965.
240 F. Supp. 763, affirmed.
J. Max Harding for appellants.
Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Gerald Kadish, Robert W. Ginnane and Thomas H. Ploss for the United States et al.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
Mr. Justice Stewart is of the opinion that probable jurisdiction should be noted.
McGEE v. CROUSE, WARDEN.
APPEAL FROM THE SUPREME COURT OF KANSAS.
No. 550, Mise. Decided November 8, 1965.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
68
OCTOBER TERM, 1965.
382 U. S.
November 8, 1965.
RICHMOND TELEVISION CORP. v. UNITED STATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 420. Decided November 8, 1965.
Certiorari granted; 345 F. 2d 901, vacated and remanded.
Robert T. Barton, Jr., for petitioner.
Solicitor General Marshall and Acting Assistant Attorney General Roberts for the United States.
Per Curiam.
The pétition for writ of certiorari is granted. In the light of the représentations of the Solicitor General, and an independent examination of the record, we believe that the Court of Appeals for the Fourth Circuit was mis-taken in its view that the petitioner’s amortization daims for the taxable years 1956 and 1957 were not properly before it. Although the record is not free from ambiguity, we take the Court of Appeals to hâve based its decision on the ground that the petitioner’s amortization daims derived solely from net operating loss déductions carried forward from prior years, and that no additional amortization déductions for 1956 and 1957 were sought. Since we find that the petitioner adequately presented its amortization daims for 1956 and 1957, we vacate the judg-ment of the Court of Appeals and remand the case to that court for the considération of those daims, without intimation of any kind as to their merit.
DECISIONS PER CURIAM.
69
382 U. S.	November 8, 1965.
MILLAN-GARCIA v. IMMIGRATION AND NATURALIZATION SERVICE.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 369, Mise. Decided November 8, 1965.
Certiorari granted; 343 F. 2d 825, vacated and remanded.
Petitioner pro se.
Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for respondent.
Per Curiam.
The motion for leave to proceed in forma pauperis and the pétition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals upon examination of the entire record and in light of the représentations of the Solicitor General that the petitioner will be afforded an opportunity to apply for citizenship and that there will be no déportation proceedings until such détermination.
70
OCTOBER TERM, 1965.
Syllabus.	382 U. S.
ALBERTSON et al. v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 3. Argued October 18, 1965.—Deeided November 15, 1965.
Despite the order of the Subversive Activities Control Board (SACB), sustained in Communist Party of the United States v. SACB, 367 U. S. 1, the Party failed to register under the Subversive Activities Control Act of 1950, and no list of members was filed. The Attorney General, in accordance with § 13 (a) and §§ 8 (a) and (c) of the Act, asked the SACB to order petitioners, as Party members, to register and submit a registration state-ment. The SACB did order petitioners to register and submit the registration statement and the Court of Appeals affirmed these orders, finding the Fifth Amendment self-incrimination issue not ripe for adjudication. Held:
1.	Petitioners’ claims of the privilège against self-incrimination are ripe for adjudication. Pp. 73-77.
(a)	As distinguished from the Communist Party case, the contingencies upon which the members’ duty to register arises hâve matured, the petitioners hâve claimed the privilège and the Attorney General has rejected such claims. Pp. 74-75.
(b)	Petitioners are faced with the choice of registering without a decision on the merits of their claims or subjecting them-selves to serious punishment. Pp. 75-76.
(c)	Respondent’s attempt to distinguish between claims of privilège relating to the SACB’s power to compel registration and submission of a registration statement, conceming which it concédés that the Court of Appeals’ holding of prematurity was erro-neous, and claims of privilège against “any particular inquiry” on the registration form or registration statement, is without merit. The statute and régulations issued thereunder require petitioners to register and submit the forms fully executed in accordance with présent régulations. Pp. 76-77.
2.	The requirement of filing the registration form (IS-52a) is incriminatory within the meaning of the Self-Incrimination Clause because the admission of Party membership, required by the form, might be used as an investigatory lead to or evidence in a criminal prosecution. Pp. 77-78.
ALBERTSON v. SACB.
71
70	Opinion of the Court.
3.	The requirement of completing and filing the registration statement (IS-52), considered apart from the registration form, would also be incriminatory because the information might be used as evidence in or supply leads to a criminal prosecution. United States v. Sullivan, 274 U. S. 259, distinguished. Pp. 78-79.
4.	The Act’s immunity provision, § 4 (f), does not save the orders to register from petitioners’ Fifth Amendment challenge. Pp. 79-81.
(a)	The immunity provision does not preclude the use of information called for by the registration statement (IS-52), either as evidence or an investigatory lead. P. 80.
(b)	The immunity provision does not preclude the use of an admission of Party membership on the registration form (IS-52a) as an investigatory lead, a use barred by the self-incrimination privilège. P. 80.
(c)	Respondent’s argument that since an order to register follows an SACB finding of Party membership, the admission of Party membership by registering is of no investigatory value and thus not “incriminatory,” would make the right to invoke the privilège dépend upon an assessment of information in the Government’s possession. This would negate the complété protection from ail périls that an immunity statute must provide according to Counselman v. Hitchcock, 142 U. S. 547. P. 81.
118 U. S. App. D. C. 117, 332 F. 2d 317, reversed.
John J. Abt argued the cause for petitioners. With him on the briefs was Joseph Forer.
Kevin T. Maroney argued the cause for respondent. With him on the brief were Solicitor General Marshall, Assistant Attorney General Yeagley, Nathan Ijewm, George B. Searls and Lee B. Anderson.
Briefs of amici curiae were filed by Osmond K. Fraenkel for the American Civil Liberties Union, and by Ernest Goodman for the National Lawyers Guild.
Mr. Justice Brennan delivered the opinion of the Court.
The Communist Party of the United States of America failed to register with the Attorney General as required by the order of the Subversive Activities Control Board
72
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
sustained in Communist Party of the United States v. SAC B, 367 U. S. 1? Accordingly, no list of Party mem-bers was filed as required by § 7 (d)(4) of the Subversive Activities Control Act of 1950, 64 Stat. 993-994, 50 U. S. C. § 786 (d)(4) (1964 ed.).2 Sections 8 (a) and (c) of the Act provide that, in that circumstance, each member of the organization must register and file a registration statement; in default thereof, § 13 (a) authorizes the Attorney General to pétition the Board for an order requiring the member to register.3 The
1 The judgment of conviction of the Party for failure to register was reversed by the Court of Appeals for the District of Columbia Circuit, and the case remanded for a new trial. Communist Party of the United States v. United States, 118 U. S. App. D. C. 61, 331 F. 2d 807.
2 Under this section the registration statement which accompanies the registration of a Communist-action organization is required to include “the name and last-known address of each individual who was a member of the organization at any time during the period of twelve full calendar months preceding the filing of such statement.”
3 Sections 8 (a) and (c), 64 Stat. 995, 50 U. S. C. §§ 787 (a) and (c) (1964 ed.), provide:
“(a) Any individual who is or becomes a member of any organization conceming which (1) there is in effect a final order of the Board requiring such organization to register under section 786 (a) of this title as a Communist-action organization, (2) more than thirty days hâve elapsed since such order has become final, and (3) such organization is not registered under section 786 of this title as a Conimunist-action organization, shall within sixty days after said order has become final, or within thirty days after becom-ing a member of such organization, whichever is later, register with the Attorney General as a member of such organization.
“(c) The registration made by any individual under subsection (a) or (b) of this section shall be accompanied by a registration statement to be prepared and filed in such manner and form, and containing such information, as the Attorney General shall by régulations prescribe.”
Section 13 (a), 64 Stat. 998,50 U. S. C. § 792 (a) (1964 ed.), provides: “Whenever the Attorney General shall hâve reason to believe that . . . any individual who has not registered under section 787
ALBERTSON v. SACB.
73
70	Opinion of the Court.
Attorney General invoked § 13 (a) against petitioners, and the Board, after evidentiary hearings, determined that petitioners were Party members and ordered each of them to register pursuant to §§ 8 (a) and (c). Review of the orders was sought by petitioners in the Court of Appeals for the District of Columbia Circuit under § 14 (a).4 The Court of Appeals affirmed the orders, 118 U. S. App. D. C. 117, 332 F. 2d 317. We granted certiorari, 381 U. S. 910. We reverse.5
I.
Petitioners address several constitutional challenges to the validity of the orders, but we consider only the con-
of this title is in fact required to register under such section, he shall file with the Board and serve upon such . . . individual a pétition for an order requiring such . . . individual to register pursuant to such subsection or section, as the case may be. Each such pétition shall be verified under oath, and shall contain a state-ment of the facts upon which the Attorney General relies in support of his prayer for the issuance of such order.”
4 Section 14 (a), 64 Stat. 1001, 50 U. S. C. §793 (a) (1964 ed.), provides :
“The party aggrieved by any order entered by the Board . . . may obtain a review of such order by filing in the United States Court of Appeals for the District of Columbia, within sixty days from the date of service upon it of such order, a written pétition praying that the order of the Board be set aside. . . . Upon the filing of such pétition the court shall hâve jurisdiction of the proceeding and shall hâve power to affirm or set aside the order of the Board .... The findings of the Board as to the facts, if supported by the prépondérance of the evidence, shall be conclusive. . . . The judgment and decree of the court shall be final, except that the same shall be subject to review by the Suprême Court upon certiorari . . . .”
5 The Govemment’s opposition to the pétition for certiorari sug-gested that the case is moot as to petitioner Albertson by reason of his alleged expulsion from the Party. Albertson, however, challenges the suggestion of mootness. There is no occasion to décidé the question since, in any event, we must reach the merits of the issues in respect of an identical order issued against petitioner Proctor.
74
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
tention that the orders violate their Fifth Amendment privilège against self-incrimination.6
The Court of Appeals affirmed the orders without deciding the privilège issue, expressing the view that under our decision in Communist Party, 367 U. S., at 105-110, the issue was not ripe for adjudication and would be ripe only in a prosecution for failure to reg-ister if the petitioners did not register. 118 U. S. App. D. C., at 121-123, 332 F. 2d, at 321-323. We disagree. In Communist Party the Party asserted the privilège on behalf of unnamed officers—those obliged to register the Party and those obliged “to register for” the Party if it failed to do so.7 The self-incrimination claim asserted on behalf of the latter officers was held prématuré because the Party might choose to register and thus the duty of those officers might never arise. Here, in contrast, the contingencies upon which the members’ duty to register arises hâve already matured; the Party did not register within 30 days after the order to register became final and the requisite 60 days since the order became final hâve elapsed. As to the officers obliged to register the Party, Communist Party held that the self-incrimination claim asserted on their behalf was not ripe for adjudication be-
6 Petitioners’ other challenges assailed the Act and registration orders as denying substantive due process (because they allegedly serve no govemmental purpose), as abridging First Amendment freedoms, as violating procédural due process and constituting bills of attainder (because they made the Board’s 1953 détermination that the Communist Party was a Communist-action organization conclusive upon petitioners), and finally, as denying petitioners the safeguards of grand jury indictment, judicial trial and trial by jury.
7 The régulations goveming Party registration pursuant to § 7 (d), 50 U. S. C. § 786 (d), are 28 CFR §§11.200 and 11.201, and the forms are IS-51a and IS-51. The régulation governing officers obliged by § 7 (h), 50 U. S. C. §786 (h) “to register for” the Party if it failed to register is 28 CFR § 11.205. See Communist Party, 367 U. S., at 105-110.
ALBERTSON v. SACB.
75
70	Opinion of the Court.
cause it was not known whether they would ever claim the privilège or whether the claim, if asserted, would be honored by the Attorney General. But with respect to the orders in this case, addressed to named individuals, both these contingencies are foreclosed. Petitioners asserted the privilège in their answers to the Attorney General’s pétitions; they did not testify at the Board hearings; they again asserted the privilège in the review proceedings in the Court of Appeals. In each instance the Attorney General rejected their daims. Thus, the considérations which led the Court in Communist Party to hold that the daims on behalf of unnamed officers were prématuré are not présent in this case.
There are other reasons for holding that petitioners’ self-incrimination daims are ripe for decision. Spécifie orders requiring petitioners to register hâve been issued. The Attorney General has promulgated régulations requiring that registration shall be accomplished on Form IS-52a and that the accompanying registration state-ment shall be a completed Form IS-52,8 28 CFR §§ 11.206, 11.207, and petitioners risk very heavy pen-alties if they fail to register by completing and filing these forms. Under §15 (a) (2) of the Act, 64 Stat. 1002, 50 U. S. C. § 794 (a)(2), for example, each day of failure to register constitutes a separate offense punish-able by a fine of up to $10,000 or imprisonment of up to five years, or both.9 Petitioners must either register without a decision on the merits of their privilège daims,
8 Copies of Form IS-52a and Form IS-52 are reproduced in the Appendix to this opinion.
9 The case was argued orally by both sides on the premise that the penalty for failure to complété and file Form IS-52 constituted a separate offense punishable by fine of up to $10,000 or imprisonment of up to five years, or both, but that each day of failure to file the form did not constitute a separate offense. We hâve no occasion, however, to décidé the question, and intimate no view upon it. See § 15 (b), 50 U. S. C. §794 (b).
76
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OCTOBER TERM, 1965.
Opinion of the Court.
or fail to register and risk onerous and rapidly mounting penalties while awaiting the Government’s pleasure whether to initiate a prosecution against them. To ask, in these circumstances, that petitioners await such a prosecution for an adjudication of their self-incrimination daims is, in effect, to contend that they should be denied the protection of the Fifth Amendment privilège intended to relieve claimants of the necessity of making a choice between incriminating themselves and risking serious punishments for refusing to do so.
Indeed the Government concédés in its brief in this Court that the Court of Appeals’ holding of prematurity was erroneous insofar as petitioners’ daims of privilège relate to the Board’s power to compel the act of registration and the submission of an accompanying registration statement. The brief candidly acknowledges that, since § 14 (b) provides for judicial review of a Board order to register, petitioners’ daims in that regard, like any other contention that an order is invalid, may be heard and determined by the reviewing court—thus dis-tinguishing orders that are not similarly reviewable, see Alexander v. United States, 201 U. S. 117; Cobbledick v. United States, 309 U. S. 323. Nevertheless, the Government argues that petitioners’ daims are prématuré insofar as they relate to “any particular inquiry” on Forms IS-52a and IS-52. Two contingencies are hy-pothesized in support of this contention: (1) that the Attorney General might alter the présent forms or (2) that he might accept less than fully completed forms.
The distinction upon which this argument is predicated is illusory. Neither the statute nor the régulations draw any distinction between the act of registering and the submission of a registration statement, on the one hand, and, on the other hand, the answering of the inquiries demanded by the forms ; the statute and régulations con-template rather that the questions asked on the forms
ALBERTSON v. SACB.	77
70	Opinion of the Court.
are to be fully and completely answered. Morever, the contingencies hypothesized are irrelevant. Petitioners are obliged to register and to submit registration forms in accordance with presently existing régulations; the mere contingency that the Attorney General might revise the régulations at some future time does not render prématuré their challenge to the existing requirements. Nor can these requirements be viewed as requiring that petitioners answer—at the risk of criminal prosecution for error—only those items which will not incriminate petitioners; full compliance is required. Finally, the Gov-ernment’s argument would do violence to the congres-sional scheme. The penalties are incurred only upon failure to register as required by final orders and, under § 14 (b), orders become final upon completion of judicial review. In so providing, Congress plainly mani-fested an intention to afford alleged members, prior to criminal prosecution for failure to register, an adjudication of ail, not just some, of the daims addressed to the validity of the Board’s registration orders. We therefore proceed to a détermination of the merits of petitioners’ self-incrimination daims.
IL
The risks of incrimination which the petitioners take in registering are obvious. Form IS-52a requires an admission of membership in the Communist Party. Such an admission of membership may be used to prosecute the registrant under the membership clause of the Smith Act, 18 U. S. C. § 2385 (1964 ed.), or under §4 (a) of the Subversive Activities Control Act, 64 Stat. 991, 50 U. S. C. § 783 (a) (1964 ed.), to mention only two fédéral criminal statutes. Scales v. United States, 367 U. S. 203, 211. Accordingly, we hâve held that mere association with the Communist Party présents sufficient threat of prosecution to support a daim of privilège. Patricia Blau v. United States, 340 U. S. 159; Irving Blau v.
78
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
United States, 340 U. S. 332; Brunner v. United States, 343 U. S. 918; Quinn v. United States, 349 U. S. 155. These cases involved questions to witnesses on the wit-ness stand, but if the admission cannot be compelled in oral testimony, we do not see how compulsion in writing makes a différence for constitutional purposes. Cf. New York ex rel. Ferguson n. Reardon, 197 N. Y. 236, 243-244, 90 N. E. 829, 832. It follows that the requirement to accomplish registration by completing and filing Form IS-52a is inconsistent with the protection of the Self-Incrimination Clause.
The statutory scheme, in providing that registration “shall be accompanied” by a registration statement, clearly implies that there is a duty to file Form IS-52, the registration statement, only if there is an enforceable obligation to accomplish registration by completing and filing Form IS-52a. Yet, even if the statu te and régulations required petitioners to complété and file Form IS-52 without regard to the validity of the order to reg-ister on Form IS-52a, the requirement to complété and file Form IS-52 would also invade the privilège. Like the admission of Party membership demanded by Form IS-52a, the information called for by Form IS-52— the organization of which the registrant is a member, his aliases, place and date of birth, a list of offices held in the organization and duties thereof—might be used as evidence in or at least supply investigatory leads to a criminal prosecution. The Government, relying on United States v. Sullivan, 274 U. S. 259, argues that petitioners might answer some questions and appropri-ately claim the privilège on the form as to others, but cannot fail to submit a registration statement altogether. Apart from our conclusion that nothing in the Act or régulations permits less than literal and full compliance with the requirements of the form, the reliance on Sulli
ALBERTSON v. SACB.
79
70	Opinion of the Court.
van is misplaced. Sullivan upheld a conviction for failure to file an income tax return on the theory that “[i]f the form of return provided called for answers that the défendant was privileged from making he could hâve raised the objection in the return, but could not on that account refuse to make any return at ail.” 274 U. S., at 263. That déclaration was based on the view, first, that a self-incrimination claim against every question on the tax return, or based on the mere submission of the return, would be virtually frivolous, and second, that to honor the claim of privilège not asserted at the time the return was due would make the taxpayer rather than a tribunal the final arbiter of the merits of the claim. But neither reason applies here. A tribunal, the Board, had an opportunity to pass upon the petitioners’ self-incrimination daims ; and since, unlike a tax return, the pervasive effect of the information called for by Form IS-52 is in-criminatory, their daims are substantial and far from frivolous. In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly sélective group inherently suspect of criminal activities. Petitioners’ daims are not asserted in an essentially non-criminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in con-text might involve the petitioners in the admission of a crucial element of a crime.
III.
Section 4 (f) of the Act,10 the purported immunity provision, does not save the registration orders from peti-
10 Section 4 (f), 64 Stat. 992, 50 U. S. C. § 783 (f) provides:
“Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of
80
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
tioners’ Fifth Amendment challenge. In Counselman v. Hitchcock, 142 U. S. 547, decided in 1892, the Court held “that no [immunity] statu te which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can hâve the effect of supplanting the privilège . . . ,” and that such a stat-ute is valid only if it supplies “a complété protection from ail the périls against which the constitutional prohibition was designed to guard . . .” by affording “abso-lute immunity against future prosecution for the offence to which the question relates.” Id., at 585-586. Meas-ured by these standards, the immunity granted by § 4 (f) is not complété. See Scales v. United States, 367 U. S., at 206-219. It does not preclude any use of the information called for by Form IS-52, either as evidence or as an investigatory lead. With regard to the act of registering on Form IS-52a, § 4 (f) provides only that the admission of Party membership thus required shall not per se consti-tute a violation of §§ 4 (a) and (c) or any other criminal statute, or “be received in evidence” against a registrant in any criminal prosecution ; it does not preclude the use of the admission as an investigatory lead, a usé which is barred by the privilège. Counselman v. Hitchcock, 142 U. S., at 564-565, 585.11
subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 787 or section 788 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.”
11 The legislative history includes several expressions of doubt that the immunity granted was coextensive with the privilège. See S. Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12-13 (Sen. Kilgore) (Minority Report); 96 Cong. Rec. 14479 (Sen. Humphrey); 96 Cong. Rec. 15199 and 15554 (Sen. Kefauver) ; see also 96 Cong. Rec. 13739-13740 (Rep. Celler), dealing with a more modified immunity
ALBERTSON v. SACB.
81
70	Opinion of the Court.
The Government does not contend that the short-coming of § 4 (f) is remedied in regard to information called for on the registration statement, Form IS-52. With respect to Form IS-52a, however, the argument is made that, since an order to register is preceded by a Board finding of Party membership, the admission of membership required on that form would be of no investi-gatory value and thus is not “incriminatory” within the meaning of the Fifth Amendment privilège. On this view the incompleteness of the § 4 (f) grant of immunity would be rendered immaterial and the admission of Party membership could be compelled without violating the privilège. We disagree. The judgment as to whether a disclosure would be “incriminatory” has never been made dépendent on an assessment of the information possessed by the Government at the time of interrogation ; the protection of the privilège would be seriously impaired if the right to invoke it was dépendent on such an assessment, with ail its uncertainties. The threat to the privilège is no less présent where it is proposed that this assessment be made in order to remedy a shortcoming in a statutory grant of immunity. The représentation that the information demanded is of no utility is belied by the fact that the failure to make the disclosure is so severely sanctioned; and permitting the incompleteness of § 4 (f) to be cured by such a représentation would render illusory the Counselman requirement that a stat-ute, in order to supplant the privilège, must provide “complété protection from ail the périls against which the constitutional prohibition was designed to guard.”
The judgment of the Court of Appeals is reversed and the Board’s orders are set aside.
It is so ordered.
grant in H. R. 9490. See generally Scales v. United States, 367 U. S., at 212-219 (Court opinion), 282-287 (dissenting opinion).
82
382 U. S.
OCTOBER TERM, 1965.
Appendix to opinion of the Court.
Mr. Justice Black concurs in the reversai for ail the reasons set ont in the Court’s opinion as well as those set ont in his dissent in Communiât Party of the United States v. SACB, 367 U. S. 1, 137.
Mr. Justice White took no part in the considération or decision of this case.
APPENDIX TO OPINION OF THE COURT.
Form IS-52a is as follows:
Form No. IS-52a
(Ed. 9-6-61)
Budget Bureau No. 43-R414
Approval expires July 31, 1966
UNITED STATES DEPARTMENT OF JUSTICE Washington, D. C.
REGISTRATION FORM FOR INDIVIDUALS
Pursuant to Section 8(a) or (b) of the Internai Security Act of 1950 (Note: This form should be accompanied by a Registration Statement, Form IS-52)
..........................................hereby
(Name of individual—Print or type) registers as a member of ......................,
a Communist-action organization.
/s/ ................................
(Signature)	(Date)
(Typed or printed name) (Date)
(Address—type or print)
ALBERTSON v. SACB.
83
70	Appendix to opinion of the Court.
Form IS-52 is as follows:
Budget Bureau No. 43-R301.2
Approval expires July 31, 1966
----------------o---------------
UNITED STATES DEPARTMENT OF JUSTICE Washington, D. C.
Form IS-52
for
Registration Statements of Individuals Pursuant to section 8 of the Internai Security Act of 1950
Instruction Sheet—Read Carefully -------------------o---------------
1.	Ail individuals required to register under section 8 of the Internai Security Act of 1950 shall use this form for their registration statements.
2.	Two copies of the statement are to be filed. An additional copy of the statement should be prepared and retained by the Registrant for future references.
3.	The statement is to be filed with the Internai Security Division, Department of Justice, Washington, D. C.
4.	Ail items of the form are to be answered. Where the answer to an item is “None” or “inapplicable,” it should be so stated.
5.	Both copies of the statement are to be signed. The making of any willful false statement or the omission of any material fact is punishable under 18 U. S. Code, 1001.
6.	If the space provided on the form for the answer to any given item is insufiicient, reference shall be made
84
382 U. S.
OCTOBER TERM, 1965.
Appendix to opinion of the Court.
in such space to a full insert page or pages on which the item number and item shall be restated and the answer given.
For an Individual
a.	Who is a member of any Communist-action organ-ization which has failed to file a registration statement as required by Section 7(a) of the Internai Security Act of 1950.
OR
b.	Who is a member of any organization which has registered as a Communist-action organization under Section 7(a) of the Internai Security Act of 1950 but which has failed to include the individual’s name upon the list of members filed with the Attorney General.
1	. Name of the Communist-action organization of which Registrant was a member within the preceding twelve months.
2	.(a) Name of Registrant.
(b)	Ail other names used by Registrant during the past ten years and dates when used.
(c)	Date of birth.
(d)	Place of birth.
3.(a) Présent business address.
(b) Présent résidence address.
4.	If the Registrant is now or has within the past twelve months been an officer of the Communist-action organization listed in response to question number 1 :
(a)	List ail offices so held and the date when held.
(b)	Give a description of the duties or functions per-formed during tenure of office.
The undersigned certifies that he has read the information set forth in this statement, that he is familiar with the contents thereof, and that such contents are in their
ALBERTSON v. SACB.
85
70	Clark, J., concurring.
entirety true and accurate to the best of his knowledge and belief. The undersigned further represents that he is familiar with the provisions of Section 1001, Title 18, U. S. Code (printed at the bottom of this form).*
/s/ ......................................
(Signature)	(Date)
/t/ ......................................
(Name)	(date)
(Print or type)
*18 U. S. C., Section 1001, provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or représentations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Mr. Justice Clark, concurring.
I join in the opinion of the Court. The conclusion it reaches today was forecast in 1948. In response to the request of the Chairman of the Senate Judiciary Com-mittee for an expression of the views of the Department of Justice on H. R. 5852, a precursor of the Act here under attack, it was then pointed out that the “measure might be held . . . even to compel self-incrimination.” t
This view was expressed in a letter over my signature as Attorney General which noted that the proposed législation “would require every Communist political or-ganization and every Communist-front organization to register .... In addition to information which would be required of both organizations in common, a Communist political organization would be obliged to disclose
t Hearings on H. R. 5852 before the Senate Committee on the Judiciary, 80th Cong., 2d Sess., 422 (1948).
86
382 U. S.
OCTOBER TERM, 1965.
Clark, J., concurring.
the names and addresses of its members in its registration statement. ... In case of the failure of any organization to register in accordance with the measure, it would be the duty of the executive officer and the secre-tary of such organization to register in behalf of the organization. ... A failure to register . . . subjects the organization and certain of its agents to severe penal-ties.” After considération of other provisions of the bill the letter advised that the Department of Justice had concluded that “the measure might be held (notwith-standing the legislative finding of clear and présent danger) to deny freedom of speech, of the press, and of assembly, and even to compel self-incrimination.” It also expressed the belief of the Department that “there would not be any voluntary registrations under the measure. Should a Communist organization fail to register, the burden to proceed would shift to the Attorney General . . . to prove that the organization is required to register.”
As finally passed, the Act imposed a duty to register upon individual members after the refusai of the Communist Party to register and disclose its membership. Though not in H. R. 5852 about which the Department of Justice expressed constitutional doubts, this more per-vasive registration requirement directly abridges the privilège of members against self-incrimination. I there-fore join in this reversai.
SHUTTLESWORTH v. BIRMINGHAM. 87
Syllabus.
SHUTTLESWORTH v. CITY OF BIRMINGHAM.
CERTIORARI TO THE COURT OF APPEALS OF ALABAMA.
No. 5. Argued October 11, 1965.—Decided November 15, 1965.
Petitioner and a group of companions were standing near a Street intersection on a Birmingham, Alabama, sidewalk which a police-man thrice requested them to clear for pedestrian passage. After the third request, ail but petitioner, who had been questioning the policeman about his order, had begun to walk away and the police-man arrested petitioner. Petitioner was tried before a court with-out a jury which, without any fact findings or opinion, convicted him of violating two ordinances, §§ 1142 and 1231, of Birmingham’s city code. The Alabama Court of Appeals affirmed. Because of their breadth if read literally, these ordinances présent grave con-stitutional problems. In other decisions subséquent to petitioner’s conviction, § 1142 was construed by the Alabama Court of Appeals as applicable only to standing, loitering or walking on a Street or sidewalk so as to obstruct free passage and refusing to obey an officer’s request to move on, and § 1231 was confined to the enforcement of the orders of a traffic officer while directing vehicu-lar traffic. Held:
1.	The conviction under § 1142 must be set aside in view of the possibility that it was based upon an unconstitutional construction of the ordinance. Pp. 90-92.
2.	Since petitioner, when directed to move on, was a pedestrian not around a vehicle and the arresting policeman was not directing traffic, the conviction under § 1231 must fall for lack of any evidence to support the alleged violation. Thompson v. City of LouisviUe, 362 U. S. 199, followed. Pp. 93-95.
42 Ala. App. 296, 161 So. 2d 796, reversed and remanded.
James M. Nabrit III argued the cause for petitioner. With him on the brief were Jack Greenberg, Norman C. Amaker, Peter A. Hall, Orzell Billingsley, Jr., and Anthony G. Amsterdam.
Earl McBee argued the cause and filed a brief for respondent.
88	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Mr. Justice Stewart delivered the opinion of the Court.
The petitioner was brought to trial in the Circuit Court of Jefferson County, Alabama, upon a complaint charging him with violating two sections of the General Code of the City of Birmingham, Alabama.1 After trial without a jury, the court found him “guilty as charged in the Complaint,” and imposed a sentence of imprison-ment for 180 days at hard labor and an additional 61 days at hard labor in default of a $100 fine and costs. The judgment of conviction was affirmed by the Alabama Court of Appeals, 42 Ala. App. 296, 161 So. 2d 796, and the Suprême Court of Alabama declined review. 276 Ala. 707, 161 So. 2d 799. We granted certiorari to con-sider the petitioner’s claim that under the Fourteenth Amendment of the United States Constitution his conviction cannot stand. 380 U. S. 905.
The two ordinances which Shuttlesworth was charged with violating are §§1142 and 1231 of the Birmingham General City Code. The relevant paragraph of § 1142 provides: “It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any Street or sidewalk in the city as to obstruct free passage over, on or along said Street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any Street or sidewalk of the city after having been requested by any police officer to move on.” Section 1231 provides: “It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer.” The two counts in the complaint were framed in the words of these ordinances.2
1 This was a trial de novo on appeal from a judgment of conviction in the Recorder’s Court of the City of Birmingham,
2	“Count One
Cornes the City of Birmingham, Alabama, a municipal corporation, and complains that F. L, Shuttlesworth, within twelve months
SHUTTLESWORTH v. BIRMINGHAM. 89
87	Opinion of the Court.
The evidence was in conflict, but the prosecution’s version of the facts can be briefly summarized. On April 4, 1962, at about 10:30 a. m., Patrohnan Byars of the Birmingham Police Department observed Shuttlesworth standing on a sidewalk with 10 or 12 companions outside a department store near the intersection of 2d Ave. and 19th St. in the City of Birmingham. After observing the group for a minute or so, Byars walked up and “told them they would hâve to move on and clear the sidewalk and not obstruct it for the pedestrians.” After some, but not ail, of the group began to disperse, Byars re-peated this request twice. In response to the second request, Shuttlesworth said, “You mean to say we can’t stand here on the sidewalk?” After the third request he replied, “Do you mean to tell me we can’t stand here in front of this store?” By this time everybody in the group but Shuttlesworth had begun to walk away, and Patrohnan Byars told him he was under arrest. Shuttlesworth then responded, “Well, I will go into the store,”
before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did stand, loiter or walk upon a Street or sidewalk within and among a group of other persons so as to obstruct free passage over, on or along said Street or sidewalk at, to-wit: 2nd Avenue, North, at 19th Street or did while in said group stand or loiter upon said Street or sidewalk after having been requested by a police officer to move on, contrary to and in violation of Section 1142 of the General City Code of Birming-ham of 1944, as amended by Ordinance Number 1436-F.
“Count Two
“Cornes the City of Birmingham, Alabama, a municipal corporation, and complains that F. L. Shuttlesworth, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did refuse to comply with a lawful order, signal or direction of a police officer, contrary to and in violation of Section 1231 of the General City Code of the City of Birmingham.”
90
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
and walked into the entrance of the adjacent department store. Byars followed and took him into custody just inside the store’s entrance.3
I.
On its face, the here relevant paragraph of § 1142 sets ont two separate and disjunctive offenses. The paragraph makes it an offense to “so stand, loiter or walk upon any Street or sidewalk . . . as to obstruct free passage over, on or along said Street or sidewalk.” The paragraph makes it “also . . . unlawful for any person to stand or loiter upon any Street or sidewalk . . . after having been requested by any police officer to move on.” (Emphasis added.) The first count of the complaint in this case, tracking the ordinance, charged these two separate offenses in the alternative.4
Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no démonstration.5 It “does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a police-man on his beat.” Cox v. Louisiana, 379 U. S. 536, 579 (separate opinion of Mr. Justice Black). Instinct with
3 The record contains many references to a so-called “sélective buying campaign” in which Birmingham Negroes were engaged at that time. There was no showing, however, of any connection between this campaign and the presence of the petitioner and his companions outside the department store on the morning of his arrest.
4 See note 2, supra.
5 Thomhili v. Alabama, 310 U. S. 88, 97; NAACP v. Button, 371 U. S. 415, 433, 435; Amsterdam, Note, The Void-for-Vagueness Doctrine in the Suprême Court, 109 U. Pa. L. Rev. 67, 75-81, 96-104 (1960). Cf. Smith v. California, 361 U. S. 147, 151; Baggett v. Bullitt, 377 U. S. 360, 371.
SHUTTLESWORTH v. BIRMINGHAM. 91
87	Opinion of the Court.
its ever-present potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police State.6
The matter is not one which need be exhaustively pur-sued, however, because, as the respondent correctly points out, the Alabama Court of Appeals has not read § 1142 literally, but has given to it an explicitly narrowed construction. The ordinance, that court has ruled, “is di-rected at obstructing the free passage over, on or along a Street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon. Our decisions make it clear that the mere refusai to move on after a police officer’s requesting that a person standing or loitering should do so is not enough to support the offense. . . . [T]here must also be a showing of the accused’s blocking free passage . . . .” Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 527, 170 So. 2d 424, 426.
The Alabama Court of Appeals has thus authorita-tively ruled that § 1142 applies only when a person who stands, loiters, or walks on a Street or sidewalk so as to obstruct free passage refuses to obey a request by an officer to move on. It is our duty, of course, to accept this state judicial construction of the ordinance. Win-ters v. New York, 333 U. S. 507; United States v. Burnison, 339 U. S. 87; Aero Mayflower Transit Co. v. Board of Railroad Comm’rs, 332 U. S. 495. As so con-strued, we cannot say that the ordinance is unconstitu-tional, though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.
The présent limiting construction of § 1142 was not given to the ordinance by the Alabama Court of Appeals,
6 Lovell v. City of Griffin, 303 U. S. 444, 451; Kunz v. New York, 340 U. S. 290, 293; Schneider v. State, 308 U. S. 147, 163-164.
92	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
however, until its decision in Middlebrooks, supra, two years after the petitioner’s conviction in the présent case.7 In Middlebrooks the Court of Appeals stated that it had applied its narrowed construction of the ordinance in affirming Shuttlesworth’s conviction, but its opinion in the présent case, 42 Ala. App. 296, 161 So. 2d 796, nowhere makes explicit any such construction. In any event, the trial court in the présent case was without guidance from any state appellate court as to the mean-ing of the ordinance.
The trial court made no findings of fact and rendered no opinion. For ail that appears, that court may hâve found the petitioner guilty only by applying the literal— and unconstitutional—terms of the ordinance. Upon the evidence before him, the trial judge as finder of the facts might easily hâve determined that the petitioner had created an obstruction, but had subsequently moved on. The court might alternatively hâve found that the petitioner himself had created no obstruction, but had simply disobeyed Patrolman Byars’ instruction to move on. In either circumstance the literal terms of the ordinance would apply; in neither circumstance would the ordinance be applicable as now construed by the Ala-bama Court of Appeals. Because we are unable to say that the Alabama courts in this case did not judge the petitioner by an unconstitutional construction of the ordinance, the petitioner’s conviction under § 1142 cannot stand.
7 The petitioner’s trial took place in October 1962. The Alabama Court of Appeals affirmed the judgment of conviction in November 1963. The Middlebrooks case was decided in October 1964. 42 Ala. App. 525, 170 So. 2d 424. The Middlebrooks construction of the ordinance was adumbrated in Smith v. City of Birmingham, decided the same day. 42 Ala. App. 467, 168 So. 2d 35.
SHUTTLESWORTH v. BIRMINGHAM. 93
87	Opinion of the Court.
II.
We find the petitioner’s conviction under the second count of the complaint, for violation of § 1231 of the General City Code, to be constitutionally invalid for a completely distinct reason. That ordinance makes it a criminal offense for any person “to refuse or fail to com-ply with any lawful order, signal or direction of a police officer.” Like the provisions of § 1142 discussed above, the literal terms of this ordinance are so broad as to evoke constitutional doubts of the utmost gravity. But the Alabama Court of Appeals has confined this ordinance to a relatively narrow scope. In reversing the conviction of the petitioner’s codefendant, the court said of § 1231 : “This section appears in the chapter regulating vehicular traffic, and provides for the enforcement of the orders of the officers of the police department in direct-ing such traffic.” Phifer v. City of Birmingham, 42 Ala. App. 282, 285, 160 So. 2d 898, 901.8
The record contains no evidence whatever that Patrol-man Byars was directing vehicular traffic at the time he told the petitioner and his companions to move on. Whatever Patrolman Byars’ other generally assigned duties may hâve been,9 he testified unambiguously that
8 Cf. Shelton v. City of Birmingham, 42 Ala. App. 371, 165 So. 2d 912, affirming the conviction of a défendant who refused to obey an officer’s direction to get ont of the middle of a Street which had been closed to private vehicles and in which “[p]olice cars and fire engines were being used to move and quiet the crowd.”
9 Patrolman Byars testified that on the morning in question he was a “utility officer,” and that as such he was “in charge of the direction and movement of ail traffic at 3rd Avenue and 19th Street and four blocks in an east, west, north and south direction.” He conceded that he was “not regularly placed” at the intersection where the arrest occurred, and that he had “nothing to do with the other officers who were also there.”
94
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
he directed the petitioner’s group to move on, to “clear the sidewalk and not obstruct it for the pedestrians.” 10
Five years ago this Court decided the case of Thompson v. City of Louisville, 362 U. S. 199. There we reversed the conviction of a man who had been found guilty in the police court of Louisville, Kentucky, of loitering and disorderly conduct. The proposition for which that case stands is simple and clear. It has noth-ing to do with concepts relating to the weight or suffi-ciency of the evidence in any particular case. It goes, rather, to the most basic concepts of due process of law. Its application in Thompson’s case turned, as Mb. Jus-
10 The record shows that the officer directing vehicular traffic at the intersection of 2d Ave. and 19th St. at the time of the petitioner’s arrest was Officer Hallman. His relevant testimony was as follows:
“Q. Now, you observe on these corners from your position here when you police that corner, do you not?
“A. I try to.
“Q. Had you seen these people over there blocking traffic before you saw Officer Byars?
“A. I saw him standing over there talking to them.
“Q. Did you see them before he was talking to them?
“A. I saw them over there. I didn’t pay any particular attention to them.
“Q. Did you get the impression they were waiting for the light to change ?
“A. I couldn’t answer that because I don’t know what they had on their mind.
“Q. You formed no impression when you first saw them?
“A. No.
“Q. You took no note of them when you first saw them, is that right ?
“A. Just saw them standing over there.
“Q. The only time you made note of them standing over there was when you saw the policeman assisting you talking to them?
“A. When I saw him over there talking to them. He wasn’t assisting me.
“Q. He wasn’t assisting you with your corner.
“A. No.”
SHUTTLESWORTH v. BIRMINGHAM. 95
87	Douglas, J., concurring.
tice Black pointed out, “not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at ail.” 362 U. S., at 199. The Court found there was “no evidence whatever in the record to support these convictions,” and held that it was “a violation of due process to convict and punish a man without evidence of his guilt.” 362 U. S., at 206. See also Gamer v. Louisiana, 368 U. S. 157.
No more need be said in this case with respect to the petitioner’s conviction for violating § 1231 of the General Code of the City of Birmingham, Alabama. Quite sim-ply, the petitioner was not in, on, or around any vehicle at the time he was directed to move on or at the time he was arrested. He was a pedestrian. Officer Byars did not issue any direction to the petitioner in the course of directing vehicular traffic, because Officer Byars was not then directing any such traffic. There was thus no evidence whatever in the record to support the petitioner’s conviction under this ordinance as it has been authorita-tively construed by the Alabama Court of Appeals. It was a violation of due process to convict and punish him without evidence of his guilt.
For these reasons the judgment is reversed and the case is remanded to the Court of Appeals of Alabama for proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Douglas, concurring.
I join Part II of the Court’s opinion but would reverse on Count I for a somewhat different reason. The police power of a municipality is certainly ample to deal with ail traffic conditions on the streets—pedestrian as well as vehicular. So there could be no doubt that if petitioner were one member of a group obstructing a sidewalk he could, pursuant to a narrowly drawn ordinance, be asked to move on and, if he refused, be arrested for the obstrue-
96
382 U. S.
OCTOBER TERM, 1965.
Appendix to opinion of Douglas, J.
tion. But in this case the testimony is that the group dissolved when warned by the police, save only the peti-tioner.* At the time of the arrest petitioner was no longer blocking traffic. Section 1142 of the Birmingham General Code makes it unlawful to “obstruct the free passage of persons on . . . sidewalks.” The ordinance, as it has been construed by the Alabama Court of Ap-peals, has been held to apply only to one who continues to block a sidewalk after a police warning to move. Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 527,170 So. 2d 424,426. There was no such “obstructing” here, unless petitioner’s presence on the Street was itself enough. Failure to obey such an order, when one is not acting unlawfully, certainly cannot be made a crime in a country where freedom of locomotion {Edwards v. California, 314 U. S. 160) is honored. For these reasons I think there was no evidence, within the meaning of Thompson v. City of Louisville, 362 U. S. 199, to sustain the conviction and hence I would reverse the judgment outright.
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
Officer Robert L. Byars, who made the arrest, testified on cross-examination as follows:
“Q. How many persons were standing there at that intersection when you first observed it?
“A. Some ten or twelve.
“Q. Were they ail colored or white people, or alto-gether or what?
“A. I didn’t pay particular notice to the race.
“Q. You stood there a minute or minute and a half and then you went out and cleared the intersection?
“A. I went out and asked them to move.
*See Appendix hereto.
SHUTTLESWORTH v. BIRMINGHAM. 97
87	Appendix to opinion of Douglas, J.
“Q. Was that great big crowd out there and the intersection completely blocked? You testified you had half of the south-north cross walk free, that the défendants were not blocking half of the south-north cross walk, they were standing in the west part of the cross walk where they should be standing assuming they were going south, they were not blocking the east-west cross walk at ail? Now, where was the crowd that was blocking?
“A. They were ail standing on the sidewalk.
“Q. You mean the crowd?
“A. That’s right, including the défendant.
“Q. Now, you placed the défendants where you hâve the X. Now, the crowd is what we are interested in now, the crowd they were blocking, where were they?
“Mr. Walker: We object. There has been no testi-mony that there was a crowd that was being blocked; the testimony is there was a crowd blocking the moving traffic.
“Q. Are these défendants charged then with assem-bling the crowd or something? Who were they blocking? Where were the persons they were blocking, these two défendants here?
“A. They were blocking half of the sidewalk causing the people walking east to go into the Street around them.
“Q. The people walking east along what Street?
“A. Along 2nd Avenue.
“Q. Along this way (indicating) ?
“A. That’s right.
“Q. The people walking along 2nd Avenue from west to east had to go around them?
“A. That is true.
“Q. While they stood there?
“A. That is true.
“Q. And you observed that for a minute or minute and a half?
786-211 0-66—16
98
382 U. S.
OCTOBER TERM, 1965.
Appendix to opinion of Douglas, J.
“A. That is true.
“Q. And then you went out and you required them to move on. Did you speak directly to the Défendant Shuttlesworth?
“A. I spoke to the people standing assembled there.
“Q. They ail moved but him, is that correct?
“A. Not on the first request they didn’t ail move. Some began to move.
“Q. Well, ail had moved by the time you made the arrest?
“A. Except Shuttlesworth.
“Q. Nobody was standing there but Shuttlesworth?
“A. Nobody was standing; everybody else was in motion except the Défendant Shuttlesworth, who had never moved.
“Q. Was he talking to you during this time?
“A. He made a statement to me on two occasions when I informed him to move on on three occasions.
“Q. Did he ask you where you wanted him to move?
“A. No.
“Q. Did you tell him where to move?
“A. I did not.
“Q. You didn’t arrest anybody but Shuttlesworth?
“A. Not at that time.” (R. 27-28.)
Officer C. W. Hallman, who observed the above after having been called over by Officer Byars, testified on direct examination as follows:
“Q. About how many was in the group at that time, if you know?
“A. I would say five or six. It could hâve been more or less.
“Q. What happened to the group then, if anything?
“A. Ail of them dispersed except Shuttlesworth.
“Q. What happened after that?
“A. Officer Byars told him he was under arrest for blocking the sidewalk and placed him under arrest.” (R. 59-60.)
SHUTTLESWORTH v. BIRMINGHAM. 99
87	Portas, J., concurring.
Mr. Justice Brennan, concurring.
I join the Court’s opinion on my understanding that Middlébrooks v. City oj Birmingham is being read as holding that § 1142 applies only when a person (a) stands, loiters or walks on a Street or sidewalk so as to obstruct free passage, (b) is requested by an officer to move on, and (c) thereafter continues to block passage by loitering or standing on the Street. It is only this limiting construction which saves the statute from the constitutional challenge that it is overly broad. More-over, because this construction delimits the statute to “the sort of ‘hard-core’ conduct that would obviously be prohibited under any construction,” Dombrowski v. Pfister, 380 U. S. 479, 491-492, it may be legitimately ap-plied to such conduct occurring before that construction.
Mr. Justice Portas, with whom The Chief Justice joins, concurring.
I agréé that Shuttlesworth’s conviction must be set aside. But I am concerned lest the opinion of the Court be considered as indicating. that Shuttlesworth can con-stitutionally be convicted of violating the General Code of the City of Birmingham, Alabama, on the facts here presented. Any such conviction would violate basic constitutional guaranties. I would make this clear now.
The Court’s opinion does not challenge the constitu-tionality of § 1142 of the Birmingham Code as that section was construed by the Alabama Court of Appeals two years after Shuttlesworth’s conviction. The opinion may be read to imply that if Shuttlesworth is now put to trial for violation of § 1142, as construed, the vice of the présent conviction may be eliminated. I would make it clear that the Fédéral Constitution forbids a conviction on the facts of this record, regardless of the validity of the ordinance involved.
100	OCTOBER TERM, 1965.
Fortas, J., concurring.	382 U. S.
I agréé that, as construed by Alabama two years after Shuttlesworth was convicted, § 1142 cannot be held un-constitutional on its face. I agréé that if there were a rational basis for charging Shuttlesworth with violating the section as so construed, he could be retried if Alabama should choose so vigorously to protect the sidewalks of Birmingham. Civil rights leaders, like ail other per-sons, are subject to the law and must comply with it. Their calling carries no immunity. Their cause confers no privilège to break or disregard the law.
But there is here no possible basis for a conviction which would be valid under the Fédéral Constitution. The accused provision would be unconstitutional as ap-plied to Shuttlesworth’s facts even after the plastic sur-gery by Alabama’s Court of Appeals in 1964. Middle-brooks v. City of Birmingham, 42 Ala. App. 525, 170 So. 2d 424.1 A révision of the formula does not and cannot change the facts; and those facts do not permit the State to jail Shuttlesworth for his actions on April 4, 1962.
Taking the prosecution’s version of the facts, it appears that Shuttlesworth was one of a group of 8, 10 or 122 persons who at 10:30 a. m. on April 4,1962, were accosted by a patrohnan after they had stood for a minute or a minute and a half at 19th Street and 2d Avenue in Birmingham. They occupied one-half of the sidewalk. They were conversing among themselves. There is no suggestion of disorder or of deliberate obstruction of pedestrian traffic. After the first command by the pa-
1As the Court’s opinion herein points out, in Middlebrooks, the Court of Appeals stated that its narrowed construction of the ordinance had been the “ratio decidendi” of Shuttlesworth, deeided a year earlier. But there is no indication of this in Shuttlesworth itself.
2 Officer Renshaw testified there were 8, 10 or 12 people in the group (R. 40). Officer Byars testified to 10 or 12 (R. 17).
SHUTTLESWORTH v. BIRMINGHAM. 101
87	Fortas, J., concurring.
trolman, the group commenced to move away. The offi-cer repeated his command, and Shuttlesworth said, “You mean to say we can’t stand here on the sidewalk?” After the third command, Shuttlesworth said, “Do you mean to tell me we can’t stand here in front of this store?” The officer then told Shuttlesworth he was under arrest. Shuttlesworth said he would go into the store. The officer followed and arrested him. There was no résistance. By this time everybody in the group except Shuttlesworth had moved away. The entire incident took less than four and one-half minutes, from arrivai of Shuttlesworth and his friends at the corner to his arrest.
For this, Shuttlesworth was tried, convicted and sen-tenced to spend half a year at hard labor and to pay a fine of $100.
In my view, there is nothing in the facts which justified an arrest and conviction. Prior to the officer’s command the situation was that a small group of people occupy-ing one-half of the sidewalk were engaged in orderly conversation. Promptly upon the officer’s command, the group began to disperse and only Shuttlesworth re-mained. He, alone, cannot be held to hâve blocked the sidewalk. His rhetorical questions may hâve irritated the patrolman ; but a policeman’s lot is not a happy one— and certainly, in context, Shuttlesworth’s questions did not rise to the magnitude of an offense against the laws of Alabama. If one were to confine oneself to the surface version of the facts, a general alarm for the people of Birmingham would be in order. Their use of the side-walks would be hazardous beyond measure.
But this, of course, is fiction. It is façade for a nar-rower, but no less disagreeable, truth. On April 4, 1962, the Negroes of Birmingham were engaged in a “sélective buying campaign”—an attempted boycott—of Birming-ham’s stores for the purpose of protesting discrimination against them. Shuttlesworth and his companions were
102
OCTOBER TERM, 1965.
382 U. S.
Fortas, J., concurring.
Negroes.3 They were standing in front of a department store. Shuttlesworth, as an officer who participated in the arrest testified, was a “notorious” person in the field of civil rights in Birmingham.4
In my view the net effect of the facts in this case is inescapable. Shuttlesworth’s arrest was an incident in the tense racial conflict in Birmingham. This may ex-plain the arrest, but it adds nothing to its lawfulness. There is no basis in the facts and circumstances of the case for charging that Shuttlesworth was “blocking free passage” on the sidewalk, Middlebrooks, supra, at 527, 170 So. 2d, at 426, or that he culpably refused to obey an order of an officer to move on, or remained after such an order so as to justify arrest, trial or conviction. Any attempt to punish Shuttlesworth in these circumstances would, in my view, violate the Fourteenth Amendment of the Fédéral Constitution.
3Testimony of Officer Renshaw (R. 49). Officer Byars testified that he didn’t know what color they were (R. 27, 36).
4 The principal arresting officer testified that he did not recognize Shuttlesworth, but he had seen his picture on télévision. He had heard of him, had read that he had frequently been arrested, and that he had been in the Birmingham jail. Shuttlesworth’s walk on April 4, 1962, started during a recess in a fédéral court civil rights trial in which he was involved. The trial had been publicized.
BRADLEY v. SCHOOL BOARD.
103
Per Curiam.
BRADLEY et al. v. SCHOOL BOARD OF CITY OF RICHMOND et al.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 415. Decided November 15, 1965*
The lower court approved school desegregation plans for Hopewell and Richmond, Virginia, without full inquiry into petitioners’ contention that faculty allocation on an alleged racial basis invalidated the plans. Held: Petitioners were entitled to full evidentiary hearings on their contention, and such hearings should be held without delay.
Certiorari granted; 345 F. 2d 310; 345 F. 2d 325, judgments vacated and remanded.
Jack Greenberg, James M. Nabrit III, S. W. Tucker and Henry L. Marsh III for petitioners in both cases.
J. Elliott Drinard and Henry T. Wickham for respond-ents in No. 415. Frederick T. Gray for respondents in No. 416.
Per Curiam.
The pétitions for writs of certiorari to the Court of Appeals for the Fourth Circuit are granted for the pur-pose of deciding whether it is proper to approve school desegregation plans without considering, at a full evidentiary hearing, the impact on those plans of faculty allocation on an alleged racial basis. We hold that the Court of Appeals erred in both these cases in this regard, 345 F. 2d 310, 319-321; 345 F. 2d 325, 328.
Plans for desegregating the public school Systems of Hopewell and Richmond, Virginia, were approved by the
*Together with No. 416, GiUiam et al. v. School Board of City of Hopewell et al., also on pétition for writ of certiorari to the same court.
104
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
District Court for the Eastern District of Virginia with-out full inquiry into petitioners’ contention that faculty allocation on an alleged racial basis rendered the plans inadéquate under the principles of Brown v. Board of Education, 347 U. S. 483. The Court of Appeals, while recognizing the standing of petitioners, as parents and pupils, to taise this contention, declined to décidé its merits because no evidentiary hearings had been held on this issue. But instead of remanding the cases for such hearings prior to final approval of the plans, the Court of Appeals held that “[w]hether and when such an inquiry is to be had are matters with respect to which the District Court . . . has a large measure of discrétion,” and it reasoned as follows:
“When direct measures are employed to eliminate ail direct discrimination in the assignment of pupils, a District Court may defer inquiry as to the appro-priateness of supplémentai measures until the effect and the sufficiency of the direct ones may be deter-mined. The possible relation of a reassignment of teachers to protection of the constitutional rights of pupils need not be determined when it is spéculative. When ail direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may be expected to follow the racial patterns established in the schools. An earlier judicial requirement of general reassignment of ail teaching and administrative personnel need not be considered until the possible detrimental effects of such an order upon the administration of the schools and the efficiency of their staffs can be appraised along with the need for such an order in aid of protection of the constitutional rights of pupils.” 345 F. 2d, at 320-321.
BRADLEY v. SCHOOL BOARD.
105
103	Per Curiam.
We hold that petitioners were entitled to such full evidentiary hearings upon their contention. There is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely spéculative. Nor can we perceive any reason for postponing these hearings: Each plan had been in operation for at least one academie year; these suits had been pending for several years; and more than a decade has passed since we directed desegregation of public school facilities “with ail deliberate speed,” Brown v. Board oj Education, 349 U. S. 294, 301. Delays in desegregating school Systems are no longer tolerable. Goss v. Board oj Education, 373 U. S. 683, 689; Calhoun v. Latimer, 377 U. S. 263, 264-265; see Watson v. City of Memphis, 373 U. S. 526.
The judgments of the Court of Appeals are vacated and the cases are remanded to the District Court for evidentiary hearings consistent with this opinion. We, of course, express no views of the merits of the desegregation plans submitted, nor is further judicial review precluded in these cases following the hearings.
Vacated and remanded.
106
OCTOBER TERM, 1965.
November 15, 1965.
382 U. S.
ALABAMA HIGHWAY EXPRESS, INC., et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA.
No. 447. Decided November 15, 1965.
241 F. Supp. 290, affirmed.
James W. Wrape and Robert E. Joyner for appellants.
Soliciter General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Robert W. Ginnane and Robert S. Burk for the United States et al.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
BURNHAM VAN SERVICE et al. v. PENTECOST et al.
APPEAL FROM THE SUPREME COURT OF TENNESSEE.
No. 494. Decided November 15, 1965.
Appeal dismissed.
J. G. Lackey, Jr., for appellants.
George F. McCanless, Attorney General of Tennessee, and Milton P. Rice, Assistant Attorney General, for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
DECISIONS PER CURIAM.
107
382 U. S.	November 15, 1965.
MICHIGAN BELL TELEPHONE CO. v. CITY OF DETROIT.
APPEAL FROM THE SUPREME COURT OF MICHIGAN.
No. 497. Decided November 15, 1965*
374 Mich. 543, 132 N. W. 2d 660, appeals dismissed and certiorari denied.
Thomas G. Long, James M. Smith and Donald E. Brown for appellant in No. 497. Harvey A. Fischer and Richard Ford for appellant in No. 498.
John H. Witherspoon for appellee.
Per Curiam.
The motions to dismiss are granted and the appeals are dismissed for want of jurisdiction. Treating the papers whereon the appeals were taken as pétitions for writs of certiorari, certiorari is denied.
FERNANDEZ v. BABARE et ux.
APPEAL FROM THE SUPREME COURT OF OREGON.
No. 610, Mise. Decided November 15, 1965.
Appeal dismissed.
Howard R. Lonergan for appellant.
Per Curiam.
The appeal is dismissed for want of a substantial fédéral question.
*Together with No. 498, Detroit Edison Co. v. City of Detroit, also on appeal from the same court.
108
OCTOBER TERM, 1965.
November 15, 1965.
382 U. S.
ADELMAN et al. v. LOWER MINNESOTA RIVER WATERSHED DISTRICT.
APPEAL FROM THE SUPREME COURT OF MINNESOTA.
No. 512. Deeided November 15, 1965.
271 Minn. 216, 135 N. W. 2d 670, appeal dismissed and certiorari denied.
Thomas E. Ticen for appellants.
Raymond A. Haik for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
WILSON v. COMMISSIONER OF INTERNAL REVENUE.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 520. Deeided November 15, 1965.
340 F. 2d 609, appeal dismissed and certiorari denied.
Appellant pro se.
Solicitor General Marshall, Acting Assistant Attorney General Roberts and Melva M. Graney for appellee.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
DECISIONS PER CURIAM.
109
382 U. S.	November 15, 1965.
HAINSWORTH v. MARTIN, SECRETARY OF STATE OF TEXAS, et al.
APPEAL FROM THE SUPREME COURT OF TEXAS.
No. 477. Decided November 15, 1965.
Judgment of Court of Civil Appeals of Texas, Third Suprême Judicial District, 386 S. W. 2d 202, vacated and remanded to that court.
Robert W. Hainsworth, appellant, pro se.
Waggoner Carr, Attorney General of Texas, and Haw-thorne Phillips, Pat Bailey and Mary K. Wall, Assistant Attorneys General, for appellees.
Per Curiam.
This cause having become moot in the light of the enactment of the Texas Apportionment Act of 1965, the judgment of the Court of Civil Appeals, Third Suprême Judicial District of Texas, is vacated, and the cause is remanded for such proceedings as by that court may be deemed appropriate.
Mr. Justice Harlan and Mr. Justice Stewart would dismiss the appeal for want of a substantial fédéral question.
Mr. Justice Portas took no part in the considération or decision of this case.
110
OCTOBER TERM, 1965.
November 15, 1965.
382 U. S.
ROSENBLATT v. AMERICAN CYANAMID CO.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 501. Decided November 15, 1965.
Appeal dismissed.
E. Barrett Prettyman, Jr., and Thomas J. O’Toole for appellant.
Per Curiam.
The appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Harlan took no part in the considération or decision of this case.
SWIFT & CO. v. WICKHAM.
111
Syllabus.
SWIFT & CO., INC., et al. v. WICKHAM, COMMIS-SIONER OF AGRICULTURE & MARKETS
OF NEW YORK.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 9. Argued October 13, 1965.—Decided November 22, 1965.
Appellants, two meat-packing companies, sued in the Fédéral District Court to enjoin enforCement of a New York statute requiring that the label for packaged poultry disclose the weight of the unstuffed bird as well as of the entire package. Appellants claimed that the state statute violated the Commerce Clause, the Four-teenth Amendment, and overriding fédéral labeling requirements under which the state label had been disapproved. A three-judge District Court was convened under 28 U. S. C. § 2281, providing for such a tribunal whenever the enforcement of a state statute is sought to be enjoined “upon the ground of the unconstitution-ality of such statute.” That court dismissed on the merits in both its single-judge and three-judge capacities, and appeals were taken respectively to the Court of Appeals and (under 28 U. S. C. § 1253) to this Court. Held: The three-judge court requirement applies to injunction suits depending directly upon a substantive provision of the Constitution and does not apply to Supremacy Clause cases involving only federal-state statutory conflicts. Pp. 114-129.
(a)	Appellants’ Commerce Clause and Fourteenth Amendment claims are too insubstantial to support three-judge court juris-diction. Pp. 114-115.
(b)	A claim that a state statute is pre-empted by or in conflict with a fédéral provision though grounded in the Supremacy Clause primarily involves the comparison of two statutes, rather than the interprétation of the Constitution; therefore, as established in Ex parte Buder, 271 U. S. 461; Ex parte Bransford, 310 U. S. 354; and Case v. Boules, 327 U. S. 92, Supremacy Clause cases are not within the purview of §2281. Pp. 120-122.
(c)	The holding in Kesler v. Department of Public Safety, 369 U. S. 153, that a three-judge court is required if the constitutional issue is “immediately” apparent but not if substantial statutory
112
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
construction is required, is unworkable, and that decision is pro tanto overruled. Pp. 124-129.
230 F. Supp. 398, appeal dismissed.
William J. Condon argued the cause for appellants. With him on the brief were William J. Colavito, William P. Woods, Arthur C. O’Meara, Earl G. Spiker and Edmund L. Jones.
Samuel A. Hirshowitz, First Assistant Attorney General of New York, argued the cause for appellee. With him on the brief were Louis J. Lefkowitz, Attorney General, and Philip Kahaner, Lester Esterman and Joël Lewittes, Assistant Attorneys General.
Joseph O. Parker and L. Alton Denslow filed a brief for the Institute of American Poultry Industries, as amicus curiae, urging reversai.
Solicitor General Marshall, Assistant Attorney General Douglas, Jack S. Levin, Sherman L. Cohn and Richard S. Salzman filed a brief for the United States, as amicus curiae, urging affirmance.
Mr. Justice Harlan delivered the opinion of the Court.
Appellants, the Swift and Armour Companies, stuff, freeze, and package turkeys which they ship to retailers throughout the country for ultimate sale to consumers. Each package is labeled with the net weight of the partic-ular bird (including stuffing) in conformity with a govern-ing fédéral statute, the Poultry Products Inspection Act of 1957, 71 Stat. 441, 21 U. S. C. §§ 451-469 (1964 ed.), and the régulations issued under its authority by the Secretary of Agriculture.1 Many of these turkeys are
1 Section 457 (b) déclarés:
“The use of any written, printed or graphie matter upon or accompanying any poultry product inspected or required to be
SWIFT & CO. v. WICKHAM.
113
111	Opinion of the Court.
sold in New York. Section 193 of New York’s Agriculture and Markets Law2 has been interpreted through régulations and rulings to require that these packaged turkeys be sold with labels informing the public of the weight of the unstuffed bird as well as of the entire package. Because the amount of stuffing varies with each bird, the State thus seeks to help purchasers ascertain just how much fowl is included in each ready-for-the-oven turkey.
Swift and Armour requested permission of the Poul-try Products Section of the Department of Agriculture to change their labels in order to conform with New York’s requirements, but such permission was refused at the initial administrative level and no administrative review of that refusai was sought. Swift and Armour
inspected pursuant to the provisions of this chapter or the container thereof which is false or misleading in any particular is prohibited.” Section 458 (d) prohibits “Using in commerce, or in a designated major consuming area, a false or misleading label on any poultry product.”
The Secretary of Agriculture is authorized by § 463 to issue régulations. 7 CFR §81.125 requires containers to bear “approved labels”; § 81.130 (a) (3) déclarés that labels must include the net weight of the contents and that “The net weight marked on containers of poultry products shall be the net weight of the poultry Products and shall not include the weights of the wet or dry packaging materials and giblet wrapping materials.”
2 Section 193-3 provides:
“Ail food and food products offered for sale at retail and not in containers shall be sold or offered for sale by net weight, standard measure or numerical count under such régulations as may be prescribed by the commissioner.”
Net weight was not defined in the régulation, 1 NYCRR §221.40 (now § 221.9 (c)), but “[t]he Director of the Bureau of Weights and Measures of the Department testified that he interpreted the régulation, as applied to stuffed turkeys, to require statement of the net weight both of the unstuffed and of the stuffed bird, and that, when asked, he so advised local sealers of weights and measures.” Swijt & Co. v. Wickham, 230 F. Supp. 398, 401 (1964).
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Opinion of the Court.
then brought this fédéral action to enjoin the Commis-sioner of Agriculture and Markets of New York from enforcing the State’s labeling provisions, asserting that enforcement would violate the Commerce Clause and the Fourteenth Amendment of the Fédéral Constitution and overriding requirements of the fédéral poultry enactment.
Pursuant to appellants’ request, a three-judge district court was constituted under 28 U. S. C. § 2281 (1958 ed.), which provides for such a tribunal whenever the enforcement of a state statute is sought to be enjoined “upon the ground of the unconstitutionality of such statute.” The District Court, unsure of its jurisdiction for reasons appearing below, dismissed the suit on the merits3 acting both in a three-judge and single-judge capacity.4 Ap-peals were lodged in the Court of Appeals for the Second Circuit from the single-judge détermination, and in this Court from the three-judge decision in accordance with the direct appeal statute, 28 U. S. C. § 1253 (1964 ed.). The threshold question before us, the considération of which we postponed to the merits (379 U. S. 997), is whether this Court, rather than the Court of Appeals, has jurisdiction to review the District Court détermination, and this in turn dépends on whether a three-judge court was required. We hold that it was not.
At the outset, we agréé with the District Court that the Commerce Clause and Fourteenth Amendment
3 The court below rejected appellants’ Commerce Clause and Fourteenth Amendment arguments, held that there had been no fédéral pre-emption of this field of régulation, and, though implying strongly that the New York labeling requirements did not conflict with fédéral requirements, held that this question should first be passed upon at a higher fédéral administrative level.
4 The three-judge court dismissed the complaint “certifying out of abundant caution” that the original district judge, also a member of the three-judge panel, “individually arrived at the same conclusion.” 230 F. Supp., at 410. This procedure for minimizing préjudice to litigants when the jurisdiction of a three-judge court is unclear has been used before, see Query v. United States, 316 U. S. 486.
SWIFT & CO. v. WICKHAM.
115
111	Opinion of the Court.
daims alleged in the complaint are too insubstantial to support the jurisdiction of a three-judge court. It has long been held that no such court is called for when the alleged constitutional claim is insubstantial, Ex parte Poresky, 290 U. S. 30; California Water Service Co. v. City of Redding, 304 U. S. 252. Since the only remain-ing basis put forth for enjoining enforcement of the State enactment was its asserted repugnancy to the fédéral statute, the District Court was quite right in concluding that the question of a three-judge court turned on the proper application of our 1962 decision in Kesler v. Department of Public Safety, 369 U. S. 153. There we decided that in suits to restrain the enforcement of a state statute allegedly in conflict with or in a field pre-empted by a fédéral statute, § 2281 cornes into play only when the Supremacy Clause of the Fédéral Constitution is immediately drawn in question, but not when issues of fédéral or state statutory construction must first be decided even though the Supremacy Clause may ultimately be implicated. Finding itself unable to say with assurance whether its resolution of the merits of this case involved less statutory construction than had taken place in Kesler, the District Court was left with the puzzling question how much more statutory construction than occurred in Kesler is necessary to deprive three judges of their jurisdiction.
It might suffice to dispose of the three-judge court issue for us to hold, in agreement with what the District Court indicated, 230 F. Supp., at 410, that this case involves so much more statutory construction than did Kesler that a three-judge court was inappropriate. (We would indeed find it difficult to say that less or no more statutory construction was involved here than in Kesler and that therefore under that decision a three-judge court was necessary.) We think, however, that such a disposition of this important jurisdictional question would be
116
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Opinion of the Court.
less than satisfactory, that candor compels us to say that we find the application of the Kesler rule as elusive as did the District Court, and that we would fall short in our responsibilities if we did not accept this opportunity to take a fresh look at the problem. We believe that considérations of stare decisis should not deter us from this course. Unless inexorably commanded by statute, a pro.-cedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous conséquences to litigants and courts alike from the perpétuation of an unworkable rule are too great. For reasons given in this opinion, we hâve concluded that the Kesler doctrine in this area of § 2281 is unsatisfactory, and that Kesler should be pro tanto overruled. The overruling of a six-to-two decision 5 of such recent vintage, which was concurred in by two members of the majority in the présent case,6 and the opinion in support of which was written by an acknowledged expert in the field of fédéral jurisdiction, demands full explication of our reasons.
I.
The three-judge district court is a unique feature of our jurisprudence, created to alleviate a spécifie discontent within the fédéral System. The antécédent of § 2281 was a 1910 Act7 passed to assuage growing popu-lar displeasure with the frequent grants of injunctions by fédéral courts against the operation of state législation regulating railroads and utilities in particular.8 The
5 Mr. Justice Whittaker took no part in the decision of the case.
6 Mr. Justice Brennan and the présent writer were included in the Kesler majority.
7 Act of June 18, 1910, c. 309, § 17, 36 Stat. 557.
8 See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3-9 (1964) ; Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795 (1934); Warren, Fédéral
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fédéral courts of the early nineteenth century had occa-sionally issued injunctions at the behest of private liti-gants against state officiais to prevent the enforcement of state statutes,9 but such cases were rare and generally of a character that did not offend important state policies. The advent of the Granger and labor movements in the late nineteenth century,10 and the accélération of state social législation especially through the création of regu-latory bodies met with opposition in the fédéral judi-ciary. In Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, this Court held that the setting of rates not permitting a fair return violated the Due Process Clause of the Fourteenth Amendment. Ex parte Young, 209 U. S. 123, established firmly the corollary that inferior fédéral courts could enjoin state officiais from enforcing such unconstitutional state laws.
This confrontation between the uncertain contours of the Due Process Clause and developing state regulatory
and State Court Interférence, 43 Harv. L. Rev. 345 (1930). For more contemporary accounts see, e. g., Baldwin, Presidential Address: The Progressive Unfolding of the Powers of the United States, VI Am. Pol. Sci. Rev. 1, 8-9 (1912); Scott, The Increased Control of State Activities by the Fédéral Courts, III Am. Pol. Sci. Rev. 347 (1909). Although various types of state législation were being challenged in injunctive suits, see Lockwood, Maw, and Rosenberry, The Use of the Fédéral Injunction in Constitutional Litigation, 43 Harv. L. Rev. 426 (1930), most numerous and prominent were the railroad cases. Senator Overman noted that “. . . nine out of ten of the cases where application for an injunction has been made to test the constitutionality of state statutes hâve been railroad cases.” 45 Cong. Rec. 7254 (1910).
9E. g., Spooner v. McConnell, 22 Fed. Cas. 939 (No. 13245) (1838).
10 See S. J. Buck, The Granger Movement, esp. 194-214, 231-237 (1913) ; Jackson, The Struggle for Judicial Supremacy 48-68 (1949) ; 2 Warren, The Suprême Court in United States History 574-599 (1935). For the related story of the use of the equity power in the labor field, see Frankfurter and Greene, The Labor Injunction (1930).
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législation, arising in district courts that were generally considered unsympathetic to the policies of the States, had severe repercussions. Efforts were made in Congress to limit in various ways the jurisdiction of fédéral courts in these sensitive areas.11 State officiais spoke out against the obstruction and delay occasioned by these fédéral injunction suits.12 The sponsor of the bill establishing the three-judge procedure for these cases, Senator Overman of North Carolina, noted:
“[T]here are 150 cases of this kind now where one fédéral judge has tied the hands of the State officers, the governor, and the attorney-general ....
Whenever one judge stands up in a State and enjoins the governor and the attorney-general, the people resent it, and public sentiment is stirred, as it was in my State, when there was almost a rébellion, whereas if three judges déclaré that a state statute is unconstitutional the people would rest easy under it.” 45 Cong. Rec. 7256.13
11 See Hutcheson, supra, at 803-804.
12 See, e. g., 45 Cong. Rec. 7253 (1910) (remarks of Senator Craw-ford). Although some litigation of this sort dragged on for as much as five years, ïbid., it is not clear that most state courts were any more expeditious, see Lilienthal, The Fédéral Courts and State Régulation of Public Utilities, 43 Harv. L. Rev. 379,417 and n. 176 (1930).
13 Senator Overman was probably referring to Southern R. Co. v. McNeïll, 155 F. 756 (1907). There, after an injunction had been sustained by the Circuit Court, the Governor publicly urged state officiais to ignore it. The railway complained to the Court that “these attacks on the part of the Governor and state officiais against the company and its agents . . . had the effect of demoral-izing the servants, agents, and employés of the company to such an extent as to render it well nigh impossible for complainant to properly discharge the duties which it owed the public . . . .” Id., at 790-791.
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In such an atmosphère was this three-judge court procedure put on the statute books, and although subséquent Congresses hâve amended the statute14 its basic structure remains intact.
II.
Section 2281 was designed to provide a more respon-sible forum for the litigation of suits which, if successful, would render void state statutes embodying important State policies. The statute provides for notification to the State of a pending suit, 28 U. S. C. § 2284 (2) (1964 ed.), thus preventing ex parte injunctions common pre-viously.15 It provides for three judges, one of whom must be a circuit judge, 28 U. S. C. §2284(1) (1964 ed.), to allow a more authoritative détermination and less opportunity for individual prédilection in sensitive and politically emotional areas. It authorizes direct review by this Court, 28 U. S. C. § 1253, as a means of accel-erating a final détermination on the merits ; an important criticism of the pre-1910 procedure was directed at the
14 The procedure was extended to cover challenges to orders of state administrative commissions in 1913, 37 Stat. 1013, 28 U. S. C. § 2281, and in 1925 suits for permanent injunctions were brought within its purview, 43 Stat. 938, 28 U. S. C. §2281. Three-judge district courts are also required in certain suits arising under fédéral law. See Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv. L. Rev. 299, 300-301 and n. 19 (1963).
15 See Hutcheson, supra, at 800-801. Senator Crawford of South Dakota told the Congress that when his State Législature was debat-ing a maximum rate law, the railway companies had already prepared motions for injunctions:
“The statute passed and was presented to the govemor for his signature, and in less than an hour after he had signed the bill and it was filed in the office of the secretary of state a restraining order came by telegraph from a United States judge, enjoining the gover-nor and the attorney-general and ail the officers in the State from proceeding to enforce that statute.” 45 Cong. Rec. 7252 (1910).
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length of time required to appeal through the circuit courts to the Suprême Court, and the conséquent dis-ruption of state tax and regulatory programs caused by the outstanding injunction.16
That this procedure must be used in any suit for an injunction against state officiais on the ground that a state enactment is unconstitutional has been clear from the start. What yet remains unclear, in spite of decisions by this and other courts, is the scope of the phrase “upon the ground of the unconstitutionality of such statute” when the complaint allégés not the tradi-tional Due Process Clause, Equal Protection Clause, Commerce Clause, or Contract Clause arguments, but rather that the state statute or régulation in question is pre-empted by or in conflict with some fédéral statute or régulation thereunder. Any such pre-emption or conflict claim is of course grounded in the Supremacy Clause of the Constitution: if a state measure con-flicts with a fédéral requirement, the state provision must give way. Gibbons v. Ogden, 9 Wheat. 1. The basic question involved in these cases, however, is never one of interprétation of the Fédéral Constitution but inevitably one of comparing two statutes. Whether one district judge or three must carry out this function is the question at hand.
The first decision of this Court casting light on the problem was Ex parte Buder, 271 U. S. 461, in which the question presented was, as here, whether an appeal was properly taken directly from the District Court to the Suprême Court. At issue was whether a Missouri statute authorizing taxation of bank shares remained valid after the enactment of a fédéral statute which en-larged the scope of the States’ power to tax national banks by permitting taxation of shares, or dividends, or
16 See, id., at 7256 (remarks of Senator Crawford) ; note 12, supra.
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income. Under the fédéral scheme, States were appar-ently expected to choose one of the three methods. Al-though the Missouri law applied the first basis of assess-ment, the District Court held that because the State did not explicitly choose among the three types of taxation, but instead relied on a prior statute, the assessment was void. Mr. Justice Brandeis, writing for a unanimous Court, held that this was not properly a three-judge court case . because no state statute was assailed as being répugnant to the Fédéral Constitution.” 271 U. S., at 465. Although the complaint in Buder did not explicitly invoke the Supremacy Clause, it should be noted that the défendants’ answer asserted that if the fédéral statute was constitutional under the Tenth Amendment, then it would indeed be the “ ‘suprême law of the land’ within the meaning and provisions of Article VI of the Constitution of the United States,” and thus controlling over the particular state statute unless that statute could be construed as consistent with the fédéral law. The District Court in Buder was thus clearly pre-sented with the Supremacy Clause basis of the statutory conflict.
Ex parte Bransford, 310 U. S. 354, raised a similar problem, also in the context of the validity of a state tax. The Court again held this type of federal-state confrontation outside the purview of the predecessor of § 2281 :
“If such assessments are invalid, it is because they levy taxes upon property withdrawn from taxation by fédéral law or in a manner forbidden by the National Banking Act. The déclaration of the supremacy clause gives superiority to valid fédéral acts over conflicting state statutes but this superiority for présent purposes involves merely the construction of an act of Congress, not the constitu-tionality of the state enactment.” 310 U. S., at 358-359.
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In a third case, Case v. Bowles, 327 U. S. 92, the question involved the proposed sale by the State of Washington of timber on state-owned land at a price violating the Fédéral Emergency Price Control Act of 1942. A fédéral district court enjoined the sale, and on appeal the State argued that the single judge lacked jurisdiction. This Court held otherwise: “the complaint did not challenge the constitutionality of the State statute but alleged merely that its enforcement would violate the Emergency Price Control Act. Consequently a three-judge court is not required.” 327 U. S., at 97.17
The upshot of these decisions seems abundantly clear: Supremacy Clause cases are not within the purview of § 2281.18 This distinction between cases involving daims
17 This basic rule has been reiterated in other familiar cases where the facts did not require its application. See Query y. United States, 316 U. S. 486, where, however, a three-judge court was found neces-sary because other not insubstantial constitutional daims had been clearly asserted. In Florida Lime & Avocado Growêrs, Inc. v. Jacob-sen, 362 U. S. 73, the majority held that if a state statute is sought to be enjoined on constitutional grounds (Commerce Clause, Equal Protection) it did not matter that a “nonconstitutional” ground (pre-emption by the Fédéral Agricultural Marketing Agreement Act) was also asserted. Mr. Justice Frankfurter dissented, reasoning that the three-judge procedure should be read narrowly and that the mere availability of a “non-constitutional” basis for enjoining the state statute should give jurisdiction to a single judge. Both majority and dissent assumed that an attack upon a state enactment on the ground that it was inconsistent with a fédéral statute was such a “non-constitutional” ground.
18 None of these cases can be read to suggest that the resuit dépends on whether or not the complaint specifically invokes the Supremacy Clause, for that clause is the inévitable underpinning for the striking down of a state enactment which is inconsistent with fédéral law. See the quotation from Bransjord, supra, p. 121, a case in which the Supremacy Clause was not invoked in the complaint. See also the discussion of Ex parte Buder, supra, pp. 120-121. Nor do any
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that State statutes are unconstitutional within the scope of § 2281 and cases involving statutory pre-emption or conflict remained firm until Kesler v. Department of Public Safety, 369 U. S. 153, in which the plaintiff alleged a conflict between the fédéral bankruptcy laws and a state statute suspending the driving licenses of persons who are judgment debtors as a resuit of an adverse decision in an action involving the négligent operation of an automobile. It was argued that fédéral policy underlying the bankruptcy law overrode the State’s otherwise legitimate exercise of its police power. Mr. Justice Frankfurter, for a majority, declared first that § 2281 made no distinction between the Supremacy Clause and other provisions of the Constitution as a ground for denying enforcement of a state statute, and second that Buder, Bransford, and Case could be distin-guished on the ground that they presented no claims of unconstitutionality as such: “If in immédiate contro-versy is not the unconstitutionality of a state law but merely the construction of a state law or the fédéral law, the three-judge requirement does not become operative.” 369 U. S., at 157. In the Kesler case itself, Mr. Justice Frankfurter said, there was no problem of statutory construction but only a “constitutional question” whether the state enactment was pre-empted. After what can only be characterized as extensive statutory analysis (369 U. S., at 158-174) the majority concluded that there had in fact been no pre-emption.19
of these cases suggest that the issue tums on the amount of statutory construction involved, whether large, small, or simply of the char-acter that entails laying the alleged conflicting statutes side by side.
19 In dissent it was stated that the Kesler opinion “réfutés the very test which it establishes.” 369 U. S., at 177 (dissenting opinion of The Chief Justice). In addition, three Justices dissented in whole or in part from the conclusions derived from this statutory analysis.
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III.
In re-examining the Kesler rule the admonition that § 2281 is to be viewed “not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such,” Phillips v. United States, 312 U. S. 246, 251, should be kept in mind. The Kesler opinion itself reflects this admonition, for its rationaliza-tion of Buder, Bransford, and Case as being consistent with the view that Supremacy Clause cases are not exclu ded from “the comprehensive language of § 2281,” 369 U. S., at 156, is otherwise most difficult to explain.
As a procédural rule governing the distribution of judicial responsibility the test for applying § 2281 must be clearly formulated. The purpose of the three-judge scheme was in major part to expedite important litiga-tion: it should not be interpreted in such a way that litigation, like the présent one, is delayed while the proper composition of the tribunal is litigated. We are now convinced that the Kesler rule, distinguishing be-tween cases in which substantial statutory construction is required and those in which the constitutional issue is “immediately” apparent, is in practice unworkable. Not only has it been uniformly criticized by commenta-tors,20 but lower courts hâve quite evidently sought to avoid dealing with its application21 or hâve interpreted it with uncertainty.22 As Judge Friendly’s opinion for the court below demonstrates, in order to ascertain the
20 See Currie, supra, at 61-64 (1964) ; Note, 77 Harv. L. Rev. 299, 313-315 (1963); Note, 49 Va. L. Rev. 538, 553-555 (1963); 76 Harv. L. Rev. 168 (1962); 15 Stan. L. Rev. 565 (1963); 1962 U. DI. L. F. 467; 111 U. Pa. L. Rev. 113 (1962).
21 See Borden Co. v. Liddy, 309 F. 2d 871 ; American Travelers Club, Inc. v. Hostetter, 219 F. Supp. 95, 102, n. 7.
22 See, in addition to the case before us, Bartlett & Co. v. State Corp. Comm’n of Kansas, 223 F. Supp. 975.
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correct forum, the merits must first be adjudicated in order to discover whether the court has “engaged in so much more construction than in Kesler as to make that ruling inapplicable.” 230 F. Supp., at 410. Such a formulation, whatever its abstract justification, cannot stand as an every-day test for allocating litigation between district courts of one and three judges.
Two possible interprétations of § 2281 would provide a more practicable rule for three-judge court jurisdic-tion. The first is that Kesler might be extended to hold, as some of its language might be thought to indicate,23 that ail suits to enjoin the enforcement of a State statu te, whatever the fédéral ground, must be channeled through three-judge courts. The second is that no such suits resting solely on “supremacy” grounds fall within the statute.
The first alternative holds some attraction. First, it is relatively straightforward : a court need not distinguish among different constitutional grounds for the requested injunction; it need look only at the relief sought. More-over, in those cases, as in that before us, in which an injunction is sought on several grounds, the proper forum would not dépend on whether certain alleged constitutional grounds turn out to be insubstantial. Second, § 2281 speaks of “unconstitutionality,” and, to be sure, any détermination that a State statute is void for obstruct-ing a fédéral statute does rest on the Supremacy Clause of the Fédéral Constitution. And, third, there is some policy justification for a wider rule. In a broad sense, what concerned the legislators who passed the progenitor of § 2281 was the voiding of State législation by inferior fédéral courts. The sensibilities of the citizens, and
23 “Neither the language of § 2281 nor the purpose which gave rise to it affords the remotest reason for carving out an unfrivolous claim of unconstitutionality because of the Supremacy Clause from the comprehensive language of §2281.” 369 U. S., at 156.
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perhaps more particularly of the state officiais, were less likely to be offended, the Congress thought, by a judg-ment considered and handed down by three judges rather than by one judge. This rationale can be thought to be as applicable to a suit voiding state législation on grounds of conflict with a fédéral statute as it is to an identical suit alleging a conflict with the Fédéral Constitution directly.
Persuasive as these considérations may be, we believe that the reasons supporting the second interprétation, that is, returning to the traditional Buder-Bransford-Case rule, should carry the day. This restrictive view of the application of § 2281 is more consistent with a discrimi-nating reading of the statute itself than is the first and more embracing interprétation. The statute requires a three-judge court in order to restrain the enforcement of a state statute “upon the ground of the unconstitution-ality of such statute.” Since ail fédéral actions to en-join a state enactment rest ultimately on the Supremacy Clause,24 the words “upon the ground of the unconstitu-tionality of such statute” would appear to be superfluous unless they are read to exclude some types of such injunc-tive suits.25 For a simple provision prohibiting the restraint of the enforcement of any state statute except by a three-judge court would manifestly hâve sufficed to embrace every such suit whatever its particular consti-tutional ground. It is thus quite permissible to read
24 Art. VI, cl. 2. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and ail Treaties made, or which shall be made, under the Authority of the United States, shall be the suprême Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
25 The “unconstitutionality” clause of § 2281 can hardly be thought to encompass the voiding of a state statute for inconsistency with the state constitution. Cf. Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, 80.
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the phrase in question as one of limitation, signifying a congressional purpose to confine the three-judge court requirement to injunction suits depending directly upon a substantive provision of the Constitution, leaving cases of conflict with a fédéral statute (or treaty) to follow their normal course in a single-judge court. We do not suggest that this reading of § 2281 is compelled. We do say, however, that it is an entirely appropriate reading, and one that is supported by ail the precedents in this Court until Kesler and by sound policy considérations.
An examination of the origins of the three-judge procedure does not suggest what the legislators would hâve thought about this particular problem, but it does show quite clearly what sort of cases were of concern to them. Their ire was aroused by the frequent grants of injunc-tions against the enforcement of progressive state regu-latory législation, usually on substantive due process grounds. (See pp. 116-119, supra.) Requiring the collective judgment of three judges and accelerating appeals to this Court were designed to safeguard important state interests. In contrast, a case involving an alleged incom-patibility between state and fédéral statutes, such as the litigation before us, involves more confining legal analysis and can hardly be thought to raise the worrisome possibilities that économie or political prédilections will find their way into a judgment. Moreover, those who enacted the three-judge court statute should not be deemed to hâve been insensitive to the circumstance that single-judge decisions in conflict and pre-emption cases were always subject to the corrective power of Congress, whereas a “constitutional” decision by such a judge would be beyond that ready means of correction and could be dealt with only by constitutional amend-ment. The purpose of § 2281 to provide greater restraint and dignity at the district court level cannot well be thought generally applicable to cases that involve con-
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flicts between state and fédéral statutes, in this instance determining whether the Department of Agriculture’s régulations as applied to the labeling of total net weight on frozen stuffed turkeys necessarily renders invalid a New York statute requiring a supplémentai net weight figure which excludes the stuffing.
Our decision that three-judge courts are not required in Supremacy Clause cases involving only federal-state statutory conflicts, in addition to being most consistent with the statute’s structure, with pre-Kesler precedent, and with the section’s historical purpose, is buttressed by important considérations of judicial administration. As Mr. Justice Frankfurter observed in Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, 92-93 (dissenting opinion):
“[T]he convening of a three-judge trial court makes for dislocation of the normal structure and functioning of the lower fédéral courts, particularly in the vast non-metropolitan régions; and direct review of District Court judgments by this Court not only expands this Court’s obligatory jurisdiction but contradicts the dominant principle of having this Court review decisions only after they hâve gone through two judicial sieves . . . .”
Although the number of three-judge déterminations each year should not be exaggerated,26 this Court’s con-cern for efficient operation of the lower fédéral courts persuades us to return to the Buder-Bransjord-Case rule,
26 The statistics are summarized in Note, 77 Harv. L. Rev. 299, 303-305 (1963); Note, 72 Yale L. J. 1646, 1654-1659 (1963). The most recent figures show that ont of the 11,485 trials completed in district courts in fiscal 1965, only 147 were heard by three-judge courts. Of these 60 dealt with I. C. C. régulations, 35 with civil rights, and only 52 with state or local law. 1965 Dir. Adm. Off. U. S. Courts Ann. Rep. 11-25, 11-28.
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thereby conforming with the constrictive view of the three-judge jurisdiction which this Court has tradition-ally taken. Ex parte Collins, 277 U. S. 565; Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co., 292 U. S. 386; Rorick v. Board of Commissioners, 307 U. S. 208; Phillips v. United States, 312 U. S. 246.
We hold therefore that this appeal is not properly before us under 28 U. S. C. § 1253 and that appellate review lies in the Court of Appeals, where appellants’ alternative appeal is now pending. The appeal is dismissed for lack of jurisdiction.
It is so ordered.
Mr. Justice Douglas, with whom Mr. Justice Black and Mr. Justice Clark concur, dissenting.
Less than four years ago, this Court decided that a three-judge district court was required in suits brought under 28 U. S. C. § 2281, even though the alleged “ground of the unconstitutionality” of the challenged statute was based upon a conflict between state and fédéral statutes. Kesler v. Department of Public Safety, 369 U. S. 153.
A state statute may violate the Equal Protection Clause of the Fourteenth Amendment or the Due Process Clause or some other express provision of the Constitution. If so a three-judge court is plainly required by 28 U. S. C. § 2281. But the issue of the “unconstitutionality” of a state statute can be raised as clearly by a conflict between it and an Act of Congress as by a conflict between it and a provision of the Constitution. The Supremacy Clause, contained in Art. VI, cl. 2, of the Constitution, States as much in clear language :
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . .. shall be the suprême Law of the Land; and the
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Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
An issue of the “unconstitutionality” of a State statute is therefore presented whether the conflict is between a provision of the Constitution and a state enactment or between the latter and an Act of Congress. What Sen-ator Overman, author of the three-judge provision, said of it in 1910 is as relevant to enjoining a state law on the ground of fédéral pre-emption as it is to enjoining it because it violâtes the Fourteenth Amendment:
“The point is, this amendment is for peace and good order in the State. Whenever one judge stands up in a State and enjoins the governor and the attorney-general, the people resent it, and public sentiment is stirred, as it was in my State, when there was almost a rébellion, whereas if three judges déclaré that a state statute is unconstitutional the people would rest easy under it. But let one little judge stand up against the whole State, and you find the people of the State rising up in rébellion. The whole purpose of the proposed statute is for peace and good order among the people of the States.” 45 Cong. Rec. 7256.
Some of the most heated controversies between State and Nation which this Court has supervised hâve in-volved questions whether there was a conflict between a state statute and a fédéral one or whether a fédéral Act was so inclusive as to pre-empt state action in the particular area. One of the earliest and most tumultuous was Cohens v. Virginia, 6 Wheat. 264, 440, where the alleged unconstitutionality of a Virginia law was based on the argument that an Act of Congress, authorizing a lottery in the District of Columbia, barred Virginia from making it a criminal offense to sell lottery
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tickets within that State. The protest from the States was vociférons1 even though the Court in the end con-strued the fédéral Act to keep it from operating in Virginia. Id., at 447. I therefore see no différence between a charge of “unconstitutionality” of a state statute whether the conflict be between it and the Constitution or between it and a fédéral law. Neither the language of the Supremacy Clause nor reason nor history makes any différence plain.
Pre-emption or conflict of a state law with a fédéral one is a recurring theme2 arising in various contexts. The storm against Cohens v. Virginia was a protest against this Court’s acting as referee in a federal-state contest involving pre-emption or a conflict between the
1 See 1 Warren, The Suprême Court in United States History, p. 552 et seq. (1928).
“The Richmond Enquirer spoke of the opinion, ‘so important in its conséquences and so obnoxious in its doctrines,’ and said that ‘the very title of the case is enough to stir one’s blood.’ It feared that ‘the Judiciary power, with a foot as noiseless as time and a spirit as greedy as the grave, is sweeping to their destruction the rights of the States. . . . These encroachments hâve increased, are increasing and ought to be diminished’; and it advocated a repeal of the fatal Section of the Judiciary Act as ‘the most advis-able and constitutional remedy for the evil.’ A leading Ohio paper spoke of ‘the alarming progress of the Suprême Court in subvert-ing the Federalist principles of the Constitution and introducing on their ruins a mighty Consolidated empire fitted for the sceptre of a great monarch’; and it continued: ‘That the whole ténor of their decisions, when State-Rights hâve been involved, hâve had a direct tendency to reduce our govemors to the condition of mere provincial satraps, and that a silent acquiescence in these decisions will bring us to this lamentable resuit, is to us as clear as mathematical démonstration.’ ” Id., at 552-553.
2Thus the dissent in Cloverleaj Co. v. Patterson, 315 U. S. 148, 179, called that decision in favor of pre-emption “purely destructive législation.” And see Rice v. Santa Fe Elevator Corp., 331 U. S. 218; Campbell v. Hussey, 368 U. S. 297. Cf. Hostetter v. Idlewüd Liquor Corp., 377 U. S. 324.
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laws of the two régimes. Congress has recently been con-cerned with the problem in another aspect of the matter,3 when efforts were made to curb the doctrine of préemption by establishing standards for an interprétation of an Act of Congress.4 The three-judge court is only another facet of the self-same problem.
The history of 28 U. S. C. § 2281, as related by the Court, speaks of the concern of Congress over the power
3 H. R. 3, 88th Cong., Ist Sess., in material part provided:
“No Act of Congress shall be construed as indicating an intent on the part of Congress to occupy the field in which such Act opérâtes, to the exclusion of ail State laws on the same subject matter, unless such Act contains an express provision to that effect, or unless there is a direct and positive conflict between such Act and a State law so that the two cannot be reconciled or consistently stand together.”
The first version of the bill was introduced in 1956. The House Committee on the Judiciary made mimerons changes, limiting its application to the subject of subversion, and reported the bill out with a “do pass” recommendation. H. R. Rep. No. 2576, 84th Cong., 2d Sess. The Senate version, S. 3143, was not so narrowed in Committee. S. Rep. No. 2230, 84th Cong., 2d Sess. The bill was not passed in either the House or the Senate.
H. R. 3 was again introduced in the Eighty-fifth Congress. The Judiciary Committee again recommended that the bill “do pass,” but this time did not narrow its scope to the subject of subversion. See H. R. Rep. No. 1878, 85th Cong., 2d Sess. It was passed by the House on July 17, 1958.
H. R. 3, having once again been approved by the Judiciary Committee, H. R. Rep. No. 422, 86th Cong., Ist Sess., was approved by the House on June 24, 1959.
In the Eighty-seventh Congress, H. R. 3 was favorably reported out by the Judiciary Committee. H. R. Rep. No. 1820, 87th Cong., 2d Sess., but was not acted upon by the full House.
4 The concern of Congress in this chapter of federal-state relations did not concern the three-judge court problem but the broader aspects envisaged by such cases as Pennsylvania v. Nelson, 350 U. S. 497, Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, Slochower v. Board of Education, 350 U. S. 551, Railway Employés v. Hanson, 351 U. S. 225, and Cloverleaf Co. v. Patterson, 315 U. S. 148. See H. R. Rep. No. 1820, 87th Cong., 2d Sess., p. 3 et seq.
SWIFT & CO. v. WICKHAM.
133
111
Douglas, J., dissenting.
of one judge to bring a hait to an entire state regulatory scheme. That can—and will hereafter—happen in ail cases of pre-emption or conflict where the Supremacy Clause is thought to require state policy to give way. A fairly recent example is Cloverleaf Co. v. Patterson, 315 U. S. 148, where a fédéral court injunction in a pre-emption case suspended Alabama’s program for control of renovated butter—a demonstrably important health measure. The Court in Florida Lime Growers v. Jacob-sen, 362 U. S. 73, where one of the issues was pre-emption or conflict between two statutory Systems, emphasized that the interest of the States in being free from such injunctive interférence at the instance of a single judge outweighed the additional burdens that such a rule im-posed on the fédéral court System. On reflection I think that resuit better reflects congressional policy even though, as in Cohens v. Virginia, the end resuit is only a matter of statutory construction.
On the basis of virtually no expérience in applying that interprétation of the statute, a majority has now decided that the rule of Kesler is “unworkable” and, therefore, that our previous interprétation of the statute must hâve been incorrect. I regret that I am unable to join in that decision. My objection is not that the Court has not given Kesler “a more respectful burial,” Gideon v. Wain-wright, 372 U. S. 335, 349 (concurring opinion), but that the Court has engaged in unwarranted infanticide.
Stare decisis is no immutable principle.5 There are many occasions when this Court has overturned a prior decision, especially in matters involving an interprétation of the Constitution or where the problem of statutory construction had constitutional overtones.
An error in interpreting a fédéral statute may be easily remedied. If this Court has failed to perceive the inten-
5 See Radin, Case Law and Stare Decisis, 33 Col. L. Rev. 199 (1933).
134
382 U. S.
OCTOBER TERM, 1965.
Douglas, J., dissenting.
tion of Congress, or has interpreted a statute in such a manner as to thwart the legislative purpose, Congress may change it. The lessons of expérience are not learned by judges alone.
I am unable to find a justification for overturning a decision of this Court interpreting this Act of Congress, announced only on March 26, 1962.
If the Court were able to show that our decision in Kesler had thrown the lower courts into chaos, a fair case for its demise might be made out. The Court calls the rule “unworkable.” But it is not enough to attach that label. The Court broadly asserts that “lower courts hâve quite evidently sought to avoid dealing with its [Kesler’s] application or hâve interpreted it with uncer-tainty.” For this proposition, only three cases (in addition to the instant case) are cited. The Court’s failure to provide more compelling documentation for its indict-ment of Kesler is not the resuit of less than meticulous scholarship, for so far as I hâve been able to discover, the truth of the matter is that there are no cases (not even the three cited) even remotely warranting the conclusion that Kesler is “unworkable.”
Kesler was an attempt to harmonize our earlier cases. If the Kesler test is “unworkable” as the Court asserts, we should nonetheless accept its basic premise:
“Neither the language of § 2281 nor the purpose which gave rise to it affords the remotest reason for carving out an unfrivolous claim of unconstitution-ality because of the Supremacy Clause from the compréhensive language of § 2281.” 369 U. S., at 156. If there is overruling to be done, we should overrule Ex parte Buder, 271 U. S. 461, and Ex parte Bransjord, 310 U. S. 354.
That the ground of unconstitutionality in many so-called Supremacy Clause cases is found only in the asserted conflict between fédéral and state statutes is,
SWIFT & CO. v. WICKHAM.
135
111	Douglas, J., dissenting.
as I hâve said, no basis for distinguishing that class of cases from others in which three-judge courts are plainly required. While courts are, strictly speaking, engaging in statutory construction in such cases, the task of adjudication is much the same as in what ail would concédé to be constitutional adjudication. Though the pur-pose of Congress is the final touchstone, the interests which must be taken into account in either case are much the same, as Cohens v. Virginia eloquently demonstrates.
The Court has decided, on no more than the gloomy prédictions contained in a handful of law review articles, that Kesler would inevitably produce chaos in the fédéral courts, that the rule announced there is “unworkable.” Those prédictions hâve plainly not been borne out. If difficulties arise, Congress can cure them. Until Congress acts, I would let Kesler stand.
I therefore believe that a three-judge court was prop-erly convened and that we should décidé this appeal on the merits.
136
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
UNITED STATES v. ROMANO et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 2. Argued October 14, 1965.—Decided November 22, 1965.
Respondents, who were found by fédéral officers near an operating still, were indicted on three counts charging, in Count 1, the possession, custody and control of an illégal still in violation of 26 U. S. C. §5601 (a)(l); in Count 2, the illégal production of distilled spirits in violation of § 5601 (a) (8) ; and, in Count 3, a conspiracy to produce distilled spirits. Respondents were con-victed and given concurrent prison sentences on each count and fined on Count 1. The Court of Appeals affirmed the conspiracy convictions but reversed the substantive convictions, holding in-valid under the Due Process Clause of the Fifth Amendment an instruction and statutory inference embodied therein based on §§5601 (b)(l) and (4), which provide in part that presence of a défendant at an illégal still site shall be sufficient evidence to authorize conviction under §§5601 (a) (1) and (8) unless he explains such presence to the jury’s satisfaction. Held:
1.	It is unnecessary to consider the validity of § 5601 (b) (4) and the convictions under Count 2 since the sentences thereon were concurrent with the unchallenged sentences imposed on Count 3. P. 138.
2.	The statutory inference in §5601 (b) (1) is invalid since presence at an illégal still carries no reasonable inference of the crime of possession, custody, or control of the still proscribed by §5601 (a) (1). United States v. Gainey, 380 U. S. 63, distin-guished. Pp. 139-144.
330 F. 2d 566, affirmed.
Louis F. Claibome argued the cause for the United States. On the brief were Acting Soliciter General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit.
W. Paul Flynn argued the cause and filed a brief for respondents.
UNITED STATES v. ROMANO.
137
136	Opinion of the Court.
Mr. Justice White delivered the opinion of the Court.
Fédéral officers, armed with a search warrant, entered one of the buildings in an industrial complex in Jewett City, Connecticut. There they found respondents standing a few feet from an operating still. Respondents1 were indicted on three counts: Count 1 charged possession, custody and control of an illégal still in violation of 26 U. S. C. § 5601 (a) (1) ;2 Count 2, the illégal production of distilled spirits in violation of 26 U. S. C. § 5601 (a) (8);3 and Count 3, a conspiracy to produce distilled spirits. Both respondents were convicted on ail three counts, both were fined on Count 1 and both sen-tenced to concurrent terms of imprisonment on each of the three counts.
The Court of Appeals affirmed the convictions on Count 3. 330 F. 2d 566. It reversed the convictions on Counts 1 and 2 because the trial court in instructing the jury read Verbatim provisions of §5601 (b)(l)4 and
1 Respondents were indicted with two others whose convictions are not in issue here.
2 Section 5601 (a)(l) provides that any person who “has in his possession or custody, or under his control, any still or distilling apparatus set up which is not registered, as required by section 5179 (a) . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both . . . .”
3 Section 5601 (a) (8) provides that any person who, “not being a distiller authorized by law to produce distilled spirits, produces distilled spirits by distillation or any other process from any mash, wort, wash, or other material . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both . . . .”
4 Section 5601 (b) (1) of 26 U. S. C. provides: “Whenever on trial for violation of subsection (a)(l) the défendant is shown to hâve been at the site or place where, and at the time when, a still or distilling apparatus was set up without having been registered, such presence of the défendant shall be deemed sufficient evidence to authorize conviction, unless the défendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”
138	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
§ 5601 (b)(4),6 which provide in part that the presence of the défendant at the site of an illégal still “shall be deemed sufficient evidence to authorize conviction, unless the défendant explains such presence to the satisfaction of the jury . . . .” This instruction and the statutory inference which it embodied were held by the Court of Appeals to violate the Due Process Clause of the Fifth Amendment. We granted certiorari to consider this constitutional issue. 380 U. S. 941.
We agréé as to the invalidity of § 5601 (b)(l) and the reversai of the convictions on Count 1. It is unneces-sary, however, to consider the validity of § 5601 (b) (4) and the convictions on Count 2 since the sentences on that count were concurrent with the sentences, not here challenged, which were imposed on Count 3. United States v. Gainey, 380 U. S. 63, 65; Sinclair v. United States, 279 U. S. 263, 299.
If we were reviewing only the sufficiency of the evidence to support the verdict on Count 1, that conviction would be sustained. There was, as the Court of Appeals recognized, ample evidence in addition to presence at the still to support the charge of possession of an illégal still. But here, in addition to a standard instruction on rea-sonable doubt, the jury was told that the défendants’ presence at the still “shall be deemed sufficient evidence to authorize conviction.” This latter instruction may hâve been given considérable weight by the jury; the jury may hâve disbelieved or disregarded the other evidence of possession and convicted these défendants on
6 Section 5601 (b) (4) of 26 U. S. C. provides: “Whenever on trial for violation of subsection (a) (8) the défendant is shown to hâve been at the site or place where, and at the time when, such distilled spirits were produced by distillation or any other process from mash, wort, wash, or other material, such presence of the défendant shall be deemed sufficient evidence to authorize conviction, unless the défendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).”
UNITED STATES v. ROMANO.
139
136	Opinion of the Court.
the evidence of presence alone. We thus agréé with the Court of Appeals that the validity of the statutory infer-ence in the disputed instruction must be faced and decided.
The test to be applied to the kind of statutory infer-ence involved in this criminal case is not in dispute. In Tôt v. United States, 319 U. S. 463, the Court, relying on a line of cases dating from 1910,® reaffirmed the limits which the Fifth and Fourteenth Amendments place “upon the power of Congress or that of a State législature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.” Id., at 467. Such a legislative détermination would not be sustained if there was “no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common expérience. . . . [W]here the inference is so strained as not to hâve a reasonable relation to the circumstances of life as we know them, it is not competent for the législature to create it as a rule governing the procedure of courts.” Id., at 467-468. Judged by this standard, the statutory presumption in issue there was found constitutionally infirm.
Just last Term, in United States v. Gainey, 380 U. S. 63, the Court passed upon the validity of a companion section to §5601 (b)(l) of the Internai Revenue Code. The constitutionality of the législation was held to dépend upon the “rationality of the connection ‘between the facts proved and the ultimate fact presumed.’ ” 380 U. S., at 66. Tested by this rule, the Court sustained the provision of 26 U. S. C. § 5601 (b) (2) declaring pres-
6	Mobile, J. & K. C. R. Co. v. Tumipseed, 219 U. S. 35; Bailey v. Alabama, 219 U. S. 219; Lindsley v. Naturel Carbonic Gas Co., 220 U. S. 61; McFarland v. American Sugar Rfg. Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Western & Atlantic R. Co. v. Henderson, 279 U. S. 639; Morrison v. California, 291 U. S. 82.
140
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
ence at a still to be sufficient evidence to authorize conviction under 26 U. S. C. § 5601 (a) (4) for carrying on the business of the distillery without giving the required bond. Noting that almost anyone at the site of a secret still could reasonably be said to be carrying on the business or aiding and abetting it and that Congress had accorded the evidence of presence only its “natural pro-bative force,” the Court sustained the presumption.
This case is markedly different from Gainey, supra. Congress has chosen in the relevant provisions of the Internai Revenue Code to focus upon various phases and aspects of the distilling business and to make each of them a separate crime. Count 1 of this indictment charges “possession, custody and . . . control” of an illégal still as a separate, distinct offense. Section 5601 (a)(l) obviously has a much narrower coverage than has § 5601 (a) (4) with its sweeping prohibition of carrying on a distilling business.
In Bozza v. United States, 330 U. S. 160, the Court squarely held, and the United States conceded, that presence alone was insufficient evidence to convict of the spécifie offense proscribed by § 5601 (a)(l), absent some evidence that the défendant engaged in conduct directly related to the crime of possession, custody or control. That offense was confined to those who had “custody or possession” of the still or acted in some “other capacity calculated to facilitate the custody or possession, such as, for illustration, service as a caretaker, watchman, lookout or in some other capacity.” Id., at 164. This requirement was not satisfied in the Bozza case either by the evidence showing participation in the distilling operations or by the fact that the défendant helped to carry the finished product to delivery vehicles. These facts, and certainly mere presence at the still, were insufficient proof that “petitioner ever exercised, or aided the exercise of, any control over the distillery.” Ibid.
UNITED STATES v. ROMANO.
141
136	Opinion of the Court.
Presence at an operating still is sufficient evidence to prove the charge of “carrying on” because anyone présent at the site is very probably connected with the illégal enterprise. Whatever his job may be, he is at the very least aiding and abetting the substantive crime of carrying on the illégal distilling business. Section 5601 (a) (1), however, proscribes possession, custody or control. This is only one of the various aspects of the total undertaking, many of which hâve nothing at ail to do with possession, as Bozza made quite clear and as the United States con-ceded in that case. Presence tells us only that the de-fendant was there and very likely played a part in the illicit scheme. But presence tells us nothing about what the defendant’s spécifie function was and carries no legiti-mate, rational or reasonable inference that he was en-gaged in one of the specialized functions connected with possession, rather than in one of the supply, delivery or operational activities having nothing to do with possession. Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt—“the inference of the one from proof of the other is arbitrary . . . .” Tôt v. United States, 319 U. S. 463, 467.
The United States has presented no cases in the courts which hâve sustained a conviction for possession based solely on the evidence of presence. Ail of the cases which deal with this issue and with which we are familiar hâve held presence alone, unilluminated by other facts, to be insufficient proof of possession.7 Moreover, the
1E. g., Pugliese v. United States, 343 F. 2d 837 (C. A. Ist Cir., 1965); Barrett v. United States, 322 F. 2d 292 (C. A. 5th Cir., 1963), rev’d on other grounds, sub nom. United States v. Gainey, 380 U. S. 63; McFarland v. United States, 273 F. 2d 417 (C. A. 5th Cir., 1960) (dictum) ; Vick v. United States, 216 F. 2d 228 (C. A.
142
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
Government apparently concédés in this case that except for the circumstances surrounding the adoption of the 1958 amendments to the Internai Revenue Code, which added the présomptions relating to illégal distilling operations, the crime of possession could not validly be inferred from mere presence at the still site.8
According to the Government, however, the 1958 amendments were, among other things, designed to over-rule Bozza and must be viewed as broadening the sub-stantive crime of possession to include ail those présent at a set-up still who hâve any connection with the illicit enterprise.9 So broadened, it is argued, the substantive
5th Cir., 1954) ; United States v. De Vito, 68 F. 2d 837 (C. A. 2d Cir., 1934); Graceffo v. United States, 46 F. 2d 852 (C. A. 3d Cir., 1931).
8 Brief for petitioner, p. 14. See also brief for petitioner, p. 33, United States v. Gainey, 380 U. S. 63; Bozza v. United States, 330 U. S. 160, 164.
9 The relevant Senate and House Reports discussing the presump-tions added by § 5601 (b) are in identical language, which was borrowed from an analysis prepared by the Alcohol and Tobacco Tax Division of the Internai Revenue Service (see Hearings before a Subcommittee of the House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, Part I, 84th Cong., Ist Sess., p. 208) :
“These paragraphs are new. Their purpose is to create a rebut-table presumption of guilt in the case of a person who is found at illicit distilling or rectifying promises, but who, because of the prac-tical impossibility of proving his actual participation in the illégal activities except by inference drawn from his presence when the illégal acts were committed, cannot be convicted under the ruling of the Suprême Court in Bozza v. United States (330 U. S. 160).
“The prévention of the illicit production or rectification of alco-holic spirits, and the conséquent defrauding of the United States of tax, has long been rendered more difficult by the failure to obtain a conviction of a person discovered at the site of illicit distilling or rectifying premises, but who was not, at the time of such discovery, engaged in doing any spécifie act.
“In the Bozza case, the Suprême Court took the position that to sustain conviction, the testimony ‘must point directly to conduct within the narrow margins which the statute alone defines.’ These
UNITED STATES v. ROMANO.
143
136	Opinion of the Court.
crime of “possessing,” under the teachings of Gainey, could be acceptably proved by showing presence alone.
We are not persuaded by this argument, primarily be-cause the amendments did not change a word of §5601 (a) (1), which defines the substantive crime. Possession, custody or control remains the crime which the Government must prove. The amendments, insofar as relevant here, simply added §5601 (b)(l) and per-mitted an inference of possession from the fact of presence. Moreover, the inference was not irrebuttable. It was allowable only if the défendant failed to explain his presence to the satisfaction of the jury. Plainly, it seems to us, the défendant would be exonerated if he satisfac-torily explained or the circumstances showed that his function at the still was not in furtherance of the spécifie crime of possession, custody or control. If a de-fendant is charged with possession and it is unmistakably shown that delivery, for example, was his sole duty, it would seem very odd under the présent formulation of the Code to hold that his explanation had merely proved his guilt of “possessing” by showing some connection with the illégal business.
The Government’s position would equate “possessing” with “carrying on.” We are not convinced that the amendments to the Code included in the Excise Tax Technical Changes Act of 1958 were intended to work any such substantive change in the basic scheme of the Act, which was, in the words of the Government’s brief in this Court, “to make criminal every meaningful form of participation in, or assistance to, the operation of an illégal still by an elaborate pattern of partially redundant provisions—some spécifie and some general—designed to close ail loopholes.” Possession, custody or control was
new provisions are designed to avoid the effect of that holding as to future violations.” S. Rep. No. 2090, 85th Cong., 2d Sess., pp. 188-189; H. R. Rep. No. 481, 85th Cong., Ist Sess., p. 175.
144
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
one of the spécifie crimes defined in the Code and we do not think that the 1958 amendments worked any change in this regard.10 On the legislative record before us, we reject the Government’s expansive reading of the 1958 amendments.
Congress may hâve intended by the 1958 amendments to avoid the Bozza case. But it chose to do so, not by changing the définition of the substantive crime, but by declaring presence to be sufficient evidence to prove the crime of possession beyond reasonable doubt. This ap-proach obviously fails under the standards traditionally applied to such législation. It may be, of course, that Congress has the power to make presence at an illégal still a punishable crime, but we find no clear indication that it intended to so exercise this power.11 The crime remains possession, not presence, and, with ail due defer-ence to the judgment of Congress, the former may not constitutionally be inferred from the latter. Affirmed
Mr. Justice Black concurs in the reversai of these convictions for the reasons stated in his dissent against affirmance of the conviction in United States v. Gainey, 380 U. S. 63, 74.
Mr. Justice Douglas concurs in the resuit for the reasons stated in his opinion in United States v. Gainey, 380 U. S. 63, 71.
Mr. Justice Portas concurs in the resuit.
10 In reference to the re-enaetment of §5601 (a)(l), the provision that defines the substantive offense, the Reports merely say, “This paragraph is a restatement of existing law. . . .” S. Rep. No. 2090, 85th Cong., 2d Sess., p. 186; H. R. Rep. No. 481, 85th Cong., lst Sess., p. 173.
11 The Government advanced a somewhat similar contention in Tôt. It was rejected, partly on the ground that it was not supported by legislative history. Tôt v. United States, 319 U. S. 463, 472. Cf. United States v. Universal C. I. T. Crédit Corp., 344 U. S. 218.
STEELWORKERS v. BOULIGNY, INC. 145
Syllabus.
UNITED STEELWORKERS OF AMERICA, AFL-CIO v. R. H. BOULIGNY, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 19. Argued October 21, 1965.—Decided November 22, 1965.
Respondent, a North Carolina corporation, brought this defamation action in a North Carolina court against petitioner, an unincor-porated labor union. Petitioner’s principal place of business pur-portedly is Pennsylvania, where for purposes of diversity jurisdiction it claimed citizenship, though some of its members résidé in North Carolina. Petitioner removed the case to a Fédéral District Court, which refused to remand, finding no proper basis for treating an unincorporated labor union differently from a corporation. On interlocutory appeal the Court of Appeals reversed and directed that the case be remanded to the state court. Held:
1.	Article III, § 2, of the Constitution extends fédéral jurisdiction to suits between “citizens” of different States. A corporation for diversity purposes has long been deemed to be a citizen of the State in which it is incorporated, Louisville, C. & C. R. Co. v. Letson, 2 How. 497; Marshall v. Baltimore & O. R. Co., 16 How. 314, and such status is recognized by statute. 28 U. S. C. § 1332 (c). Pp. 147-148.
2.	An unincorporated labor union is not a “citizen” for purposes of the statute conferring diversity jurisdiction, its citizenship being deemed that of each of its members. Chapman v. Barney, 129 U. S. 677, followed; Puerto Rico v. Russell & Co., 288 U. S. 476, distinguished. Whether any change in that rule is to be made so as to assimilate unincorporated labor unions to the status of corporations for diversity purposes is a matter for legislative, and not judicial, détermination. Pp. 149-153.
336 F. 2d 160, affirmed.
Michael H. Gottesman argued the cause for petitioner. With him on the briefs were David E. Feller, Bernard Kleiman, Elliott Bredhoff and Jerry D. Anker.
Joseph W. Grier, Jr., argued the cause for respondent. With him on the brief was Gaston H. Gage.
786-211 0-66—19
146	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Mr. Justice Portas delivered the opinion of the Court.
Respondent, a North Carolina corporation, brought this action in a North Carolina state court. It sought $200,000 in damages for defamation alleged to hâve occurred during the course of the United Steelworkers’ campaign to unionize respondent’s employées. The Steelworkers, an unincorporated labor union whose principal place of business purportedly is Pennsylvania, re-moved the case to a Fédéral District Court.1 The union asserted not only federal-question jurisdiction, but that for purposes of the diversity jurisdiction it was a citizen of Pennsylvania, although some of its members were North Carolinians.
The corporation sought to hâve the case remanded to the state courts, contending that its complaint raised no fédéral questions and relying upon the generally pre-vailing principle that an unincorporated association’s citizenship is that of each of its members. But the District Court retained jurisdiction. The District Judge noted “a trend to treat unincorporated associations in the same manner as corporations and to treat them as citizens of the state wherein the principal office is lo-cated.” Divining “no common sense reason for treating an unincorporated national labor union differently from a corporation,” he declined to follow what he styled “the poorer reasoned but more firmly established rule” of Chapman v. Barney, 129 U. S. 677.
On interlocutory appeal the Court of Appeals for the Fourth Circuit reversed and directed that the case be re-
128 U. S. C. § 1441 (a) (1964 ed.) provides: “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States hâve original jurisdiction, may be removed by the défendant or the défendants, to the district court of the United States for the district and division embracing the place where such action is pending.”
STEELWORKERS v. BOULIGNY, INC. 147
145	Opinion of the Court.
manded to the state courts. 336 F. 2d 160. Certiorari was granted, 379 U. S. 958, so that we might décidé whether an unincorporated labor union is to be treated as a citizen for purposes of fédéral diversity jurisdiction, without regard to the citizenship of its members.2 Be-cause we believe this properly a matter for legislative considération which cannot adequately or appropriately be dealt with by this Court, we affirm the decision of the Court of Appeals.
Article III, § 2, of the Constitution provides :
“The judicial Power shall extend . . . to Contro-versies . . . between Citizens of different States ....” Congress lost no time in implementing the grant. In 1789 it provided for fédéral jurisdiction in suits “between a citizen of the State where the suit is brought, and a citizen of another State.”3 There shortly arose the question as to whether a corporation—a créature of state law—is to be deemed a “citizen” for purposes of the statute. This Court, through Chief Justice Marshall, initially responded in the négative, holding that a corporation was not a “citizen” and that it might sue and be sued under the diversity statute only if none of its shareholders was a co-citizen of any opposing party.
2 Petitioner does not here challenge the Court of Appeals’ finding with respect to the absence of federal-question jurisdiction. Mention of this finding is omitted from the “statement of the case” portion of petitioner’s brief. Instead, petitioner expresses an intention, on remand of this case, to raise a different issue—that libel suits brought against unions for conduct arising in the course of an organizational campaign are within the exclusive jurisdiction of the National Labor Relations Board and may not be the subject of litigation, at least initially, in state or fédéral court. Compare Linn v. United Plant Guard Workers of America, Local 114, 337 F. 2d 68 (C. A. 6th Cir.), cert. granted, 381 U. S. 923, with Meyer v. Joint Council 53, Interril Bro. of Teamsters, 416 Pa. 401, 206 A. 2d 382, pétition for cert. dismissed under Rule 60, post, p. 897.
31 Stat. 78.
148	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Bank oj the United States v. Deveaux, 5 Cranch 61. In 1844 the Court reversed itself and ruled that a corporation was to be treated as a citizen of the State which created it. Louisville, C. & C. R. Co. v. Letson, 2 How. 497. Ten years later, the Court reached the same resuit by a different approach. In a compromise destined to endure for over a century,4 the Court indulged in the fiction that, although a corporation was not itself a citizen for diversity purposes, its shareholders would con-clusively be presumed citizens of the incorporating State. Marshall v. Baltimore & O. R. Co., 16 How. 314.
Congress re-entered the lists in 1875, significantly expanding diversity jurisdiction by deleting the require-ment imposed in 1789 that one of the parties must be a citizen of the forum State.5 The resulting increase in the quantity of diversity litigation, however, cooled enthusiasts of the jurisdiction, and in 1887 and 1888 Congress enacted sharp curbs. It quadrupled the juris-dictional amount, confined the right of removal to non-resident défendants, reinstituted protections against jurisdiction by collusive assignment, and narrowed venue.6
4 See 72 Stat. 415 (1958), 28 U. S. C. § 1332 (c), providing that: “For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.”
518 Stat. 470.
6 24 Stat. 552, 553, as amended by 25 Stat. 434. On the historical background of these changes in the diversity jurisdiction see gen-erally, Moore and Weckstein, Diversity Jurisdiction: Past, Présent, and Future, 43 Tex. L. Rev. 1 (1964); Moore and Weckstein, Corporations and Diversity of Citizenship Jurisdiction: A Suprême Court Fiction Revisited, 77 Harv. L. Rev. 1426 (1964); Hart and Wechsler, The Fédéral Courts and the Fédéral System 891-943 (1953).
STEELWORKERS v. BOULIGNY, INC. 149
145	Opinion of the Court.
It was in this climate that the Court in 1889 decided Chapman v. Barney, supra. On its own motion the Court observed that plaintif! was a joint stock company and not a corporation or natural person. It held that although plaintif! was endowed by New York with capacity to sue, it could not be considered a “citizen” for diversity purposes. 129 U. S., at 682.7
In recent years courts and commentators hâve reflected dissatisfaction with the rule of Chapman v. Barney? The distinction between the “personality” and “citizen-ship” of corporations and that of labor unions and other unincorporated associations, it is increasingly argued, has become artificial and unreal. The mere fact that a corporation is endowed with a birth certificate is, they say, of no conséquence. In truth and in fact, they point out, many voluntary associations and labor unions are indis-tinguishable from corporations in terms of the reality
7Equally responsive to the congressional intent as manifested in 1887 and 1888 was the Court’s decision in 1892 in Shaw v. Quincy Mining Co., 145 U. S. 444, holding that in a diversity suit a corporation could only be sued in the State of incorporation, even though its principal place of business was elsewhere.
8 See Mason v. American Express Co., 334 F. 2d 392 (C. A. 2d Cir.) ; 78 Harv. L. Rev. 1661 (1965) ; 53 Geo. L. J. 513 (1965) ; 65 Col. L. Rev. 162 (1965); American Fed. of Musicians v. Stein, 213 F. 2d 679, 685-689 (C. A. 6th Cir.), cert. denied, 348 U. S. 873, suggesting that a trial court might find a union to be a citizen for diversity purposes—a suggestion rejected on remand, 183 F. Supp. 99 (D. C. M. D. Tenn.) ; and Van Sant v. American Express Co., 169 F. 2d 355 (C. A. 3d Cir.); Comment, 1965 Duke L. J. 329; Note, Unions as Juridical Persons, 66 Yale L. J. 712, 742-749 (1957). Cf. Swan v. First Church of Christ, Scientist, in Boston, 225 F. 2d 745 (C. A. 9th Cir.). But see Brocki v. American Express Co., 279 F. 2d 785 (C. A. 6th Cir.), cert. denied, 364 U. S. 871; Underwood v. Maloney, 256 F. 2d 334 (C. A. 3d Cir.), cert. denied, 358 U. S. 864; A. H. Bull Steamship Co. v. NMEBA, 250 F. 2d 332 (C. A. 2d Cir.), each of which takes a more conventional view.
150
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
of function and structure, and to say that the latter are juridical persons and “citizens” and the former are not is to base a distinction upon an inadéquate and irrelevant différence. They assert, with considérable merit, that it is not good judicial administration, nor is it fair, to remit a labor union or other unincorporated association to vagaries of jurisdiction determined by the citizen-ship of its members and to disregard the fact that unions and associations may exist and hâve an identity and a local habitation of their own.
The force of these arguments in relation to the diver-sity jurisdiction is particularized by petitioner’s showing in this case. Petitioner argues that one of the purposes underlying the jurisdiction—protection of the nonresi-dent litigant from local préjudice—is especially applicable to the modem labor union. According to the argument, when the nonresident défendant is a major union, local juries may be tempted to favor local interests at its expense. Juries may also be influenced by the fear that unionization would adversely affect the economy of the community and its customs and practices in the field of race relations. In support of these contentions, petitioner has exhibited material showing that during orga-nizational campaigns like that involved in this case, localities hâve been saturated with propaganda concern-ing such économie and racial fears. Extending diversity jurisdiction to unions, says petitioner, would make avail-able the advantages of fédéral procedure, Article III judges less exposed to local pressures than their state court counterparts, juries selected from wider geographi-cal areas, review in appellate courts reflecting a multi-state perspective, and more effective review by this Court.
We are of the view that these arguments, however appealing, are addressed to an inappropriate forum, and that pleas for extension of the diversity jurisdiction to
STEELWORKERS v. BOULIGNY, INC. 151
145	Opinion of the Court.
hitherto uncovered broad categories of litigants ought to be made to the Congress and not to the courts.
Petitioner urges that in Puerto Rico v. Russell & Co., 288 U. S. 476, we hâve heretofore breached the doctrinal wall of Chapman v. Bamey and, that step having been taken, there is now no necessity for enlisting the assistance of Congress. But Russell does not furnish the precedent which petitioner seeks. The problem which it presented was that of fitting an exotic création of the civil law, the sodedad en comandita, into a fédéral scheme which knew it not. The Organic Act of Puerto Rico conferred jurisdiction upon the fédéral court if ail the parties on either side of a controversy were citizens of a foreign state or “citizens of a State, Territory or District of the United States not domiciled in Puerto Rico.” 9 Ail of the sodedad’s members were nonresi-dents of Puerto Rico, and jurisdiction lay in the fédéral court if they were the “parties” to the action. But this Court held that the sodedad itself, not its members, was the party, doing so on a basis that is of no help to petitioner. It did so because, as Justice Stone stated for the Court, in “[t]he tradition of the civil law, as expressed in the Code of Puerto Rico,” “the sodedad is consistently regarded as a juridical person.” 288 U. S., at 480-481. Accordingly, the Court held that the sodedad, Russell & Co., was a citizen domiciled in Puerto Rico, within the meaning of the Organic Act, and ordered the case re-manded to the insular courts. It should be noted that
9 The fédéral district court in Puerto Rico had jurisdiction “of ail cases cognizable in the district courts of the United States” and “of ail controversies where ail of the parties on either side of the controversy are citizens or subjects of a foreign State or States, or citizens of a State, Territory, or District of the United States not domiciled in Puerto Rico . . . .” § 41, Organic Act of Puerto Rico of 1917, 39 Stat. 965 (now 48 U. S. C. §863). See 70 Stat. 658 (1956), amending 28 U. S. C. § 1332, relating to the treatment of the Com-monwealth of Puerto Rico for diversity purposes.
152
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
the effect of Russell was to contract jurisdiction of the fédéral court in Puerto Rico.10
If we were to accept petitioner’s urgent invitation to amend diversity jurisdiction so as to accommodate its case, we would be faced with difficulties which we could not adequately résolve. Even if the record here were-adequate, we might well hesitate to assume that petitioner’s situation is sufficiently représentative or typical to form the predicate of a general principle. We should, for example, be obliged to fashion a test for ascertaining of which State the labor union is a citizen. Extend-ing the jurisdiction to corporations raised no such prob-lem, for the State of incorporation was a natural candidate, its arguable irrelevance in terms of the policies underlying the jurisdiction being outweighed by its cer-tainty of application. But even that easy and apparent solution did not dispose of the problem; in 1958 Con-gress thought it necessary to enact législation providing that corporations are citizens both of the State of incorporation and of the State in which their principal place of business is located.11 Further, in contemplating a rule which would accommodate petitioner’s claim, we are acutely aware of the complications arising from the circumstance that petitioner, like other labor unions, has local as well as national organizations and that these,
10 As the Court noted in Russell, 288 U. S., at 482, the effect of its decision was to prevent nonresidents from organizing sociedads to carry on business in Puerto Rico and then “remove from the Insular Courts controversies arising under local law.” The Court of Appeals for the Second Circuit in Mason, 334 F. 2d, at 397, n. 8, seems to assert that Russell had the effect of broadening the diversity jurisdiction. We do not agréé. At the time Russell was decided, Puerto Rico was not considered a “State” for purposes of the fédéral diversity jurisdiction statute. Accordingly, a sociedad, although recog-nized as a citizen of Puerto Rico in Russell, cçuld not avail itself of the general diversity statute.
11 See note 4, supra.
STEELWORKERS v. BOULIGNY, INC. 153
145	Opinion of the Court.
perhaps, should be reckoned with in connection with “citizenship” and its jurisdictional incidents.12
Whether unincorporated labor unions ought to be assimilated to the status of corporations for diversity purposes, how such citizenship is to be determined, and what if any related rules ought to apply, are decisions which we believe suited to the legislative and not the judicial branch, regardless of our views as to the intrinsic merits of petitioner’s argument—merits stoutly attested by widespread support for the récognition of labor unions as juridical personalities.13
We affirm the decision below.
12 The American Law Institute has proposed that for diversity purposes unincorporated associations be deemed citizens of the States in which their principal places of business are located, but that they be disabled from initiating diversity litigation in States where they maintain “local establishments.” ALI, Study of the Division of Juris-diction Between State and Fédéral Courts, Proposed Final Draft No. 1 (1965), §§ 1301 (b)(2) and 1302 (b). Compare 29 U. S. C. § 185 (c), which provides: “For the purposes of actions and pro-ceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to hâve jurisdic-tion of a labor organization (1) in the district in which such organi-zation maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employée members.”
13 See, e. g., United Mine Workers v. Coronado Coal Co., 259 U. S. 344; Rule 17 (b) of the Fed. Rules Civ. Proc.; ALI, Study, supra; 3 Moore, Fédéral Practice K 17.25 (2d ed., 1964); Note, Unions as Juridical Persons, 66 Yale L. J. 712 (1957). Cf. 78 Stat. 445 (1964), which amended 28 U. S. C. § 1332 (c) to confer citizenship upon insurers, “whether incorporated or unincorporated,” involved in direct-action suits; Note, Developments in the Law—Judicial Control of Actions of Private Associations, 76 Harv. L. Rev. 983, 1080-1100 (1963).
154
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
SEABOARD AIR LINE RAILROAD CO. et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA.
No. 425. Decided November 22, 1965*
The Interstate Commerce Commission (ICC), after administrative proceedings, approved a merger between the Atlantic Coast Line Railroad Company and the Seaboard Air Line Railroad Company. Though recognizing that the merger would eliminate compétition in parts of Florida, the ICC found that the benefits of the merger outweighed its potential disadvantages. On the ground that the ICC failed to détermine whether the merger violated § 7 of the Clayton Act by reference to the relevant product and géographie markets, a three-judge District Court set aside the ICC’s order. Held: The ICC is authorized to approve a merger notwithstand-ing what would otherwise be violative of the antitrust laws if it makes adéquate findings after weighing the effects of the curtail-ment of compétition against the advantages of improved service that the merger would be “consistent with the public interest” under § 5 (2) (b) of the Interstate Commerce Act and further the overall transportation policy. McLean Trucking Co. v. United States, 321 U. S. 67; Minneapolis & St. Louis R. Co. v. United States, 361 U. S. 173, followed.
242 F. Supp. 14, vacated and remanded.
Paul A. Porter, Dennis G. Lyons, Harold J. Gallagher, Walter H. Brown, Jr., Richard A. Hollander, Edwin H. Burgess, Prime F. Osbom, Albert B. Russ, Jr., and Phil C. Beverly for appellants in No. 425. Robert W. Ginnane and Fritz R. Kahn for appellant in No. 555.
Solicitor General Marshall, Assistant Attorney General Turner and Lionel Kestenbaum for the United States. A. Alvis Layne and Fred H. Kent for Florida East Coast
*Together with No. 555, Interstate Commerce Commission v. Florida East Coast Railway Co. et al., also on appeal from the same court.
SEABOARD AIR LINE R. CO. v. U. S. 155
154	Per Curiam.
Railway Co., W. Graham Claytor, Jr., for Southern Rail-way Co., and Edward J. Hickey, Jr., and William G. Mahoney for Railway Labor Executives’ Association, appellees.
Per Curiam.
Atlantic Coast Line Railroad Company and Seaboard Air Line Railroad Company filed with the Interstate Commerce Commission an application for authority to merge. In the administrative proceedings, the appli-cants contended that the merger would enable them to lower operating costs, improve service, and eliminate duplicate facilities; other carriers opposed the merger on the ground that it would hâve adverse compétitive effects; and the Department of Justice contended that the merger would create a rail monopoly in central and western Florida.
The Commission approved the merger, subject to rout-ing and gateway conditions to protect competing rail-roads. It recognized that the merger would eliminate compétition and create a rail monopoly in parts of Florida. But it found that the merged lines carried only a small part of the total traffic in the area involved; that ample rail compétition would remain therein; and that the réduction in compétition would “hâve no appreciably injurious effect upon shippers and communities.” Seaboard Air Line Railroad Co., 320 I. C. C. 122, 167. In addition, the Commission noted that the need to preserve intramodal rail compétition had diminished, due to the fact that railroads were increasingly losing traffic to truck, water, and other modes of compétition.
A three-judge District Court set aside the order and remanded the case to the Commission for further proceedings. It concluded that the Commission’s analysis of the compétitive effects of the merger was fatally defec-tive because the Commission had not determined whether
156
OCTOBER TERM, 1965.
Per Curiam.
382 U.S.
the merger violated § 7 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 18 (1964 ed.), by reference to the relevant product and géographie markets. By thus disposing of the case, the District Court did not reach the ultimate question whether the merger would be consistent with the public interest despite the foreseeable in jury to compétition.1
We believe that the District Court erred in its interprétation of the directions this Court set forth in McLean Trucking Co. v. United States, 321 U. S. 67 (1944), and Minneapolis & St. Louis R. Co. v. United States, 361 U. S. 173 (1959). As we said in Minneapolis, at 186:
“Although § 5 (11) does not authorize the Commission to ‘ignore’ the antitrust laws, McLean Trucking Co. v. United States, 321 U. S. 67, 80, there can be ‘little doubt that the Commission is not to measure proposais for [acquisitions] by the standards of the antitrust laws.’ 321 U. S., at 85-86. The problem is one of accommodation of § 5 (2) and the antitrust législation. The Commission remains obligated to ‘estimate the scope and appraise the effects of the curtaihnent of compétition which will resuit from the proposed [acquisition] and consider them along with the advantages of improved service [and other matters in the public interest] to détermine whether the [acquisition] will assist in effectuating the over-all transportation policy.’ 321 U. S., at 87.”
The same criteria should be applied here to the proposed merger. It matters not that the merger might
1 It expressly declined to consider two further issues, i. e., whether the Commission’s labor-protection conditions were adéquate and whether control of the merged company by the Mercantile-Safe Deposit and Trust Company would be consistent with the public interest.
SEABOARD AIR LINE R. CO. v. U. S. 157
154	Per Curiam.
otherwise violate the antitrust laws ; the Commission has been authorized by the Congress to approve the merger of railroads if it makes adéquate findings in accordance with the criteria quoted above that such a merger would be “consistent with the public interest.” 54 Stat. 906, 49 U. S. C. §5 (2)(b) (1964 ed.).
Whether the Commission has confined itself within the statutory limits upon its discrétion and has based its findings on substantial evidence are questions for the trial court in the first instance, United States v. Great Northern R. Co., 343 U. S. 562, 578 (1952), and we indicate no opinion on the same. We therefore vacate the judgment of the District Court and remand the case to it for a full review of the administrative order and findings pursuant to the standards enunciated by this Court.
Vacated and remanded.
Mr. Justice Portas took no part in the considération or decision of these cases.
158
OCTOBER TERM, 1965.
November 22, 1965.
382 U. S.
UNITED STATES v. MARYLAND FOR THE USE OF MEYER et al.
ON PETITION FOR REHEARING.
No. 543, October Term, 1963. Certiorari denied December 16, 1963.—Rehearing denied December 7, 1964.—Rehearing and certiorari granted and case decided November 22, 1965.
116 U. S. App. D. C. 259, 322 F. 2d 1009, reversed and remanded for further proceedings on unresolved issues in complaint.
Solicitor General Cox, Assistant Attorney General Douglas, Morton Hollander and David L. Rose for the United States.
Louis G. Davidson, Richard W. Galiher, William E. Stewart, Jr., and Peter J. McBreen for respondents.
Per Curiam.
The motion for leave to file a conditional pétition for rehearing is granted and the pétition for rehearing is also granted. The order of December 16, 1963, 375 U. S. 954, denying the pétition for writ of certiorari is vacated, and the pétition for writ of certiorari is granted. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed in conformity with our decision in Maryland for the use of Levin et al. v. United States, 381 U. S. 41, and the case is remanded to the United States District Court for the District of Columbia for further proceedings with respect to the unresolved issues tendered in respondents’ bill of complaint.	•	,	,
It zs so ordered.
Mr. Justice Clark and Mr. Justice Harlan, believ-ing that a remand is legally unjustified, dissent from that part of the Court’s order.
Mr. Justice Fortas took no part in the considération or decision of this case.
DECISIONS PER CURIAM.
159
382 U. S.	November 22, 1965.
MARYLAND FOR THE USE OF LEVIN et al. v. UNITED STATES.
ON PETITION FOR REHEARING.
No. 345, October Tenn, 1964.
Rehearing and motion to remand granted November 22, 1965; 381 U. S. 41, vacated and amended; 329 F. 2d 722, modified and remanded for further proceedings on unresolved issues in complaint.
Théodore E. Wolcott for petitioners.
Solicitor General Marshall, former Solicitor General Cox, Assistant Attorney General Douglas, Morton Hol-lander, Nathan Lewin and David L. Rose for the United States.
Louis G. Davidson, Richard W. Galiher, William E. Stewart, Jr., and Peter J. McBreen, as amici curiae, urging reversai.
Per Curiam.
The pétition for rehearing and the motion to remand for trial on unresolved issues are granted as herein indi-cated. The judgment of this Court of May 3, 1965, 381 U. S. 41, is vacated, and in lieu thereof the following judgment is entered: “The judgment of the Court of Appeals for the Third Circuit is modified to direct that the case be remanded to the United States District Court for the Western District of Pennsylvania for further proceedings with respect to the unresolved issues tendered in petitioners’ bill of complaint, and is in ail other respects affirmed.”	n ü s0 ordered
Mr. Justice Clark and Mr. Justice Harlan, believ-ing that a remand is legally unjustified, dissent from that part of the Court’s order.
Mr. Justice Fortas took no part in the considération or decision of this case.
160
OCTOBER TERM, 1965.
November 22, 1965.
382 U. S.
REYNOLDS METALS CO. v. WASHINGTON et al.
APPEAL FROM THE SUPREME COURT OF WASHINGTON.
No. 537. Decided November 22, 1965.
65 Wash. 2d 882, 400 P. 2d 310, appeal dismissed.
DeWitt Williams for appellant.
John J. O’Connell, Attorney General of Washington, and James A. Furber and Henry W. Wager, Assistant Attorneys General, for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Stewart and Mr. Justice White are of the opinion that probable jurisdiction should be noted.
Mr. Justice Harlan took no part in the considération or decision of this case.
HODGES et al. v. BUCKEYE CELLULOSE CORP.
APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT.
No. 548. Decided November 22, 1965.
174 So. 2d 565, appeal dismissed.
George C. Dayton and Joe A. McClain for appellants.
Richard W. Barrett and J. Lewis Hall for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.
DECISIONS PER CURIAM. 161
382 U. S.	November 22, 1965.
FLORIDA EAST COAST RAILWAY CO. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA.
No. 541. Decided November 22, 1965.
242 F. Supp. 490, affirmed.
A. Alvis Layne and Fred H. Kent for appellant.
Soliciter General Marshall, Assistant Attorney General Turner, Robert B. Hummel and Robert W. Ginnane for the United States et al.; Prime F. Osborn and Phil C. Beverly for Atlantic Coast Line Railroad Co.; and William H. Maness for A. Duda & Sons, Inc., et al., appellees.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
Mr. Justice Portas took no part in the considération or decision of this case.
KASHARIAN v. WILENTZ.
APPEAL FROM THE SUPREME COURT OF NEW JERSEY.
No. 672, Mise. Decided November 22, 1965.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
786-211 0-66—20
162
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
HARRIS v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 6. Argued October 11-12, 1965.—Decided December 6, 1965.
Petitioner, a grand jury witness, refused on self-incrimination grounds to answer certain questions. He and the grand jury were brought before the District Judge, who advised petitioner that he would receive immunity from prosecution and ordered him to answer the questions before the grand jury, but petitioner refused again. He was brought before the court again and swom and once more refused to answer on the ground of privilège. The District Judge thereupon adjudged petitioner guilty of criminal contempt and imposed a prison sentence under Rule 42 (a) of the Rules of Criminal Procedure, which provides for summary punishment for criminal contempt committed in the court’s presence. Held:
1.	Summary punishment of criminal contempt under Rule 42 (a) is reserved for such acts of misconduct in the court’s presence as threatening the judge or obstructing court proceedings and other exceptional circumstances requiring prompt vindication of the court’s dignity and authority. P. 164.
2.	A refusai to testify, such as the one here, not involving a serions threat to orderly procedure is punishable only after notice and hearing as provided by Rule 42 (b). Brown v. United States, 359 U. S. 41, overruled. Pp. 164-167.
334 F. 2d 460, reversed and remanded.
Ronald L. Goldjarb argued the cause for petitioner. With him on the briefs were E. David Rosen and Jacob Kossman.
Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin, Béatrice Rosenberg and Sidney M. Glazer.
Mr. Justice Douglas delivered the opinion of the Court.
This case brings back to us a question resolved by a closely divided Court in Brown v. United States, 359
HARRIS v. UNITED STATES.
163
162	Opinion of the Court.
U. S. 41, concerning the respective scope of Rule 42 (a) and of Rule 42 (b) of the Fédéral Rules of Criminal Procedure. Petitioner was a witness before a grand jury and refused to answer certain questions on the ground of self-incrimination. He and the grand jury were brought before the District Court which directed him to answer the questions propounded before the grand jury, stating that petitioner would receive immunity from prosecution. He refused again to give any answers to the grand jury. He was thereupon brought before the District Court and sworn. The District Court repeated the questions and directed petitioner to answer, but he refused on the ground of privilège. The prosecution at once requested that petitioner be found in contempt of court “under Rule 42 (a).” Counsel for petitioner protested and requested an adjournment and a public hearing where he would be permitted to call witnesses. The District Court denied the motion and thereupon adjudged petitioner guilty of criminal contempt, imposing a sentence of one year’s imprisonment.1 The Court of Appeals
1	“The Court : Anything further ? “Mr. Maloney: No, your Honor.
I think the record speaks for itself, and I would ask your Honor to find this witness in contempt of court under Rule 42 (a) of the Fédéral Rules of Criminal Procedure.
“Mr. Polakoff: Your Honor, if this is a contempt proceeding I respectfully request an adjournment. I want to hâve the minutes and I want to hâve an opportunity to discuss them and consider them with my client and to look up the law.
I further request, your Honor, a hearing where I will be permitted to call witnesses, perhaps a grand juror or two or more; perhaps the places the phone calls allegedly were made as indicated by the assistant, to prove to your Honor that there could be no possible violation of the Communications Act.
“I hâve not been told what tariff has been violated; no law has been cited or rule or régulation to your Honor or to me, and that requires research.
I also would request that the contempt hearing be held in public. “The Court: Your request is denied. This is a contempt com-
164	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
affirmed, 334 F. 2d 460. We granted certiorari, 379 U. S. 944.
Rule 42 (a) is entitled “Summary Disposition” and reads as follows:
“A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”
Rule 42 (a) was reserved “for exceptional circum-stances,” Brown v. United States, 359 U. S. 41, 54 (dis-senting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of “the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power,” ibid., and in light of the wording of the Rule. Summary contempt is for “misbehavior” (Ex parte Terry, 128 U. S. 289, 314) in the “actual presence of the court.” Then speedy punishment may be necessary in order to achieve “summary vindication of the court’s dignity and authority.” Cooke v. United States, 267 U. S. 517, 534. But swift-ness was not a prerequisite of justice here. Delay necessary for a hearing would not imperil the grand jury proceedings.
Cases of the kind involved here are foreign to Rule 42 (a). The real contempt, if such there was, was contempt before the grand jury—the refusai to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to hâve the refusai to testify “committed in the actual presence of the court” for the purposes of Rule
mitted in open court, and I adjudge the défendant guilty of a criminal contempt rule under Rule 42 (a).”
HARRIS v. UNITED STATES.
165
162	Opinion of the Court.
42 (a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it. Even though we assume arguendo that Rule 42 (a) may at times reach testimonial épisodes, nothing in this case indicates that petitioner’s refusai was such an open, serious threat to orderly procedure that instant and summary punishment, as distinguished from due and deliberate procedures (Cooke n. United States, supra, at 536), was necessary. Summary procedure, to use the words of Chief Justice Taft, was designed to fill “the need for immédiate penal vindication of the dignity of the court.” Ibid. We start from the premise long ago stated in Anderson v. Dunn, 6 Wheat. 204, 231, that the limits of the power to punish for contempt are “[t]he least possible power adéquate to the end proposed.” 2 In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped. The contempt here com-mitted was far outside the narrow category envisioned by Rule 42 (a).3
Rule 42 (b) provides the normal procedure. It reads:
“A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the préparation of the defense, and shall state the essential facts
2 And see Nye v. United States, 313 U. S. 33, 52-53; In re Michael, 326 U. S. 224, 227; Cammer v. United States, 350 U. S. 399, 404.
3 Rule 42 (a) was described by the Advisory Committee as “sub-stantially a restatement of existing law. Ex parte Terry, 128 U. S. 289; Cooke v. United States . . . .” We hâve confirmed this on more than one occasion, e. g., Offutt v. United States, 348 U. S. 11, 13-14; Brown v. United States, supra, at 51.
166	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
constituting the criminal contempt charged and de-scribe it as such. The notice shall be given orally by the judge in open court in the presence of the défendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The défendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as pro-vided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”
Such notice and hearing serve important ends. What appears to be a brazen refusai to cooperate with the grand jury may indeed be a case of frightened silence. Refusai to answer may be due to fear—fear of reprisais on the witness or his family. Other extenuating circum-stances may be présent.4 We do not suggest that there were circumstances of that nature here. We are wholly ignorant of the épisode except for what the record shows and it reveals only the barebones of demand and refusai. If justice is to be done, a sentencing judge should know ail the facts. We can imagine situations where the questions are so inconsequential to the grand jury but the
4 Chief Justice Taft said in Cooke v. United States, supra, at 537: “Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and hâve a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complété exculpation or in exténuation of the offense and in mitigation of the penalty to be imposed.”
HARRIS v. UNITED STATES.
167
162	Stewart, J., dissenting.
fear of reprisai so great that only nominal punishment, if any, is indicated. Our point is that a hearing and only a hearing will elucidate ail the facts and assure a fair administration of justice. Then courts will not act on surmise or suspicion but will corne to the sentencing stage of the proceeding with insight and understanding.
We are concerned solely with “procédural regularity” which, as Mr. Justice Brandeis said in Bwrdeau v. McDowell, 256 U. S. 465, 477 (dissenting), has been “a large factor” in the development of our liberty. Rule 42 (b) prescribes the “procédural regularity” for ail con-tempts in the fédéral régime5 except those unusual situations envisioned by Rule 42 (a) where instant action is necessary to protect the judicial institution itself.
We overrule Brown v. United States, supra, and reverse and remand this case for proceedings under Rule 42 (b).
Reversed and remanded.
Mr. Justice Stewart, with whom Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice White join, dissenting.
The issue in this case is the procedure to be followed when a witness has refused to answer questions before a grand jury after he has been ordered to do so by a district court. This issue, involving Rule 42 (a) and Rule 42 (b) of the Fédéral Rules of Criminal Procedure, was, as the Court says, resolved in Brown v. United States,
5 In more than one instance in the Southern District of New York, from which this case cornes, witnesses cited for testimonial contempt before the grand jury were given hearings under Rule 42 (b). E. g., United States v. Castaldi, 338 F. 2d 883; United States v. Tramunti, 343 F. 2d 548; United States v. Shülitani, 345 F. 2d 290; United States v. Pappadio, 346 F. 2d 5. There is no indication that this procedure impeded the functioning of the grand jury.
168
382 U.S.
OCTOBER TERM, 1965.
Stewart, J., dissenting.
359 U. S. 41.1 That was six years ago. Since then this Court has made no changes in Rule 42 (a) or 42 (b).2 But today Brown is overturned, and the question it “resolved” is now answered in the opposite way.
The particular question at issue here is of limited importance. But in this area the Court’s duty is important, involving as it does the responsibility for clear and consistent guidance to the fédéral judiciary in the application of ground rules of our own making. We are not faithful to that duty, I think, when we overturn a settled construction of those rules for no better reasons than those the Court has offered in this case.3
The limited scope of the question at issue is made clear by the présent record. A grand jury in the Southern District of New York was investigating alleged violations of the Communications Act of 1934.4 The petitioner appeared before this grand jury pursuant to a subpoena. He refused to answer a number of questions about an Interstate téléphoné call upon the ground of possible self-incrimination. The petitioner was then
1 Brown v. United States was reaffirmed and followed in Levine v. United States, 362 U. S. 610.
2 The proposed amendments to Rules of Criminal Procedure for the United States District Courts, approved on September 22-23, 1965, by the Judicial Conférence of the United States, make no changes in Rule 42 (a) or Rule 42 (b).
3 No argumentation or factual data are contained in the Court’s opinion today which were not fully revealed in the dissenting opinion in Brown, 359 U. S., at 53-63, passim, and considered by the Court there. Nor is it suggested that the Brown rule has proved to be unclear or difficult of application. The considérations attending the overruling of Brown are quite unlike those involved in the over-ruling that occurred in Swift & Co., Inc. v. Wickham, ante, p. 111, where the Court changed a procédural rule which it found unwork-able in actual practice.
4 48 Stat. 1070 and 1100, 47 U. S. C. §§ 203 (c) and 501 (1964 ed.), and 18 U. S. C. § 1952 (1964 ed.).
HARRIS v. UNITED STATES.
169
162	Stewart, J., dissenting.
granted immunity from any possible self-incrimination under § 409 (1) of the Communications Act.5 Only after giving the petitioner and his lawyer full opportunity to be heard did the District Judge rule that the petitioner was clothed with complété constitutional immunity from self-incrimination, and only then did he direct the petitioner to answer the grand jury’s questions. The petitioner returned to the grand jury room and again refused to answer the questions, this time in direct and deliberate disobedience of the District Judge’s order.
It is common ground, I suppose, that the petitioner was then and there in contempt of court.6 Since the petitioner’s refusai to obey the judge’s order did not occur within the sight and hearing of the judge, a contempt proceeding could then hâve been initiated only under Rule 42 (b). Such a proceeding would hâve been fully consonant with our decision in Brown,1 and a judge “more intent upon punishing the witness than aiding the grand jury in its investigation might well hâve taken just such a course.” 359 U. S., at 50. In such a proceeding ail that would hâve been required to prove the contempt
548 Stat. 1096, 47 U. S. C. §409 (Z) (1964 ed.).
6 The prevailing opinion today says, “The real contempt, if such there was, was contempt before the grand jury . . . .” But a grand jury is without power itself to compel the testimony of witnesses. It is the court’s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify, if, after appearing, he refuses to do so.
7 “When upon his retum to the grand jury room the petitioner again refused to answer the grand jury’s questions, now in direct disobedience of the court’s order, he was for the first time guilty of contempt. At that point a contempt proceeding could unques-tionably and quite properly hâve been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would hâve been conducted upon notice and hearing in conformity with Rule 42 (b). See Caris on v. United States, 209 F. 2d 209, 216 (C. A. lst Cir.).” 359 U. S., at 50.
170
382 U. S.
OCTOBER TERM, 1965.
Stewart, J., dissenting.
would hâve been the testimony of the grand jury stenog-rapher, and the judge could then hâve imposed sentence. Such a procedure is often followed.8
Instead, however, the District Judge in this case followed the alternative procedure approved in Brown. He made one last effort to aid the grand jury in its investigation and gave the petitioner a final chance to purge himself of contempt. The petitioner and his lawyer appeared before the judge in open court.9 After the petitioner was sworn as a witness, the judge propounded the same questions which the petitioner had refused to answer before the grand jury. The petitioner again refused to answer. At the conclusion of the questioning the judge asked, “Does anybody want to say anything further?” The only response from the petitioner’s counsel, then or later,10 was a brief renewal of his attack upon the purpose of the grand jury investigation and the scope of the immunity which had been conferred upon the petitioner—legal questions which the judge had, after a complété hearing, fully determined before he had ordered the petitioner to answer the grand jury’s questions in the first place.
The procedure followed by the District Court in this case was in précisé conformity with Rule 42 (a) and with
8 See cases cited in note 5 of the Court’s opinion, ante, p. 167.
9 The record shows that the court was “opened by proclamation.”
10 Before imposing sentence, the judge gave petitioner and his counsel still another opportunity to offer any explanation they might hâve of the petitioner’s obduracy:
“The Court: I hâve already made my position perfectly clear, but I will say it again : I hâve directed you to answer these questions before the grand jury, and I hâve directed you to answer them here. It is my ruling that you cannot be prosecuted for any answer that you give under the circumstances of this case. Do you still refuse, Mr. Harris?
“The Witness: I respectfully refuse to answer on the grounds it would tend to incriminate me.
“The Court: Anything further?”
HARRIS v. UNITED STATES.
171
162	Stewart, J., dissenting.
long-settled and consistently followed practice.11 It is a procedure which, in this context, is at least as fair as a Rule 42 (b) proceeding. The petitioner, represented by counsel, was accorded an additional chance to purge him-self of contempt; he and his counsel were accorded full opportunity to offer any explanation they might hâve had in exténuation of the contempt—to inform the “sen-tencing judge of ail the facts.” And finally, there is no reason to assume that a sentence imposed for obduracy before a grand jury is likely to be more severe in a Rule 42 (a) proceeding than one imposed after a proceeding under Rule 42 (b). Indeed, the recent Rule 42 (b) cases in the Southern District of New York referred to by the Court indicate the contrary.12 A sentence for contempt is reviewable on appeal in either case,13 and there is nothing to suggest that in the exercise of this reviewing power an appellate court will hâve any more information to go on in the one case than in the other.
For these reasons I would affirm the judgment of the Court of Appeals.
11 See, in addition to Brown n. United States, 359 U. S. 41, and Levine v. United States, 362 U. S. 610: - Rogers v. United States, 340 U. S. 367; Wilson v. United States, 221 U. S. 361, 369; Haie v. Henkél, 201 U. S. 43, 46; United States v. Curcio, 234 F. 2d 470, 473 (C. A. 2d Cir.), rev’d on other grounds, 354 U. S. 118 (1957); Lopiparo v. United States, 216 F. 2d 87 (C. A. 8th Cir.); United States v. Weinberg, 65 F. 2d 394, 396 (C. A. 2d Cir.). For the earlier practice at common law, see People ex rel. Phelps v. Fancher, 4 Thompson & Cook 467 (N. Y. 1874) ; People ex rel. Hackley v. Kelly, 24 N. Y. 74, 79-80 (1861); In re Harris, 4 Utah 5, 8-9, 5 P. 129, 130-132 (1884); Heard v. Pierce, 8 Cush. 338, 342-345 (Mass. 1851).
12 See note 5 of the Court’s opinion, ante, p. 167. United States v. Castaldi, 338 F. 2d 883 (two years) ; United States v. Tramunti, 343 F. 2d 548 (one year) ; United States v. Shillitani, 345 F. 2d 290 (two years) ; United States v. Pappadio, 346 F. 2d 5 (two years).
13 See Green v. United States, 356 U. S. 165, 188; Yates v. United States, 356 U. S. 363; Nilva v. United States, 352 U. S. 385, 396; Brown v. United States, 359 U. S. 41, 52.
172	OCTOBER TERM, 1965.
Syllabus.	382 U. S.
WALKER PROCESS EQUIPMENT, INC. v. FOOD MACHINERY & CHEMICAL CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 13. Argued October 12-13, 1965.—Decided December 6, 1965.
Petitioner, in answer to respondent’s suit for patent infringement, denied the infringement and counterclaimed for a declaratory judgment holding the patent invalid. After discovery proceed-ings, respondent moved to dismiss its complaint because the patent had expired. Petitioner then amended its counterclaim to charge that respondent had illegally monopolized commerce by having fraudulently and in bad faith obtained and maintained the patent in violation of the antitrust laws, and sought treble damages. The District Court dismissed the complaint and the counterclaim and the Court of Appeals affirmed. Held: The enforcement of a patent procured by fraud on the Patent Office may violate § 2 of the Sherman Act, provided ail other éléments to establish a § 2 monopolization charge are proved, in which event the treble-damage provisions of § 4 of the Clayton Act would be available to the injured party. Pp. 175-178.
(a)	Petitioner is not barred by the rule that only the United States may sue to cancel a patent since by its counterclaim under the Clayton Act it does not directly seek the patent’s annulment. Pp. 175-176.
(b)	In these circumstances rights under the antitrust laws out-weigh the protection of patentées from vexatious suits. P. 176.
(c)	The recovery of treble damages for the fraudulent pro-curement of a patent coupled with violations of § 2 of the Sherman Act accords with long-recognized procedures whereby an injured party may attack the misuse of patent rights. Pp. 176-177.
(d)	Proof of intentional fraud in obtaining the patent would deprive respondent of its exemption from the antitrust laws, while its good faith would furnish a complété defense. P. 177.
(e)	The case is remanded to the trial court to allow petitioner to clarify and offer proof on the alleged violations of § 2. P. 178.
335 F. 2d 315, reversed and remanded.
WALKER, INC. v. FOOD MACHINERY. 173
172	Opinion of the Court.
Charles J. Merriam argued the cause for petitioner. With him on the briefs were Edward A. Haight and Louis Robertson.
Sheldon O. Collen argued the cause for respondent. With him on the brief were R. Howard Goldsmith, Charles W. Ryan and Lloyd C. Hartman.
Daniel M. Friedman argued the cause for the United States, as amicus curiae, urging reversai. On the brief were Assistant Attorney General Orrick and Robert B. Hummel.
Mr. Justice Clark delivered the opinion of the Court.
The question before us is whether the maintenance and enforcement of a patent obtained by fraud on the Patent Office may be the basis of an action under § 2 of the Sherman Act,1 and therefore subject to a treble damage claim by an injured party under § 4 of the Clayton Act.2 The respondent, Food Machinery & Chemical Corp. (hereafter Food Machinery), filed this suit for infringe-ment of its patent No. 2,328,655 covering knee-action swing diffusers used in aération equipment for sewage treatment Systems.3 Petitioner, Walker Process Equip-
126 Stat. 209, 15 U. S. C. § 2 (1964 ed.) :
“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor . . . .”
2 38 Stat. 731, 15 U. S. C. § 15 (1964 ed.) :
“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the défendant résides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”
3 The patent in question was issued in the name of the inventor, Lannert. But he had previously assigned the patent rights to his employer, Chicago Pump Company, a division of Food Machinery.
174
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
ment, Inc. (hereafter Walker), denied the infringement and counterclaimed for a declaratory judgment that the patent was invalid. After discovery, Food Machinery moved to dismiss its complaint with préjudice because the patent had expired. Walker then amended its counterclaim to charge that Food Machinery had “ille-gally monopolized Interstate and foreign commerce by fraudulently and in bad faith obtaining and maintain-ing ... its patent . . . well knowing that it had no basis for ... a patent.” It alleged fraud on the basis that Food Machinery had sworn before the Patent Office that it neither knew nor believed that its invention had been in public use in the United States for more than one year prior to filing its patent application when, in fact, Food Machinery was a party to prior use within such time. The counterclaim further asserted that the existence of the patent had deprived Walker of business that it would hâve otherwise enjoyed. Walker prayed that Food Machinery’s conduct be declared a violation of the antitrust laws and sought recovery of treble damages.
The District Court granted Food Machinery’s motion and dismissed its infringement complaint along with Walker’s amended counterclaim, without leave to amend and with préjudice. The Court of Appeals for the Sev-enth Circuit affirmed, 335 F. 2d 315. We granted certiorari, 379 U. S. 957. We hâve concluded that the enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act pro-vided the other éléments necessary to a § 2 case are présent. In such event the treble damage provisions of § 4 of the Clayton Act would be available to an injured party.
I.
As the case reaches us, the allégations of the counterclaim, as to the fraud practiced upon the Government by Food Machinery as well as the resulting damage sufïered
WALKER, INC. v. FOOD MACHINERY. 175
172	Opinion of the Court.
by Walker, are taken as true.4 We, therefore, move jm-mediately to a considération of the legal issues presented.
Both Walker and the United States, which appears as amicus curiàe, argue that if Food Machinery obtained its patent by fraud and thereafter used the patent to ex-clude Walker from the market through “threats of suit” and prosecution of this infringement suit, such proof would establish a prima facie violation of § 2 of the Sherman Act. On the other hand, Food Machinery says that a patent monopoly and a Sherman Act monop-olization cannot be equated; the removal of the protection of a patent grant because of fraudulent procurement does not automatically resuit in a § 2 offense. Both lower courts seem to hâve concluded that proof of fraudulent procurement may be used to bar recovery for infringement, Précision Instrument MJg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945), but not to establish invalidity. As the Court of Appeals expressed the proposition, “only the government may ‘annul or set aside’ a patent,” citing Mowry v. Whitney, 14 Wall. 434 (1872). It went on to state that no case had “decided, or hinted that fraud on the Patent Office may be turned to use in an original affirmative action, instead of as an équitable defense. . . . Since Walker admits that its anti-trust theory dépends on its ability to prove fraud on the Patent Office, it follows that . . . Walker’s second amended counterclaim failed to state a claim upon which relief could be granted.” 335 F. 2d, at 316.
II.
We hâve concluded, first, that Walker’s action is not barred by the rule that only the United States may sue to cancel or annul a patent. It is true that there is no
4 See, e. g., United States v. New Wrinkle, Inc., 342 U. S. 371 376 (1952).
176
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
statutory authority for a private annulment suit and the invocation of the équitable powers of the court might often subject a patentée “to innumerable vexatious suits to set aside his patent.” Mowry, supra, at 441. But neither reason applies here. Walker counterclaimed under the Clayton Act, not the patent laws. While one of its éléments is the fraudulent procurement of a patent, the action does not directly seek the patent’s annulment. The gist of Walker’s claim is that since Food Machinery obtained its patent by fraud it cannot enjoy the limited exception to the prohibitions of § 2 of the Sherman Act, but must answer under that section and § 4 of the Clayton Act in treble damages to those injured by any monopolistic action taken under the fraudulent patent claim. Nor can the interest in protecting patentées from “innumerable vexatious suits” be used to frustrate the assertion of rights conferred by the antitrust laws. It must be remembered that we deal only with a spécial class of patents, i. e., those procured by intentional fraud.
Under the decisions of this Court a person sued for infringement may challenge the validity of the patent on various grounds, including fraudulent procurement. E. g., Précision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945); Hazel-Atlas Co. v. Hartford-Empire Co., 322 U. S. 238 (1944); Keystone Driller Co. v. General Excavator Co., 290 U. S. 240 (1933). In fact, one need not await the filing of a threatened suit by the patentée; the validity of the patent may be tested under the Declaratory Judg-ment Act, 28 U. S. C. § 2201 (1964 ed.). See Kerotest Mfg. Co. v. C-0 Two Fire Equipment Co., 342 U. S. 180, 185 (1952). At the same time, we hâve recognized that an injured party may attack the misuse of patent rights. See, e. g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661 (1944). To permit recovery of treble damages for the fraudulent procurement of the patent
WALKER, INC. v. FOOD MACHINERY. 177
172	Opinion of the Court.
coupled with violations of § 2 accords with these long-recognized procedures. It would also promote the purposes so well expressed in Précision Instrument, supra, at 816:
“A patent by its very nature is affected with a public interest. ... [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and économie conséquences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inéquitable conduct and that such monopolies are kept within their legitimate scope.”
III.
Walker’s counterclaim alleged that Food Machinery obtained the patent by knowingly and willfully misrepre-senting facts to the Patent Office. Proof of this assertion would be sufficient to strip Food Machinery of its exemption from the antitrust laws.5 By the same token, Food Machinery’s good faith would furnish a complété defense. This includes an honest mistake as to the effect of prior installation upon patentability—so-called “tech-nical fraud.”
To establish monopolization or attempt to monopolize a part of trade or commerce under § 2 of the Sherman Act, it would then be necessary to appraise the exclu-sionary power of the illégal patent claim in terms of the relevant market for the product involved. Without a définition of that market there is no way to measure Food Machinery’s ability to lessen or destroy compétition. It may be that the device—knee-action swing dif-
5 This conclusion applies with equal force to an assignée who maintains and enforces the patent with knowledge of the patent’s infirmity.
786-211 0-66—21
178	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
fusers—used in sewage treatment Systems does not comprise a relevant market. There may be effective substitutes for the device which do not infringe the patent. This is a matter of proof, as is the amount of damages suffered by Walker.
As respondent points out, Walker has not clearly articulated its claim. It appears to be based on a concept of per se illegality under § 2 of the Sherman Act. But in these circumstances, the issue is prématuré. As the Court summarized in White Motor Co. v. United States, 372 U. S. 253 (1963), the area of per se illegality is carefully limited. We are reluctant to extend it on the bare pleadings and absent examination of market effect and économie conséquences.
However, even though the per se claim fails at this stage of litigation, we believe that the case should be remanded for Walker to clarify the asserted violations of § 2 and to offer proof thereon. The trial court dismissed its suit not because Walker failed to allégé the relevant market, the dominance of the patented device therein, and the injurious conséquences to Walker of the patent’s enforcement, but rather on the ground that the United States alone may “annul or set aside” a patent for fraud in procurement. The trial court has not analyzed any économie data. Indeed, no such proof has yet been offered because of the disposition below. In view of these considérations, as well as the novelty of the claim asserted and the paucity of guidelines available in the decided cases, this deficiency cannot be deemed crucial. Fairness requires that on remand Walker hâve the oppor-tunity to make its § 2 daims more spécifie, to prove the alleged fraud, and to establish the necessary éléments of the asserted § 2 violation.
Reversed and remanded.
WALKER, INC. v. FOOD MACHINERY. 179
172
Harlan, J., concurring.
Mr. Justice Harlan, concurring.
I join the Court’s opinion. I deem it appropriate, however, to add a few comments to what my Brother Clark has written because the issue decided is one of first impression and to allay possible misapprehension as to the possible reach of this decision.
We hold today that a treble-damage action for monop-olization which, but for the existence of a patent, would be violative of § 2 of the Sherman Act may be main-tained under § 4 of the Clayton Act if two conditions are satisfied: (1) the relevant patent is shown to hâve been procured by knowing and willful fraud practiced by the défendant on the Patent Office or, if the défendant was not the original patent applicant, he had been enforcing the patent with knowledge of the fraudulent manner in which it was obtained; and (2) ail the éléments otherwise necessary to establish a § 2 monopoli-zation charge are proved. Conversely, such a private cause of action would not be made out if the plaintiff: (1) showed no more than invalidity of the patent aris-ing, for example, from a judicial finding of “obviousness,” or from other factors sometimes compendiously referred to as “technical fraud”; or (2) showed fraudulent pro-curement, but no knowledge thereof by the défendant; or (3) failed to prove the éléments of a § 2 charge even though he has established actual fraud in the procure-ment of the patent and the defendant’s knowledge of that fraud.
It is well also to recognize the rationale underlying this decision, aimed of course at achieving a suitable accommodation in this area between the differing policies of the patent and antitrust laws. To hold, as we do, that private suits may be instituted under § 4 of the Clayton Act to recover damages for Sherman Act monop-olization knowingly practiced under the guise of a patent
180	OCTOBER TERM, 1965.
Harlan, J., concurring.	382 U. S.
procured by deliberate fraud, cannot well be thought to impinge upon the policy of the patent laws to encourage inventions and their disclosure. Hence, as to this class of improper patent monopolies, antitrust remedies should be allowed room for full play. On the other hand, to hold, as we do not, that private antitrust suits might also reach monopolies practiced under patents that for one reason or another may turn out to be voidable under one or more of the numerous technicalities attending the issu-ance of a patent, might well chill the disclosure of inventions through the obtaining of a patent because of fear of the vexations or punitive conséquences of treble-damage suits. Hence, this private antitrust remedy should not be deemed available to reach § 2 monopolies carried on under a nonfraudulently procured patent.
These contrasting factors at once serve to justify our présent holding and to mark the limits of its application.
HANNA MINING v. MARINE ENGINEERS. 181
Syllabus.
HANNA MINING CO. et al. v. DISTRICT 2, MARINE ENGINEERS BENEFICIAT
ASSOCIATION, AFL-CIO, et al.
CERTIORARI TO THE SUPREME COURT OF WISCONSIN.
No. 7. Argued October 12, 1965.—Decided December 6, 1965.
Petitioners (Hanna) operate cargo vessels on the Great Lakes in interstate and foreign commerce. While negotiating for a new collective bargaining agreement with respondent Association (MEBA), which represented the licensed marine engineers on the ships, petitioners assertedly were informed by a majority of the engineers that they did not wish to be represented by MEBA. Hanna declined to negotiate until MEBA’s majority status was determined by secret ballot, and MEBA replied by picketing Hanna’s ships at Duluth and other ports, causing dock workers to refuse to unload. Hanna turned to the National Labor Relations Board (NLRB): (1) It petitioned the Cleveland Régional Director to hold a représentation élection among its engineers to détermine MEBA’s status. The pétition was dismissed on the ground that the engineers were “supervisors” and not “employées” under §2(3) of the National Labor Relations Act. The NLRB upheld this decision. (2) It filed charges with the Minneapolis Régional Director alleging that MEBA violated § 8 (b) (4) (B) of the Act by inducing work stoppages among dockers at Duluth through improper secondary pressure. These charges were dismissed and the General Counsel agreed, stating that MEBA’s conduct at Duluth and other sites did not exceed the bounds of lawful picketing under the NLRB’s standards. (3) It filed charges with the Cleveland Régional Director accusing MEBA of organizational or recognitional picketing prohibited by § 8 (b) (7) of the Act. The General Counsel affirmed the dismissal of the charges on the ground that MEBA fell outside the section since it sought to represent supervisors rather than employées. When shipping re-sumed in the spring and MEBA picketed Hanna ships in Superior, Hanna sued in a Wisconsin circuit court for injunctive relief from the picketing under state law. The Circuit Court dismissed for lack of subject matter jurisdiction and the state Suprême Court affirmed, holding that although the picketing could be deemed illégal under state law, it arguably violated §§ 8 (b) (4) (B) and
182
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
8 (b) (7) of the Act and fell within the NLRB’s exclusive jurisdiction under San Diego Unions v. Garmon, 359 U. S. 236. Held:
1.	Under Garmon a State may not regulate conduct arguably “protected by § 7, or prohibited by § 8” of the Act, and the legislative purpose may require that certain activity neither protected nor prohibited be deemed privileged against state régulation. P. 187.
2.	The NLRB decision that the marine engineers are super-visors and not “employées” éliminâtes most of the opportunities for préemption in this case. P. 188.
(a)	Organizational or recognitional activity aimed at super-visors cannot be protected by § 7 of the Act, arguably or other-wise. P. 188.
(b)	Situations in which such activity can be prohibited by the Act are fewer than would be the case if “employées” were being organized or seeking récognition. P. 188.
(c)	There can be no breach of § 8 (b) (7), which limits organizational or recognitional picketing, since it applies only to picketing directed at “employées.” P. 188.
3.	The enactment of § 14 (a) of the Act was not a congressional decision to exclude state régulation of supervisory organizing. Pp. 189-190.
4.	The NLRB’s statement accompanying its refusai to order a représentation élection settles the supervisory status of the engineers “with unclouded legal significance,” so as to avoid préemption in the respects discussed. P. 190.
5.	Section 8 (b) (4) (B) does not provide a ground for préemption in the circumstances of this case. Pp. 191-194.
(a)	Petitioners claim there is no arguable violation on the basis of the finding of the Régional Director and General Counsel in declining to issue a complaint under § 8 (b) (4) (B) with respect to the 1962 picketing. The General Counsel has statutory “final authority, on behalf of the Board” in the issuance of complaints, and his explicated déterminations are entitled to great weight. Pp. 191-192.
(b)	Hanna has offered to prove that the 1963 picketing at Superior was the same as the 1962 picketing at Superior, and if such proof is fumished, the chance that the picketing sought to be enjoined conceals a §8 (b) (4) (B) violation is remote. P. 192.
HANNA MINING v. MARINE ENGINEERS. 183
181	Opinion of the Court.
(c)	Even if a § 8 (b) (4) (B) violation were présent, there would in this instance be no danger by a state injunction to interests served by the Garmon doctrine since the workers sought to be organized are outside the scope of the Act. Pp. 192-193.
(d)	The presence of a § 8 (b) (4) (B) violation would not resuit in the NLRB’s affording complété protection to the legiti-mate interests of the State, as the primary picketing proviso of § 8 (b) (4) (B) inhibits the use of that section fully to deal with the conduct complained of in this case. P. 194.
23 Wis. 2d 433, 127 N. W. 2d 393, reversed and remanded.
John H. Hanninen argued the cause for petitioners. With him on the brief was Lucian Y. Ray.
Lee Pressman argued the cause for respondents. With him on the brief was David Scribner.
Acting Solicitor General Spritzer, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Laurence S. Gold filed a brief for the United States, as amicus curiae, urging reversai.
Mr. Justice Harlan delivered the opinion of the Court.
The présent controversy once again brings before the Court the troublesome question of where lies the line between permissible and federally preempted state régulation of union activities.
I.
Petitioners (“Hanna”) are four corporations whose integrated fleet of Great Lakes vessels carries cargo in Interstate and foreign commerce and is operated by one of the four, the Hanna Mining Company. The respond-ent District 2, Marine Engineers Bénéficiai Association (“MEBA”)1 represented the licensed marine engineers in Hanna’s fleet under a collective bargaining agreement
1 The remaining respondents are officers, agents, and représentatives of MEBA, and what is said of it in this opinion applies equally to them.
184
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Opinion of the Court.
terminating on July 15,1962. According to Hanna, while negotiations for a new contract continued during August 1962, a majority of the marine engineers informed Hanna by written pétitions that they did not wish to be repre-sented by MEBA. Hanna then declined to negotiate further until MEBA’s majority status was established by a secret ballot. Without acquiescing in this proposai or questioning any of the employée signatures on the pétitions, MEBA responded on September 12, 1962, by picketing one of Hanna’s ships unloading at a dock ih Duluth, Minnesota, with signs giving the ship’s name, stating that Hanna unfairly refused to negotiate with MEBA, and indicating that no dispute existed with any other employer. Because of the continued picketing, dock workers refused day after day to unload the ship. From September 12 until shipping ended for the winter, MEBA similarly picketed Hanna ships at other Great Lakes ports, including Superior, Wisconsin.
Hanna turned first to the National Labor Relations Board. On September 12, it petitioned the Régional Director at Cleveland, Ohio, to hold a représentation élection among Hanna’s engineers to prove or disprove MEBA’s majority status. The pétition was dismissed at the end of September on the stated ground that the engineers were “supervisors” under § 2 (11) of the National Labor Relations Act,2 and automatically excluded from the Act’s définition of “employées” under § 2 (3),3 so élection proceedings under § 9 were not warranted;4 giv-
2 National Labor Relations Act, as amended, § 2 (11), 61 Stat. 138, 29 U. S. C. § 152 (11) (1964 ed.), gives a functional définition of the term “supervisor.”
3 National Labor Relations Act, as amended, § 2 (3), 61 Stat. 137, 29 U. S. C. § 152 (3) (1964 ed.), provides in relevant part that the * term employée’ . . . shall not include . . . any individual employed as a superviser . . . .”
4 National Labor Relations Act, as amended, § 9, 61 Stat. 143, 29 U. S. C. § 159 (1964 ed.), pertinently provides in subsection (c) that pétitions may be entertained and élections ordered to deter-
HANNA MINING v. MARINE ENGINEERS. 185
181	Opinion of the Court.
ing the same reason, the Board in November declined to overturn this decision.5 As a second measure, Hanna on September 15, 1962, filed charges with the Régional Di-rector in Minneapolis, Minnesota, alleging that MEBA had violated § 8 (b) (4) (B) of the Act,6 by inducing work stoppages among dockers at Duluth through improper secondary pressure. In October, the Régional Director dismissed the charges and the General Counsel sustained the dismissal in December, stating that MEBA’s conduct mine “the représentative defined in subsection (a) of this section”; and subsection (a) pertinently provides that “[représentatives des-ignated or selected . . . by the majority of the employées in a unit . . . shall be the exclusive représentatives of ail the employées in such unit” for collective bargaining purposes.
5 In relevant part the Board’s letter stated that as the “appeal makes no affirmative claim that a majority of the ‘employées’ as distinguished from ‘supervisors’ are sought to be represented in an appropriate unit and as a unit of supervisors is otherwise inappro-priate, no question concerning représentation in an appropriate unit exists.” While this pronouncement could be clearer, the parties do not dispute that it affirms or refuses to disturb the Régional Director’s explicit finding.
6 National Labor Relations Act, as amended, §8 (b)(4) (B), 73 Stat. 542, 29 U. S. C. § 158 (b) (4) (B) (1964 ed.), provides in relevant part that it shall be an unfair labor practice for a labor organization or its agents:
“(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusai in the course of his employment to . . . transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services . . . where ... an object thereof is—
“(B) forcing or requiring any person to cease . . . handling, transporting, or otherwise dealing in the products of any other pro-ducer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the représentative of his employées unless . . . certified .... Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.”
186
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
at Duluth and at other sites investigated did not exceed the bounds of lawful picketing under the Board’s standards.7 Hanna’s third and last appeal to the Board came on September 27, 1962, when it filed charges with the Régional Director in Cleveland, Ohio, accusing MEBA of ôrganizational or recognitional picketing improper under §8 (b) (7) of the Act.8 The Régional Director dismissed the charge in October and in the next two months the General Counsel affirmed the dismissal because in seek-ing to represent “supervisors” rather than “employées” MEBA fell outside the section.9
Winter brought an end to both shipping and picketing for several months but when the navigation season opened in the spring of 1963 MEBA pickets once more appeared. After picketing occurred at Superior, Wisconsin, Hanna filed suit on June 24, 1963, in a Wisconsin circuit court. The complaint and affidavits alleged that MEBA was picketing Hanna’s vessels at the docks of the Great Northern Railway Company at Superior in the
7 The letter from the General Counsel’s office stated in part : “[T]he evidence revealed that the picketing by MEBA at the com-mon situs herein conformed to Moore Dry Dock standards . . . . Furthermore, MEBA’s activity at other sites did not évincé an unlawful object on the part of the Union inconsistent with the osten-sibly primary object of the picketing at the situs of the dispute.”
8 National Labor Relations Act, as amended, §8 (b) (7), 73 Stat. 544, 29 U. S. C. § 158 (b) (7) (1964 ed.), provides, excluding portions and exceptions not here relevant, that it is an unfair labor practice for a labor organization or its agents to picket any employer with an object of forcing “an employer to recognize or bargain with a labor organization as the représentative of his employées, or forcing or requiring the employées of an employer to accept or select such labor organization” as their bargaining agent unless such labor organization is certified or seeks certification.
9 A second, clarifying letter from the General Counsel’s office stated in part: “Our disposition of this case was predicated solely on our conclusion that the supervisory status of the licensed engineers precluded a finding that the Union’s picketing and other activity was for an object proscribed by Section 8 (b) (7) of the Act.”
HANNA MINING v. MARINE ENGINEERS. 187
181	Opinion of the Court.
same manner as the 1962 picketing and with the same improper aim of forcing its représentation on unwilling engineers ; Hanna stated that workers of other employers were refusing to render service to Hanna’s vessels and it prayed for injunctive relief against further picketing of the vessels and the docks where they berthed and against any other attempt of MEBA to impose représentation on Hanna engineers. The Circuit Court dismissed the suit in July for lack of jurisdiction over the subject matter. In April 1964 the Wisconsin Suprême Court affirmed the decision. 23 Wis. 2d 433,127 N. W. 2d 393. While agree-ing that the picketing could be deemed illégal under Wisconsin law,10 that court held that the picketing arguably violated § § 8 (b) (4) (B) and 8 (b) (7) of the fédéral labor Act and so fell within the Board’s exclusive jurisdiction marked out in San Diego Unions v. Garmon, 359 U. S. 236. In light of other language in Garmon the Wisconsin Suprême Court held that the General Counsel’s dis-missal of charges under §§ 8 (b)(4)(B) and 8 (b)(7) did not foreclose the possibility of a preempting violation, even assuming the 1963 picketing in Superior mirrored the 1962 picketing in Duluth. We invited the views of the United States, 379 U. S. 942, granted certiorari, 380 U. S. 941, and now reverse and remand.
II.
The ground rules for préemption in labor law, emerg-ing from our Garmon decision, should first be briefly summarized: in general, a State may not regulate con-duct arguably “protected by § 7, or prohibited by § 8” of the National Labor Relations Act, see 359 U. S., at 244-246 ; and the legislative purpose may further dictate that certain activity “neither protected nor prohibited” be deemed privileged against state régulation, cf. 359
10 See Vogt, Inc. v. International Brotherhood, 270 Wis. 321a, 74 N. W. 2d 749, aff’d sub nom. Teamsters Union v. Vogt, Inc., 354 U. S. 284.
188	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
U. S., at 245. For the reasons that follow, we believe the Board’s decision that Hanna engineers are supervisors removes from this case most of the opportunities for préemption.
When in 1947 the National Labor Relations Act was amended to exclude supervisory workers from the critical définition of “employées,” § 2 (3), it followed that many provisions of the Act employing that pivotai term would cease to operate where supervisors were the focus of concern. Most obviously, § 7 no longer bestows upon supervisory employées the rights to engage in self-organi-zation, collective bargaining, and other concerted activities 11 under the umbrella of § 8 of the Act, as amended, 61 Stat. 140, 29 U. S. C. § 158 (1964 ed.). See Labor Board v. Budd Mjg. Co., 169 F. 2d 571. Accordingly, activity designed to secure organization or récognition of supervisors cannot be protected by § 7 of the Act, argu-ably or otherwise. Compare Labor Board v. Drivers Local Union, 362 U. S. 274, 279. Correspondingly, the situations in which that same activity can be prohibited by the Act, even arguably, are fewer than would be the case if employées were being organized or seeking récognition. There can be no breach of §8(b)(7), cur-tailing organizational or recognitional picketing, because there cannot exist the forbidden objective of requir-ing représentation of “employées” by the picketing organization. Nor could one even advance the argument unsuccessfully urged in Drivers Local Union that § 8 (b) (1) (A), 61 Stat. 141, 29 U. S. C. § 158 (b) (1) (A) (1964 ed.), condemns the picketing as restraint or coercion of employées exercising their § 7 right not to organize or bargain collectively.
11 National Labor Relations Act, as amended, § 7, 61 Stat. 140, 29 U. S. C. § 157 (1964 ed.), provides that “employées” shall hâve the right to engage in, or in general to refrain from, the mentioned activities.
HANNA MINING v. MARINE ENGINEERS. 189
181	Opinion of the Court.
Even though such efforts to unionize supervisors are not protected by the Act, or in the respects immediately relevant prohibited by it, the question arises whether Congress nonetheless desired that in their peaceful facets these efforts remain free from state régulation as well as Board authority. Compare Teamsters Union v. Morton, 377 U. S. 252, 258-260. Arguing that the States are in-deed powerless in this respect, MEBA pitches its case chiefly on the 1947 amendment of the “employée” définition and on the concurrent enactment of § 14 (a) of the Act, 61 Stat. 151, 29 U. S. C. § 164 (a) (1964 ed.), which provides in relevant part that “[n]othing herein shall prohibit any individual employed as a superviser from becoming or remaining a member of a labor organization ... y It is contended that the amendment and this section signify a fédéral policy of laissez faire toward supervisors ousting state as well as Board authority and, more particularly, that to allow the Wisconsin injunction would obliterate the opportunity for superviser unions that Congress expressly reserved.
This broad argument fails utterly in light of the legislative history, for the Committee reports reveal that Congress’ propelling intention was to relieve employers from any compulsion under the Act and under state law to countenance or bargain with any union of supervisory employées.12 Whether the legislators fully realized that their method of achieving this resuit incidentally freed supervisors’ unions from certain limitations under the
12 Summarizing the impact of the new measure on supervisory personnel, the Senate Report stated: “[T]he bill does not prevent any-one from organizing nor does it prohibit any employer from recog-nizing a union of foremen. It merely relieves employers who are subject to the national act free from any compulsion by this National Board or any local agency to accord to the front line of management the anomalous status of employées.” S. Rep. No. 105, 80th Cong., lst Sess., p. 5. See also H. R. Rep. No. 245, 80th Cong., Ist Sess., pp. 13-17.
190
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
newly enacted § 8 (b) is not wholly clear, but certainly Congress made no considered decision generally to ex-clude state limitations on supervisory organizing. As to the portion of § 14 (a) quoted above, some legislative history suggests that it was not meant to immunize any conduct at ail but only to make it “clear that the amend-ments to the act do not prohibit supervisors from joining unions . . . .” S. Rep. No. 105, 80th Cong., Ist Sess., p. 28; H. R. Conf. Rep. No. 510, 80th Cong., Ist Sess., p. 60 (“[T]he first part of this provision [§ 14 (a)] was included presumably out of an abundance of caution.”). However, even assuming that § 14 (a) itself intended also to make it clear that state law could not prohibit supervisors from joining unions, the section would hâve no application to the présent facts ; for picketing by a minor-ity union to extract récognition by force of such pressures is decidedly not a sine qua non of collective bargaining, as indeed its limitation by §8(b)(7) in nonsupervisor situations attests.
The remaining question in this phase of the case is whether the supervisory status of Hanna’s engineers has been settled “with unclouded legal significance,” Garmon, 359 U. S., at 246, so as to preclude arguable application of the Act in the respects discussed. We hold that the Board’s statement accompanying its refusai to order a représentation élection does résolve the question with the clarity necessary to avoid préemption. While MEBA does not contend that the Board erred in its détermination, an abstract difficulty arises from the lack of a stat-utory channel for judicial review of such a Board decision. Compare Hôtel Employées v. Leedom, 358 U. S. 99 (equity action to obtain élection). However, the usual deference to Board expertise in applying statutory terms to particular facts assures that its decision would in any event be respected in a high percentage of instances, and so diminished a risk of interférence with
HANNA MINING v. MARINE ENGINEERS. 191
181	Opinion of the Court.
fédéral labor policy does not justify use of the préemption doctrine to thwart state régulation bound to be legitimate on this score in almost ail cases.
III.
A further basis for préemption, urged by MEBA and adopted by the Wisconsin Suprême Court, is that the picketing at Superior exerted secondary pressure argu-ably violating § 8 (b)(4) (B). The argument appears to be that a state injunction banishing the pickets inevi-tably impinges upon the Board’s authority to regulate facets of the picketing that might exceed “primary” picketing and violate § 8 (b) (4) (B)13—facets never spec-ified by MEBA but presumably those that ignore the Board’s limitations on time, location, and manner of common situs picketing. See Sailors’ Union of the Pacific {Moore Dry Dock), 92 N. L. R. B. 547. However, as will appear, no arguable violation exists if Hanna’s proof lives up to its allégations; further, even assuming a violation, fédéral interests normally justifying préemption are absent from this case.
Hanna’s claim that there is no arguable violation rests, of course, on the finding made by the Régional Director and the General Counsel in declining to issue a complaint under § 8 (b) (4) (B) with respect to MEBA’s 1962 picketing. The Wisconsin Suprême Court refused to crédit this finding because of this Court’s comment in Garmon that the “refusai of the General Counsel to file a charge” is one of those dispositions “which does not define the nature of the activity with unclouded legal signifi-cance.” 359 U. S., at 245-246. This language allows
13 By contrast, sometimes offensive conduct may be restrained by a state remedy that has no impact at ail on related activity arguably within the Board’s exclusive province. Seè, e. g., Youngdahl v. Rainfair, Inc., 355 U. S. 131, upholding a state injunction against violence but setting it aside so far as it reached peaceful picketing.
192
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
more than one interprétation, but we take it not to apply to those refusais of the General Counsel which are illumi-nated by explanations that do squarely define the nature of the activity. The General Counsel has statutory “final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints,” § 3 (d) of the Act, as amended, 61 Stat. 139, 29 U. S. C. § 153 (d) (1964 ed.), and his pronouncements in this context are entitled to great weight. The usual inability of the charging party to contest the General Counsel’s adverse decision in the courts, see Hourihan v. Labor Board, 91 U. S. App. D. C. 316, 201 F. 2d 187, does to be sure create a slight risk if state courts may proceed on this basis, but in the context of this case we believe the risk is too minimal to deserve récognition.
Even taking the General Counsel’s ruling at face value, MEBA stresses that the § 8 (b) (4) (B) charge by Hanna concerned picketing in Duluth in September 1962 while the picketing before the Wisconsin court occurred at Superior in spring 1963. Yet Hanna accompanied the 1962 charge with information as to the 1962 picketing in several ports including Superior. The Régional Director is said to hâve conducted an investigation in Superior as well as in Duluth, and the General Counsel’s letter on the § 8 (b) (4) (B) charge appeared to state that activity at the sites other than Duluth also did not violate the Act. See n. 7, supra. And while some months inter-vened between the fall 1962 picketing at Superior and its resumption at that port in spring 1963, Hanna has offered to prove that the picketing remained the same in ail significant respects including the picket signs em-ployed, the location of the pickets, and the pickets’ general behavior. If this proof is furnished, the chance that the picketing sought to be enjoined conceals a § 8 (b) (4) (B) violation seems remote indeed.
Additionally, even if a §8(b)(4)(B) violation were présent, central interests served by the Garmon doctrine
HANNA MINING v. MARINE ENGINEERS. 193
181	Opinion of the Court.
are not endangered by a state injunction when, in an instance such as this, the Board has established that the workers sought to be organized are outside the régime of the Act. Cf. Incres S. S. Co. v. Maritime Workers, 372 U. S. 24. Most importantly, the Board’s decision on the supervisory question détermines, as we hâve already shown, that none of the conduct is arguably protected nor does it fall in some middle range impliedly withdrawn from state control.14 Consequently, there is wholly absent the greatest threat against which the Garmon doctrine guards, a State’s prohibition of activity that the Act indicates must remain unhampered.15
14 Aside from the §14 (a) line of argument already answered, we do not find at ail apposite Teamsters Union v. Morton, 377 U. S. 252, holding a State powerless to award damages against a striking union for requesting a secondary employer to cease business with the struck employer. While in Morton préemption was premised on the fact that the secondary pressure did not corne within the ban fixed by § 8 (b) (4) (B) and adopted by § 303 (a) of the Labor Management Relations Act, as amended, 73 Stat. 545, 29 U. S. C. § 187 (a) (1964 ed.), the conduct there occurred in the context of a peaceful économie strike by employées, a sphere in which the fédéral interest is especially pervasive. By contrast the présent case, involving secondary pressure wielded to impose représentation on unwilling supervisors, finds itself at that far corner of labor law where, as we hâve shown, fédéral occupation is at a minimum and state power at a peak.
15 Hattiesburg Unions v. Broome Co., 377 U. S. 126, cited to us by MEBA, may illustrate this concem. There, the union’s organi-zational picketing at a common situs was enjoined by the State because its objective violated state law. In urging that the picketing’s possible violation of § 8 (b) (4) (B) preempted state authority, the Solicitor General suggested that it may also hâve been “lawful picketing” outside the State’s reach so far as not prohibited by the section. Mémorandum, p. 6, n. 7. See also Michelman, State Power To Govern Concerted Employée Activities, 74 Harv. L. Rev. 641, 652-653 (1961) (citations omitted) : “[A] state generally may not enjoin conduct thought to be a fédéral unfair labor practice. The reason is that, despite the state court’s contrary belief, the conduct may, as a matter of fédéral law, be privileged.”
786-211 0-66—22
194	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Nor is this a case in which the presence of arguably prohibited activity may permit the Board to afford complété protection to the legitimate interests advanced by the State. Since Hanna as the primary employer is présent at the picketed situs, the primary picketing proviso of §8 (b) (4) (B) severely inhibits the Boafd’s use of that section to reach the volatile core of the conduct, the impact on secondary employers that follows from the mere presence of the pickets at a common situs. Section 8 (b) (7) which might provide full relief is rendered inapplicable by the superviser ruling. Thus, so far as Garmon may proceed on the view that the opportunity belongs to the Board wherever it and the State offer duplicate relief, it has limited application to the présent facts.16
In concluding that the Act does not preempt the State’s authority to quench the picketing said to hâve occurred in this case, we do not retreat from Garmon. Rather, we consider that neither the terms nor the policies of that decision justify its extension to the présent facts, an extension producing untoward results noted by the Wisconsin Suprême Court itself. 23 Wis. 2d 433, 446, 127 N. W. 2d 393, 399.
The judgment of the Suprême Court of Wisconsin is reversed and the case is remanded to that court for pro-ceedings not inconsistent with this opinion.
It is so ordered.
16 In Marine Engineers v. Interlake Co., 370 U. S. 173, we over-turned a state ban on picketing arguably violating § 8 (b) (4) (B) ; and to the counterargument that the picketing group was not a "labor organization” subject to § 8 (b), we pointed out that this decision was for the Board. Unlike the présent case, in Interlake the § 8 (b) (4) (B) remedy had not been tried; but quite apart from that considération, had the Board held the union a “labor organization” and also held those being organized to be “employées”—another point not recently decided by the Board—complété relief against the picketing might well hâve been available under § 8 (b) (7). See 370 U. S., at 182-183.
HANNA MINING v. MARINE ENGINEERS. 195
181	Brennan, J., concurring.
Mr. Justice Brennan, concurring.
I agréé with the Court that § 14 (a) does not évincé a congressional decision to exclude state régulation of picketing aimed at organizing supervisors and securing the employer’s récognition of the union. The question here, however, is whether Congress has excluded state régulation when that picketing also has secondary aspects arguably within the reach of §8 (b)(4)(B). I agréé with the Court that state régulation is likewise not precluded in such case.
The proviso to § 8 (b) (4) (B) expressly States “[t]hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” (Emphasis sup-plied.) While Congress thus provided that primary picketing is not rendered unlawful under the Act merely by having secondary aspects, the italicized words of the proviso évincé a congressional intention to leave undis-turbed whatever other provisions of law regulate primary picketing. Ordinarily such régulation occurs under the National Labor Relations Act. The primary aspects of supervisory picketing are not, however, regulated by the fédéral Act; and I think the assumption that régulation will occur, which underlies the italicized words of the proviso, is strong enough to support the Court’s conclusion that state régulation of supervisory organizational picketing is not preempted.*
It is true that we said in Garmon that States hâve no power to regulate “activities” arguably subject to the fédéral Act; picketing which, because of its secondary aspects, is arguably subject to § 8 (b) (4) (B) is, by one construction, an “activity.” But Garmon was not a case in which only incidental aspects of picketing were argu-
*It could be argued that this assumption supports a scope of state régulation no broader than that ordinarily provided by the fédéral Act. It is not necessary to résolve that argument here.
196
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Brennan, J., concurring.
ably subject to fédéral power and in which the alternative to state régulation was a regulatory void which Con-gress plainly assumed would not exist. In this limited context, it is permissible to distinguish the primary from the secondary aspects of the picketing, and hold that the States may regulate the former, although preempted as to the latter, and although the necessary efïect of régulation curbs both secondary and primary aspects of the picketing. This choice seems more consistent with the congressional meaning, since the alternative is to immu-nize the primary aspects of such common-situs picketing from state régulation, and that alternative finds no support either in policy or in the statute. Thus, I think that the Wisconsin courts may consider so much of the complaint as is addressed to the primary aspects of MEBA’s picketing.
DECISIONS PER CURIAM.
197
382 U. S.	December 6, 1965.
UNITED STATES v. HUCK MANUFACTURING CO. ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN.
No. 8. Argued November 15, 1965.—Decided December 6, 1965.
227 F. Supp. 791, affirmed.
Assistant Attorney General Turner argued the cause for the United States. With him on the brief were Act-ing Solicitor General Spritzer, Frank Goodman and Robert B. Hummel.
Dennis G. Lyons and Thomas W. Pomeroy, Jr., argued the cause for appellees. With them on the brief were Paul A. Porter, William L. McGovem, John A. Blair, S. K. McCune and W. Walter Braham, Jr.
Per Curiam.
Judgment affirmed by an equally divided Court.
Mr. Justice Fortas took no part in the considération or decision of this case.
198
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
ROGERS et al. v. PAUL et al.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
No. 532. Decided December 6, 1965.
This class action to effect pupil and faculty desegregation of the Fort Smith, Arkansas, high schools was brought several years ago by petitioners, two Negro students. The courts below refused to order respondents to transfer petitioners or to order immédiate desegregation of the high schools and it was also held that petitioners had no standing to challenge racial faculty allocation. Since one of the students had graduated during the pendency of the suit, and the other had reached the 12th grade, two other Negro students, one in the lOth grade and the other in the llth grade, moved in this Court to be added as party plaintiffs. Held:
1.	The motion to add parties is granted.
2.	The assignment of petitioners to a Negro high school on the basis of race is constitutionally prohibited, both for the reasons stated in Brown v. Board of Education, 347 U. S. 483, and because petitioners are prevented from taking courses offered only at another school limited to white students. Pending immédiate desegregation of the high schools according to a general plan, petitioners and those similarly situated shall be allowed immédiate transfer to the high school from which they were excluded because of race and which has the more extensive curriculum.
3.	Under two théories, the first of which plainly applies, students not yet in desegregated grades would hâve standing to challenge racial faculty allocation: Such allocation (a) of itself déniés them equality of educational opportunity, and (b) ren-ders inadéquate an otherwise constitutional pupil desegregation plan soon to be applied to their grades.
Certiorari granted; 345 F. 2d 117, vacated and remanded.
Jack Greenberg, James M. Nabrit III, Derrick A. Bell, Jr., and George Howard, Jr., for petitioners.
John P. Woods for respondents.
Per Curiam.
The pétition for writ of certiorari to the Court of Appeals for the Eighth Circuit and the motion to add
ROGERS v. PAUL.
199
198	Per Curiam.
parties are granted. The judgment of that court is va-cated and the case is remanded to the District Court for the Western District of Arkansas for further proceedings consistent with this opinion.
1.	This class action to desegregate the public high schools of Fort Smith, Arkansas, was commenced several years ago in the name of two Negro students. One of the students has since graduated and the other has entered the last high school grade. A motion to add parties is made on behalf of two additional Negro students. It is alleged therein, and not denied by respondents, that these students are in the lOth and llth grades of high school and that they are members of the class represented, seeking the same relief for ail the reasons offered by the original party plaintiffs. That motion is accordingly granted.
2.	The desegregation plan adopted in 1957 desegre-gates only one grade a year and the lOth, llth and 12th high school grades are still segregated. The students who are petitioners here were assigned to a Negro high school on the basis of their race.* Those assignments are constitutionally forbidden not only for the reasons stated in Brown v. Board of Education, 347 U. S. 483, but also because petitioners are thereby prevented from taking certain courses offered only at another high school limited to white students, see Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 332 U. S. 631 ; Sweatt v. Painter, 339 U. S. 629. Petitioners are en-titled to immédiate relief; we hâve emphasized that “[d]elays in desegregating school Systems are no longer tolerable.” Bradley v. School Board, ante, p. 103, at 105. Pending the desegregation of the public high
*The constitutional adequacy of the method chosen for assigning students to the schools for purpose of desegregating the lower grades is not before us, and the method contemplated for the high schools is not part of the record.
200	OCTOBER TERM, 1965.
Per Curiam.	382 U. S.
schools of Fort Smith according to a general plan consistent with this principle, petitioners and those similarly situated shall be allowed immédiate transfer to the high school that has the more extensive curriculum and from which they are excluded because of their race.
3.	From the outset of these proceedings petitioners hâve challenged an alleged policy of respondents of allo-cating faculty on a racial basis. The District Court took the view that petitioners were without standing to challenge the alleged policy, and accordingly refused to permit any inquiry into the matter. The Court of Appeals sustained this ruling, holding that only students presently in desegregated grades would hâve the standing to make that challenge. 345 F. 2d 117, 125. We do not agréé and remand for a prompt evidentiary hearing on this issue.
Even the Court of Appeals’ requirement for standing would be met on remand since petitioners’ transfer to the white high school would desegregate their grades to that limited extent. Moreover, we reject the Court of Appeals’ view of standing as being unduly restrictive. Two théories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of faculty déniés them equality of educational opportunity without regard to ségrégation of pupils; and (2) that it renders inadéquate an otherwise constitutional pupil desegregation plan soon to be applied to their grades. See Bradley v. School Board, supra. Petitioners plainly had standing to challenge racial allocation of faculty under the first theory and thus they were improperly denied a hearing on this 1 ue*	Vacated and remanded.
Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice White and Mr. Justice Fortas would set the case down for argument and plenary considération.
DECISIONS PER CURIAM.
201
382 U. S.	December 6, 1965.
GEORGE F. HAZELWOOD CO. v. PITSENBARGER, ASSESSOR.
APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA.
No. 567. Decided December 6, 1965.
149 W. Va. 485, 141 S. E. 2d 314, appeal dismissed.
Joseph A. Blundon for appellant.
C. Donald Robertson, Attorney General of West Virginia, and George H. Mitchell and J. Patrick Bower, Assistant Attorneys General, for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
MARCHEV et ux. v. TOWNSHIP OF LIVINGSTON.
APPEAL FROM THE SUPREME COURT OF NEW JERSEY.
No. 571. Decided December 6, 1965.
44 N. J. 412, 209 A. 2d 145, appeal dismissed.
James T. Dowd for appellants.
Per Curiam.
The appeal is dismissed for want of a substantial fédéral question.
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OCTOBER TERM, 1965.
December 6, 1965.
382 U. S.
CALIFORNIA DEMOCRATIC COUNCIL et al. v. ARNEBERGH et al.
APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT.
No. 583. Decided December 6, 1965.
233 Cal. App. 2d 425, 43 Cal. Rptr. 531, appeal dismissed.
Leon M. Cooper for appellants.
Thomas C. Lynch, Attorney General of California, Charles A. Barrett, Assistant Attorney General, Sanford N. Gruskin, Deputy Attorney General, Harold W. Kennedy, Roger Arnebergh, pro se, and Bourke Jones for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
NEHRING v. GERRITY.
APPEAL FROM THE SUPREME COURT OF ILLINOIS.
No. 614. Decided December 6, 1965.
31 111. 2d 608, 203 N. E. 2d 402, appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
DECISIONS PER CURIAM.
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382 U. S.	December 6, 1965.
MISANI v. ORTHO PHARMACEUTICAL CORP. ET AL.
APPEAL FROM THE SUPREME COURT OF NEW JERSEY.
No. 595. Decided December 6, 1965.
44 N. J. 552, 210 A. 2d 609, appeal dismissed and certiorari denied.
Appellant pro se.
Clyde A. Szuch and Stanley C. Smoyer for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for writ of certiorari, certiorari is denied.
508 CHESTNUT, INC. v. CITY OF ST. LOUIS et al.
APPEAL FROM THE SUPREME COURT OF MISSOURI.
No. 605, Decided December 6, 1965.
389 S. W. 2d 823, appeal dismissed.
Morris A. Shenker and Bernard J. Mellman for appellant.
Thomas F. McGuire and Aubrey B. Hamilton for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
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December 6, 1965.
382 U. S.
SOLOMON v. SOUTH CAROLINA.
APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA.
No. 588. Decided December 6, 1965.
245 S. C. 550, 141 S. E. 2d 818, appeal dismissed.
EUis Lyons for appellant.
Daniel R. McLeod, Attorney General of South Carolina, and E. N. Brandon, Assistant Attorney General, for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
Mr. Justice Douglas is of the opinion that the judg-ment should be reversed on the authority of Sherbert v. Verner, 374 U. S. 398. And see McGowan v. Maryland, 366 U. S. 420, 561, 577 (dissenting opinion).
Mr. Justice Brennan and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted.
AUTO WORKERS v. SCOFIELD.
205
Syllabus.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLE-MENT WORKERS OF AMERICA, AFL-CIO, LOCAL 283 v. SCOFIELD et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 18. Argued October 20, 1965.—Decided December 7, 1965*
In No. 18, a union was charged by individual employées with violations of the National Labor Relations Act, and the Board’s General Counsel issued a complaint. The NLRB dismissed the complaint after a hearing and the individual employées sought review in the Court of Appeals. The NLRB filed an answer supporting the decision. A motion of intervention filed by the union, although not opposed by the NLRB or the employées, was denied by the court. The union was permitted to file a brief as amicus curiae. In No. 53, a union filed charges against a company and the Board’s General Counsel issued a complaint. After a hearing the NLRB issued a cease-and-desist order against the company, which petitioned for review in the Court of Appeals. The NLRB cross-petitioned for enforcement and the union moved to inter-vene. Both the company and the NLRB opposed intervention. The court denied the motion and authorized the union to file an amicus brief. Certiorari was granted in both cases. Held:
1.	Although under 28 U. S. C. § 1254 (1) only a “party” to a case in the Court of Appeals (which does not include an amicus curiae) may seek review here, our decision makes clear that the petitioners had a right to obtain review of the orders denying intervention. Pp. 208-209.
2.	The successful charged party in NLRB proceedings has the right to intervene in appellate proceedings brought by the unsuc-cessful charging party. Pp. 209-217.
(a)	While the Act does not specifically provide for intervention at the appellate level, most courts hâve recognized the right of the successful charged party to intervene. P. 211.
*Together with No. 53, International Union, United Automobile, Aerospace & Agricultural Implement Workers oj America, Local 133, UAW, AFL-CIO v. Fajnir Bearing Co. et al., on certiorari to the United States Court of Appeals for the Second Circuit.
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OCTOBER TERM, 1965.
Syllabus.
382 U. S.
(b)	To permit such intervention in the initial appellate review proceedings will avoid duplication of proceedings, adhéré to the goal of obtaining just results with a minimum of technical requirements, accomplish the objective of prompt détermination of labor disputes, insure faimess to the would-be intervenor, and will not affect this Court’s discretionary review powers nor delay or complicate appellate procedures. Pp. 212-216.
(c)	The element of fortuity, whereby the unsuccessful charged party has a right to review but the successful charged party does not, is removed. Pp. 216-217.
(d)	Analogies in the Judicial Review Act of 1950, and the Fédéral Rules of Civil Procedure manifest congressional concern that interested private parties be given a right to intervene and participate in agency review proceedings. Pp. 216-217.
3.	The successful charging party in NLRB proceedings also has the right to intervene in the appellate review. Pp. 217-222.
(a)	A successful charging party, being not only a member of the general public whose interests are protected by the NLRB but also one with vital private interests which are involved and protected by the Act in its blending of both interests, is entitled to récognition as a party in appellate proceedings. Amalgamated Util. Workers v. Consolidated Edison Co., 309 U. S. 261, distin-guished. Pp. 219-221.
(b)	When the court rules on the merits of an NLRB order, the Act supports the view that the court and not the agency defines the public interest. P. 221.
(c)	This Court, and not the Labor Board, is the body having discrétion to décidé which cases are suitable vehicles to raise important issues on certiorari. P. 221.
(d)	As in the case of the charged party, the successful charging party should hâve the same right as an unsuccessful party in appearing before an appellate court. P. 222.
No. 53, 339 F. 2d 801, and No. 18, reversed and remanded.
Joseph L. Rauh, Jr., argued the cause for petitioners in both cases. With him on the briefs were John Silard, Daniel H. Pollitt, Stephen I. Schlossberg, Eugene Gress-man, Harold A. Katz, Irving M. Friedman, Philip L. Padden, William S. Zeman and Benjamin Rubenstein.
Solicitor General Marshall argued the cause for re-spondents in both cases. With him on the brief for the
AUTO WORKERS v. SCOFIELD.
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205	Opinion of the Court.
National Labor Relations Board were Ralph S. Spritzer, Arnold Ordman, Dominick L. Manoli and Norton J. Corne.
Mr. Chief Justice Warren delivered the opinion of the Court.
The two cases before us présent converse sides of a single question—whether parties who are wholly suc-cessful in unfair labor practice proceedings before the National Labor Relations Board hâve a right to intervene in the Court of Appeals review proceedings.
In No. 18 (Scofield), the Union Local was charged by four individual employées with violations of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U. S. C. § 151 et seq. (1964 ed.), for fining certain Union members for exceeding incentive pay ceilings set by the Union. The General Counsel of the Board issued a complaint. After a full hearing, the Board dismissed the complaint, 145 N. L. R. B. 1097. The individual employées then sought review in the Seventh Circuit. The General Counsel filed an answer supporting the decision. At this point, the Union file.d a timely motion of intervention, alleging that it would be directly affected should the appellate court set aside the Board’s decision and direct the entry of a remédiai order against it. Neither the individual employées nor the Board opposed intervention. A division of the Seventh Circuit denied the motion to intervene, but authorized the Union to file a brief as amicus curiae without leave to participate in oral argument. The Union sought review here, and we granted certiorari to review the déniai of intervention because of the importance of the issue and the conflict among the courts of appeals, 379 U. S. 959. Further proceedings were stayed pending the completion of our review.
In No. 53 (Fafnir), the Local filed unfair labor practice charges against the Fafnir Bearing Company. The
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Opinion of the Court.
charging party alleged that the company had violated its statutory bargaining obligation by refusing to permit the contracting Union to conduct its own time studies of job operations in the plant. The Union allegedly needed to conduct these studies to ascertain whether it should pro-ceed to arbitration. The General Counsel issued a com-plaint, a hearing was held, and the Board entered a cease-and-desist order against the company, 146 N. L. R. B. 1582. The company petitioned for review in the Second Circuit, and the Board filed a cross-petition for enforce-ment. The Union—the successful party before the Board—moved to intervene, alleging numerous grounds in support. Both the company and the Board opposed intervention. The Second Circuit denied the motion, although cognizant of the difficulties of the problem, and authorized the Union to file an amicus brief. 339 F. 2d 801. We granted certiorari, 380 U. S. 950, and Consolidated Fafnir with Scofield in order to consider both facets of the intervention problem.
We hold that both the successful charged party (in Scofield) and the successful charging party (in Fafnir) hâve a right to intervene in the Court of Appeals proceeding which reviews or enforces Labor Board orders. We think that Congress intended to confer intervention rights upon the successful party to the Labor Board pro-ceedings in the court in which the unsuccessful party challenges the Board’s decision.
A threshold question concerns our jurisdiction to grant certiorari. Under § 1254 (1) of the Judicial Code,1 only
1 Section 1254 (1), 28 U. S. C. § 1254 (1) (1964 ed.), provides:
“Cases in the courts of appeals may be reviewed by the Suprême Court ... :
“ (1) By writ of certiorari granted upon the pétition of any party to any civil . . . case, before or after rendition of judgment or decree.”
AUTO WORKERS v. SCOFIELD.
209
205	Opinion of the Court.
a “party” to a case in the Court of Appeals may seek review here. In both these cases, the Union seeking certiorari was denied intervention and relegated to the status of an amicus curiae. Because an amicus is not a “party” to the case, it would not hâve been entitled to file a pétition to review a judgment on the merits by the Court of Appeals, Ex parte Leaf Tobacco Board, 222 U. S. 578, 581; Ex parte Cutting, 94 U. S. 14, 20-22. In view of our decision herein, we think that § 1254 (1) permits us to review the orders denying intervention. See Railroad Trainmen v. Baltimore de O. R. Co., 331 U. S. 519.
I.
Congress has made a careful adjustment of the indi-vidual and administrative interests throughout the course of litigation over a labor dispute. The Labor Act does not, however, provide explicitly for intervention at the appellate court level. Section 10 (f) of the Act, 61 Stat. 148, as amended, 29 U. S. C. § 160 (f) (1964 ed.), serves as our guide, even though it is silent on the intervention problem. It States, in pertinent part:
“Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to hâve been engaged in or wherein such person résides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written pétition praying that the order of the Board be modified or set aside.” Similarly, no spécifie standards govern the propriety of intervention in Labor Board review proceedings. The Rules of the Courts of Appeals typically provide: “A person desiring to intervene in a case where the appli-
786-211 0-66—23
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Opinion of the Court.
cable statute does not provide for intervention shall file with the court and serve upon ail parties a motion for leave to intervene.” 2
Lacking a clear directive on the subject, we look to the statutory design of the Act. Cf. Scripps-Howard Radio v. Commission, 316 U. S. 4, 11. Of course, in consider-ing the propriety of intervention in the courts of appeals, our discussion is limited to Labor Board review proceed-ings. Fédéral agencies are not fungibles for intervention purposes—Congress has treated the matter with attention to the particular statutory scheme and agency.
In some instances, the words of the statute themselves elicit an answer. When the Board enters a final order against the charged party, it is clear that the phrase “[a]ny person aggrieved” in § 10 (f) enables him to seek immédiate review in the appropriate Court of Appeals. Alternatively, if the Board détermines that a complaint should be dismissed, the charging party has a statutory right to review as a “person aggrieved.” A hybrid situation occurs when the Board dismisses certain portions of the complaint and issues an order on others. As to that portion which results in a remédiai order against him, the charged party is aggrieved; likewise, the charging party is aggrieved with respect to the portion of the decision dismissing the complaint. Each one is a “party” in a Consolidated appeal, and has invariably been granted leave to intervene with regard to the portion of the order on which the Board found in his favor.3
2 Second Circuit Rule 13 (f); Seventh Circuit Rule 14 (f). The other circuits which provide for intervention hâve substantively identical rules: First Circuit Rule 16 (6) ; Third Circuit Rule 18 (6) ; Fourth Circuit Rule 27 (6) ; Sixth Circuit Rule 13 (6) ; Eighth Circuit Rule 27 (f) ; Ninth Circuit Rule 34 (6) ; Tenth Circuit Rule 34 (6); District of Columbia Circuit Rule 38 (f).
3 Darlington Mfg. Co. v. Labor Board, 325 F. 2d 682 (C. A. 4th Cir.), vacated and remanded on other grounds, sub nom. Textile Workers v. Darlington Co., 380 U. S. 263; Industrial Union of
AUTO WORKERS v. SCOFIELD.
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205	Opinion of the Court.
Scofield serves as an example of another variant in review proceedings. The unsuccessful charging party to the Board proceedings petitioned for review, and the suc-cessful charged party wished to intervene. The vast majority of the courts hâve recognized his right to do so.4 Récognition of intervention rights in this instance is in complété accord with the statements in Ford Motor Co. v. Labor Board, 305 U. S. 364, 369, 373, that:
“While § 10 (f) assures to any aggrieved person opportunity to contest the Board’s order, it does not require an unnecessary duplication of proceedings. The aim of the Act is to attain simplicity and directness both in the administrative procedure and on judicial review. . . .
. . The jurisdiction to review the orders of the Labor Relations Board is vested in a court with equity powers, and while the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its
Marine & Shipbuilding Workers v. Labor Board, 320 F. 2d 615 (C. A. 3d Cir.) ; Labor Board v. Wooster Div. of Borg-Wamer Corp., 236 F. 2d 898 (C. A. 6th Cir.) ; see also American Newspaper Publishers Assn. v. Labor Board, 190 F. 2d 45 (C. A. 7th Cir.).
* Carrier Corp. v. Labor Board, 311 F. 2d 135 (C. A. 2d Cir.), reversed on other grounds, sub nom. Steelworkers v. Labor Board, 376 U. S. 492; Local Retail Clerks International Assn. v. Labor Board, 326 F. 2d 663 (C. A. D. C. Cir.) ; Amalgamated Clothing Workers of America v. Labor Board, 324 F. 2d 228 (C. A. 2d Cir.) ; Minnesota Milk Co. v. Labor Board, 314 F. 2d 761 (C. A. 8th Cir.) ; Great Western Broadcasting Corp. v. Labor Board, 310 F. 2d 591 (C. A. 9th Cir.) ; Selby-Battersby & Co. v. Labor Board, 259 F. 2d 151 (C. A. 4th Cir.) ; Kovach v. Labor Board, 229 F. 2d 138 (C. A. 7th Cir.). Contra, Superior Derrick Corp. v. Labor Board, 273 F. 2d 891 (C. A. 5th Cir.), cert. denied, 364 U. S. 816; Amalgamated Méat Cutters v. Labor Board, 267 F. 2d 169 (C. A. Ist Cir.), cert. denied, 361 U. S. 863; Haleston Drug Stores, Inc. v. Labor Board, 190 F. 2d 1022 (C. A. 9th Cir.).
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relief to the exigencies of the case in accordance with the équitable principles governing judicial action. The purpose of the judicial review is consonant with that of the administrative proceeding itself,—to se-cure a just resuit with a minimum of technical requirements. . .
To allow intervention to the charged party in the first appellate review proceeding is to avoid “unnecessary duplication of proceedings,” and to adhéré to the goal of obtaining “a just resuit with a minimum of technical requirements.” Analysis of the Act’s machinery in practice so indicates. A decision of the reviewing court to set aside a Board order dismissing a complaint has the effect of returning the case to the Board for further proceedings. This normally results in the Board’s entering an order against the charged party. From this remédiai order, as noted, the charged party is aggrieved and may seek review. Judicial time and energy is then expended in pursuit of issues already resolved in the first appeal.5 Moreover, the second appeal could lead to undesirable
5 There are, of course, cases in which the Court of Appeals will remand to the Board to take additional evidence or to reconsider the order in light of litigational developments. In these cases, there is a greater opportunity for the party originally victorious before the Board successfully to persuade it or the appellate court than in the case in which no additional evidence need be taken. Still, the considérations discussed herein strongly suggest the propriety of intervention in these cases as well, especially since, at the time a motion for leave to intervene is filed, the reviewing court will not be fully apprised of the issues involved in the case.
Then, too, only 12 proceedings in which the Board had entered an order dismissing the complaint and the charging party appealed the dismissal in the Court of Appeals occurred during the 1964 fiscal year. See 29 NLRB Ann. Rep. 201, Table 19 (1964). In eight of these, the Board orders were affirmed in full. Ibid. The small caseload gives further support for the notion that the courts of appeals, and the Board, will not be disadvantaged by allowing intervention to the charged party.
AUTO WORKERS v. SCOFIELD.
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205	Opinion of the Court.
“circuit shopping” and useless prolifération of judicial effort. Under § 10 (f), an aggrieved person has the option of obtaining review either in the circuit in which he maintains his résidence or place of business or in the Court of Appeals for the District of Columbia Circuit. In the second appellate proceeding, he could obtain a hearing in the circuit which did not originally décidé the validity of the Board’s dismissal of the complaint. Per-mitting intervention in the first review thus centralizes the controversy and limits it to a single decision, accel-erating final resolution. This is in accord with one of the objectives of the Labor Act—the prompt détermination of labor disputes.
Permitting intervention also insures fairness to the would-be intervenor. If intervention is permitted, the parties to the Board proceedings are able to présent their arguments on the issues to a reviewing court which has not crystallized its views. To be sure, if intervention is denied in the initial review proceeding, the charged party would not be bound by the decision under technical res judicata rules. Still, the salient facts having been re-solved and the legal problems answered in this initial review, subséquent litigation serves little practical value to the potential intervenor. In the second appellate proceeding, the Court of Appeals would ahnost invariably defer to the initial decision as a matter of stare decisis or of comity.6 See, e. g., Siegel Co. v. Labor Board, 340
6 In the rare instance in which the reviewing court does not abide by these principles, an even more aggravated situation could resuit. In the second review proceeding, if the now-successful charging party is denied intervention and the appellate court takes a different view of the applicable law, the charging party might later hâve the oppor-tunity to seek review again as a “person aggrieved.” Thus, three or even more review proceedings could be engendered out of the failure to permit intervention at the most convenient stage—the initial review proceeding. Such an incongruous resuit should not be sanctioned in light of our statement in Ford Motor Co. v. Labor
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F. 2d 309 ; Zdanok v. Glidden Co., 327 F. 2d 944, 949-950, cert. denied, 377 U. S. 934.
Allowing intervention does not affect the discretionary review powers of this Court. One occupying the status of intervenor in the Court of Appeals proceeding may seek certiorari from the decision there, Steelworkers n. Labor Board, 373 U. S. 908, 376 U. S. 492; Mine Workers v. Eagle-Picher Co., 325 U. S. 335, 338-339. Déniai of intervention in the initial review proceedings—and the attendant remand to the Board and second appeal to the Court of Appeals—only results in a delay of the time when the disaffected party may seek review here. Should we décidé to grant certiorari, the first review would seem the more propitious time, since ail the parties are then before the Court and the dispute has been fully developed without inconvenience to either private party. Steelworkers v. Labor Board, 376 U. S. 492, affords an apt illustration. The Court of Appeals had permitted intervention to the charged party who sought review from the adverse decision there. We reversed unanimously. The Board itself had not sought certiorari because “the Solicitor General concluded that other cases were entitled to priority in selecting the limited number of cases which the government [could] properly ask this Court to review.” Mémorandum for the NLRB, p. 2, filed in connection with the pétition for certiorari, No. 89, October Term, 1963. Had the charged party been denied intervention in the Court of Appeals, the decision of the Government not to apply for certiorari—unrelated to the merits of the cause—would hâve unnecessarily postponed resolution on that important issue.7
Board, 305 U. S. 364, 370, that although “there are two proceedings, separately carried on the docket, they were essentially one so far as any question as to the legality of the Board’s order was concerned.”
7 The Labor Board may also adversely affect the rights of the private parties in other instances. For example, the Board may
AUTO WORKERS v. SCOFIELD.
215
205	Opinion of the Court.
In fact, the Labor Board itself agréés that intervention by charged parties will not impair effective discharge of its duties and may well promote the public interest. The rights typically secured to an intervenor in a review-ing court—to participate in designating the record, to participate in prehearing conférences preparatory to simplification of the issues, to file a brief, to engage in oral argument, to pétition for rehearing in the appellate court or to this Court for certiorari—are not productive of delay nor do they cause complications in the appellate courts. Appellate records in Labor Board cases are generally complété, and whatever material the charged party may see fit to add to the appendix will not affect the burden in préparation. Participation in defin-ing the issues before the court guarantees that ail relevant material is brought to its attention, and makes the briefs on the merits more meaningful. The charged party is usually accorded the right as an amicus to file a brief on the merits even if denied intervention. Participation in oral argument does not necessarily enlarge the total time allocated, since parties aligned on the same side are usually required to share the time.8 And, as noted, peti-tioning for certiorari at this time has the salutary effect of insuring prompt adjudication. Further, if a charged party permitted to intervene décidés to acquiesce in the
décidé a case and later re-evaluate its position at a time when that case is before an appellate court. The General Counsel, in such a situation, cannot be expected wholeheartedly to attempt to con-vince an appellate court of the correctness of a doctrine which the Board itself has abandoned.
8 First Circuit Rule 28 (3) ; Second Circuit Rule 23 (c) ; Third Circuit Rule 31 (3) ; Fourth Circuit Rule 15 (3) ; Fifth Circuit Rule 25 (3) ; Sixth Circuit Rule 20 (3) ; Seventh Circuit Rule 21 (b) ; Eighth Circuit Rule 13 (c) ; Ninth Circuit Rule 20 (3) ; Tenth Circuit Rule 20 (3); District of Columbia Circuit Rule 19 (c).
Additionally, ail the circuits hâve raies which permit the court to increase the time for oral argument upon a showing of good cause.
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decision or if certiorari is denied by this Court, it is likely that he will then stipulate to the entry of an order against him. This would obviate the need for supplémentai agency or court proceedings. On the other hand, an amicus—with the exception of the right to file a brief— might be unable adequately to présent ail the relevant data to the court.
Finally, an element of fortuity would be injected by the déniai of intervention to a successful party in the Board proceedings. When the charged party loses before the Board, he is accorded a statutory right to immédiate review and may seek or oppose this Court’s ultimate review of the case. If he prevails at the agency level, how-ever, déniai of intervention deprives him of the rights accorded a losing party, even though the issue before the reviewing court is identical—whether a remédiai order should hâve been entered against the charged party. These considérations lead us to the assumption that Congress would not intend, without clearly expressing a view to the contrary, that a party should suffer by his own success before the agency.
Additionally, helpful analogies may be found in the Judicial Review Act of 1950, governing intervention in the Courts of Appeals by private parties directly affected by agency orders,9 and in the Fédéral Rules of Civil Pro-
9 Review of commission orders in general is govemed by the provisions of the Judicial Review Act of 1950 (the Hobbs Act), 64 Stat. 1129, 5 U. S. C. §§ 1031—1042 (1964 ed.). The provision regarding appellate court intervention, 5 U. S. C. § 1038, provides as follows:
“The Attorney General shall be responsible for and hâve charge and control of the interests of the Government in ail court proceedings authorized by this chapter. The agency, and any party or parties in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review such order. . . .”
AUTO WORKERS v. SCOFIELD.
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cedure.10 We take these provisions to mean that Congress has exhibited a concern that interested private parties be given a right to intervene and participate in the review proceedings involving the specified agency and its orders.
II.
The problem of whether intervention should be granted to the successful charging party to the Labor Board proceedings présents considérations somewhat distinct from the case of the intervening charged party. Resolution of the problem is no easy matter, and it is understandable that the courts hâve divided on the issue.11 Still, we believe that Congress intended intervention rights to obtain.
The Board opposes intervention in Fajnir. A charged party may incur a liability on account of an order being entered against him. Fairness to him thus requires that
10 The Fédéral Rules of Civil Procedure, of course, apply only in the fédéral district courts. Still, the policies underlying intervention may be applicable in appellate courts. Under Rule 24 (a) (2) or Rule 24 (b) (2), we think the charged party would be entitled to intervene. See Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, 505-506; Textile Workers Union of America v. Allen-dale Co., 96 U. S. App. D. C. 401, 403-404, 226 F. 2d 765, 767-768.
The Advisory Panel on Labor-Management Relations Law issued a report, S. Doc. No. 81, 86th Cong., 2d Sess. (1960), which con-tained a statement of policy that “any party to NLRB proceedings should be allowed to intervene in the appellate proceedings,” p. 17.
11 The cases which hâve permitted intervention usually hâve not discussed the question, e. g., Labor Board v. Johnson, 322 F. 2d 216 (C. A. 6th Cir.) ; Kearney & Trecker Corp. v. Labor Board, 210 F. 2d 852 (C. A. 7th Cir.), cert. denied, sub nom. Kearney-Trecker Employées, UAW v. Labor Board, 348 U. S. 824; West Texas Utilities Co. v. Labor Board, 184 F. 2d 233 (C. A. D. C. Cir.), cert. denied, 341 U. S. 939. Contra, Labor Board v. Retaïl Clerks Assn., 243 F. 2d 777, 783 (C. A. 9th Cir.); Stewart Die Casting Corp. v. Labor Board, 132 F. 2d 801 (C. A. 7th Cir.) ; Aluminum Ore Co. v. Labor Board, 131 F. 2d 485, 488 (C. A. 7th Cir.).
218
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
he be allowed to intervene to preclude that possibility. On the other hand, the Board reasons, the charging party stands only to become a beneficiary of an order entered.12 As such, he is but another member of the public whose interests the Board is designed to serve. The Labor Board is said to be the custodian of the “public interest,” to the exclusion of the so-called “private interests” at stake. Support for this view is claimed to be found in our decision in Amalgamated Util. Workers v. Consolidated Edison Co., 309 U. S. 261 (1940). Also, the Board fears that enabling the intervenor to pétition for certiorari from an adverse circuit decision will be inimical to the public interest. We disagree.
In prior decisions, this Court has observed that the Labor Act recognizes the existence of private rights within the statutory scheme.13 These cases hâve, to be sure, emphasized the “public interest” factor. To em-ploy the rhetoric of “public interest,” however, is not to imply that the public right excludes récognition of paro-chial private interests. A perusal of the statutory scheme and of the Board’s Rules and Régulations is illustrative.
12 Cf. Hart and Wechsler, The Fédéral Courts and The Fédéral System, 326 (1953):
“Haven’t you noticed how frequently the protected groups in an administrative program pay for their protection by a sacrifice of procédural and litigating rights? The agency becomes their champion and they stand or fall by it. Does this phenomenon reflect a disregard or a récognition of the equities of the situation?” See also Jaffe, The Public Right Dogma in Labor Board Cases, 59 Harv. L. Rev. 720 (1946).
13 Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240, 258; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194; Nathanson v. Labor Board, 344 U. S. 25, 27; Smith v. Evening News Assn., 371 U. S. 195. See Jaffe, The Individual Right to Initiale Administrative Process, 25 lowa L. Rev. 485, 528-531 (1940).
AUTO WORKERS v. SCOFIELD.
219
205	Opinion of the Court.
The statutory machinery begins with the filing of an unfair labor practice charge by a private person, § 10 (b), 61 Stat. 146; see also, 24 Fed. Reg. 9102 (1959), 29 CFR § 102.9 (1965). When the General Counsel issues a com-plaint and the proceeding reaches the adjudicative stage, the course the hearing will take is in the agency’s control, but the charging party is accorded formai récognition: he participâtes in the hearings as a “party”;14 he may call witnesses and cross-examine others, may file exceptions to any order of the trial examiner, and may file a pétition for reconsideration to a Board order, 28 Fed. Reg. 7973 (1963), as amended, 29 CFR § 102.46 (1965). Of course, if the Board dismisses the complaint, he can obtain review as a person aggrieved, which serves the “public interest” by guaranteeing that the Board interprétation of the relevant provisions accords with the intent of Congress.15
14 The NLRB Rules and Régulations and Statements of Procedure, 29 CFR § 102.8 (1965), afford the charging party this status. The section provides as follows:
“The term 'party’ as used herein shall mean . . . any person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any Board proceeding, including, with-out limitation, any person filing a charge or pétition under the act, any person named as respondent, as employer, or as party to a contract in any proceeding under the act . . . .” (Emphasis added.)
15 For an analysis of the rights of a charging party before the Board, see Comment, 32 U. Chi. L. Rev. 786 (1965). Of course, the considérations involved in determining whether the charging party has certain rights before the Board are not dispositive on the question of appellate intervention. In the first place, the need for centralized control over the agency hearings and the standards under which they operate is much greater at the administrative than the appellate level, where perforce an adéquate record has been made for adjudication. Also, the statistics of the NLRB reveal that over 97% of the unfair labor practice charges are resolved before the circuit court has entered a decree. 29 NLRB Ann. Rep. 178-179,
220
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
And that the charging party may hâve vital “private rights” in the Board proceeding is clear in this very case, which also involves, potentially, a breach of the parties’ collective bargaining agreement.16 Under our decisions in the Steelworkers trilogy, 363 U. S. 564, 574, 593, and Carey v. Westinghouse Corp., 375 U. S. 261, the Union could take whatever contractual claim it had to arbitra-tion and from there to a fédéral court. And while it is true that the rights and duties under § 301 (a) of the Labor Act, 61 Stat. 156, are not coextensive with those redressed in Labor Board proceedings, a détermination by an appellate court that the Union has no statutory right to conduct its own time studies will surely hâve an impact upon a later decision by an arbitrator or an appellate court under § 301 (a) on the contractual issue.
In short, we think that the statutory pattern of the Labor Act does not dichotomize “public” as opposed to “private” interests. Rather, the two interblend in the intricate statutory scheme.17 Nor do we think that our holding in Amalgamated Util. Workers, 309 U. S. 261, casts doubt on these notions. The Court there held that private parties who initiated unfair labor practice charges may not prosecute a contempt action against the charged
Table 7 (1964). This winnowing process diminishes once a case is lodged in the circuit court and falls within our supervisory power over the fédéral courts. Then, too, manpower and budgetary considérations are of great concern at the administrative level. These factors are not nearly as great when a labor dispute reaches the appellate courts since the Board will invariably appear to defend its order.
16 In the Board’s opinion in Fajnir, the charging party’s interests were referred to a dozen times as a statutory right of the “private party,” 146 N. L. R. B., at 1585-1587.
17 See Retail Clerks Local 137 v. Food Employers Council, Inc., 351 F. 2d 525.
AUTO WORKERS v. SCOFIELD.
221
205	Opinion of the Court.
party in the court which enforces the Labor Board order.18 In the same case, the private parties had been permitted to intervene in the Court of Appeals when the merits of the Board’s decision were at stake, 309 U. S., at 263. We find nothing inconsistent in denying the right of a private party to institute a contempt proceeding—where the Board’s expertness in achieving compliance with orders is challenged—and, on the other hand, in permitting intervention in a proceeding already in the court for decision. When the court is to rule on the merits of the Board’s order, the Act supports the view that it is the court and not the agency which will define the public interest, see § 10 (d), 49 Stat. 454, Ford Motor Co. v. Labor Board, 305 U. S. 364.
The Board also argues that permitting intervention will adversely affect its tactical or budgetary decision not to bring a case here for review. But the opportunity is open to the Board to advise this Court whether a case that the intervening charging party brings here is an appropriate vehicle to raise important issues. And Con-
18 The Court placed great weight upon the language and legislative history behind § 10 (a), 49 Stat. 453, as it read at that time:
“The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prévention that has been or may be established by agreement, code, law, or otherwise.” (Emphasis added.)
The italicized portion of § 10 (a) was deleted in the Taft-Hartley amendments to the Wagner Act in 1947, when Congress added the union unfair labor practice provisions and enacted § 301 (a). While it is true that the Labor Board does not confer a private adminis-trative remedy, it is equally true that, since 1947, it serves substan-tially as an organ for adjudicating private disputes. See Report of the Advisory Panel on Labor-Management Relations Law, supra, n. 10, p. 5.
222
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
gress has entrusted to this Court, rather than the Labor Board, discretionary jurisdiction to review cases decided by the Courts of Appeals.19
Many of the considérations which favor intervention in Scofield are also pertinent here.20 Of spécial note is the capriciousness we would hâve to ascribe to Congress in refusing to afford the successful party to a Labor Board proceeding an opportunity tantamount to that of the unsuccessful party in persuading an appellate court. The charging party, like the charged party, should not be prejudiced by his success before the agency. Accord-ingly, we reverse both cases and remand them to the respective courts for further proceedings.
It is so ordered.
19 The Board also daims that the charging party, if permitted to intervene, will be able to thwart proposed settlements between the Board and the charged party when the case is in the appellate court. Nothing in the record indicates that this will be the conséquence of allowing intervention and we intimate no view on the question.
20 As in the case of the charged party, disallowing intervention could lead to duplicity in appellate review, “circuit shopping,” unfair-ness to the successful party to the Board proceedings, etc.
UNITED GAS v. CALLERY PROPERTIES. 223
Syllabus.
UNITED GAS IMPROVEMENT CO. et al. v. CALLERY PROPERTIES, INC., et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 21. Argued October 18-19, 1965.—Decided December 7, 1965*
Following this Court’s decision in the CATCO case, 360 U. S. 378, and its vacation of a judgment upholding initial natural gas prices of 21.40 to 23.80 per Mcf. for numerous gas producers in Southern Louisiana, the Fédéral Power Commission (FPC) instituted an area rate proceeding, from which the présent applications were severed for a separate hearing. The producers were advised that they would hâve to refund amounts ultimately found inconsistent with the public interest and necessity requirements of § 7 of the Natural Gas Act. Following the hearing the FPC imposed conditions on the certificates granted, viz., that (1) the producers start service at 18.50 per Mcf., plus 1.50 tax reimbursement where applicable—the “in-line” price for FPC-certificated gas sales for the contracts here involved, and (2) the producers should not, before establishment of just and reasonable area rates or July 1, 1967, whichever should be earlier, file rates above 23.550, the level at which the FPC found filings might trigger other producers’ increased rates under contract escalation clauses with the pipelines here involved. The FPC also ordered refunded the excess of charges under the original certificate, over the proper initial prices. The Court of Appeals held on review that (1) the producers should not hâve been limited to an initial “in-line” gas price without the FPC’s considering evidence of what would be a just and reasonable price; (2) the FPC lacked power to fix a producer’s maximum future rates; and (3) the measure of the refunds should hâve been the différence between the original contract price and the ultimate just and reasonable price. Held:
1.	The FPC had ample power under § 7 of the Natural Gas Act to protect the public interest by requiring as an intérim
*Together with No. 22, Public Service Commission of New York v.
Cdllery Properties, Inc., et al., No. 26, Océan Drilling & Exploration Co. v. Fédéral Power Commission et al., and No. 32, Fédéral Power Commission v. Callery Properties, Inc., et al., also on certiorari to the same court.
224
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
measure that Interstate gas priées be no higher than existing levels under other contemporaneous certificates, i. e., the “in-line” priées, without considering the extensive evidence under which just and reasonable rates are fixed under § 5. Pp. 227-228.
2.	It was a proper exercise of its administrative expertise for the FPC to fix the 23.55^4 rate lirait, beyond which it found that a general price rise might be triggered by escalation during the intérim period. Pp. 228-229.
3.	In the exercise of its authorized power to order that refunds be paid as promptly as possible, the FPC could properly measure the refunds due by the différence between the original contract rates which it had erroneously sanctioned and the “in-line” rates; and the FPC was justified in imposing interest to prevent unjust enrichment. Pp. 229-230.
335 F. 2d 1004, reversed.
Richard A. Solomon argued the cause for the Fédéral Power Commission. With him on the brief were Acting Soliciter General Spritzer, Howard E. Wahrenbrock, Robert L. Russell and Joséphine H. Klein.
William T. Coleman, Jr., argued the cause for United Gas Improvement Co. et al., petitioners in No. 21 and respondents in No. 26. With him on the briefs were Samuel Graff Miller, Richardson Dïlworth, Harold E. Kohn, Bertram D. Moll and Vincent P. McDevitt.
Kent H. Brown argued the cause for Public Service Commission of New York, petitioner in No. 22 and respondent in No. 26. With him on the briefs was Morton L. Simons.
J. Evans Attwell argued the cause for Océan Drilling & Exploration Co., petitioner in No. 26 and respondent in Nos. 21, 22 and 32. With him on the briefs were W. H. Drushel, Jr., J. A. O’Connor, Jr., and H. Y. Rowe.
Herbert W. Varner argued the cause for Superior Oil Co. et al., respondents in Nos. 21, 22 and 32. With him on the brief was H. H. Hillyer, Jr.
UNITED GAS v. CALLERY PROPERTIES. 225
223	Opinion of the Court.
Richard F. Generelly argued the cause and filed a brief for Callery Properties, Inc., respondent in Nos. 21, 22 and 32.
Paul W. Hicks argued the cause for Placid Oil Co. et al., respondents in Nos. 21, 22 and 26. With him on the brief were Robert W. Henderson and Thomas G. Crouch.
H. H. Hillyer, Jr., filed a brief for J. R. Frankel et al., respondents in Nos. 21, 22 and 32.
Mr. Justice Douglas delivered the opinion of the Court.
The Fédéral Power Commission in 1958-1959 granted unconditional çertificatesz of public convenience and necessity to numerous producers of gas in south Louisiana, the sales contracts of the producers calling for initial prices ranging from 21.4 cents to 23.8 cents per Mcf. After deliveries commenced under those contracts, consumer interests challenged the orders in various courts of appeals. The Court of Appeals for the Third Circuit sustained the Commission’s action (United Gas Improvement Co. v. Fédéral Power Comm’n, 269 F. 2d 865) but we vacated the judgment (Public Service Comm’n v. Fédéral Power Comm’n, 361 U. S. 195) for reconsideration in light of Atlantic Refining Co. v. Public Service Comm’n (CATCO), 360 U. S. 378; and the other courts of appeals did likewise.1
The Commission thereupon instituted an area rate proceeding for south Louisiana and Consolidated the re-
1See United Gas Improvement Co. v. Fédéral Power Comm’n, 283 F. 2d 817; Public Service Comm’n v. Fédéral Power Comm’n, 109 U. S. App. D. C. 292, 287 F. 2d 146; United Gas Improvement Co. v. Fédéral Power Comm’n, 287 F. 2d 159; United Gas Improvement Co. v. Fédéral Power Comm’n, 290 F. 2d 133; and United Gas Improvement Co. v. Fédéral Power Comm’n, 290 F. 2d 147.
786-211 0-66—24
226	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
manded cases with that proceeding. 25 F. P. C. 942. It advised the producers of their potential obligation to refund any amounts eventually found to be inconsistent “with the requirements of the public interest and neces-sity” under § 7 of the Natural Gas Act, 52 Stat. 824, as amended, 15 U. S. C. § 717f. 27 F. P. C. 15. Later the Commission in the interest of expédition severed the présent group of applications and set them for a hearing in a Consolidated proceeding under § 7. 27 F. P. C. 482. At the end, the Commission imposed two conditions on the certificates granted in these cases. First, it provided that the producers commence service at 18.5 cents per Mcf., plus 1.5 cents tax reimbursement where applicable, a price that it found to be “in line” with prices for Commission-certificated sales of gas from the Southern Louisiana production area under generally contemporaneous contracts, 30 F. P. C. 283, 288-289. Second, it provided that until just and reasonable area rates are determined for south Louisiana, or until July 1, 1967, whichever is earlier, the producers shall not file any increased rates above 23.55 cents, the level at which rate filings might trigger increased rates by other producers under the escalation provisions of their contracts with the pipeline companies here involved. 30 F. P. C. 283, 298.
In addition, the Commission ordered the producers to refund to their customers the amounts in excess of the proper initial price which they had already collected under the original certificate. 30 F. P. C. 283, 290.
On review the Court of Appeals held that the Commission erred in limiting producers to an initial “in-line” price without first canvassing evidence bearing on the question of what would be a just and reasonable price for the gas. It further held that the Commission had no power to place an upper limit on future rates that a producer might file. Finally, the Court of Appeals, while
UNITED GAS v. CALLERY PROPERTIES. 227
223	Opinion of the Court.
upholding the power of the Commission to order refunds, held that the measure of such refunds was not to be the différence between the “in-line” price and the original contract price, but between the latter and the just and reasonable price subsequently to be fixed. 335 F. 2d 1004. We granted certiorari, 380 U. S. 931. We reverse the Court of Appeals.
We think the Commission acted lawfully and respon-sibly.in line with our decision in the CAT CO case where we held that it need not permit gas to be sold in the interstate market at the producer’s contract price, pend-ing détermination of just and reasonable rates under § 5, 52 Stat. 823, 15 U. S. C. § 717d. 360 U. S. 378, 388-391. Rather, we held that there is ample power under § 7 (e),2 to attach approp'riate protective conditions. And see Fédéral Power Comm’n v. Hunt, 376 U. S. 515, 524-527. The fixing of an initial “in-line” «price establishes a firm price at which a producer may operate, pending détermination of a just and reasonable rate, without any contingent obligation to make refunds should a just and reasonable rate turn out to be lower than the “in-line” price. Consumer protection is afforded by keeping the “in-line” price at the level where substantial amounts of gas hâve been certificated to enter the market under other contem-poraneous certificates, no longer subject to judicial review or in any way “suspect.” We believe the Commission can properly conclude under § 7 that adéquate protection to the public interest requires as an intérim measure that gas not enter the interstate market at prices higher than existing levels. To consider in this § 7 proceeding the mass of evidence relevant to the fixing of just and rea-
2 Section 7 (e) provides in part:
“The Commission shall hâve the power to attach to the issuance of the certificate and to the exercise of the rights granted there-under such reasonable terms and conditions as the public convenience and necessity may require.”
228
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
sonable rates under § 5 might in practical effect render nugatory any effort to fix initial priées.3 We said in CAT CO that § 7 procedures are designed “to hold the line awaiting adjudication of a just and reasonable rate” (360 U. S., at 392), and that “the inordinate delay” in § 5 proceedings (360 U. S., at 391) should not cripple them.
The second condition, which temporarily bars rate increases beyond 23.55 cents per Mcf., was likewise aimed at keeping the general price level relatively constant pending détermination of the just and reasonable rate. We noted in Fédéral Power Comm’n v. Hunt, supra, at 524, that “a triggering of price rises often results from the out-of-line initial pricing of certificated gas” and that the possibility of refund does not afiford sufficient protection. And see Fédéral Power Comm’n v. Texaco Inc., 377 U. S. 33, 42-43. We think, contrary to the Court of Appeals, that there was ample power under § 7 (e) for the Commission to attach these conditions for consumer protection during this intérim period though the certificate was not a temporary one, as in Hunt, but a permanent one,
3 In the early post-CATCO cases, the Commission apparently proceeded on a case-by-case basis, considering whatever evidence might hâve been presented. See, e. g., Continental Oil Co., 27 F. P. C. 96, 102-108. Expérience convinced it that the minimal utility derived from cost and économie trend evidence was out-weighed by the administrative burdens and delays its considération inevitably produced. See Skelly OU Co., 28 F. P. C. 401, 410-412. The Commission properly and constructively exercised its discrétion in declining to consider this large quantity of evidence. To hâve done so would hâve required a considérable expenditure of man-power, cf. Wisconsin v. Fédéral Power Comm’n, 373 U. S. 294, 313. We hâve previously encouraged the Commission to devise reasonable means of streamlining its procedures, see Fédéral Power Comm’n n. Hunt, supra, at 527, and we regard the Commission’s decision here as an appropriate step in that direction. Cf. Fédéral Power Comm’n v. Texaco Inc., 377 U. S. 33, 44.
UNITED GAS v. CALLERY PROPERTIES. 229
223	Opinion of the Court.
as in CATCO and Fédéral Power Comm’n v. Texaco Inc., supra.
The “in-line” price of 18.5 cents is supported by the contract prices in the south Louisiana area that were not “suspect,” and the sélection of 23.55 cents beyond which a price increase might trigger escalation reflects the Com-mission’s expertise.
We also conclude that the Commission’s refund order was allowable. We reject, as did the Court of Appeals below, the suggestion that the Commission lacked au-thority to order any refund. While the Commission “has no power to make réparation orders,” Fédéral Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 618, its power to fix rates under § 5 being prospective only, Atlantic Refining Co. v. Public Service Comm’n, supra, at 389, it is not so restricted where its order, which never became final, has been overturned by a reviewing court. Here the original certificate orders were subject to judicial review; and judicial review at times results in the return of benefits received under the upset administrative order. See Securities & Exchange Comm’n v. Chen-ery Corp., 332 U. S. 194, 200-201. An agency, like a court, can undo what is wrongfully done by virtue of its order. Under these circumstances, the Commission could properly conclude that the public interest required the producers to make refunds4 for the period in which
4 The problem of refunds for amounts collected above the “in-line” price is not affected here by any filing under § 4 for increases within the limits of the triggering moratorium. 52 Stat. 822, 15 U. S. C. §717c. Under §4 (d), a 30-day notice to the Commission and to the public is required for ail rate increases, the Commission having authority under § 4 (e) to suspend the new rate for five months and thereafter to act only “after full hearings.” If the Commission has not acted at the expiration of the period of suspension, the new rates become effective. The Commission may require the producer to fumish a bond, and thereafter may compel refund of “the portion of such increased rates or charges by its decision found not justified.”
230	OCTOBER TERM, 1965.
Opinion of Harlan, J.	382 U. S.
they sold their gas at priées exceeding those properly determined to be in the public interest.
We think that the Commission could properly measure the refund by the différence between the rates charged and the “in-line” rates to which the original certificates should hâve been conditioned. The Court of Appeals would delay the payment of the refund until the “just and reasonable” rate could be determined. We hâve said elsewhere that it is the duty of the Commission, “where refunds are found due, to direct their payment at the earliest possible moment consistent with due process.” Fédéral Power Comm’n v. Tennessee Gas Transmission Co., 371 U. S. 145, 155. These excessive rates hâve been collected since 1958; under the circum-stances, the Commission was not required to delay this refund further. And the imposition of interest on refunds is not an inappropriate means of preventing unjust enrichment. See Texaco, Inc. v. Fédéral Power Comm’n, 290 F. 2d 149, 157; Philip Carey Mjg. Co. v. Labor Board, 331 F. 2d 720, 729-731.
Reversed.
Mr. Justice Fortas took no part in the considération or decision of these cases.
Mr. Justice Harlan, concurring in part and dissenting in part.
While the Commission’s expansive view of its powers seems to me largely defensible in the abstract, I believe its actual decision reveals error and unfairness in important respects.
I.
The price condition, alone of the three key prongs of the Commission’s order, can in my view be wholly sus-tained. The chief challenge to it stems from the exclu-
UNITED GAS v. CALLERY PROPERTIES. 231
223	Opinion of Harlan, J.
sion in the § 7 hearing of a mass of cost and supply-demand evidence tendered by producers.1 Although the encompassing § 7 standard of public convenience and necessity encourages a broad inquiry, the Commission has given valid reasons for limiting itself to the in-line price for the time being. Area pricing ultimately aims to sim-plify proceedings under the statute, but the transition to it is said to strain the Commission’s présent resources for investigation. See Wisconsin v. F PC, 373 U. S. 294, 298-300, 313-314. The in-line price, comparatively easy to fix, provides a firm basis for producers, helps avoid unre-fundable initial overcharges, and exerts a downward pressure on price; at the same time, producers can file in-creases under § 4 with a six-month delay at most. The Commission has given a fair trial to cost evidence,2 and nothing in the offer of proof suggests a supply-demand crisis warranting court intervention with this administrative approach.
In locating the in-line price, the Commission has ig-nored a number of contemporaneous high-price contracts labeled “suspect” because then under review, disap-proved, or deemed influenced by those under review or disapproved. Although the danger of using a crooked measuring rod demands some précaution, this blanket exclusion also chances some distortion in favor of an unduly low in-line price. In the main the producers hâve chosen not to brief this question, apparently under the misapprehension that the Government has not here sought to sustain the exclusion of these contracts or that the lower court’s failure to reach the question precluded this Court from doing so.3 But while the suspect order rule may by default be abided in this instance, I would
1 Section citations herein are ail to the Natural Gas Act, 52 Stat. 821, as amended, 15 U. S. C. §§ 717-717w (1964 ed.).
2 See the majority’s note 3, ante, p. 228.
3 See Pétition of the FPC for Certiorari, p. 15, n. 14.
232	OCTOBER TERM, 1965.
Opinion of Harlan, J.	382 U. S.
not close the door to future arguments for a different solution of the dilemma.
A last troubling aspect of the in-line price dérivés from a critical and unusual circumstance : it, like the other conditions in this case, was imposed for the first time on remand, several years after an unconditioned permanent certificate had issued. Presumably for six months hence, producers will be compelled to sell at a price they might not hâve accepted when free to refuse; for ail that appears, the price may even be below cost, let alone a fair profit. However, in general the producers appar-ently did not seek an option to cancel future sales if dis-satisfied by the newly conditioned certificates, the six-month delay is both brief and familiar, and I cannot say the Commission did not hâve a legitimate interest in imposing the in-line price at the time it did.
II.
The price-increase moratorium also seems to me a measure not generally beyond the Commission’s grasp, but it should not be sustained on the record before us. Recognizing force in the contrary view of the Court of Appeals, I do not believe that § 4 must be read to bestow on producers an invincible right to raise prices subject only to a six-month delay and refund liability. Cf. FPC v. Texaco Inc., 377 U. S. 33; FPC v. Hunt, 376 U. S. 515. A freeze until 1967 is not permanent price-fixing, and in this interregnum between individual and area pricing, the hazard of irréversible price increases warrants imposing some brake. A lengthy moratorium—coupled with a refusai to consider cost or supply-demand figures in set-ting prices for the duration—might présent a real risk of choking off supply, but such a case is not before us.
Nevertheless, a moratorium instituted on remand is a hazardous device at best, and the présent one is simply not supported by evidence. Because the producers hâve
UNITED GAS v. CALLERY PROPERTIES. 233
223	Opinion of Harlan, J.
no chance to refuse the certificates after commencing de-livery, the ceiling may coerce sales at unfairly low prices. Yet while the présent moratorium must be endured longer than the in-line price, at least it permits the pro-ducers to charge a markedly higher amount; and as the safety valve for a price explosion, the moratorium could be upheld. At this point, however, the Government’s argument fails for lack of proof that a price explosion is likely if increases rise above the moratorium figure. The Commission’s figure was not considered by its hearing examiner, who made no recommendation for a moratorium. The Commission report itself devotes no more than one conclusory sentence, qualified by a footnote, to the question of what spécifie price rise will trigger increases at large, 30 F. P. C., at 298; rather than amplify-ing, the Government brief merely contends that the point has not been adequately preserved under § 19—a contention I do not accept.4 Several producers state that the Commission’s fear of triggering has not been realized although sales are currently being made by them at levels above the intended moratorium price.
III.
While agreeing that the Commission has power to order refunds in the case before us, I believe the measure of repayment it selected is illogical and harsh. On the initial question of power, it must be conceded that noth-
This précisé ground of attack upon the moratorium was set forth by at least one producer. See ODECO Application for Rehearing Before the FPC. R. 603. Applications of other producers argued instead that any moratorium was plainly illégal under the Fifth Cir-cuit’s decision in Hunt v. FPC, 306 F. 2d 334, which had not then been reversed by this Court. 376 U. S. 515. See Pétition of Placid Oïl et al. for Rehearing Before the FPC, p. 35. Under these cir-cumstances, § 19 does not seem to me to preclude allowing ail producers the benefit of the error pinpointed by ODECO.
234	OCTOBER TERM, 1965.
Opinion of Harlan, J.	382 U. S.
ing in the statute provides for refunds when a sale has been approved without qualification; but approval in the présent instances had not become final for want of judicial review, and an équitable power to order refunds may fairly be implied.
The measure of refunds is another matter. The Commission has now directed that the producers repay the différence between the amounts collected over four to six years and the figure it has now established as the original in-line price.5 Since the in-line price has been fixed without reference to cost evidence and falls below the opening levels set in the negotiated contracts, the producers may well be receiving less than cost, as some of them expressly claim ; and this imposed révision down-ward of prices covers not six months but a period of years.
The obvious refund formula, implicated by the statute itself and adopted by the Court of Appeals, would call for repayment of ail amounts collected in excess of the “just and reasonable” price; that price, measured under §§ 4 and 5, naturally takes due account of costs. The Government retorts that producers hâve no “right” to sell their gas for a “just and reasonable” price under the statute, a proposition perhaps true in the limited sense that the public convenience and necessity might yet ex-clude fair-profit sales by a uniquely high cost producer or in the face of a glutted market. No attempt is made, however, to class the présent facts with such imaginable situations. Nor is advance exclusion from the Interstate
5Deliveries commenced under ail or nearly ail the contracts in 1959 at prices exceeding 18.5 cents. The Commission’s order direct-ing the in-line price, refunds, and the moratorium issued four years later in 1963, and it has been under judicial review for the past two years. The record does not clearly indicate what rate increases the producers may already hâve filed with the Commission.
UNITED GAS v. CALLERY PROPERTIES. 235
223	Opinion of Harlan, J.
market so fearsome as an unexpected repricing of a com-pleted sale depriving the seller of profit or costs.
On the présent facts the Government has failed to point to any public interest overriding the potent daims of the producers to a fair return on their past four to six years of sales. Any triggering caused by the amounts previously charged has already spent its force and can-not be undone. Unconvincingly, the Government implies the producers may be comparatively well off with the présent formula because it provides a final figure now and the “just and reasonable” price might prove to be below the in-line price; however, instant certainty as to past prices is no great gain since taxes and royalties hâve already been paid, and the chance that producers may get more than they deserve by following the in-line price is not a substitute for assuring them a fair return. About the only concrète advantage cited by the Government for the in-line price is that it speeds refunds to consumers. Assuming that a compromise cannot be reached as in other cases,6 elaborate cost data should become available in the next year or two with the com-pletion of the Southern Louisiana area rate proceeding. Consumers, who assuredly expected no refunds when they paid their gas bills as long ago as six years, cer-tainly do not suffer seriously in waiting a bit longer for refunds that individually must be minute in most cases.
The incongruity of the Commission’s refund formula is well portrayed by considering what would hâve happened if the Commission had originally granted the certificates now thought proper by this Court. By accepting certificates conditioning sales at the in-line price, the producers
6 On several occasions, the Commission has approved agreements y producers to refund a fixed fraction of the différence between the amounts collected and the settlement price. See Texaco Inc., 28 T P. C. 247 (other producers severed from the instant case);
ontinental Oil Co., 28 F. P. C. 1090 (on remand from CATCO).
236	OCTOBER TERM, 1965.
Opinion of Harlan, J.	382 U. S.
could immediately hâve filed for increases, suffering at most a six-month delay. Even if the Commission’s moratorium survived, the ceiling during this four-to-six-year period would hâve been 23.55 cents rather than the 18.5-cent figure now imposed. Thus, even had the Commission not erred in the first instance in favor of the producers, they still could hâve collected payments well in excess of 18.5 cents subject only to the ultimate find-ing of a “just and reasonable” price now denied them by the Commission.
In line with the foregoing discussion, I would uphold the Commission’s decision fixing an in-line price, remand the case for further findings on the triggering price for a moratorium if the Commission wishes to pursue the point, and set aside the refund with leave to order repayments based on the “just and reasonable” price.
WESTERN PAC. R. CO. v. UNITED STATES. 237
Syllabus.
WESTERN PACIFIC RAILROAD CO. et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.
No. 12. Argued October 19, 1965.—Decided December 7, 1965.
Section 3 (4) of the Interstate Commerce Act prohibits carriers from discriminating in their rates between “connecting lines.” Appel-lant Western Pacific Railroad filed a complaint with the Interstate Commerce Commission alleging that certain carriers discriminated against it by refusing to enter into joint through rates via Port-land, Oregon, with a multi-railroad route of which Western Pacific is the central portion, although they maintain such joint through rates with a competitor. Division 2 of the Commission refused to accord Western Pacific “connecting line” status on the ground that it did not connect physically with the allegedly discriminating carriers and did not participate in existing through routes with them through the point of discrimination. The Commission denied further hearing and a three-judge fédéral court dismissed the complaint on the basis that Western Pacific was not a “connecting line.” Held:
1.	The term “connecting lines” does not require a direct physi-cal connection, but refers to ail lines making up a through route. Atlantic Coast Line R. Co. v. United States, 284 U. S. 288, fol-lowed. Pp. 242-243.
2.	To qualify as a “connecting line” in the absence of physical connection, a carrier need only show that it participâtes in an established through route, making connection at the point of common interchange, ail of whose participants stand ready to cooperate in the arrangements needed to remove the alleged discrimination. P. 245.
230 F. Supp. 852, vacated and remanded.
Paul Bander, pro hoc vice, by spécial leave of Court, and Walter G. Treanor argued the cause for appellants. With Mr. Bender on the brief for the United States were Acting Solicitor General Spritzer, Assistant Attorney General Turner, Lionel Kestenbaum, Jerry Z. Pruzansky
238	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
and John H. Dougherty. With Mr. Treanor on the briefs for Western Pacific Railroad Co. et al. were E. L. Van Dellen and E. Barrett Prettyman, Jr.
Robert W. Ginnane argued the cause for appellee Interstate Commerce Commission. With him on the brief was Robert S. Burk. Frank S. Farrell argued the cause for appellees Northern Pacific Railway Co. et al. With him on the brief were William P. Higgins, Charles W. Burkett and Earl F. Requa.
Mr. Justice Stewart delivered the opinion of the Court.
Section 3 (4) of the Interstate Commerce Act, as amended, 54 Stat. 902, 49 U. S. C. § 3 (4) (1964 ed.), commands that “Ail carriers subject to the provisions of this chapter . . . shall not discriminate in their rates, fares, and charges between connecting lines . . . .”1 The meaning of the term “connecting lines” is the crucial question in this controversy between the Western Pacific Railroad Company, on the one hand, and the Union Pacific Railroad Company and the Northern Pacific Railway Company, on the other. Western Pacific con-tends that it is a “connecting line” in relation to these carriers and that, therefore, it is entitled to invoke against them the provisions of § 3 (4) prohibiting dis-
1 Section 3 (4) provides in full:
“Ail carriers subject to the provisions of this chapter shall, accord-ing to their respective powers, afford ail reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly préjudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.”
WESTERN PAC. R. CO. v. UNITED STATES. 239
237	Opinion of the Court.
criminatory rates. The Interstate Commerce Commission and the District Court held otherwise.
Western Pacific filed a complaint with the Commission, alleging, in part, that Union Pacific and Northern Pacific practice rate discrimination against it.12 The alleged discrimination consists in the refusai of these carriers, except with respect to a few commodities, to enter into joint through rates via Portland, Oregon, with the route of which Western Pacific is part, although they maintain a full line of such rates with a competitor, the Southern Pacific Company. The hearing examiner found in favor of Western Pacific, but Division 2 of the Commission reversed. The Division found both that Western Pacific could not invoke the provisions of § 3 (4) because it was not a “connecting line,” and that, even if it were, the evidence did not establish the “similarity of circumstances and conditions” that would compel rate treatment equal to that accorded to Southern Pacific.
2	Western Pacific and its subsidiaries named as défendants: The Northern Pacific Railway Company, The Union Pacific Railroad Company, and certain of their short-line connections. These rail-roads denied the allégations of the complaint. The Southern Pacific Company intervened in opposition to the complaint. The complaint also named as défendants: The Atchison, Topeka & Santa Fe Railway Company, The Great Northern Railway Company, and certain short-line connections. These railroads answered expressing willingness to join in the relief sought by Western Pacific.
The complaint also alleged violation of § 1 (4) of the Act which requires, in part, that railroads establish “reasonable through routes” with other carriers and “just and reasonable rates, fares, charges, and classifications applicable thereto . . . .” When such routes are not established voluntarily, the Commission has authority under §15 (3), to prescribe them “in the public interest.” This authority is subject to the short-haul limitation embodied in §15(4). Although the complainants indicated a willingness to rely solely on the alleged violation of § 3 (4), the Commission found against them on the § 1 (4) allégation as well. No question under § 1 (4) is presented here.
240
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
The Division refused to accord Western Pacific “connecting line” status on the ground that it neither physi-cally connects with the allegedly discriminating carriers at the point of discrimination, nor participâtes in existing through routes with them through that point. Western Pacific R. Co. v. Camas Prairie R. Co., 316 I. C. C. 795. When the full Commission denied further hearing, Western Pacific brought this action in the United States District Court for the Northern District of California to set aside the Commission’s order. The three-judge court dismissed the complaint solely on the ground that Western Pacific was not a “connecting line.” Western Pacific R. Co. v. United States, 230 F. Supp. 852. It agreed with the Commission’s limited définition of the term and said, “Any further liberaliza-tion of the présent définition will hâve to corne from the Suprême Court.” Id., at 855. We noted probable jurisdiction. 379 U. S. 956.
Analysis of “connecting line” status in this case is closely tied to the geographical, structural, and économie relationships among the railroads involved. Union Pacific, Northern Pacific and their short-line connections provide exclusive rail service between many points in the Pacific Northwest and Portland, Oregon. From Portland, the two compétitive routes in question descend, at times parallel, at times intertwined, to Southern California. The route closest to the seacoast consists largely of Southern Pacific. To the east of this route lies the so-called Bieber route whose completion in 1931 was authorized by the Commission to provide compétition with Southern Pacific.3 The Bieber route is composed of the end-to-end connections of three different com-panies: the Great Northern Railway from Portland to
3 Great Northern R. Co. Construction, 166 I. C. C. 3, 39; 170 I. C, C. 399.
WESTERN PAC. R. CO. v. UNITED STATES. 241
237	Opinion of the Court.
Bieber, California; the Western Pacific from Bieber to Stockton; and the Atchison, Topeka & Santa Fe from Stockton to Southern California. Thus the Bieber route and Southern Pacific both connect with the allegedly discriminating carriers at Portland where facilities for the interchange of traffic exist.
The Bieber route carriers presently enjoy joint through rates among themselves. Moreover, the other two participants in that route hâve expressed willingness to join with Western Pacific in the joint rates it seeks with Union Pacific and Northern Pacific. Union Pacific and Northern Pacific, for over 50 years, hâve maintained through routes and a full line of joint rates with Southern Pacific via Portland. They hâve refused, however, ex-cept for a few commodities, to offer through routes and joint rates on traffic moving on the Bieber route through Portland. The joint rates established with Southern Pacific are lower than the combination of local rates that would otherwise apply. Since the Bieber route carriers can offer joint rates only with respect to a few commodities, they cannot match the lower rates offered by Southern Pacific to shippers of most commodities between points in California and points in the Pacific Northwest exclusively served by Union Pacific and Northern Pacific via Portland.
The Commission and the District Court held, however, that even under these circumstances, Western Pacific is not a “connecting line” eligible to complain of the alleged discrimination. In argument here the Commis-sion and the appellee railroads contend that to qualify for that status Western Pacific must show more than that it participâtes in an established through route that connects with Union Pacific and Northern Pacific, and that ail the participants in the route stand willing to cooperate with these carriers in establishing joint through
786-211 0-66—25
242
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
rates.4 We are urged to hold that to qualify under § 3 (4) as a complainant “connecting line” a railroad must either itself make a direct connection with the dis-criminating carrier, or be part of a through route that already includes the carrier. We cannot accept such a construction of the statute.
The literal meaning of the statute does not require-that construction. To be sure, the term, “connecting lines” suggests the requirement of an actual physical connection between the complainant and the discriminating carrier. The term “line,” however, admits of more than a single meaning limited to the track owned exclusively by one railroad company. It may also be interpreted reasonably to include a functional railroad unit such as the Bieber through route involved here. Moreover, ail parties in this litigation recognize that in Atlantic Coast Line R. Co. v. United States, 284 U. S. 288, this Court rejected the contention that “connecting line” is a term limited to the meaning that the statutory lan-guage might initially suggest. Mr. Justice Brandeis, speaking for a unanimous Court, wrote, “There is no warrant for limiting the meaning of ‘connecting lines’ to those having a direct physical connection .... The term is commonly used as referring to ail the lines making up a through route.” Id., at 293.
There also is no warrant for limiting the meaning of “connecting lines” to the lines making up a through route that already includes the discriminating carrier. We hâve been referred to no previous judicial or administrative decisions compelling that conclusion. The Atlantic Coast Line case, supra, imposes no such limitation. It established that the term “connecting lines”
4 Pursuant to 28 U. S. C. § 2322 (1964 ed.), the United States was named as défendant in the District Court. It did not, however, join with the Commission in defense of the Commission’s order, and it supports Western Pacific in this Court.
WESTERN PAC. R. CO. v. UNITED STATES. 243
237	Opinion of the Court.
extends beyond physical connection to encompass Unes participating in a through route, but it does not even hint of any limitation on the nature of the through route, much less hold that the through route must already in-clude the discriminating carrier.5 Our subséquent définition of “through route” in Thompson v. United States, 343 U. S. 549, adds no more to an analysis of “connecting line” under § 3 (4). In that case, which arose under §§15 (3) and 15 (4) of the Act, we held that the Commission had improperly applied the test of the existence of a through route: “. . . whether the participating carriers hold themselves out as offering through transportation service.” 343 U. S., at 557. Section 3 (4) does not use the term “through route.” But even if, after Atlantic Coast Line, a carrier may qualify as a “connecting line” if it is one of the “fines making up a through route,”
5 In the Atlantic Coast Line case, certain railroads leasing the Carolina, Clinchfield & Ohio Railway with the approval of the Commission filed restrictive schedules designed ultimately to exclude an as yet incomplète extension of the Georgia & Florida Railroad from participating, when completed, in joint rates over the Clinchfield. The Commission ordered the schedules canceled on the ground that they violated tenns in the lease, accepted by the lessees, on which the Commission had conditioned its approval. One condition re-quired the lessees to permit the Clinchfield to be used as a link for through traffic with “such other carriers, now connecting, or which may hereafter connect, with [it] . . . .” 284 U. S., at 292, note 3. The extension of the Georgia & Florida made connection with the Clinchfield only via the rails of an intennediate carrier. This Court sustained the Commission’s order, however, and held that the Georgia
& Florida was a carrier connecting with the Clinchfield because it was one of the “lines making up a through route.” 284 U. S., at 293. Even assuming that the through route referred to was not one limited to thé complaining carrier and the intermediate carrier, it is clear that this Court was not faced with the question whether the complaining railroad would be regarded as a “connecting line” if the through route establishing the connection did not also encompass the Clinchfield. In short, Atlantic Coast Line did not présent the issue squarely before us now.
244	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
284 U. S., at 293, the Thompson test offers no solution to the problem presented here. It simply does not speak to the question whether the discriminating carrier must be one of the participating carriers offering through service in conjunction with the carrier seeking “connecting line” status.
The reason the issue presented in this case has not been decided before now6 may be that discrimination of the sort complained of here is uncommon. In most instances it is to the advantage of railroads such as Union Pacific and Northern Pacific to encourage the movement of traffic over their lines from as many sources as possible.7 Moreover, when such discrimination does occur the railroad connecting directly with the discriminating carrier is likely to take the lead as complainant.
In the absence of any settled construction of § 3 (4), then, its manifest purpose to deprive railroads of discrétion to apportion économie advantage among competi-tors at a common interchange must be the basic guide to decision. Just such discrétion would be conferred upon railroads in a position to discriminate if we were to hold that their decisions not to enter through route relationships with connecting through routes could bar nonadjacent participants in such through routes from eligibility to complain. Indeed such a holding would resuit in an anomalous set of circumstances clearly illustra ted in the présent context. No one doubts that Southern Pacific, by virtue of its direct physical con-
6 Although we do not regard Chicago, Indianapolis & Louisville R. Co. v. United States, 270 U. S. 287, as dispositive of the question presented, that case, on its facts, supports the conclusion we reach.
7 In response to an inquiry at oral argument, the parties hâve submitted memoranda agreeing that through routes and joint rates are ordinarily established by voluntary agreement, and that a railroad usually interchanges traffic on a comparable basis with com-peting railroads at a common interchange. See also Thompson v. United States, 343 U. S. 549, 554.
WESTERN PAC. R. CO. v. UNITED STATES. 245
237	Opinion of the Court.
nection, would be eligible to complain of rate discrimination if it were practiced in favor of the Bieber route. It is also undisputed that Great Northern would be eligible to complain of the présent discrimination, not merely as it affects its segment of the Bieber route, but on behalf of the route as a whole. Moreover, it is clear that if Union Pacific and Northern Pacific had entered a through route relationship with the Bieber route and then had decided to abandon it, or to set rates somewhat higher than those set for Southern Pacific, any participant in the Bieber route could complain of that discrimination. We cannot therefore construe § 3 (4) to bar these participants from eligibility to complain solely because they hâve been put to an even greater compétitive disadvantage by the refusai of the allegedly discriminating carriers to enter a through route relationship with them comparable to the one established with Southern Pacific. Hence, we hold that to qualify as a “connecting line,” in the absence of physical connection, a carrier need only show that it participâtes in an established through route, making connection at the point of common interchange, ail of whose participants stand willing to cooperate in the arrangements necessary to eliminate the alleged discrimination.
Such a construction of “connecting line” does not interfère with the function of the Commission under § 15 (3) of the Act, 54 Stat. 911, 49 U. S. C. § 15 (3) (1964 ed.), to require the establishment of through routes and joint rates “in the public interest.” 8 Sec-
8Section 15 (3) provides in relevant part:
“The Commission may, and it shall whenever deemed by it to be necessary or désirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this chapter ... or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as hereinafter provided, and the ternis and conditions under which such through routes shall be operated.”
246
382 U. S.
OCTOBER TERM, 1965.
Douglas, J., dissenting.
tion 3 (4) is applicable only to a narrower range of situations involving discrimination at a common interchange. Moreover, the remedy in § 3 (4) situations need not entail the establishment of through routes, joint rates, or indeed any particular form of relief. Ail that is reqüired is the élimination of discriminatory treat-ment. See Chicago, Indianapolis & Louisville R. Co. v. United States, 270 U. S. 287, 292-293; United States n. Illinois Central R. Co., 263 U. S. 515, 520-521. Finally, our holding does no more than to define the character-istics of a carrier eligible to complain. Relief is war-ranted only if it also appears that differential treatment is not justified by différences in operating conditions that substantially affect the allegedly discriminating carrier. See United States v. Illinois Central R. Co., supra, at p. 521; Atchison, Topeka & Santa Fe R. Co. v. United States, 218 F. Supp. 359, 369.
In the présent case, having found that Western Pacific was not eligible to complain, the District Court did not reach the question whether it was entitled to relief. We therefore vacate the judgment and remand this case to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Douglas, dissenting.
Under the Interstate Commerce Act, 49 U. S. C. § 1 et seq., as I read it, there are two ways of obtaining “through routes.” One is to qualify as a “connecting line” within the meaning of § 3 (4) where a similarly sit-uated competing carrier has been given a through route.1
1 Section 3(4) provides:
“Ail carriers subject to the provisions of this chapter shall, accord-ing to their respective powers, afford ail reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering
WESTERN PAC. R. CO. v. UNITED STATES. 247
237	Douglas, J., dissenting.
The other is to apply for a rate for a “through route” under § 1 (4).2 In the event that a carrier refuses to establish a “through route,” the Commission may “upon complaint or upon its own initiative without complaint,” establish a “through route” when “deemed by it to be necessary or désirable in the public interest.” § 15 (3).3
In this case appellants sought a “through route” with certain appellee railroads on the same basis as the joint rates those railroads had established with the Southern
of passengers or property to and from connecting Unes; and shall not discriminate in their rates, fares, and charges between connecting Unes, or unduly préjudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.” (Italics added.)
The discriminatory refusai to enter into through routes has been held to constitute a violation of §3 (4). See Dixie Carriers, Inc. v. United States, 351 U. S. 56.
2 Section 1 (4) provides in part:
“It shall be the duty of every common carrier subject to this chapter to provide and fumish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; . . .”
3 Section 15 (3) provides in part:
“The Commission may, and it shall whenever deemed by it to be necessary or désirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this chapter, or by carriers by railroad subject to this chapter and common carriers by water subject to chapter 12 of this title, or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as herein-after provided, and the terms and conditions under which such through routes shall be operated.”
248
382 U. S.
OCTOBER TERM, 1965.
Douglas, J., dissenting.
Pacific. In an adversary proceeding the Commission denied the establishment of a “through route” under § 1 (4) saying:
. . The shippers urge that the rates and routes sought would give them more freedom of choice in the movement of their goods, would improve transportation service, time in transit, and car supply, and make available additional transit privilèges. Nothing of record, however, indicates that the exist-ing through routes and joint rates are inadéquate to meet the needs of the shipping public. In fact the failure of the shipper witnesses to initiate in the last 31 years a determined campaign to persuade the de-fendants of the necessity of establishing through routes between points on the complainants’ fines in California and points on the défendants’ fines in the Northwest, is at least some indication of the adequacy of the existing routes. The expression ‘in the public interest’ means more than a mere desire on the part of shippers for something that would merely be convenient or désirable for them. This desire must be weighed against the effect on other carriers and the general public. On the basis of this record, we cannot find that the public interest would be served by requiring the establishment of joint rates and through routes which are substantially slower and costlier than the présent routes.” 316 I. C. C. 795, 810-811.
What the Court does today is to let § 3 (4) swallow § 1 (4) by letting any segment of a multi-carrier through route become a “connecting line.” 4 For then the ban
4 The term “multi-carrier through route” is used here to indi-cate a route composed of two or more carriers which hâve estab-lished among themselves a through route with joint rates. This, of
WESTERN PAC. R. CO. v. UNITED STATES. 249
237	Douglas, J., dissenting.
in § 3 (4) on discriminatory rates in effect forces the establishment of “through routes” with “just and reasonable rates” as required by § 1 (4), without satisfying any of the conditions of § 1 (4) and of § 15 (3). In-deed after today, the whole protective scheme of § 15 (3) which makes the Commission the guardian of “through routes” (see St. Louis R. Co. v. United States, 245 U. S. 136, 142-143) breaks down.
In addition to the conditions set forth in § 15 (3) the Commission’s power to compel the establishment of through routes is limited by § 15 (4), which prevents the Commission from establishing any through route requiring a carrier to “short haul” itself except where particu-lar circumstances (enumerated in § 15 (4)) are found to exist. See Thompson v. United States, 343 U. S. 549, 552-556; Denver & R. G. W. R. Co. v. Union P. R. Co., 351 U. S. 321, 325 et seq.; Chicago, M., St. P. & P. R. Co. v. United States, 366 U. S. 745. Can a carrier after today’s decision be compelled to “short haul” itself where an internai segment of a multi-carrier through route invokes § 3 (4) ?5
Section 3 (4) narrowly construed to include only lines that physically abut, would, of course, lift some cases from § 1 (4) and from § 15. But those are the exceptions, relatively few in number. The Court multiplies those ahnost without end when it holds that any interior segment of an established multi-carrier through route is a “connecting line” within the meaning of § 3 (4).
Today’s decision uproots the established concept of “through routes.” As we stated in Thompson v. United
course, describes the Bieber route from Southern California to Portland.
5 Congress has refused, although requested to do so by the Commission, to repeal § 15 (4). See Thompson v. United States, supra, at 555.
250
382 U. S.
OCTOBER TERM, 1965.
Douglas, J., dissenting.
States, 343 U. S. 549, 557 (quoting from the Commission’s 21st Annual Report to Congress) :
“A through route is a continuons line of rail-way formed by an arrangement, express or implied, between connecting carriers. . . . Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the bill-ing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier’s course of business with respect to through shipments.”
Then we added :
“In short, the test of the existence of a ‘through route’ is whether the participating carriers hold them-selves out as offering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.” Ibid. (Italics added.)
And see Denver & R. G. W. R. Co. v. Union P. R. Co., 351 U. S. 321, 327, 330.
Here there has been no “holding out” by the participating carriers (either consensually or as a resuit of any Commission action) that offers this interior segment of this multi-carrier route to become a part of any “through route.” If we are to allow § 1 (4) and §§ 3 (4) and 15 (3) to exist in harmony, we must adhéré to that requirement, restricting “connecting line” to those lines that hâve a direct physical connection with the allegedly discriminating carrier.
Atlantic Coast Line R. Co. v. United States, 284 U. S. 288, is not opposed. While the line in question was only a segment in a multi-carrier System, it had “through
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237	Douglas, J., dissenting.
routes” with the other carriers in controversy. Id., at 292. The words “connecting lines” 6 were therefore used to include “ail the lines making up a through route.” Id., at 293. But there is no “through route” here, the défendants not having agreed to one and the Commission having expressly disallowed one pursuant to its power under § 15 (3).
6 Section 3 (4) was not involved. What was in litigation was the construction of one of its earlier orders allowing one carrier to lease another. Commission approval was accompanied by conditions assuring “equal service, routing, and movement of compétitive traf-fic to and from ail connecting lines” reached by the lessee. 284 U. S., at 292. It was in that context that the Court held that carriers were protected even though their rails did not “physically abut” on the rails of the lessee. 284 U. S., at 293.
252
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
HAZELTINE RESEARCH, INC., et al. v. BRENNER, COMMISSIONER OF PATENTS.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 57. Argued November 17, 1965.—Decided December 8, 1965.
A patent application pending in the Patent Office at the time a second application is filed constitutes part of the “prior art” within the meaning of 35 U. S. C. § 103. Alexander Milburn Co. v. Davis-Boumonville Co., 270 U. S. 390, followed. Pp. 254-256.
119 U. S. App. D. C. 261, 340 F. 2d 786, affirmed.
Laurence B. Dodds argued the cause for petitioners. With him on the briefs was George R. Jones.
J. William Doolittle argued the cause for respondent. On the brief were Soliciter General Marshall, Assistant Attorney General Douglas and Lawrence R. Schneider.
Invin M. Aisenberg filed a brief, as amicus curiae, urg-ing reversai.
Mr. Justice Black delivered the opinion of the Court.
The sole question presented here is whether an application for patent pending in the Patent Office at the time a second application is filed constitutes part of the “prior art” as that term is used in 35 U. S. C. § 103 (1964 ed.), which reads in part:
“A patent may not be obtained ... if the différences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would hâve been obvious at the time the invention was made to a person having ordinary skill in the art . . . .”
The question arose in this way. On December 23, 1957, petitioner Robert Regis filed an application for a
HAZELTINE RESEARCH v. BRENNER. 253
252	Opinion of the Court.
patent on a new and useful improvement on a microwave switch. On June 24, 1959, the Patent Examiner denied Regis’ application on the ground that the invention was not one which was new or unobvious in light of the prior art and thus did not meet the standards set forth in § 103. The Examiner said that the invention was unpatentable because of the joint effect of the disclosures made by patents previously issued, one to Carlson (No. 2,491,644) and one to Wallace (No. 2,822,526). The Carlson patent had been issued on December 20, 1949, over eight years prior to Regis’ application, and that patent is admittedly a part of the prior art insofar as Regis’ invention is concerned. The Wallace patent, however, was pending in the Patent Office when the Regis application was filed. The Wallace application had been pending since March 24, 1954, nearly three years and nine months before Regis filed his application and the Wallace patent was issued on Feb-ruary 4, 1958, 43 days after Regis filed his application.1
After the Patent Examiner refused to issue the patent, Regis appealed to the Patent Office Board of Appeals on the ground that the Wallace patent could not be prop-erly considered a part of the prior art because it had been a “co-pending patent” and its disclosures were secret and not known to the public. The Board of Appeals rejected this argument and affirmed the decision of the Patent Examiner. Regis and Hazeltine, which had an interest as assignée, then instituted the présent action in the District Court pursuant to 35 U. S. C. § 145 (1964 ed.) to compel the Commissioner to issue the patent. The District Court agreed with the Patent Office that the co-pending Wallace application was a part of the prior art
1 It is not disputed that Régis’ alleged invention, as well as his application, was made after Wallace’s application was filed. There is, therefore, no question of priority of invention before us.
254
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OCTOBER TERM, 1965.
Opinion of the Court.
and directed that the complaint be dismissed. 226 F. Supp. 459. On appeal the Court of Appeals affirmed per curiam. 119 U. S. App. D. C. 261, 340 F. 2d 786. We granted certiorari to décidé the question of whether a co-pending application is included in the prior art, as that term is used in 35 U. S. C. § 103. 380 U. S. 960.
Petitioners’ primary contention is that the term “prior art,” as used in § 103, really means only art previously publicly known. In support of this position they refer to a statement in the legislative history which indicates that prior art means “what was known before as described in section 102.” 2 They contend that the use of the word “known” indicates that Congress intended prior art to include only inventions or discoveries which were already publicly known at the time an invention was made.
If petitioners are correct in their interprétation of “prior art,” then the Wallace invention, which was not publicly known at the time the Regis application was filed, would not be prior art with regard to Regis’ invention. This is true because at the time Regis filed his application the Wallace invention, although pending in the Patent Office, had never been made public and the Patent Office was forbidden by statute from disclosing to the public, except in spécial circumstances, anything con-tained in the application.3
The Commissioner, relying chiefly on Alexander Mil-bum Co. v. Davis-Bournonville Co., 270 U. S. 390, con-tends that when a patent is issued, the disclosures con-tained in the patent become a part of the prior art as
2 H. R. Rep. No. 1923, 82d Cong., 2d Sess., p. 7 (1952).
3 35 U. S. C. §122 (1964 ed.) States: “Applications for patents shall be kept in confidence by the Patent Office and no information conceming the same given without authority of the applicant or owner unless necessary to carry ont the provisions of any Act of Congress or in such spécial circumstances as may be determined by the Commissioner.”
HAZELTINE RESEARCH v. BRENNER. 255
252	Opinion of the Court.
of the time the application was filed, not, as petitioners contend, at the time the patent is issued. In that case a patent was held invalid because, at the time it was applied for, there was already pending an application which completely and adequately described the invention. In holding that the issuance of a patent based on the first application barred the valid issuance of a patent based on the second application, Mr. Justice Holmes, speaking for the Court, said, “The delays of the patent office ought not to eut down the effect of what has been done. . . . [The first applicant] had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amend-ments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing [the second applicant] to profit by the delay . . . .” At p. 401.
In its révision of the patent laws in 1952, Congress showed its approval of the holding in Milburn by adopt-ing 35 U. S. C. § 102 (e) (1964 ed.) which provides that a person shall be entitled to a patent unless “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent.” Petitioners suggest, however, that the question in this case is not answered by mere reference to § 102 (e), because in Milburn, which gave rise to that section, the co-pending applications described the same identical invention. But here the Regis invention is not precisely the same as that contained in the Wallace patent, but is only made obvious by the Wallace patent in light of the Carl-son patent. We agréé with the Commissioner that this distinction is without significance here. While we think petitioners’ argument with regard to § 102 (e) is interest-ing, it provides no reason to départ from the plain holding and reasoning in the Milburn case. The basic rea-
256
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
soning upon which the Court decided the Milburn case applies equally well here. When Wallace filed his application, he had done what he could to add his dis-closures to the prior art. The rest was up to the Patent Office. Had the Patent Office acted faster, had it issued Wallace’s patent two months earlier, there would hâve been no question here. As Justice Holmes said in Milburn, “The delays of the patent office ought not to eut down the effect of what has been done.” P. 401.
To adopt the resuit contended for by petitioners would create an area where patents are awarded for unpatent-able advances in the art. We see no reason to read into § 103 a restricted définition of “prior art” which would lower standards of patentability to such an extent that there might exist two patents where the Congress has plainly directed that there should be only one.
Affirmed.
GUNTHER v. SAN DIEGO & A. E. R. CO. 257
Syllabus.
GUNTHER v. SAN DIEGO & ARIZONA EASTERN RAILWAY CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 27. Argued November 8, 1965.—Decided December 8, 1965.
Petitioner after long employment as an engineer was removed from service following an adverse physical report by respondent rail-road’s physicians. His own doctor thereafter examined petitioner and pronounced him fit to work. When the railroad re-jected petitioner’s request for re-examination or restoration to service, he filed with the Railroad Adjustment Board a claim for reinstatement and back pay. The Board appointed a three-doc-tor committee, which found petitioner fit to act as an engineer. The Board, having interpreted seniority and other provisions of the collective bargaining agreement as guaranteeing petitioner’s continued service while physically qualified, ordered his reinstatement with back pay for time lost. Upon the railroad’s refusai to comply, petitioner brought this enforcement action in District Court. That court refused to uphold the Board’s order, finding nothing in the collective bargaining agreement to limit the railroad’s right to remove petitioner upon a medical disability finding by its physicians. The Court of Appeals affirmed. Held:
1.	The Adjustment Board, an experienced représentative body created by § 3 of the Railway Labor Act for settling disputes in the railroad industry, including interprétation of agreements, did not abuse its discrétion by its interprétation of the collective bargaining agreement or its appointment of the medical board and reliance on its findings. Pp. 261-262.
2.	A fédéral district court under § 3 First (m) of the Railway Labor Act, which provides for finality of Adjustment Board awards “except insofar as they shall contain a money award,” cannot open up the Board’s finding on the merits merely because its détermination on the central issue of wrongful discharge included a money award. Pp. 263-264.
3.	The District Court has power under the Act to détermine the separable issue of the size of the money award for lost time; in making that détermination, the court can evaluate any changes in 786-211 0-66—26
258
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
petitioner’s health in the seven years since the Board heard and decided the case. Pp. 264-265.
336 F. 2d 543, reversed and remanded.
Charles W. Decker argued the cause for petitioner. With him on the brief was Clifton Hildebrand.
Waldron A. Gregory argued the cause for respondent. With him on the brief was William R. Denton.
Clarence M. Mulholland, Edward J. Hickey, Jr., and Richard R. Lyman filed a brief for the Railway Labor Executives’ Association, as amicus curiae, urging reversai.
Mr. Justice Black delivered the opinion of the Court.
The petitioner, Gunther, worked as a fireman for respondent railroad for eight years, from 1916 to 1924, and as an engineer for 30 years, from 1924 until December 30, 1954. On that date, shortly after his seventy-first birthday, he was removed from active service because of an alleged physical disability. The railroad’s action was taken on the basis of reports made by its physicians, after physical examinations of petitioner, that in their opinion he was no longer physically qualified to work as a locomotive engineer because his “heart was in such condition that he would be likely to sufïer an acute coronary épisode.” Dissatisfied with the railroad doctors’ findings, Mr. Gunther went to a recognized specialist who, after examination, concluded that petitioner was qualified physically to continue work as an engineer. On the basis of this report petitioner requested the railroad to joîn him in the sélection of a three-doctor board to re-examine his physical qualifications for return to service. The railroad refused. This disagreement led to prolonged litiga-tion which has reached us 11 years after the controversy arose.
When the railroad refused to consent to the appoint-ment of a new board of doctors to re-examine petitioner
GUNTHER v. SAN DIEGO & A. E. R. CO. 259
257	Opinion of the Court.
or to restore him to service, he filed a claim for reinstate-ment and back pay with the Railroad Adjustment Board, which was created by § 3 of the Railway Labor Act, as amended,1 to adjust, among other things, disputes of rail-roads and their employées “growing out of grievances or out of the interprétation or application of agreements concerning . . . rules, or working conditions .	2
The Adjustment Board, over the protests of the railroad, decided it had jurisdiction of the grievance and then, re-ferring to past practice in similar cases, proceeded, as its findings show, to appoint a committee of three qualified physicians, to re-examine petitioner, “one chosen by carrier and one by the employé and the third by the two so selected, for the purpose of determining the facts as to claimant’s disability and the propriety of his removal from service....” Subsequently, this committee of doctors ex-amined petitioner and decided by a majority vote that he was physically qualified to act as an engineer, contrary to the prier findings of the railroad’s doctors. Upon the basis of these findings the Adjustment Board decided that the railroad had been wrong in disqualifying petitioner for service and sustained his claim “for rein-statement with pay for ail time lost from October 15, 1955 . . . .” The railroad refused to comply with the Board’s order and petitioner as authorized by the Act3
M8 Stat. 1185, 45 U. S. C. §151 et seq. (1964 ed.).
2 Section 3 First (i), 48 Stat. 1191, 45 U. S. C. § 153 First (i) (1964 ed.). This section also provides that disputes between railroad employées and their employers “failing to reach an adjustment . . . may be referred by pétition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and ail supporting data bearing upon the disputes.”
3 Section 3 First (p), 48 Stat. 1192, 45 U. S. C. § 153 First (p) (1964 ed.), provides:
“If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner . . . may file in the District Court of the United States for
260
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
filed this action in a district court of the United States for an appropriate court order to enforce the Adjustment Board’s award. After hearings the District Court, in its third opinion in the case, held the award erroneous and refused to enforce it.4 The District Court’s refusai was based on its conclusion that there were no express or implied provisions in the collective bargaining contract which in the court’s judgment limited in any way what it found to be the absolute right of the railroad, in absence of such provisions, to remove petitioner from active service whenever its physicians found in good faith “that plaintiff was physically disqualified from such service.” The Court of Appeals affirmed, agreeing with the interprétation put upon the contract by the District Court, and thereby rejected the Board’s interprétation of the contract and its decision on the merits of the dispute. 336 F. 2d 543. We granted certiorari because the holding of the two courts below seemed, in several respects, to run counter to the requirements of the Railway Labor Act as we hâve construed it. 380 U. S. 905.
I.	Section 3 First (i) of the Railway Labor Act provides that “disputes between an employée or group of
the district in which he résides or in which is located the principal operating office of the carrier ... a pétition setting forth briefly . . . the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in ail respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated .... The district courts are empowered, under the rules of the court govern-ing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board.”
4 192 F. Supp. 882, 198 F. Supp. 402. The third opinion written by the court is not reported.
GUNTHER v. SAN DIEGO & A. E. R. CO. 261
257	Opinion of the Court.
employées and a carrier or carriers growing out of griev-ances or out of the interprétation or application of agree-ments” are to be handled by the Adjustment Board. In § 3 Congress has established an expert body to set-tle “minor” grievances like petitioner’s which arise from day to day in the railroad industry. The Railroad Adjustment Board, composed equally of représentatives of management and labor is peculiarly familiar with the thorny problems and the whole range of grievances that constantly exist in the railroad world. Its member-ship is in daily contact with workers and employers, and knows the industry’s language, customs, and practices. See Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 243-244. The Board’s decision here fairly read shows that it construed the collective bargaining provisions which secured seniority rights, together with other provisions of the contract, as justifying an interprétation of the contract guaranteeing to petitioner “priority in service according to his seniority and pursuant to the agreement so long as he is physically qualified.” The District Court, whose opinion was affirmed by the Court of Appeals, however, refused to accept the Board’s interprétation of this contract. Paying strict attention only to the bare words of the contract and invoking old com-mon-law rules for the interprétation of private employ-ment contracts, the District Court found nothing in the agreement restricting the railroad’s right to remove its employées for physical disability upon the good-faith findings of disability by its own physicians. Certainly it cannot be said that the Board’s interprétation was wholly baseless and completely without reason. We hold that the District Court and the Court of Appeals as well went beyond their province in rejecting the Adjustment Board’s interprétation of this railroad collective bargaining agreement. As hereafter pointed out Congress, in the Railway Labor Act, invested the Adjustment Board
262
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OCTOBER TERM, 1965.
Opinion of the Court.
with the broad power to arbitrale grievances and plainly intended that interprétation of these controversial provisions should be submitted for the decision of railroad men, both workers and management, serving on the Ad-justment Board with their long expérience and accepted expertise in this field.
II.	The courts below were also of the opinion that the Board went beyond its jurisdiction in appointing a medical board of three physicians to décidé for it the question of fact relating to petitioner’s physical qualifications to act as an engineer. We do not agréé. The Adjustment Board, of course, is not limited to common-law rules of evidence in obtaining information. The medical board was composed of three doctors, one of whom was ap-pointed by the company, one by petitioner, and the third by these two doctors. This not only seems an eminently fair method of selecting doctors to perform this medical task but it appears from the record that it is commonly used in the railroad world for the very purpose it was used here. In fact the record shows that under respond-ent’s présent collective bargaining agreement with its engineers provision is made for determining a dispute precisely like the one before us by the appointment of a board of doctors in precisely the manner the Board used here. This Court has said that the Railway Labor Act’s “provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.” 5 On a question like the one before us here, involving the health of petitioner, and his physical ability to operate an engine, arbitrators would prob-ably find it difficult to find a better method for arriving at the truth than by the use of doctors selected as these doctors were. We reject the idea that the Adjustment
5 Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U. S. 30, 39.
GUNTHER v. SAN DIEGO & A. E. R. CO. 263
257	Opinion of the Court.
Board in some way breached its duty or went beyond its power in relying as it did upon the finding of this board of doctors.
III.	Section 3 First (m) provides that Adjustment Board awards “shall be final and binding upon both parties to the dispute, except insofar as they shall con-tain a money award.” 6 The award of the Board in this case, based on the central finding that petitioner was wrongfully removed from service is twofold, consisting both of an order of reinstatement and the money award for lost earnings. Thus there arises the question of whether the District Court may open up the Board’s finding on the merits that the railroad wrongfully removed petitioner from his job merely because one part of the Board’s order contained a money award. We hold it can-not. This Court time and again has emphasized and re-emphasized that Congress intended minor grievances of railroad workers to be decided finally by the Railroad Adjustment Board. In Brotherhood of Railroad Train-men v. Chicago River & Indiana R. Co., 353 U. S. 30, the Court gave a Board decision the same finality that a decision of arbitrators would hâve. In Union Pacific R. Co. v. Price, 360 U. S. 601, the Court discussed the legislative history of the Act at length and pointed out that it “was designed for effective and final decision of grievances which arise daily” and that its “statutory scheme cannot realistically be squared with the contention that Congress did not purpose to foreclose litigation in the courts over grievances submitted to and disposed of by the Board . . . .” 360 U. S., at 616. Also in Locomotive Engineers v. Louisville de Nashville R. Co.,373 U. S. 33, the Court said that prior decisions of this Court had made it clear that the Adjustment Board provisions were to be considered as “compulsory arbitration in this lim-
6 48 Stat. 1191, 45 U. S. C. § 153 First (m) (1964 ed.).
264
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
ited field,” p. 40, “the complété and final means for set-tling minor disputes,” p. 39, and “a mandatory, exclusive, and comprehensive System for resolving grievance disputes.” P. 38.
The Railway Labor Act as construed in the foregoing and other opinions of this Court does not allow a fédéral district court to review an Adjustment Board’s détermination of the merits of a grievance merely because a part of the Board’s award, growing from its détermination on the merits, is a money award. The basic grievance here—that is, the complaint that petitioner has been wrongfully removed from active service as an engineer because of health—has been finally, completely, and irrevocably settled by the Adjustment Board’s decision. Consequently, the merits of the w’rongful removal issue as decided by the Adjustment Board must be accepted by the District Court.
IV.	There remains the question of further proceedings in this case with respect to the money aspect of the Board’s award. The Board did not détermine the amount of back pay due petitioner on account of his wrongful removal from service. It merely sustained petitioner’s claim for “reinstatement with pay for ail time lost from October 15, 1955.” Though the Board’s finding on the merits of the wrongful discharge must be accepted by the District Court, it has power under the Act to detennine the size of the money award. The distinction between court review of the merits of a grievance and the size of the money award was drawn in Locomotive Engineers v. Louisvïlle & Nashvïlle R. Co., supra, at pp. 40-41, when it was said that the computation of a time-lost award is “an issue wholly separable from the merits of the wrongful discharge issue.” On this separable issue the District Court may détermine in this action how much time has been lost by reason of the wrongful removal of petitioner from active service, and
GUNTHER v. SAN DIEGO & A. E. R. CO. 265
257	Opinion of the Court.
any proper issues that can be raised with reference to the amount of money necessary to compensate for the time lost. In deciding this issue as to how much money peti-tioner will be entitled to receive because of lost time, the District Court will bear in mind the fact that the decision on the merits of the wrongful removal issue related to the time when the Board heard and decided the case. Seven years hâve elapsed since that time, long enough for many changes to hâve occurred in connection with petitioner’s health. This would, of course, be relevant in determining the amount of money to be paid him in a lawsuit which can, as the statute provides, proceed on this separable issue “in ail respects as other civil suits” where damages must be determined.
The judgments of the courts below are reversed and the cause is remanded to the District Court for considération not inconsistent with this opinion.
Reversed and remanded.
266
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
UNITED STATES v. SPEERS, TRUSTEE IN BANKRUPTCY.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 17. Argued October 20, 1965.—Decided December 13, 1965.
Fédéral taxes were assessed against a company but despite demand were not paid. No notice was filed of the lien which ensued under § 6321 of the Internai Revenue Code of 1954. Thereafter the company filed a pétition in bankruptcy. The trustée treated the Government as an unsecured claimant whose lien was invalid as to him, basing his position on § 70c of the Bankruptcy Act and § 6323 of the Internai Revenue Code. Section 70c vests a trustée as of the bankruptcy date with ail the rights of “a creditor then holding a lien” on a bankrupt’s assets by “legal . . . proceedings”; § 6323 permits a “judgment creditor” to prevail over an unrecorded fédéral tax lien. The trustée’s position was upheld by the referee, District Court, and Court of Appeals. Held: A bankruptcy trustée has the status of a statutory “judgment creditor” and as such prevails over an unrecorded fédéral tax lien. Pp. 269-278.
(a)	The language in United States v. Gilbert Associates, 345 U. S. 361, that the term “judgment creditor” in the predecessor of § 6323 referred to a holder of a judgment of a court of record, must be read in context and does not govern the rights conferred by Congress upon a trustée in bankruptcy. Pp. 269-271.
(b)	The language and legislative history of § 70c and § 6323 reflect a congressional purpose to confer ail the rights of a judgment creditor upon the trustée in bankruptcy, including the right to avoid an unrecorded fédéral tax lien. Pp. 271-275.
(c)	That failure to accord the Government priority for its unrecorded lien may benefit other claimants in a bankruptcy proceeding by improving their relative positions as creditors (a resuit which the Government can avoid by promptly filing notice of the lien) is a matter of congressional policy. Pp. 275-277.
(d)	The provision in § 67b of the Bankruptcy Act that a statutory lien, including a fédéral tax lien, not perfected until after bankruptcy may nevertheless be valid as against the trustée does not preclude construing § 6323 to include the trustée, since the
UNITED STATES v. SPEERS.
267
266	Opinion of the Court.
purpose of § 67b insofar as tax claims are concemed is to pro-tect them from § 60, which allows the trustée to set aside prefer-ential transfers made within four months of bankruptcy. Pp. 277-278.
335 F. 2d 311, affirmed.
Acting Assistant Attorney General Roberts argued the cause for the United States. On the brief were Solic-itor General Cox, Assistant Attorney General Oberdorfer and I. Henry Kutz.
Robert B. Gosline argued the cause and filed a brief for respondent.
Mr. Justice Fortas delivered the opinion of the Court.
This case présents the question whether a fédéral tax lien, unrecorded as of the time of bankruptcy, is valid as against the trustée in bankruptcy.
On June 3, 1960, a District Director of Internai Revenue assessed more than $14,000 in withholding taxes and interest against the Kurtz Roofing Company. Demand for payment was made, and the taxpayer refused to pay. This gave rise to a fédéral tax lien.1 Notice of the lien was not filed either in the Office of the Recorder of Erie County, Ohio, where Kurtz had its principal place of business, or in the United States District Court, at least
x26 U. S. C. §6321 (1964 ed.) provides: “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon ail property and rights to property, whether real or Personal, belong-ing to such person.”
26 U. S. C. §6322 (1964 ed.) provides: “Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unen-forceable by reason of lapse of time.”
268	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
not before February of 1961.2 On June 20, 1960, Kurtz filed a pétition in bankruptcy. In the ensuing proceedings the trustée took the position that the fédéral tax lien was invalid as to him. He relied upon § 70c of the Bankruptcy Act, 11 U. S. C. § 110 (c) (1964 ed.), which, he asserted, vested in him the rights of a “judgment creditor,” and upon 26 U. S. C. § 6323 (1964 ed.), which entitles a “judgment creditor” to prevail over an unre-corded fédéral tax lien. Section 70c provides in part:
“The trustée, as to ail property, whether or not Corning into possession or control of the court, upon which a creditor of the bankrupt could hâve ob-tained a lien by legal or équitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with ail the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”
Section 6323 provides in part:
“[T]he lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate . . . .”
The trustee’s position, in short, was that his statutory lien attached to ail property of the bankrupt as of the date of filing of the pétition; that he was a statutory “judgment creditor”; and that, under § 6323, the unre-corded tax lien of the United States was not valid against him. This position, if sustained, would reduce the Gov-ernment’s claim for unpaid taxes to the status of an unse-
2 In its brief in the Court of Appeals the Government for the first time stated that notice of the lien was in fact filed with the Recorder on February 9, 1961. The statement in the referee’s certificate that notice of the lien was never filed was not controverted in the District Court and, as respondent contends, there is no proof of the February filing in the record.
UNITED STATES v. SPEERS.
269
266	Opinion of the Court.
cured claim, sharing fourth-class priority with unsecured state and local tax daims under § 64a (4) of the Bank-ruptcy Act, 11 U. S. C. §104(a)(4) (1964 ed.), and ranking behind administrative expenses, certain wage daims, and specified creditors’ expenses.3 The resuit in the présent case is that instead of recovering the full amount owing to it, the United States would receive only 53.48%.
The trustee’s position was affirmed by the referee, the District Court, and the Court of Appeals for the Sixth Circuit. 335 F. 2d 311. Certiorari was granted, 379 U. S. 958, to résolve the conceded conflict between decisions of Courts of Appeals for the Second, Third, and Ninth Circuits4 and the decision below. We affirm.
Despite the language of the applicable statutory provisions, § 70c and § 6323, most of the Courts of Appeals passing on the question hâve sustained the validity of an unrecorded fédéral tax lien as against the trustée in bankruptcy. They hâve arrived at this resuit on the authority of a statement in United States v. Gilbert Associates, Inc., 345 U. S. 361, 364, that the phrase
3See §§64a (l)-(3), 11 U. S. C. §§ 104 (a)(l)-(3) (1964 ed.). Secured creditors, including those whose security was obtained subséquent to création of the Govemment’s lien, would hâve recourse to their security before any of the Bankruptcy Act priorities corne into play. Goggin v. California Labor Div., 336 U. S. 118; City of Richmond v. Bird, 249 U. S. 174. Administrative expenses and wage daims précédé ail other statutory liens on personal property not accompanied by possession if not enforced by sale prior to bank-ruptcy. § 67c, 11 U. S. C. §107 (c) (1964 ed.); Goggin, supra, 126-130.
4 See Brust n. Sturr, 237 F. 2d 135 (C. A. 2d Cir.) ; In re Fidelity Tube Corp., 278 F. 2d 776 (C. A. 3d Cir.) (Kalodner and Hastie, JJ., dissenting), cert. denied sub nom. Borough of East Newark v. United States, 364 U. S. 828; Simonson v. Granquist, 287 F. 2d 489 (C. A. 9th Cir.) (Hamley, J., expressing contrary views), rev’d on other grounds, 369 U. S. 38. See also United States v. England, 226 F. 2d 205 (C. A. 9th Cir.) ; In re Taylorcraft Aviation Corp., 168 F. 2d 808, 810 (C. A. 6th Cir.) (dictum).
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Opinion of the Court.	382 U. S.
“judgment créditer” in § 3672, the predecessor of § 6323, was used by Congress “in the usual, conventional sense of a judgment of a court of record . . . .”
It is clear, however, that this characterization was not intended to exclude a trustée in bankruptcy from the scope of the phrase “judgment créditer.” The issue before the Court in Gilbert was quite different.
Gilbert involved neither a bankruptcy proceeding nor the rights of a trustée in bankruptcy. Gilbert arose out of a state insolvency proceeding. The issue was whether an unrecorded fédéral tax lien was valid as against a municipal tax assessment which had neither been reduced to judgment nor accorded “judgment creditor” status by any statute. The asserted superior position of the local tax claim was based upon the fact that the New Hamp-shire court, in the Gilbert insolvency proceeding, had, for the first time, conveniently characterized the local tax claim as “in the nature of a judgment,” relying upon the procedures used by the taxing authorities.5 Because the effect of fédéral tax liens should not be determined by the diverse rules of the various States, the Court held that the municipality was not a “judgment creditor” for purposes of the fédéral statute. The Court said:
“A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a ‘judgment creditor’ should hâve the same application in ail the States. In this instance, we think Congress used the words ‘judgment creditor’ in § 3672 in the usual, conventional sense of a judgment of a court of record, since ail states hâve such courts. We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states, where the end resuit is something ‘in the nature of a judgment,’
5 345 U. S., at 363, quoting from Pétition of Gilbert Associates, Inc., 97 N. H. 411, 414, 90 A. 2d 499, 502.
UNITED STATES v. SPEERS.
271
266	Opinion of the Court.
while in other States the taxing authorities act quasi-judicially and are considered administrative bodies.” (Footnotes omitted.) 345 U. S., at 364.6
In view of the nature of the claim for which superiority was asserted and because its dominant theme was the need for uniformity in construing the meaning of § 3672, Gilbert cannot be considered as goveming the entirely different situation with respect to the rights conferred by Congress upon a trustée in bankruptcy. In the latter circumstance we are confronted with a spécifie congres-sional Act defining the status of the trustée. We hâve no problem of evaluating widely differing state laws. We hâve no possibility of unequal application of the fédéral tax laws, depending upon variances in the terms and phraseology of different state and local tax assessment statutes and judicial rulings thereon. Here we are faced with a uniform fédéral scheme—the rights of the trustée in bankruptcy in light of an unequivocal statement by Congress that he shall hâve “ail” the rights of a judicial lien creditor with respect to the bankrupt’s property.
The legislative history lends support to the conclusion drawn from the statutory language that the purpose of Congress was to invalidate an unrecorded fédéral tax
6 The Govemment’s brief also emphasized this concern for uni-formity in administration of the fédéral tax laws. See brief for petitioner in Gilbert, No. 440, 1952 Term, pp. 22-24, where the Government argued: “Congress did not intend to subordinate fédéral tax liens to local tax liens merely because by state statute or state court decisions the local tax assessments are for local purposes denomi-nated ‘judgments’.... Moreover, in holding that under our decisions’ and in ‘this jurisdiction’ the Town’s tax assessments are judgments,’ the court below failed to give sufiieient heed to the repeated déclarations of this Court that the fédéral revenue laws should be interpreted ‘so as to give a uniform application to a nation-wide scheme of taxation,’ and hence their provisions are not to be deemed subject to state law unless the language of the section involved, expressly or by necessary implication, so requires.”
272
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
lien as against the trustée in bankruptcy. It was in 1910 that Congress enacted the predecessor of § 70c, vesting the trustée “with ail the rights, remedies, and powers of a judgment creditor.” 7 Three years later, in 1913, Congress enacted the predecessor of § 6323, providing that an unrecorded fédéral tax lien was invalid as against a “judgment creditor.”8 These two statutes, with their cor-responding references to “judgment creditor,” co-existed for nearly 40 years. During that period, and prior to our decision in Gilbert in 1953, the only Court of Appeals squarely to pass upon the question decided that the trustée was a “judgment creditor” for purposes of avoid-ing an unrecorded fédéral tax lien. United States v. Sands, 174 F. 2d 384, 385 (C. A. 2d Cir.), rejecting con-trary dictum in In re Taylorcraft Aviation Corp., 168 F. 2d 808, 810 (C. A. 6th Cir.).
In amending the Bankruptcy Act in 1950, Congress deleted from § 70c the phrase “judgment creditor,” providing instead that whether or not the bankrupt’s prop-erty was in possession or control of the court, the trustée was to hâve “ail the rights, remedies, and powers” of a creditor holding a judicial lien.9 Elsewhere in the same
7 The Act of June 25, 1910, c. 412, 36 Stat. 840, § 8, provided in part: '‘such trustées, as to ail property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with ail the rights, remedies, and powers of a creditor holding a lien by legal or équitable proceedings thereon; and also, as to ail property not in the custody of the bankruptcy court, shall be deemed vested with ail the rights, remedies, and powers of a judgment creditor holding an execution duly retumed unsatisfied.”
8 Act of Mardi 4, 1913, c. 166, 37 Stat. 1016.
9 Act of March 18, 1950, c. 70, §2, 64 Stat. 26, now 11 U. S. C. §110 (c) (1964 ed.). Prior to the amendment, § 70c characterized the trustée as a lien holder as to property in the court’s possession or control and as a “judgment creditor” as to property not so reduced to possession. See n. 7, supra; Lewis v. Manujacturers National Bank, 364 U. S. 603, 605-606.
UNITED STATES v. SPEERS.
273
266	Opinion of the Court.
législation it was recognized that the category of those holding judicial liens includes judgment creditors,10 and a judicial lien holder generally has “gréater rights than a judgment creditor.” 11 It is clear, therefore, that, with respect to the présent problem, it was not the purpose of the 1950 amendments to reduce the powers of the trustée. As the House report accompanying the législation noted, the révision of § 70c “has been placed in the bill for the protection of trustées in bankruptcy . . . also to simplify, and to some extent expand, the general expression of the rights of trustées in bankruptcy.” 12
In 1954 Congress dealt explicitly with the question whether the trustée ought to prevail against unrecorded fédéral tax lie.ns. An unsuccessful effort was made, re-flected in the House version of the proposed § 6323, expressly to exclude “artificial” judgment creditors like the trustée in bankruptcy.13 At conférence, the House
10 Act of March 18, 1950, c. 70, § 1, 64 Stat. 25, now 11 U. S. C. §96 (a) (4) (1964 ed.). See 4 Collier, Bankruptcy 170.49, n. 3, at 1415 (1964 ed.).
11 See, e. g., H. R. Rep. No. 745, 86th Cong., Ist Sess., to accom-pany H. R. 7242, p. 10: “As a matter of general law the holder of a lien by legal proceedings has greater rights than a judgment creditor .... It would seem anomalous to allow judgment creditors to prevail over secret tax liens and to deny that right to a judicial lien holder.”
12 H. R. Rep. No. 1293, 81st Cong., Ist Sess., to accompany S. 88, p. 7. That this was the ténor of the amendment is generally con-ceded. See, e. g., In re Fidelity Tube Corp., 278 F. 2d 776, 781, 786-787 (both majority and dissenting opinions) ; 4 Collier, op. cit. supra, at 1415; Seligson, Creditors’ Rights, 32 N. Y. U. L. Rev. 708, 710 (1957).
13 The proposed législation was to make clear that “such protection is not extended to a judgment creditor who does not hâve a valid judgment obtained in a court of record and of competent jurisdiction” and that “particular persons shall not be treated as judgment creditors because State or Fédéral law artificially provides or concédés such persons rights or privilèges of judgment creditors, or even désignâtes them as such, when they hâve not actually ob-786-211 0-66—27
274
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
conférées acceded to the views of the Senate, which deemed it “advisable to continue to rely upon judicial interprétation of existing law instead of attempting to prescribe spécifie statutory rules.” 14 The Government suggests that the “existing law” sought to be preserved was this Court’s decision in Gilbert. But as of the date of the 1954 amendments, Gilbert had not yet been ap-plied by any court to displace the rights of the trustée in bankruptcy as against an unrecorded fédéral tax lien. So far as that issue is concerned, it is more likely that reference to “existing law” was to the spécifie and then unchallenged rule announced by the Second Circuit in United States v. Sands, supra, and by other courts in other cases holding the trustée to hâve the rights of a judgment creditor.15 As we hâve already noted, Gilbert is not inconsistent with the rule announced in Sands.
In recent years, and since the view began to spread that Gilbert compelled exclusion of the trustée from the benefits of § 6323, législation has been introduced ex-pressly to reiterate the trustee’s power to upset unrecorded fédéral tax liens.16 Such législation was proposed
tained a judgment in the conventional sense.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., to accompany H. R. 8300, p. A407. See Treas. Reg. on Procedure and Administration (1954 Code) §301.6323-1 (26 CFR §301.6323-1), incorporating the material rejected by the Eighty-third Congress.
14 S. Rep. No. 1622, 83d Cong., 2d Sess., to accompany H. R. 8300, p. 575; H. R. Conf. Rep. No. 2543, 83d Cong., 2d Sess., to accompany H. R. 8300, p. 78.
15 E. g., SampseU v. Straub, 194 F. 2d 228, 231 (C. A. 9th Cir.), cert. denied, 343 U. S. 927 ; McKay v. Trusco Finance Co., 198 F. 2d 431, 433 (C. A. 5th Cir.) ; In re Lustron Corp., 184 F. 2d 789 (C. A. 7th Cir.), cert. denied sub nom. Reconstruction Finance Corp. v. Lustron Corp., 340 U. S. 946.
16 On two occasions the proposed législation was approved by the appropriate House and Senate committees, and one bill received the assent of both Houses. See H. R. 7242, 86th Cong., § 6, vetoed by President on September 8, 1960, 106 Cong. Rec. 19168; H. R. 394, 88th Cong., §6; H. R. 136, 89th Cong., §6.
UNITED STATES v. SPEERS.
275
266	Opinion of the Court.
not to alter the statutory scheme, but to remove what was thought to be an erroneous gloss placed upon it by the courts. Thus, both Senate and House committee reports accompanying a recent bill, H. R. 394, 88th Cong., reflect the belief that those decisions upon which the Government now relies “would appear to be contrary to the legislative purpose which gave the trustée ail the rights of an idéal judicial lien creditor.” 17
In light of these legislative materials—the adoption of the phrase “judgment creditor” in both statutes, the legislative broadening of § 70c in 1950, and the expressions of congressional discontent with recent decisions excluding the trustée from § 6323—we are persuaded that, read together, § 6323 and § 70c entitle the trustée to prevail over unrecorded fédéral tax liens.
The Government seeks to ward ofï this resuit with the argument that so to read the statutes is to confer upon certain classes of creditors “windfalls” unwarranted by the equities of their situation. The question may, how-ever, be stated less invidiously than the argument indi-cates: it is whether the Government, unlike other creditors, and contrary to the general policy against secret liens, should be given advantage of a lien which it has not recorded as of the date of bankruptcy.18 It is true that the conséquence of depriving the United States of claimed priority for its secret lien is to improve the relative position of creditors—if there are any not already protected by § 6323—whose security was ob-tained subséquent to the Government’s lien and who, once the fédéral lien is invalidated, hâve a prior claim to
17 H. R. Rep. No. 454, 88th Cong., lst Sess., p. 10; S. Rep. No. 1133, 88th Cong., 2d Sess., p. 11.
18 In enacting the predecessor of § 6323 in 1913, Congress seems generally to hâve answered this question in the négative—and against secret liens. See H. R. Rep. No. 1018, 62d Cong., 2d Sess., PP. 1-2.
276
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
the secured assets. And our decision will enhance the possibility that there will be something in the bankrupt’s estate for those claimants whose priorities are higher than that afforded unsecured tax daims,19 as well as for state and local tax daims which share with the Fédéral Government the priority in § 64a (4), 11 U. S. C. §104 (a) (4). Whether this resuit is inadvisable need not detain us,20 for the question is one of policy which in our view has been decided by Congress in favor of the trustée. In any event, it is possible for the Government in cases which it deems appropriate, to avoid a resuit which it regards with unhappiness by promptly filing notice of its lien.21 Should expérience indicate that in-
19 See §§ 64a (l)-(3), 11 U. S. C. §§ 104 (a) (1)—(3), giving priority to daims for administrative expenses, wages, and certain creditors’ expenses. The daims of general creditors are, of course, in no way affected by our decision. And in some circumstances administrative expense and wage claimants would in any case prevail over the Govermnent’s lien. See n. 3, supra.
20 We note that failure of the Government to record its lien may work a hardship upon persons subsequently extending crédit in ignorance of the unrecorded lien, and that nondisclosure may induce others to incur administrative or other expenses which they would not incur if there were no hope of repayment. Moreover, state and local governments might reduce their daims to judgment if they knew of the existence of a fédéral lien. See Mémorandum of Chairman, Drafting Committee of National Bankruptcy Conférence, contained in S. Rep. No. 1133, 88th Cong., 2d Sess., to accompany H. R. 394, pp. 24-25.
21 In its letter to Senator Eastland opposing H. R. 394, dated September 8, 1961, the Treasury asserted that “The Service has, as a matter of administrative practice, exercised forbearance as a creditor in cases when there exists a reasonable possibility that the business can regain financial stability. Enactment of the pro-posed amendments . . . could well force the service to change this practice, which it is believed has been proved by expérience to be highly désirable.” S. Rep. No. 1133, 88th Cong., 2d Sess., p. 18. This same argument was made to an earlier Congress and rejected. See letter from Treasury, dated Aug. 9, 1960, in opposition to H. R. 7242, contained in S. Rep. No. 1871, 86th Cong., 2d Sess., p. 36.
UNITED STATES v. SPEERS. 277
266	Opinion of the Court.
clusion of the trustée within § 6323 is inadvisable, the fact will not be lost upon Congress.
The Government advances one last and quite novel22 argument predicated upon § 67b of the Bankruptcy Act, 11 U. S. C. § 107 (b) (1964 ed.), which provides:
“The provisions of section 60 of this Act to the con-trary notwithstanding, statutory liens [including those] for taxes and debts owing to the United States or to any State or any subdivision thereof . . . may be valid against the trustée, even though aris-ing or perfected while the debtor is insolvent and within four months prior to the filing of the pétition .... Where by such laws such liens are required to be perfected and arise but are not perfected before bankruptcy, they may nevertheless be valid, if perfected within the time permitted by and in accordance with the requirements of such laws . . .
22 In the Court of Appeals the Government advanced, as an alternative basis for disposition of the case, the contention that pur-suant to § 67b the alleged filing of notice in February of 1961 retroactively validated the lien as against the trustée. The court declined to reach the merits of this claim, noting that it had not been presented either to the referee or to the District Court and that there was no proof of record with respect to the alleged February filing. 335 F. 2d, at 314.
The § 67b argument raised in this Court differs from that rejected below, for that subsection is now cited to us as an aid in construing the relationship between § 70c and § 6323. Insofar as it is relevant to the particular problem of statutory construction presented by this case, we regard the § 67b argument as properly before us, for “Where the mind labours to discover the design of the législature, it seizes every thing from which aid can be derived.” United States v. Fisher, 2 Cranch 358, 386 (Marshall, C. J.). See also United States v. Hutcheson, 312 U. S. 219; Estate of Sanford v. Commis-sioner, 308 U. S. 39, 42-44; United States v. Aluminum Co. of America, 148 F. 2d 416, 429 (C. A. 2d Cir.) (L. Hand, J.).
278	OCTOBER TERM, 1965.
Black, J., dissenting.	382 U. S.
The contention is that the lower court’s reading of § 70c and § 6323 cannot be correct, for it precludes the possi-bility which appears to be contemplated by § 67b—that a fédéral tax lien not perfected until after bankruptcy may nevertheless be “valid against the trustée.” We find no such inconsistency. The purpose of § 67b, inso-far as tax claims are concerned, is to protect them from §60, 11 U. S. C. §96 (1964 ed.), which permits the trustée to avoid transfers made within four months of bankruptcy. Thus § 67b permits an otherwise inchoate fédéral tax claim to be “perfected” by assessment and demand within the four months prior to bankruptcy or afterwards.23 It does not nullify or purport to nullify the conséquences which flow from the Government’s failure to file its perfected lien prior to the date when the trustee’s rights as a statutory judgment creditor attach—namely, on filing of the pétition in bankruptcy.24 There is no indication in the language of § 67b, in the legislative history, or in decisions of any court, that the subsection was intended to affect the construction or application of § 6323. In any event, we should hesitate to read § 67b as relevant to the relationship between § 70c and § 6323, for Congress in the very législation pro-posed to clarify the trustee’s rights under § 6323 did consider § 67b, and evidenced no awareness of interrela-tionship or of inconsistency.25
Affirmed.
Mr. Justice Black, dissenting.
Section 6323 of the 1954 Internai Revenue Code provides that an unfiled tax lien is not “valid as against any mortgagee, pledgee, purchaser, or judgment cred-
23 See Simonson v. Granquist, 369 U. S. 38, 41 ; 4 Collier, op. cit. supra, 67.20, at 183; cf. Lewis v. Manufacturer National Bank, supra, at 609.
24 4 Collier, op. cit. supra, 67.26, at 283-286, and 70.48, at 1407.
25 See legislative materials cited at notes 11, 16, and 17, supra.
UNITED STATES v. SPEERS.
279
266	Black, J., dissenting.
itor . . . .” The Court here holds that a bankruptcy trustée must be treated as if he were a “judgment creditor” thereby reducing govemment tax daims to the level of unsecured creditors. I am unable to agréé. A bankruptcy trustée cannot be treated as a judgment creditor except by giving that term an entirely artificial, fictional meaning. The Court justifies this extraordi-nary twist of meaning by reference to § 70c of the Bankruptcy Act, 11 U. S. C. § 110 (c) (1964 ed.). That section, so far as here pertinent, provides:
“c. . . . The trustée, as to ail property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could hâve obtained a lien by legal or équitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with ail the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”
This language gives no intimation of a purpose to destroy a valid tax lien such as the Government had here when bankruptcy occurred. The section’s terms simply show a purpose to make sure that ail the property the bankrupt had before bankruptcy will be vested in the trustée. It stretches this language entirely too much to say it was intended to change the law so drastically that the mere appointment of a trustée could render invalid a govemment tax lien which was perfectly valid the moment before bankruptcy. Nor can this section fairly be read as an attempt by Congress to nullify valid govemment tax liens by placing the daims of ail unsecured creditors of the bankrupt on the same level as valid tax liens. In writing § 70c Congress was amend-mg the bankruptcy law, not the govemment tax lien law that dates back nearly 100 years. I still think, as we said in United States v. Gilbert Associates, 345
280	OCTOBER TERM, 1965.
382 U. S.
Black, J., dissenting.
U. S. 361, 364, that in enacting the predecessor of § 6323 Congress used the words “judgment creditor” in “the usual, conventional sense of a judgment of a court of record . . . .” The Second, Third, and Ninth Circuits hâve so construed this section. I think they were right. The Court today gives frail and inadéquate support, I think, for its judicial destruction of the Government’s congressionally created lien.
I would reverse this judgment.
UTILITY COMM’N v. PENNSYLVANIA R. CO. 281
Per Curiam.
PENNSYLVANIA PUBLIC UTILITY COMMISSION v. PENNSYLVANIA RAILROAD CO.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
No. 375. Decided December 13, 1965.
Appellee sued in a three-judge District Court to enjoin enforce-ment of an order issued by appellant state Commission on the ground of conflict with a fédéral statute, which appellant con-tended was unconstitutional. The injunction was granted. Held:
1.	Under Swift & Co. v. Wickham, ante, p. 111, a three-judge tribunal was not required by 28 U. S. C. § 2281 for state order-federal statute conflict.
2.	Nor does the defense of unconstitutionality of the fédéral statute require a three-judge court under 28 U. S. C. § 2282, which applies only where an injunction is sought to restrain the enforce-ment of an Act of Congress. G arment Workers v. Donnelly Co., 304 U. S. 243, 250.
3.	Since the direct appeal to this Court, taken prior to the Wickham decision, must be dismissed for lack of jurisdiction, the judgment is vacated and remanded to the District Court to enter a fresh decree from which a timely appeal may be taken to the Court of Appeals.
240 F. Supp. 233, vacated and remanded.
William A. Goichman and Joseph C. Bruno for appellant.
Hugh B. Cox and Windsor F. Cousins for appellee.
Per Curiam.
In the three-judge District Court from which this appeal cornes to us, the Pennsylvania Railroad Company sued to enjoin the enforcement of a duly promulgated order of the Pennsylvania Public Utility Commission on the sole ground that the order conflicted with a fédéral statute. The Commission, among other defenses, con-
282
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
tended that the fédéral statute was unconstitutional, but the District Court decided the case in favor of the railroad and issued an appropriate injunction. 240 F. Supp. 233.
It follows from our recent decision in Swift & Co. v. Wickham, ante, p. 111, that the injunction sought by the railroad, being based on incompatibility between the state order and the fédéral statute, was not grounded in the “unconstitutionality” of a state measure so as to require a three-judge tribunal under 28 U. S. C. § 2281 (1964 ed.). Nor is § 2282, requiring such a tribunal in order to enjoin “any Act of Congress for répugnance to the Constitution,” invoked by the Commission’s défense that the fédéral statute is unconstitutional; it is settled that this provision “does not provide for a case where the validity of an Act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an Act of Congress.” G arment Workers v. Donnelly Co., 304 U. S. 243, 250.
Because a three-judge court was not required to ad-judicate this suit, this Court has no jurisdiction under 28 U. S. C. § 1253 (1964 ed.) to entertain a direct appeal. It does not appear from the record that the Commission lodged a protective appeal in the Court of Appeals, and the time to do so has almost certainly expired. The appeal to this Court occurred before Swift & Co. n. Wickham, supra, was decided, and there is no reason why the Commission should be deprived of appellate review. In accordance with precedent, we vacate the judgment be-low and remand the case to the District Court so that it may enter a fresh decree from which a timely appeal may be taken to the Court of Appeals. See Phillips v. United States, 312 U. S. 246, 254.
It is so ordered.
ALBANESE v. NEDERL. AMERIK MAATS. 283
Per Curiam.
ALBANESE v. N. V. NEDERL. AMERIK STOOMV. MAATS. ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 523. Decided December 13, 1965.*
346 F. 2d 481, certiorari denied in Nos. 557 and 654; and in No. 523 certiorari granted, judgment reversed and District Court judgment reinstated.
Philip F. DiCostanzo and Robert Klonsky for petitioner in No. 523. Sidney A. Schwartz and Joseph Arthur Cohen for petitioner in No. 557.
Edmund F. Lamb for respondent N. V. Nederl. Amerik Stoomv. Maats. in Nos. 523 and 557 and for petitioner in No. 654.
Arthur J. Mandell for the American Trial Lawyers Association Admiralty Section, as amicus curiae, in support of the pétition in No. 523.
Per Curiam.
The motion of the American Trial Lawyers Association for leave to file a brief, as amicus curiae, is granted. The pétition for certiorari in No. 523, Albanese v. N. V. Nederl. Amerik Stoomv. Maats., is also granted.
We believe that the judgment of the Court of Appeals setting aside the judgment for petitioner Albanese on the ground that the trial court incorrectly charged the jury on the issue of négligence is erroneous. Gutierrez v. Waterman S. S. Corp., 373 U. S. 206.
*Together with No. 557, International Terminal Operating Co., Inc. v. N. V. Nederl. Amerik Stoomv. Maats.; and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese et al., also on pétitions for writs of certiorari to the same court.
284
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
In its opinion the Court of Appeals also stated that the District Court incorrectly instructed the jury as to the applicability of the Safety and Health Régulations for Longshoringt on the question of the shipowner’s liability. But we do not read that court’s opinion as making this an independent ground for ordering a new trial. So we not only reverse the judgment of the Court of Appeals in the case of Albanese but reinstate the District Court’s judgment in his favor.
The pétitions in No. 557, International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats.; and No. 654, N. V. Nederl. Amerik Stoomv. Maats. n. Albanese, are denied.
It is so ordered.
Mr. Justice Harlan would hâve denied certiorari in No. 523, Albanese v. N. V. Nederl. Amerik Stoomv. Maats., but the writ having been granted, he would hâve set the issues for plenary considération. He concurs in the déniai of certiorari in No. 557, International Terminal Operating Co. n. N. V. Nederl. Amerik Stoomv. Maats., and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese.
+ 29 CFR §9.1 et seq. (1963), now 29 CFR § 1504.1 (1965), promulgated by the Secretary of Labor under the authority of Public Law 85-742, 72 Stat. 835, 33 U. S. C. §941 (1964 ed.).
DECISIONS PER CURIAM.
285
382 U. S.
December 13, 1965.
SORIC v. IMMIGRATION AND NATURALIZATION SERVICE.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 610. Decided December 13, 1965.
Certiorari granted; 346 F. 2d 360, vacated and remanded.
Nathan T. Notkin for petitioner.
Solicitor General Marshall for respondent.
Per Curiam.
Upon the stipulation of the parties and an examination of the entire record, the pétition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court with instructions to remand to the Immigration and Naturali-zation Service for considération of daims for relief as authorized by the 1965 amendments to the Immigration and Nationality Act.
MOODY v. UNITED MINE WORKERS LOCAL FOR THE UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA.
No. 852, Mise. Decided December 13, 1965.
Appeal dismissed.
Per Curiam.
The appeal is dismissed for want of jurisdiction.
286
OCTOBER TERM, 1965.
December 13, 1965.
382 U. S.
MAYBERRY v. PENNSYLVANIA.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA.
No. 11, Mise. Decided December 13, 1965.
Certiorari granted; vacated and remanded.
Per Curiam.
The motion for leave to proceed in forma pauperis and the pétition for a writ of certiorari are granted. Upon considération of the concessions of the State and an examination of the papers in the case, the judgment of the Suprême Court of Pennsylvania is vacated and the case remanded to that court for further proceedings.
O’CONNOR v. OHIO.
APPEAL FROM THE SUPREME COURT OF OHIO.
No. 281, Mise. Decided E)ecember 13, 1965.
Rehearing granted; certiorari granted: vacated and remanded.
Per Curiam.
The pétition for rehearing is granted and the order of October 11, 1965, insofar as it déniés certiorari, is vacated. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is granted and the judgment is vacated. The case is remanded to the Suprême Court of Ohio for further proceedings in light of Griffin v. California, 380 U. S. 609.
DECISIONS PER CURIAM.
287
382 U. S.
December 13, 1965.
TRAVIA ET AL. v. LOMENZO, SECRETARY OF STATE OF NEW YORK, et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 633. Decided December 13, 1965.
Affirmed.
Simon H. Rifkind, Edward N. Costikyan and Léo A. Larkin for appellants.
Louis J. Lejkowitz, Attorney General of New York, Daniel M. Cohen, Assistant Soliciter General, Donald Zimmerman, Spécial Assistant Attorney General, George D. Zuckerman, Assistant Attorney General, and Willis Burton Lemon for appellees.
Per Curiam.
The judgment is affirmed.
Mr. Justice Harlan concurs in the resuit for the rea-sons stated in his acquiescence to the affirmance of the judgment in Travia v. Lomenzo, ante, p. 4, at 8.
Mr. Justice Portas took no part in the considération or decision of this case.
288
382 U. S.
OCTOBER TERM, 1965.
Supplémentai Decree.
UNITED STATES v. LOUISIANA et al.
No. 9, Original. Decided May 31, 1960.—Final Decree Entered December 12, 1960.—Supplémentai Decree Entered
December 13, 1965.
The motion by the United States for the entry of a supplémentai decree is granted and a supplémentai decree is entered.
Opinion reported: 363 U. S. 1; final decree reported: 364 U. S. 502.
Solicitor General Marshall for the United States.
Jack P. F. Gremillion, Attorney General of Louisiana, John L. Madden, Assistant Attorney General, Paul M. Hebert, Victor A. Sachse, Thomas W. Leigh, Oliver P. Stockwell and J. J. Davidson for the State of Louisiana.
Supplémentai Decree.
For the purpose of giving effect to the conclusions of this Court as stated in its opinion, announced May 31, 1960, and the decree entered by this Court on December 12, 1960, it is ordered, adjudged and decreed as follows:
1.	As against the défendant State of Louisiana, the United States is entitled to ail the lands, minerais and other natural resources underlying the Gulf of Mexico, south of grid line y=499,394.40 on the Louisiana Plane Coordinate System, South Zone, that are more than three geographical miles seaward from a line described as follows (coordinates refer to the Louisiana Plane Coordinate System, South Zone):
Beginning at the point where grid line y=499,-394.40 intersects the line of mean low water on the eastern side of Chandeleur Island, thence southerly along the line of mean low water on the eastern side of the Chandeleur Islands, and by straight lines across channels between the islands, to the south-westernmost extremity of Errol Shoal, at latitude
UNITED STATES v. LOUISIANA.
Supplémentai Decree.
289
288
29°35'48" N., longitude 89°00'48" W. (x=2,737,-287.96, y=345,654.41 ) ; thence to Pass a Loutre lighted whistle buoy 4, at latitude 29°09'55.9" N., longitude 88°56'54.4" W. (x=2,761,169.19, y= 189,334.14); thence to South Pass lighted whistle buoy 2, at latitude 28°58'44.9" N., longitude 89°06'36.9" W. (x=2,710,848.37, y=120,529.25) ; thence to Southwest Pass entrance mid-channel lighted whistle buoy, at latitude 28°52'37.1" N., longitude 89°25'57.1" W. (x=2,608,424.04, y= 81,526.86); thence to Ship Shoal lighthouse at latitude 28°54'51.512" N., longitude 91°04'15.985" W. (x=2,083,908.09, y=90,154.12) ; thence to Calcasieu Pass lighted whistle buoy 1, at latitude 29°36'21.7" N., longitude 93° 19'07.6" W. (x= 1,369,080.08, y= 347,060.52); thence to Sabine Pass lighted whistle buoy 1, at latitude 29°36'16" N., longitude 93°48'-31.2" W. (x=l,213,416.18, y=349,514.72).
2.	The State of Louisiana is not entitled to any interest in the lands, minerais or resources described in paragraph 1 hereof, and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerais and resources.
3.	With the exceptions provided by § 5 of the Sub-merged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313 (1964 ed.), the State of Louisiana is entitled, as against the United States, to ail the lands, minerais and other natural resources in the portions of the disputed area described in this paragraph. These portions of the disputed area are bounded on the landward side by the seaward boundary of Zone 1, as delineated on Exhibit A to the parties’ Intérim Agreement of October 12, 1956, as amended, on file with the Court. They are bounded on the seaward side by lines three geographical miles seaward from baselines as herein described, consisting of (1) segments of, or
786-211 0-66—28
290
382 U. S.
OCTOBER TERM, 1965.
Supplémentai Decree.
salient points on, the line of mean low water on the mainland, on naturally formed islands, or on naturally formed low-tide élévations situated wholly or partly within three geographical miles from the low-water line on the mainland or on such islands, and (2) straight lines across designated openings in the low-water line. As used herein, “salient point” means any point on the low-water line, so situated that there is some area within three geographical miles seaward from such point that is more than three geographical miles from ail other points on the baseline. These baselines are ambulatory and subject to continuai modification by natural or artificial changes in the shore line to the extent the law may provide, but for purposes of présent identification and prac-tical administration until notice by either party to the other they are described herein by their coordinates in the Louisiana Plane Coordinate System, South Zone, as shown by Exhibits 1 to 4, inclusive, filed with the Motion of the United States herein. Each three-mile line is to be drawn in such manner that every point on the three-mile line is exactly three geographical miles from the nearest point or points on the baseline, con-tinuing in each direction until it meets another specified boundary of the particular portion of the disputed area. The portions of the disputed area referred to herein are as follows:
(a)	In the vicinity of Calcasieu Pass, ail that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from the tip of the western jetty, at x=l,362,416, y=397,822; from the tip of the eastern jetty, at x= 1,363,392, y=397,870; and from a straight line between said points.
(b)	In the vicinity of Marsh Island and Atchaf-alaya Bay, ail that portion of the disputed area
UNITED STATES v. LOUISIANA.
291
288	Supplémentai Decree.
bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on islands and low-tide élévations at x=l,778,769, y=324,757; x=1,782,391, y=321,876; x=1,783,067, y=321,331; x=1,791,584, y=307,545; x= 1,809,845, y=296,285; x=l,820,994, y=291,804; x=l,833,527, y=271,423; x=1,834,019, y=270,-301; x=l,835,344, y=270,839; x=l,843,467, y= 275,912; x= 1,844,320, y=278,858; x= 1,875,200, y=285,729; and x=1,877,582, y=283,274; three geographical miles seaward from a straight line between South Point, Marsh Island, at x= 1,863,474, y=298,772, and Point Au Fer, at x=1,993,420, y=241,930; and three geographical miles seaward from a salient point on a low-tide élévation at x=l,987,371, y=241,272.
(c)	In East Bay, ail that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on the mean low-water line at x=2,639,545, y=126,825; x=2,641,835, y=129,725; and x=2,644,940, y=134,910, and from the line of mean low water which may be considered to consist of straight lines between said points; three geographical miles seaward from a salient point on a low-tide élévation at x=2,672,315, y=141,745; three geographical miles seaward from the line of mean low water which may be considered to consist of straight lines between the points x=2,673,-482, y=141,245; x=2,678,500, y=139,250; and x=2,682,605, y= 136,895; and three geographical miles seaward from a salient point on the mean low-water line at x=2,685,325, y=133,800.
292
382 U. S.
OCTOBER TERM, 1965.
Supplémentai Decree.
(d)	Between Pass a Loutre and Breton Island, ail that portion of the disputed area west of grid line x=2,740,710, bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on the mainland, on islands, or on low-tide élévations at x=2,738,320, y=210,230; x=2,737,065, y=210,155; x=2,727,090, y=209,195; x=2,709,100, y=220,995; x=2,708,835, y=221,440; x=2,707,635, y=223,640; x=2,701,500, y=232,820; x=2,700,735, y=234,640; x=2,689,305, y=250,395; and x=2,688,235, y=252,215; and three geographical miles seaward from a straight line between the eastern headland of Main Pass, at x= 2,681,915, y=257,755, and the Southern extremity of Breton Island, at x=2,678,009, y=294,303.
4.	The United States is not entitled, as against the State of Louisiana, to any interest in the lands, minerais or resources described in paragraph 3 hereof, with the exceptions provided by § 5 of the Submerged Lands Act, 43 U. S. C. § 1313.
5.	Ail sums now held impounded by the United States under the Intérim Agreement of October 12, 1956, as amended, derived from or attributable to the lands, minerais or resources described in paragraph 1 hereof are hereby released to the United States absolutely, and the United States is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it, derived from or attributable to said lands, minerais, or resources.
6.	Ail sums now held impounded by the State of Louisiana under the Intérim Agreement of October 12, 1956, as amended, derived from or attributable to the lands, minerais or resources described in paragraph 3 hereof are hereby released to the State of Louisiana
UNITED STATES v. LOUISIANA.
293
288	Supplémentai Decree.
absolutely, and the State of Louisiana is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it, derived from or attrib-utable to said lands, minerais or resources.
7.	Within 75 days after the entry of this decree—
(a)	The State of Louisiana shall pay to the United States or other persons entitled thereto under the Intérim Agreement of October 12, 1956, as amended, ail sums, if any, now held impounded by the State of Louisiana under said agreement, derived from or attributable to the lands, minerais or resources de-scribed in paragraph 1 hereof;
(b)	The State of Louisiana shall render to the United States and file with the Court a true, full, accurate and appropriate account of any and ail other sums of money derived by the State of Louisiana since June 5, 1950, either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands, minerais or resources described in paragraph 1 hereof;
(c)	The United States shall pay to the State of Louisiana or other persons entitled thereto under the Intérim Agreement, as amended, ail sums, if any, now held impounded by the United States under said agreement, derived from or attributable to the lands, minerais or resources described in paragraph 3 hereof;
(d)	The United States shall render to the State of Louisiana and file with the Court a true, full, accurate and appropriate account of any and ail other sums of money derived by the United States either by sale, leasing, licensing, exploitation or otherwise from or on account of the lands, minerais or resources described in paragraph 3 hereof.
294
382 U. S.
OCTOBER TERM, 1965.
Supplémentai Decree.
8.	Within 60 days after receiving the account provided for by paragraph 7 (b) or 7 (d) hereof, a party may serve on the other and file with the Court its objections thereto. Thereafter either party may file such motion or motions at such time as may be appropriate to hâve the account settled in conjunction with the issues con-cerning the areas still in dispute. If neither party files such an objection within 60 days, then each party shall forthwith pay to any third person any amount shown by such accounts to be payable by it to such person, and the party whose obligation to the other party is shown by such accounts to be the greater shall forthwith pay to the other party the net balance so shown to be due. If objections are filed but any undisputed net balance is shown which will be due from one party to the other party or to any third person regardless of what may be the ultimate ruling on the objections, the party so shown to be under any such obligation shall forthwith pay each such undisputed balance to the other party or other person so shown to be entitled thereto. The payments directed by paragraphs 7 (a) and 7 (c) hereof shall be made irrespective of the accounting provided for by paragraphs 7 (b) and 7 (d).
9.	Until further order of the Court or agreement of the parties filed with the Court, both parties shall continue to recognize as a single lease for ail purposes any existing lease now being administered under the Intérim Agreement of October 12, 1956, as amended, that covers lands, minerais, or resources, part of which are described in paragraph 1 or paragraph 3 hereof and part of which remain in dispute (including any existing leasehold partly in Zone 1 and partly within the area confirmed to the United States by this decree); but the party hereby awarded part of the lands, minerais, or resources covered by any such lease shall hereafter administer the lease
UNITED STATES v. LOUISIANA.
295
288	Supplémentai Decree.
as to such lands, minerais, or resources as sole lessor, shall be entitled to receive from the lessee ail payments hereafter due under said lease to the extent that they are derived from or attributable to such part of the lands, minerais, or resources covered by the lease, and shall be under no duty to account for or impound any payments so received. Either party, for its own con-venience, may nevertheless impound any or ail of such moneys if it wishes to do so, or may terminate such impoundment in whole or in part at any time, without further order of the Court or agreement of the other party. In ail other respects each such lease (including any existing leasehold partly in Zone 1 and partly within the area confirmed to the United States by this decree) shall continue to be administered as at présent.
10.	Nothing in this supplémentai decree or the proceedings leading to it shall préjudice any rights, daims or defenses of the United States or of the State of Louisiana with respect to the remainder of the disputed area or past or future payments derived therefrom or attributable thereto or the operation of the Intérim Agreement of October 12, 1956, as amended, with respect to such area and payments.
11.	The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to the decree of December 12, 1960, herein, or to this decree, including, if necessary, further adjustments of the accounting between the parties with respect to the lands, minerais and resources described in paragraph 1 and paragraph 3 of this decree.
The Chief Justice and Mr. Justice Clark took no part in the considération or decision of this motion or in the formulation of this decree.
296
OCTOBER TERM, 1965.
Syllabus.
382 U.S.
EVANS ET AL. v. NEWTON et al.
CERTIORARI TO THE SUPREME COURT OF GEORGIA.
No. 61. Argued November 9-10, 1965.—Decided January 17, 1966.
A tract of land was willed in trust to the Mayor and City Council of Maçon, Georgia, as a park for white people, to be controlled by a white Board of Managers. When the city ultimately deseg-regated the park, the individual Managers brought this suit in a state court against the city and the trustées of residuary bene-ficiaries and asked for the city’s removal as trustée and the appointment of private trustées to enforce the racial limitations of the will. The city, which had alleged that it could not legally enforce ségrégation, asked to resign as trustée after intervention of Negro citizens who claimed that the racial limitations violated fédéral law. Other heirs of the testator who had also intervened asked along with the individual défendants for reversion of the property if the prayer of the pétition was denied. The Georgia court, without passing on the heirs’ other daims, accepted the city’s résignation as trustée and appointed three new trustées. The Negro intervenors appealed. The Georgia Suprême Court affirmed, holding that the testator had a right to leave his property to a limited class and that charitable trusts are subject to the supervision of an equity court, which could appoint new trustées to avoid failure of the trust. Held:
1.	Where private individuals or groups exercise powers or carry on functions govemmental in nature, they become agencies or instrumentalities of the State and subject to the Fourteenth Amendment. P. 299.
2.	Where the tradition of municipal control and maintenance had been perpetuated for many years, proof of the substitution of trustées is insufficient per se to divest the park of its public character. P. 301.
3.	The services rendered by a park are municipal in nature and, under the circumstances of this case, the park is subject to the equal protection requirements of the Fourteenth Amendment. Pp. 301-302.
220 Ga. 280, 138 S. E. 2d 573, reversed.
Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Michael Meltsner, Donald L. Hollowell and Charles L. Black, Jr.
EVANS v. NEWTON.
297
296	Opinion of the Court.
C. Baxter Jones and Frank C. Jones argued the cause for respondents. With them on the brief were A. O. B. Sparks, Jr., and Willis B. Sparks III.
Louis F. Claibome, by spécial leave of Court, argued the cause for the United States, as amicus curiae, urging reversai. On the brief were Solicitor General Marshall, Assistant Attorney General Doar, Ralph S. Spritzer, David Rubin and James L. Kelley.
Mr. Justice Douglas delivered the opinion of the Court.
In 1911 United States Senator Augustus O. Bacon executed a will that devised to the Mayor and Council of the City of Maçon, Georgia, a tract of land which, after the death of the Senator’s wife and daughters, was to be used as “a park and pleasure ground” for white people only, the Senator stating in the will that while he had only the kindest feeling for the Negroes he was of the opinion that “in their social relations the two races (white and negro) should be forever separate.” The will provided that the park should be under the con-trol of a Board of Managers of seven persons, ail of whom were to be white. The city kept the park segregated for some years but in time let Negroes use it, taking the position that the park was a public facility which it could not constitutionally manage and maintain on a segregated basis.1
Thereupon, individual members of the Board of Managers of the park brought this suit in a state court against the City of Maçon and the trustées of certain residuary beneficiaries of Senator Bacon’s estate, asking that the city be removed as trustée and that the court
1 Watson v. Memphis, 373 U. S. 526. And see Mayor & City Council of Baltimore v. Dawson, 350 U. S. 877 (beaches and bath-houses).
298
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
appoint new trustées, to whom title to the park would be transferred. The city answered, alleging it could not legally enforce racial ségrégation in the park. The other défendants admitted the allégation and requested that the city be removed as trustée.
Several Negro citizens of Maçon intervened, alleging that the racial limitation was contrary to the laws and public policy of the United States, and asking that the court refuse to appoint private trustées. Thereafter the city resigned as trustée and amended its answer accord-ingly. Moreover, other heirs of Senator Bacon intervened and they and the défendants other than the city asked for reversion of the trust property to the Bacon estate in the event that the prayer of the pétition were denied.
The Georgia court accepted the résignation of the city as trustée and appointed three individuals as new trustées, finding it unnecessary to pass on the other daims of the heirs. On appeal by the Negro intervenors, the Suprême Court of Georgia affirmed, holding that Senator Bacon had the right to give and bequeath his property to a limited class, that charitable trusts are subject to supervision of a court of equity, and that the power to appoint new trustées so that the purpose of the trust would not fail was clear. 220 Ga. 280, 138 S. E. 2d 573. The case is here on a writ of certiorari. 380 U. S. 971.
There are two complementary principles to be recon-ciled in this case. One is the right of the individual to pick his own associâtes so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses. The other is the constitutional ban in the Equal Protection Clause of the Fourteenth Amendment against state-sponsored racial inequality, which of course bars a city from acting as trustée under a private will that serves the racial ségrégation cause. Pennsylvania v. Board of Trusts, 353 U. S.
EVANS v. NEWTON.
299
296	Opinion of the Court.
230. A private golf club, however, restricted to either Negro or white membership is one expression of freedom of association. But a municipal golf course that serves only one race is state activity indicating a preference on a matter as to which the State must be neutral.2 What is “private” action and what is “state” action is not always easy to détermine. See Burton v. Wilmington Parking Authority, 365 U. S. 715. Conduct that is formally “private” may become so entwined with gov-ernmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action. The action of a city in serving as trustée of property under a private will serv-ing the segregated cause is an obvious example. See Pennsylvania v. Board of Trusts, supra. A town may be privately owned and managed, but that does not necessarily allow the company to treat it as if it were wholly in the private sector. Thus we held in Marsh v. Alabama, 326 U. S. 501, that the exercise of constitu-tionally protected rights on the public streets of a company town could not be denied by the owner. A State is not justified, we said, in “permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties . . . .” Id., at 509. We hâve also held that where a State delegates an aspect of the elective process to private groups, they become subject to the same restraints as the State. Terry v. Adams, 345 U. S. 461. That is to say, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instru-mentalities of the State and subject to its constitutional limitations.
Yet generalizations do not décidé concrète cases. Only by sifting facts and weighing circumstances”
2Holmes v. City of Atlanta, 350 U. S. 879; New Orléans Park Assn. v. Detiege, 358 U. S. 54.
300	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
(Burton v. Wilmington Parking Authority, supra, at 722) can we détermine whether the reach of the Four-teenth Amendment extends to a particular case. The range of governmental activities is broad and varied, and the fact that government has engaged in a particular activity does not necessarily mean that an individual entrepreneur or manager of the same kind of undertaking suffers the same constitutional inhibitions. While a State may not segregate public schools so as to exclude one or more religious groups, those sects may maintain their own parochial educational Systems. Pierce v. Society of Sisters, 268 U. S. 510.
If a testator wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of that facil-ity, we assume arguendo that no constitutional difficulty would be encountered.3
3 It is argued that this park was a product of Georgia’s policy to allow charitable trusts of public facilities to be segregated. A Georgia statute permitted any person to grant a municipal corporation land in trust to the public use as a park on a racially segregated basis. Ga. Code Ann. § 69-504. And a companion measure author-ized municipal corporations to accept such grants and to enforce the racial limitations. Id., § 69-505. This policy, it is urged, had a “coercive effect” {Lombard v. Louisiana, 373 U. S. 267, 273) impli-cating Georgia in racial discrimination, for without that legislative pattern for ségrégation a testator would hâve had to travel an uncer-tain course to reach that end. Before § 69—504 was enacted in 1905, an attempt to establish a trust such as this would hâve faced numer-ous difficulties. The pre-1905 statutory law did not expressly include parks as a proper subject of charitable trusts, although it was spécifie in other regards. See Ga. Code §4008 (1895). And Georgia’s public parks were conceived of as “dedicated” commons with an easement in favor of the general public. See Mayor & Council of Maçon v. Franklin, 12 Ga. 239. The concept of dedi-cation meant that the property was to benefit the public as a whole. Ford v. Harris, 95 Ga. 97, 101, 22 S. E. 144, 145; East Atlanta Land Co. v. Mower, 138 Ga. 380, 388, 75 S. E. 418, 422. It would hâve
EVANS v. NEWTON.
301
296	Opinion of the Court.
This park, however, is in a different posture. For years it was an intégral part of the City of Macon’s activities. From the pleadings we assume it was swept, manicured, watered, patrolled, and maintained by the city as a public facility for whites only, as well as granted tax exemption under Ga. Code Ann. § 92-201. The momentum it acquired as a public facility is cer-tainly not dissipated ipso facto by the appointment of “private” trustées. So far as this record shows, there has been no change in municipal maintenance and con-cern over this facility. Whether these public character-istics will in time be dissipated is wholly conjectural. If the municipality remains entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment just as the private utility in Public Utilities Comm’n v. Pollak, 343 U. S. 451, 462, remained subject to the Fifth Amendment because of the surveillance which fédéral agencies had over its affairs. We only hold that where the tradition of municipal control had become firmly established, we can-not take judicial notice that the mere substitution of trustées instantly transferred this park from the public to the private sector.
This conclusion is buttressed by the nature of the service rendered the community by a park. The service rendered even by a private park of this character is municipal in nature. It is open to every white person, there being no sélective element other than race. Golf
posed conceptual difficulties, to say the least, to dedicate land to the public as a whole, at the same time excluding the members of the Negro race. Cf. Brown v. Gunn, 75 Ga. 441, in which this point was disposed of only by finding that, on the particular facts of that case, there was no “dedication.” We think it likely that it was the very difficulties discussed here that § 69-504 was intended to eliminate. We do not, however, reach the question whether the State facilî-tated, through this legislative action, the establishment of segregated parks.
302
382 U. S.
OCTOBER TERM, 1965.
Opinion of White, J.
clubs, social centers, luncheon clubs, schools such as Tuskegee was at least in origin,4 and other like organi-zations in the private sector are often racially oriented. A park, on the other hand, is more like a fire department or police department that traditionally serves the com-munity. Mass récréation through the use of parks is plainly in the public domain, Watson v. Memphis, 373 U. S. 526; and state courts that aid private parties to perform that public function on a segregated basis impli-cate the State in conduct proscribed by the Fourteenth Amendment. Like the streets of the company town in Marsh v. Alabama, supra, the elective process of Terry v. Adams, supra, and the transit System of Public Utilities Comm’n v. Pollak, supra, the prédominant character and purpose of this park are municipal.
Under the circumstances of this case, we cannot but conclude that the public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law. We may fairly assume that had the Georgia courts been of the view that even in private hands the park may not be operated for the public on a segregated basis, the résignation would not hâve been approved and private trustées appointed. We put the matter that way because on this record we cannot say that the transfer of title per se disentangled the park from ségrégation under the municipal régime that long controlled it.
Since the judgment below gives effect to that purpose, it must be and is	Revend.
Mr. Justice White.
As Mr. Justice Black emphasizes, this case cornes to us in the very narrow context of a state court judgment
4 Ala. Laws 1880-1881, pp. 395-396; Ala. Laws, 1882-1883, pp. 392-393.
EVANS v. NEWTON.
303
296	Opinion of White, J.
accepting the résignation of a trustée and appointing successor trustées. The lower court judgment does not enjoin the new trustées to comply with the racial restriction in the trust, and there is therefore not presented for decision the question whether, should the trustées fail to exclude Negroes from the park, state judicial enforce-ment of the racial restriction would constitute discrimi-natory state action forbidden by the Equal Protection Clause of the Fourteenth Amendment. See Bell v. Maryland, 378 U. S. 226, 328-331 (dissenting opinion). But we do hâve properly before us, in my opinion, the question of whether the Fourteenth Amendment pro-hibits the new trustées from voluntarily excluding Negroes. This is so because decision of the state law questions in this case was not independent of that fédéral question. The city’s résignation, its acceptance by the state courts, and the appointment of new trustées were ail based on the premise that the city could not, but private trustées could, obey the racial restriction in the trust without violation of the Fédéral Constitution. If that premise was incorrect, this Court should vacate the judgment below and remand for further considération of the state law issues free from the compulsion of an erroneous view of fédéral law. Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5; Minnesota v. National Tea Co., 309 U. S. 551; State Tax Comm’n v. Van Cott, 306 U. S. 511.
That the Fourteenth Amendment prohibits operation of the park on a segregated basis so long as the city is trustée is of course not disputed. See cases cited by the majority, ante, n. 1. Whether the successor trustées may themselves operate the park on a segregated basis is the question. The majority holds that they may not. I agréé, but for different reasons.
To a large extent the majority grounds its conclusion that exclusion of Negroes from the park after the change
304	OCTOBER TERM, 1965.
Opinion of White, J.	382 U. S.
in trustées would be state action and thus violative of the Fourteenth Amendment on the existence of prior municipal involvement in the operation of the park.
“The momentum [the park] acquired as a public facility is certainly not dissipated ipso facto by the appointment of ‘private’ trustées. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will in time be dissipated is wholly conjectural. . . . We only hold that where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustées in-stantly transferred this park from the public to the private sector.” Ante, at 301.
It is equally évident that the record does not show con-tinued involvement of the city in the operation of the park—the record is silent on this point. On the contrary, the city’s interest would seem to lead it to eut ail ties with the operation of the park. It must be as clear to the city as to this Court that if the city remains “entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment,” ante, p. 301 ; and should ségrégation in the park be barred, the residuary beneficiaries would un-doubtedly press their claim that failure of the trust purpose expressed in the racial restriction results in reversion of the park property. It seems unlikely that the city would act so as unnecessarily to jeopardize the con-tinued existence of this centrally located park, which comprises about 100 acres and is one of the city’s largest parks.
That the city’s own interest might lead it to extricate itself at once from operation of the park does not, of course, necessarily mean that it has done so; and I am no more inclined than the majority to résolve this ques
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tion by conjecture. I refer to possible inferences from the city’s self-interest solely to emphasize that the record affords absolutely no basis for inferring continued in-volvement of the city in the management and control of the park. What the majority has done is to raise a pre-sumption of one fact by showing the absence of proof of the converse. To postulate in this manner that the city’s involvement has not been dissipated is simply a disguised form of conjecture and, I submit, is an insuflicient basis for decision of this case.
I would nevertheless hold that the racial condition in the trust may not be given effect by the new trustées because, in my view, it is incurably tainted by discrimi-natory state législation validating such a condition under state law. The state législation to which I refer is §§ 69-504 and 69—505 of the Georgia Code, which were adopted in 1905, just six years before Senator Bacon’s will was executed. Sections 69-504 and 69-505 make lawful charitable trusts “dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose” and provide that “the use of said park, pleasure ground, or other property so conveyed to said municipality [may] be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to any other race, or to the women and children of any other race only .	1
1 69-504. Gifts for public parks or pleasure grounds.—Any person may, by appropriate conveyance, devise, give, or grant to any municipal corporation of this State, in fee simple or in trust, or to other persons as trustées, lands by said conveyance dedicated in perpetuity to the public use as a park, pleasure ground, or for other public purpose, and in said conveyance, by appropriate limitations and conditions, provide that the use of said park, pleasure ground, or other property so conveyed to said municipality shall be limited to the white race only, or to white women and children only, or to the colored race only, or to colored women and children only, or to
786-211 0-66—29
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As this législation does not compel a trust settlor to condition his grant upon use only by a racially desig-nated class, the State cannot be said to hâve directly coerced private discrimination. Nevertheless, if the va-lidity of the racial condition in Senator Bacon’s trust would hâve been in doubt but for the 1905 statute and if the statute removed such doubt only for racial restrictions, leaving the validity of nonracial restrictions still in question, the absence of coercive language in the législation would not prevent application of the Fourteenth Amendment. For such a statute would départ from a policy of strict neutrality in matters of private discrimination by enlisting the State’s assistance only in aid of racial discrimination and would so involve the State in the private choice as to convert the infected private discrimination into state action subject to the Fourteenth Amendment. Compare Robinson v. Florida, 378 U. S. 153; Lombard v. Louisiana, 373 U. S. 267; Peterson v. City of Greenville, 373 U. S. 244. Although there are no Georgia decisions directly on the point and the question is therefore not free from doubt, the available authorities
any other race, or to the women and children of any other race only, that may be designated by said devisor or grantor; and any person may also, by such conveyance, devise, give, or grant in perpetuity to such corporations or persons other property, real or personal, for the development, improvement, and maintenance of said property.
“69-505. Municipality authorized to accept.—Any municipal corporation, or other persons natural or artificial, as trustées, to whom such devise, gift, or grant is made, may accept the same in behalf of and for the benefit of the class of persons named in the conveyance, and for their exclusive use and enjoyment; with the right to the municipality or trustées to improve, embellish, and ornament the land so granted as a public park, or for other public use as herein specified, and every municipal corporation to which such conveyance shall be made shall hâve power, by appropriate police provision, to protect the class of persons for whose benefit the devise or grant is made, in the exclusive used [sic] and enjoyment thereof.” Ga. Code Ann. §§69-504 and 69-505 (1957).
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hâve led me to conclu de that §§ 69-504 and 69-505 did involve the State in the private choice by favoring private racial discrimination over private discrimination based on grounds other than race.
Apart from §§ 69-504 and 69-505, the Georgia statute governing the détermination of permissible objects of charitable trusts is § 108-203.2 This statute “almost copies the statute of 43d Elizabeth,” Newson v. Starke, 46 Ga. 88, 92 (1872), and has the effect of fully adopting in Georgia the common law of charities, Jones v. Hdber-sham, 107 U. S. 174, 180. We may therefore expect general charitable trust principles to be as fully applicable in Georgia as elsewhere in the several States. Under such principles, there is grave doubt concerning whether a charitable trust for a park could be limited to the use of less than the whole public.
In the leading case of Commissioners for Spécial Pur-poses of Income Tax v. Pemsel, [1891] A. C. 531, 583, Lord Macnaghten established the classification of charitable trusts that, with some modifications, has since prevailed:
“ ‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of éducation; trusts for the ad-
2 ‘108-203. Subjects of charity.—The following subjects are proper matters of charity for the jurisdiction of equity:
“1. Relief of aged, impotent, diseased, or poor people.
“2. Every educational purpose.
“3. Religions instruction or worship.
4. Construction or repair of public works, or highways, or other public conveniences.
‘5. Promotion of any craft or persons engaging therein.
“6. Rédemption or relief of prisoners or captives.
‘7. Improvement or repair of cemeteries or tombstones.
“8. Other similar subjects, having for their object the relief of human suffering or the promotion of human civilization.” Ga. Code Ann. § 108-203 (1959).
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vancement of religion ; and trusts for other purposes bénéficiai to the community, not falling under any of the preceding heads.”
See also Restatement (Second), Trusts § 368 (1959). A more general test of what is charitable is whether the accomplishment of the trust purpose “is of such social interest to the community as to justify permitting property to be devoted to the purpose in perpetuity.” IV Scott on Trusts § 368, at 2629-2630 (2d ed. 1956). The first three categories identified by Lord Macnaghten designate trust purposes that hâve long been recognized as bénéficiai to the community as a whole—whether or not immédiate benefit is restricted to a relatively small group—and that therefore satisfy the general test stated by Professor Scott. See Restatement (Second), Trusts § 374, comment a (1959). But the présent trust falls under the fourth category and can therefore be sustained as charitable only because the generality of user benefi-ciaries establishes that it is bénéficiai to the community. Otherwise a trust to establish a country club for the use of the residents of the wealthiest part of town would be charitable. Professor Scott States this principle as follows:
“As we hâve seen, a trust to promote the happi-ness or well-being of members of the community is charitable, although it is not a trust to relieve poverty, advance éducation, promote religion or pro-tect health. In such a case, however, the trust must be for the benefit of the members of the community generally and not merely for the benefit of a class of persons.” IV Scott on Trusts § 375.2, at 2715 (2d ed. 1956). (Emphasis added.)
Accord, Trustées of New Castle Common v. Megginson, 1 Boyce 361, 376, 77 A. 565, 571 (Sup. Ct. Del. 1910)
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(trust for town common was charitable; “[i]t is public, because it relates to ail the inhabitants of a particular community and not to any classification of such inhabitants, or to any group thereof separately from the other inhabitants by any distinction of race, creed, social rank, wealth, poverty, occupation, or business . . Re-statement, Trusts § 375, comments a and c (1935); Restatement (Second), Trusts § 375, comment a (1959); see also Bogert on Trusts § 378 (2d ed. 1964).3 Apart
3 This précisé question had been mooted in England a few years before the 1905 Georgia enactment in the case of In re Christchurch Inclosure Act, 38 Ch. D. 520 (1888), aff’d, [1893] A. C. 1, and it appears the English rule may differ from the American rule. The Christchurch Inclosure Act gave tenants in certain cottages the right in a designated common to eut turf for fuel. In the case before the court, it was clear the act had to be given effect in some manner, but the court expressed great difficulty in giving it effect as creating a charitable trust. “For, although the occupiers of these cottages may hâve been, and perhaps were, poor people, the trust is not for the poor occupiers, but for ail the then and future occupiers, whether poor or not. Moreover, the trust is not for the inhabitants of a parish or district, but only for some of such per-sons.” Id., at 530. Nevertheless, the court felt bound to hold such a trust was charitable on the authority of a dictum by Lord Selborne in Goodman v. Mayor of Saltash, 7 App. Cas. 633, 642 (1882) (trust for a fishery for the use of ail “free inhabitants of ancient tenements” held charitable), that “[a] gift subject to a condition or trust for the benefit of the inhabitants of a parish or town, or of any particular class of such inhabitants, is (as I understand the law) a charitable trust . . . .” Lord Blackbum dissented in Goodman v. Mayor of Saltash, saying that “though there are many cases to the effect that a trust for public purposes, not confined to the poor, may be con-sidered charitable for many purposes, I do not know of any that say that such a trust as is now supposed would be taken out of the rule against perpetuities . . . .” Id., at 662. No doubt Lord Sel-borne’s view of what constituted a trust for the benefit of the public generally was colored by feudal traditions and the long history of royal charters to the burghers, or “free inhabitants” of a town (in
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OCTOBER TERM, 1965.
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from the présent case, no Georgia cases dealing with trusts for general community purposes hâve been found, see Smith, The Validity of Charitable Gifts in Georgia, 1 Ga. B. J. 16, 26-27 (Feb. 1939), but the available Georgia authorities are consistent with the rule enunciated by Scott. Compare Bramblett v. Trust Co. of Georgia, 182 Ga. 87, 185 S. E. 72 (1936) (trust to establish “home for gentlewomen” not charitable), with Houston v. Mills Memorial Home, 202 Ga. 540, 43 S. E. 2d 680 (1947) (trust for Negro old folks’ home is charitable).4 On the whole, therefore, I conclude that prior to the 1905 législation it would hâve been extremely doubtful whether § 108-203 authorized a trust for park purposes when a portion of the public was to be excluded from the park.
Sections 69-504 and 69-505 clearly permit exclusion of a portion of the public if such exclusion is on racial grounds. At the same time, those sections appear to make nonracial restrictions on the user of a park created by trust even more doubtful. Section 69-504 authorizes the conveyance of land “dedicated in per-petuity to the public use as a park” and also provides that such a conveyance may limit user on racial grounds. The natural construction of this provision would be that it authorizes a trust only for the use of the whole public
fact, the trust in Goodman v. Mayor of Saltash was a fictional one created by supposing the prior existence of such a charter, now lost), while the American rule enunciated by Scott is in keeping with the American démocratie tradition, which in tum is reflected by the Georgia cases regarding dedication of land to public use discussed by the majority, ante, at 300-301, n. 3.
4 The trust in Mills Memorial Home was specifically recognized as charitable by § 108-203 (1) (“Relief of aged, impotent, diseased, or poor people”), see note 2, supra, while the trust in Bramblett would be classifiable as one to promote the happiness or well-being of members of the community at large and would thus be tested by the standard of generality stated by Professer Scott.
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or for the use of a racially designated subpart of the public, but not for the use of some other portion of the public such as men only or Irish persons only. Such an interprétation follows from the maxim expressio unius est exclusio alterius and from the dedication cases to which the majority refers, ante, at 300-301, n. 3, which indicate that the expression “dedicated in perpetuity to the public use as a park” means dedication to the public as a whole and not some portion of the public. See also Western Union Telegraph Co. v. Georgia R. & Banking Co., 227 F. 276, 285 (D. C. S. D. Ga. 1915). (“‘There can be no dedication, strictly speaking, to private uses, nor even to uses public in their nature, but the enjoyment of which is restricted to a limited part of the public.’ ”) One com-mentator has suggested that § 69-504 was intended to expand clause 4 of § 108-203, see note 2, supra, i. e., “to enlarge ‘public works’ or ‘public conveniences’ to in-clude public parks or pleasure grounds ... y Smith, The Validity of Charitable Gifts in Georgia, 1 Ga. B. J. 16, 27 (Feb. 1939). On that assumption, the sole authority for holding gifts in trust for park purposes to be charitable would be § 69-504, and that section clearly makes nonracial restrictions on use of such parks more doubtful than racial restrictions. Even if § 69-504 is regarded as a clarification of prior law, rather than an addition to it, it has the same effect of casting doubt on the validity of nonracial restrictions.
This case must accordingly be viewed as one where the State has forbidden ail private discrimination except racial discrimination. As a resuit, “the State through its régulations has become involved to such a significant ex-tent” in bringing about the discriminatory provision in Senator Bacon’s trust that the racial restriction “must be held to reflect . . . state policy and therefore to vio-late the Fourteenth Amendment.” Robinson v. Florida,
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Black, J., dissenting.	382 U. S.
378 U. S. 153, 156-157. For the reasons stated, I would vacate the judgment of the Georgia court and remand the case for further proceedings.
Mr. Justice Black, dissenting.
I find nothing in the United States Constitution that compels any city or other state subdivision to hold title to property it does not want or to act as trustée under a will when it chooses not to do so. And I had supposed until now that the narrow question of whether a city could resign such a trusteeship and whether a state court could appoint successor trustées depended entirely on state law. Here, however, the Court assumes that fédéral power exists to reverse the Suprême Court of Georgia for affirming a Georgia trial court’s decree which, as the State Suprême Court held, did only these “two things: (1) Accepted the résignation of the City of Maçon as trustée of Baconsfield; and (2) appointed new trustées.” 220 Ga. 280, 284; 138 S. E. 2d 573, 576.
The State Suprême Court’s interprétation of the scope and effect of this Georgia decree should be binding upon us unless the State Suprême Court has somehow lost its power to control and limit the scope and effect of Georgia trial court decrees relating to Georgia wills creating Georgia trusts of Georgia property. A holding that ignores this state power would be so destructive of our state judicial Systems that it could find no support, I think, in our Fédéral Constitution or in any of this Court’s prior decisions. For myself, I therefore accept the decision of the Georgia Suprême Court as holding only what it declared it held, namely, that the trial court committed no error under Georgia law in accepting the City of Macon’s résignation as trustée and in appointing successor trustées to execute the Bacon trust.
I am not sure that the Court is passing at ail on the only two questions the Georgia Suprême Court decided
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in approving the city’s résignation as trustée and the appointment of successors. If the Court is holding that a State is without these powers, it is certainly a drastic departure from settled constitutional doctrine and a vastly important one which, I cannot refrain from saying, deserves a clearer explication than it is given. Ambiguity cannot, however, conceal the revolutionary nature of such a holding, if this is the Court’s holding, nor successfully obscure the tremendous lopping off of power heretofore uniformly conceded by ail to belong to the States. This ambiguous and confusing disposition of such highly important questions is particularly disturbing to me because the Court’s discussion of the constitutional status of the park cornes in the nature of an advisory opinion on fédéral constitutional questions the Georgia Suprême Court did not décidé. Consequently, for ail the fore-going reasons and particularly since the Georgia courts decided no fédéral constitutional question, I agréé with my Brother Harlan that the writ of certiorari should hâve been dismissed as improvidently granted.
Questions of this Court’s jurisdiction would be different, of course, if either the mere résignation or appointment of trustées under a will was prohibited by some fédéral constitutional provision. But there is none. The Court implies, however, that the city’s résignation and the state court’s appointment of new trustées amounted to “state-sponsored racial inequality,” which, of course, if correct, would présent a fédéral constitutional question. This suggestion rests on a further implication by the Court that the Georgia court’s decree would resuit in the operation of Baconsfield Park on a racially segregated basis. The record here, for several reasons, can support no such implications: (1) the State Suprême Court specifically limited the effect of the decree it affirmed to approval of the city’s résignation as trustée and the appointment of new ones; (2) the new
314	OCTOBER TERM, 1965.
Black, J., dissenting.	382 U. S.
trustées were not directed to operate the park on a dis-criminatory basis; and (3) there is no indication that they hâve done so. Furthermore, where a valid law makes a certain use of property held in trust illégal, responsibility for its illégal use cannot be escaped by putting it in the hands of new trustées. Cf., e. g., Mormon Church v. United States, 136 U. S. 1, 47-48.
The ambiguous language used by the Court even casts doubt upon Georgia’s power to hold that the trust property here can revert to the heirs of Senator Bacon if the conditions upon which he created the trust should become impossible to carry out. The heirs of Senator Bacon raised the issue of reversion below, but neither court reached it. So far as I hâve been able to find, the power of a State to décidé such a question has been taken for granted in every prior opinion this Court has ever written touching this subject. I believe that Georgia’s complété power to décidé this question is so clear that no doubt should be cast on it as I think the Court’s opinion does. But if this Court is to exercise jurisdiction in this case and hold, despite the fact that the state court’s decree did not adjudicate any such question, that the new successor trustées cannot consti-tutionally operate the park in accordance with Senator Bacon’s will, then I think that the Court should ex-plicitly state that the question of reversion to his heirs is controlled by state law and remand the case to the Georgia Suprême Court to décidé that question.
Nothing that I hâve said is to be taken as implying that Baconsfield Park could at this time be operated by successor trustées on a racially discriminatory basis. Questions of equal protection of ail people without discrimination on account of color are of paramount importance in this Government dedicated to equal justice for ail. We can accord that esteemed principle the respect
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it is due, however, without distorting the constitutional structure of our Government by taking away from the States that which is their due.
Mr. Justice Harlan, whom Mr. Justice Stewart joins, dissenting.
This decision, in my opinion, is more the product of human impulses, which I fully share, than of solid constitutional thinking. It is made at the sacrifice of long-established and still wise procédural and substantive constitutional principle. I must respectfully dissent.
I.
In my view the writ should be dismissed as improvi-dently granted because the far-reaching constitutional question tendered is not presented by this record with sufficient clarity to require or justify its adjudication, assuming that the question is presented at ail.
In the posture in which this case reached the state courts it required of them no more than approval of the city’s résignation as trustée under Senator Bacon’s will and the appointment of successor trustées. Neither of these issues of course would in itself présent a fédéral question. While I am inclined to agréé with my Brother Black that this is ail the state courts decided, I think it must be recognized that the record is not wholly free from ambiguity on this score. Even so, the writ should be dismissed. To infer from the Georgia Suprême Court’s opinion, as the majority here does, a further holding that the new trustées are entitled to operate Bacons-field on a racially restricted basis, is to stretch for a constitutional issue. This plainly contravenes the estab-lished rule that this Court will not reach constitutional questions if their decision can reasonably be avoided. Peters v. Hobby, 349 U. S. 331 ; United States v. Rumely,
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Harlan, J., dissenting.
345 U. S. 41; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553. Application of that doctrine is especially called for here where decision should require précisé knowledge of the factual details and nuances that only time and a complété record can bring into focus. Dis-missal of the writ should thus follow.
II.
On the merits, which I reach only because the Court has done so, I do not think that the Fourteenth Amendment permits this Court in effect to frustrate the terms of Senator Bacon’s will, now that the City of Maçon is no longer connected, so far as the record shows, with the administration of Baconsfield. If the majority is in doubt that such is the case, it should remand for findings on that issue and not reverse.
The Equal Protection Clause reaches only discriminations that are the product of capricious state action; it does not touch discriminations whose origins and effectu-ation arise solely out of individual prédilections, préjudices, and acts. Civil Rights Cases, 109 U. S. 3. So far as the Fourteenth Amendment is concerned the curtail-ing of private discriminatory acts, to the extent they may be forbidden at ail, is a matter that is left to the States acting within the permissible range of their police power.
From ail that now appears, this is a case of “private discrimination.” Baconsfield had its origin not in any significant governmental action 1 or on any public land
1 The majority disclaims reliance on the early Georgia charitable trust statutes authorizing the establishment of racially restricted parks and permitting a city to act as trustée under such a trust. My Brother White, however, finds that the mere existence of those statutes, enacted in 1905, “incurably taintfs]” the racial conditions of Senator Bacon’s will (ante, p. 305). For several reasons that thesis seems to me to fall short. First, it is by no means clear that
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but rather in the personal social philosophy of Senator Bacon and on property owned by him. The City of Macon’s acceptance and, until recent years, its carrying out of the trusteeship were both entirely legitimate, and indeed in accord with the prevailing mores of the times. When continuance of its trusteeship became incompatible with later changes in constitutional doctrine, the city first undertook to disregard the racial restrictions im-posed by the will on the use of the park, and then when that action was appropriately challenged, resigned as trustée. The state courts, obedient to fédéral com-mands, Pennsylvania v. Board of Trusts, 353 U. S. 230, hâve accepted the résignation of the city, and, to prevent failure of the trust under their own laws, hâve appointed new trustées. I can see nothing in this straightforward
Georgia common law would not hâve pennitted user restrictions on such a park in trust, so that the statute was but declaratory of existing law pro tanto. See, e. g., Houston v. Mills Memorial Home, 202 Ga. 540, 43 S. E. 2d 680 (permitting trust for home for Negro aged). Thus even on my Brother White’s premise that a State in allowing discrimination may not discriminate among possible user restrictions, the proper course would be to remand to the Georgia courts to détermine whether user-restricted trusts such as Senator Bacon’s were in any event valid under the state common law. Second, in order to find an “incurable taint” of the racial conditions rather than an arguable claim turning on state common law, it is apparently suggested that the state statutes invalidly “removed . . . doubt only for racial restrictions” (ante, p. 306) and by this clarification improperly encouraged Senator Bacon to discriminate. There is, however, absolutely no indication whatever in the record that Senator Bacon would hâve acted otherwise but for the statute, a gap in reasoning that cannot be obscured by general discussion of state “involvement” or “infection.” Third, it could hardly be argued that the statute in question was unconstitutional when passed, in light of the then-prevailing constitutional doctrine; that being so, it is difficult to perceive how it can now be taken to hâve tainted Senator Bacon’s will at the time he made his irrevocable choice.
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train of events which justifies finding “state action” of the kind necessary to bring the Fourteenth Amendment into play.
The first ground for the majority’s state action holding rests on nothing but an assumption and a conjecture. The assumption is that the city itself maintained Baconsfield in the past. The conjecture is that it will continue to be connected with the administration of the park in the future. The only underpinning for the assumption is the circumstance that over the years Baconsfield has geographically become an adjunct to the city’s park System and the admitted fact that until the présent proceeding, title to it was vested in the city as trustée. The only predicate for the majority’s conjecture as to the future is the failure of the record to show the contrary.
If spéculation is the test, the record more readily supports contrary inferences. Papers before us indicate that Senator Bacon left other property in trust precisely in order to maintain Baconsfield.2 Why should it be assumed that these resources were not used in the past for that purpose, still less that the new trustées, now faced with a challenge as to their right to effectuate the terms of Senator Bacon’s trust, will not keep Baconsfield privately maintained in ail respects? Further, the city’s and state courts’ readiness to sever ties between the city and park in dérogation of the will, let alone the city’s earlier operation of the park on a nonsegregated basis despite the terms of the will, strongly indicates that they will not flinch from completing the séparation of park and state if any ties remain to implicate the Fourteenth Amendment.
2 See R. 20, 22, for provisions of Senator Bacon’s will allotting property for “the management, improvement and préservation” of the park.
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For me this facet of the majority’s opinion affords a wholly unacceptable basis for imputing unconstitutional state action, resting as it does on pure surmise and conjecture, and implausible ones at that.3
III.
Quite evidently uneasy with its first ground of decision, the majority advances another which ultimately emerges as the real holding. This ground dérivés from what is asserted to be the “public character” (ante, p. 302) of Baconsfield and the “municipal. .. nature” of its services (ante, p. 301). Here it is not suggested that Baconsfield will use public property or funds, be man-aged by the city, enjoy an exclusive franchise, or even operate under continuing supervision of a public regula-tory agency. State action is inhérent in the operation of Baconsfield quite independently of any such factors, so it seems to be said, because a privately operated park whose only criterion for exclusion is racial is within the “public domain” (ante, p. 302).
Except for one case which will be found to be a shaky precedent, the cases cited by the majority do not support this novel state action theory. Public Utilities
3 Twice in its opinion the majority intimâtes it might reach a different conclusion on the city’s involvement if it had a fully de-veloped record before it. At p. 301, ante, the Court says, “We only hold that where the tradition of municipal control had become finnly established, we cannot take judicial notice that the mere substitution of trustées instantly transferred this park from the public to the private sector.” And in concluding at p. 302, ante, the opinion reads: “We put the matter that way because on this record we cannot say that the transfer of title per se disentangled the park from ségrégation under the municipal régime that long controlled it.” These cautions seem to reinforce the point made at the outset of this dissent that the Court should hâve refused to adjudicate the constitutional issue on this cloudy record. See Rescue Army v. Municipal Court, 331 U. S. 549.
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Harlan, J., dissenting.
Comm’n v. Pollak, 343 U. S. 451, applied due process standards, limited like equal protection standards to instances involving state action, to certain action of a private citywide transit company. State action was ex-plicitly premised on the close legal régulation of the company by the public utilities commission and the com-mission’s approval of the particular action under attack. The conclusion might alternatively hâve rested on the near-exclusive legal monopoly enjoyed by the company, 343 U. S., at 454, n. 1, but in ail events nothing was rested on any “public function” theory. Watson v. Memphis, 373 U. S. 526, ordering speedy desegregation of parks in that city, concerned récréation facilities con-cededly owned or managed by the city government. See 303 F. 2d 863, 864-865/ The only Fourteenth Amend-ment case5 finding state action in the “public function” performed by a technically private institution is Marsh v. Alabama, 326 U. S. 501, holding that a company-owned town of over 1,500 residents and effectively integrated into the surrounding area could not suppress free speech on its streets in disregard of constitutional safeguards.
4 The majority’s language directly following its Watson citation (ante, p. 302)—“and state courts that aid private parties to perform that public function [mass récréation through the use of parks] on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment”—quite evidently is oblique reliance on Shelley v. Kraemer, 334 U. S. 1, which the majority does not even cite. Whatever may be the basis of that inscrutable decision, cer-tainly nothing in it purports to rest on anything resembling the “public function” theory.
5 In Terry v. Adams, 345 U. S. 461, cited by the Court, none of the three prevailing opinions gamered a majority, and some com-mentators hâve simply concluded that the state action requirement was read out of the Fifteenth Amendment on that occasion. Lewis, The Meaning of State Action, 60 Col. L. Rev. 1083, 1094 (1960); Note, The Strange Career of “State Action” Under the Fifteenth Amendment, 74 Yale L. J. 1448, 1456-1459 (1965).
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321
296	Harlan, J., dissenting.
While no stronger case for the “public function” theory can be imagined, the majority opinion won only five of the eight Justices participating, one of whom also con-curred separately, and three spoke out in dissent. The doctrine of that case has not since been the basis of other decisions in this Court and certainly it has not been extended. On the contrary, several years after the decision this Court declined to review two New York cases which in turn held Marsh inapplicable to a privately operated residential community of apartment buildings housing 35,000 residents, Watchtower Bible & Tract Soc’y v. Metropolitan Life Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433, certiorari denied, 335 U. S. 886, and to a privately owned housing development of 25,000 people alleged to discriminate on racial grounds, Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, 87 N. E. 2d 541, certiorari denied, 339 U. S. 981. See also Hall v. Virginia, 335 U. S. 875, dismissing the appeal in 188 Va. 72, 49 S. E. 2d 369.
More serious than the absence of any firm doctrinal support for this theory of state action are its poten-tialities for the future. Its failing as a principle of decision in the realm of Fourteenth Amendment con-cerns can be shown by comparing—among other examples that might be drawn from the still unfolding sweep of governmental functions—the “public function” of privately established schools with that of privately owned parks. Like parks, the purpose schools serve is important to the public. Like parks, private control exists, but there is also a very strong tradition of public control in this field. Like parks, schools may be avail-able to almost anyone of one race or religion but to no others. Like parks, there are normally alternatives for those shut out but there may also be inconveniences and disadvantages caused by the restriction. Like parks, the extent of school intimacy varies greatly depending on the size and character of the institution.
786-211 0-66—30
322
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OCTOBER TERM, 1965.
Harlan, J., dissenting.
For ail the resemblance, the majority assumes that its decision leaves unaffected the traditional view that the Fourteenth Amendment does not compel private schools to adapt their admission policies to its require-ments, but that such matters are left to the States acting within constitutional bounds. I find it difficult, how-ever, to avoid the conclusion that this decision opens the door to reversai of these basic constitutional concepts, and, at least in logic, jeopardizes the existence of denominationally restricted schools while making of every college entrance rejection letter a potential Fourteenth Amendment question.
While this process of analogy might be spun out to reach privately owned orphanages, libraries, garbage collection companies, détective agencies, and a host of other functions commonly regarded as nongovernmental though paralleling fields of governmental activity, the example of schools is, I think, sufficierit to indicate the pervasive potentialities of this “public function” theory of state action. It substitutes for the compara-tively clear and concrète tests of state action a catch-phrase approach as vague and amorphous as it is far-reaching. It dispenses with the sound and careful principles of past decisions in this realm. And it carries the seeds of transferring to fédéral authority vast areas of concern whose régulation has wisely been left by the Constitution to the States.
KATCHEN v. LANDY.
323
Syllabus.
KATCHEN v. LANDY, TRUSTEE IN BANKRUPTCY.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
No. 28. Argued November 8, 1965.—Decided January 17, 1966.
Petitioner, a corporate officer, was an accommodation maker on notes of the corporation to two banks. After the corporation suffered a serions fire, its funds and collections were placed in a trust account under petitioner’s control. Petitioner made pay-ments on the notes from this account within four months of the bankruptcy of the corporation. Two daims were filed by petitioner in the bankruptcy proceeding, one for rent due him and one for a payment on one of the notes from his Personal funds. The trustée asserted that the payments from the trust fund to the banks were voidable preferences and demanded judgment for the amount of the preferences. The referee overruled petitioner’s objection to his summary jurisdiction and rendered judgment for the trustée on the preferences. The District Court sustained the referee and the Court of Appeals affirmed the judgment for the amount of the preferences. Held: A bankruptcy court has summary jurisdiction to order the surrender of voidable preferences asserted and proved by the trustée in response to a claim filed by the creditor who received the preferences. Pp. 327-340.
(a)	While the Bankruptcy Act does not expressly confer summary jurisdiction to order claimants to surrender preferences, the scope of summary proceedings is determined by considération of the structure and purpose of the Act as a whole and the par-ticular provisions of the Act in question. P. 328.
(b)	Summary disposition is one of the means chosen by the Congress to effectuate its purpose of securing prompt settlement of bankrupt estâtes. Pp. 328-329.
(c)	The basically important power granted by § 2a (2) of the Act to “allow,” “disallow” and “reconsider” daims is to be exer-cised in summary proceedings and not by the slower and more expensive process of a plenary suit. Pp. 329-330.
(d)	The trustee’s objections under § 57g of the Act, which for-bids allowance of a claim to a creditor who has received prefer-
324
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
ences “void or voidable under this title” without surrender of the préférences, is part of the allowance process and is subject to sum-mary adjudication by a bankruptcy court. Pp. 330-331.
(e)	Section 60 of the Act, which deals with préférences and their voidability and confers concurrent jurisdiction on state courts and fédéral bankruptcy courts to entertain plenary suits to recover préférences, applies only “where plenary suits are neces-sary” and thus contemplâtes nonplenary recovery proceedings. P. 331.
(f)	Since summary jurisdiction is available to détermine the issue of préférence absent a demand for surrender of the préférence, it is also available to order retum of the préférence. This follows because a bankruptcy court, in passing on a trustee’s § 57g objection, must détermine the amount of préférence, if any, so as to ascertain whether the claimant, should he retum the préférence, has satisfied the condition imposed by § 57g on allowance of the claim. Pp. 333-334.
(g)	When a bankruptcy court has dealt with the préférence issue under its equity power nothing remains for adjudication in a plenary suit, as the normal mies of res judicata and collateral estoppel apply. P. 334.
(h)	Although petitioner might be entitled to a jury trial on the préférence issue if he presented no claim in the bankruptcy proceeding and awaited plenary suit by the trustée, he is not so entitled when the issue arises as part of the processing of daims in bankruptcy proceedings, triable in equity. Pp. 336-337.
(i)	The doctrine of Beacon Théâtres v. West over, 359 U. S. 500, and Dairy Queen v. Wood, 369 U. S. 469, that “where both legal and équitable issues are presented in a single case, 'only under the most impérative circumstances . . . can the right to a jury trial of legal issues be lost through prior détermination of équitable daims,’ ” is not applicable here where there is a spécifie statutory scheme providing for the prompt trial of disputed daims without a jury. Pp. 338-340.
336 F. 2d 535, affirmed.
Fred M. Winner argued the cause for petitioner. With him on the briefs was Warren O. Martin.
George Louis Creamer argued the cause for respondent. With him on the brief was Robert B. Rottman.
KATCHEN v. LANDY.
325
323	Opinion of the Court.
Mr. Justice White delivered the opinion of the Court.
The disputed issue here is whether a bankruptcy court has summary jurisdiction to order the surrender of voidable preferences asserted and proved by the trustée in response to a claim filed by the creditor who received the preferences. The Court of Appeals held that the bankruptcy court had such summary jurisdiction. 336 F. 2d 535. We affirm.
The corporate bankrupt began business on April 21, 1960, and borrowed $50,000 from two local banks. Petitioner, then an officer of the company, was an accommodation maker on the two corporate notes delivered to the banks. After the corporate bankrupt in this case suffered a disastrous fire, its funds and collections were placed in a “trust account” under the sole control of petitioner. From this account petitioner made two pay-ments on one of the company notes on which he was an accommodation maker and one payment on the other. Bankruptcy followed within four months of these pay-ments. Petitioner filed two daims in the proceeding, one for rent due him from the bankrupt and one for a payment on one of the notes made from his personal funds. The trustée responded with a pétition asserting that the payments from the trust fund to the banks were voidable preferences and demanding judgment for the amount of the preferences along with the amount of an unpaid stock subscription owed to the corporation by petitioner. Petitioner’s objection to the summary jurisdiction of the referee was overruled, and judgment was rendered for the trustée on both the preferences and the stock subscription. Petitioner’s daims were to be al-lowed only when and if the judgment was satisfied. The District Court sustained the referee. A divided Court °f Appeals, sitting en banc, after reconsidering Interstate National Bank of Kansas City v. Luther, 221 F. 2d
326
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382 (C. A. lOth Cir. 1955), cert. dismissed under Rule 60, 350 U. S. 944, adhered to its pronouncements in that case, affirmed the judgment for the amount of the void-able preferences but reversed the judgment for the amount of the stock subscription. The trustée did not seek review here of the adverse decision on the stock subscription. We granted certiorari on the creditor’s pétition because of the diversity of views among the Courts of Appeals on the issue involved1 and the importance of the question in the administration of the bankruptcy laws. 380 U. S. 971.
The crux of the dispute here concerns the mode of procedure for trying out the preference issue. The bank-
1 B. F. Avery & Sons Co. v. Davis, 192 F. 2d 255 (C. A. 5th Cir. 1951), cert. denied, 342 U. S. 945, held the referee did not hâve summary jurisdiçtion to entertain the trustee’s demand for sur-render of the preference. In Avery, the preference arose out of a different transaction than the creditor’s claim, and a subséquent decision of the Fifth Circuit notes that although that fact was not the articulated basis of the Avery decision, it may not preclude summary jurisdiçtion to order retum of a preference received in the same transaction. GUI v. Phillips, 337 F. 2d 258 (1964), opinion on déniai of rehearing, 340 F. 2d 318 (C. A. 5th Cir. 1965). The Fifth Circuit rule is thus uncertain, but Avery at least prevents summary recovery of unrelated preferences. Several Courts of Appeals hâve upheld the summary jurisdiçtion of the referee over counterclaims arising out of the same transaction as the creditor’s claim but hâve stated that such jurisdiçtion does not extend to permissive counterclaims arising out of distinct transactions. See In re Solar Mfg. Corp., 200 F. 2d 327 (C. A. 3d Cir. 1952), cert. denied sub nom. Marine Midland Trust Co. v. McGirl, 345 U. S. 940; In re Majestic Radio & Télévision Corp., 227 F. 2d 152 (C. A. 7th Cir. 1955), cert. denied sub nom. Dwyer v. Franklin, 350 U. S. 995; Peters v. Lines, 275 F. 2d 919 (C. A. 9th Cir. 1960). The decision presently under review upholds summary jurisdiçtion to order retum of a preference whether or not the preference relates to the same transaction as the claim but déclinés to extend such jurisdiçtion to unrelated counterclaims not involving a preference, set-off, voidable lien, or a fraud-ulent transfer. 336 F. 2d, at 537.
KATCHEN v. LANDY.
327
323	Opinion of the Court.
ruptcy courts are expressly invested by statute with original jurisdiction to conduct proceedings under the Bankruptcy Act.2 These courts are essentially courts of equity, Local Loan Co. v. Hunt, 292 U. S. 234, 240; Pepper v. Litton, 308 U. S. 295, 304, and they charac-teristically proceed in summary fashion to deal with the assets of the bankrupt they are administering. The bankruptcy courts “hâve summary jurisdiction to adjudi-cate controversies relating to property over which they hâve actual or constructive possession.” Thompson v. Magnolia Petroleum Co., 309 U. S. 478, 481; Cline v. Kaplan, 323 U. S. 97, 98-99; May v. Henderson, 268 U. S. 111, 115-116; Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426, 432-434. They also deal in a summary way with “matters of an administrative character, including questions between the bankrupt and his creditors, which are presented in the ordinary course of the administration of the bankrupt’s estate.” Taylor v. Voss, 271 U. S. 176, 181 ; U. S. Fidelity Co. v. Bray, 225 U. S. 205, 218. This is elementary bankruptcy law which petitioner does not dispute.
But petitioner points out that if a creditor who has received a preference does not file a claim in the bankruptcy proceeding and holds the property he received under a substantial adverse claim, so that the property may not be deemed within the actual or constructive possession of the bankruptcy court, the trustée may recover the preference only by a plenary action under § 60 of the Act, 11 U. S. C. § 96 (1964 ed.), see Taubel-Scott-
2 Bankruptcy Act §2a, 11 U. S. C. §11 (a) (1964 ed.), provides: (a) The courts of the United States hereinbefore defined as courts of bankruptcy are created courts of bankruptcy and are invested, within their respective territorial limits as now established or as they may be hereafter changed, with such jurisdiction at law and m equity as will enable them to exercise original jurisdiction in proceedings under this title . . . .”
328
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Opinion of the Court.
Kitzmiller Co. v. Fox, 264 U. S. 426; and in a plenary action in the fédéral courts the creditor could demand a jury trial, Schoenthal v. Irving Trust Co., 287 U. S. 92, 94-95; Adams v. Champion, 294 U. S. 231, 234; compare Buffum v. Peter Barceloux Co., 289 U. S. 227, 235-236. Petitioner contends the situation is the same when the creditor files a claim and the trustée not only objects to allowance of the claim but also demands surrender of the preference. This is so, petitioner argues, because the Bankruptcy Act does not confer summary jurisdiction on a bankruptcy court to order preferences surrendered and because, if it does, petitioner’s rights under the Seventh Amendment of the Constitution are violated. We agréé with neither contention.
With respect to the statutory question, it must be con-ceded that the Bankruptcy Act does not in express terms confer summary jurisdiction to order claimants to surrender preferences. But Congress has often left the exact scope of summary proceedings in bankruptcy unde-fined, and this Court has elsewhere recognized that in the absence of congressional définition this is a matter to be determined by decisions of this Court after due considération of the structure and purpose of the Bankruptcy Act as a whole, as well as the particular provisions of the Act brought in question. Taubel-Scott-Kitzmiller Co. n. Fox, 264 U. S. 426, 431 and n. 7.
When Congress enacted general révisions of the bankruptcy laws in 1898 and 1938, it gave “spécial attention to the subject of making [the bankruptcy laws] inexpensive in [their] administration.” H. R. Rep. No. 1228, 54th Cong., lst Sess., p. 2; H. R. Rep. No. 1409, 75th Cong., lst Sess., p. 2; S. Rep. No. 1916, 75th Cong., 3d Sess., p. 2. Moreover, this Court has long recognized that a chief purpose of the bankruptcy laws is “to secure a prompt and effectuai administration and settlement of the estate of ail bankrupts within a limited period,” Ex
KATCHEN v. LANDY.
329
323	Opinion of the Court.
parte Christy, 3 How. 292, 312, and that provision for summary disposition, “without regard to usual modes of trial attended by some necessary delay,” is one of the means chosen by Congress to effectuate that purpose, Bailey v. Glover, 21 Wall. 342, 346. See generally Wis-wall v. Campbell, 93 U. S. 347, 350-351 ;• U. S. Fidelity Co. v. Bray, 225 U. S. 205, 218.
It is equally clear that the expressly granted power to “allow,” “disallow” and “reconsider” claims, Bankruptcy Act § 2a (2), 11 U. S. C. § 11 (a)(2) (1964 ed.),3 which is of “basic importance in thé-administration of a bankruptcy estate,” Gardner v. New Jersey, 329 U. S. 565, 573, is to be exercised in summary proceedings and not by the slower and more expensive processes of a plenary suit. U. S. Fidelity Co. v. Bray, 225 U. S. 205, 218; Wiswall v. Campbell, 93 U. S. 347, 350-351. This power to allow or to disallow claims includes “full power to inquire into the validity of ajiy alleged debt or obligation of the bankrupt upon which a demand or a claim against the estate is based. This is essential to the performance of the duties imposed upon it.” Lesser v. Gray, 236 U. S. 70, 74. The trustée is enjoined to examine ail claims and to présent his objections, Bankruptcy Act § 47a (8), 11 U. S. C. § 75 (a)(8) (1964 ed.),4 and “[w]hen objections are made, [the court] is duty bound to pass on them,” Gardner v. New Jersey, 329 U. S. 565, 573. “The whole process of proof, allowance, and distribution is, shortly speaking, an adjudication of interests claimed in a res,” id., at 574, and thus falls within the principle quoted above that bankruptcy courts
3 H U. S. C. § 11 (a) (2) confers power to:
(2) Allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estâtes.”
411 U. S. C. §75 (a)(8) provides that trustées shall:
(8) examine ail proofs of claim and object to the allowance of such claims as may be improper.”
330
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Opinion of the Court.
hâve summary jurisdiction to adjudicate controversies relating to property within their possession. Further, the Act itself directs that “[o]bjections to daims shall be heard and determined as soon as the convenience of the court and the best interests of the estâtes and the claimants will permit,” Bankruptcy Act § 57f, 11 U. S. C. § 93 (f) (1964 ed.), and a committee report indicates that the provision means that “[o]bjections shall be heard and determined in a summary way,” H. R. Rep. No. 1674, 52d Cong., Ist Sess., p. 20.
Section 57 of the Act contains another important congressional directive around which much of this case turns. Subsection g forbids the allowance of a claim when the creditor has “received or acquired preferences . . . void or voidable under this title,” absent a surrender of any preference. Bankruptcy Act § 57g, 11 U. S. C. § 93 (g) (1964 ed.).5 Unavoidably and by the very terms of the Act, when a bankruptcy trustée présents a § 57g objection to a claim, the claim can neither be allowed nor disallowed until the preference matter is adjudicated. The objection under § 57g is, like other objections, part and parcel of the allowance process and is subject to summary adjudication by a bankruptcy court. This is the plain import of § 57 and finds support in the same
511 U. S. C. § 93 (g) provides:
“ (g) The daims of creditors who hâve received or acquired preferences, liens, conveyances, transfers, assignments or encumbrances, void or voidable under this title, shall not be allowed unless such creditors shall surrender such preferences, liens, conveyances, transfers, assignments, or encumbrances.”
The language of this section, it will be observed, is concemed with creditors rather than claims and thus contemplâtes that allowance of a claim may be conditioned on surrender of preferences received with respect to transactions unrelated to the claims. The exact reach of § 57g is not entirely settled, see 3 Collier on Bankruptcy, T 57.19 [3.2] (14th ed. 1964), and that question is not involved here.
KATCHEN v. LANDY.
331
323	Opinion of the Court.
policy of expédition that underlies the necessity for sum-mary action in many other proceedings under the Act.
There is no contrary indication in any other provision of the Act. The provisions of the Acts of 1800 and 1841 which gave the creditor the right to hâve his claim tried by a jury were not repeated in the Acts of 1867 and 1898.6 Section 19 of the current law, Bankruptcy Act §19, 11 U. S. C. § 42 (1964 ed.), requires a jury in only limited situations and is not helpful to petitioner in this case. It is true that § 60, dealing with preferences and their voidability, confers concurrent jurisdiction on state courts and the fédéral bankruptcy courts to entertain plenary suits for the recovery of preferences. But by its own terms this provision applies only “where plenary proceedings are necessary” and hence itself contemplâtes nonplenary recovery proceedings.7
If anything, the other provisions of the Act support the view that § 57g objections are to be summarily deter-mined. Section 57k provides for reconsideration of daims that hâve previously been allowed, and § 571
6 The history of the early jury trial provisions is traced in In re United Button Co., 140 F. 495 (D. C. D. Del.), aff’d sub nom. Brown & Adams v. United Button Co., 149 F. 48 (C. A. 3d Cir. 1906).
7 Bankruptcy Act § 60b, 11 U. S. C. § 96 (b) (1964 ed.), provides:
“(b) Any such preference may be avoided by the trustée if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent. Where the preference is voidable, the trustée may recover the property or, if it has been converted, its value from any person who has received or converted such property, except a bona-fide purchaser from or lienor of the debtor’s transférée for a présent fair équivalent value .... For the purpose of any recovery or avoidance under this section, where plenary proceedings are necessary, any State court which would hâve had jurisdiction if bankruptcy had not intervened and any court of bankruptcy shall hâve concurrent jurisdiction.”
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Opinion of the Court.
provides that when a claim has been reconsidered and rejected the trustée may recover any dividend previously paid on it, proceedings for such recovery to be within the summary jurisdiction of a bankruptcy court.8 Even under the predecessor to the présent section, which did not expressly provide that the dividend could be summarily recovered, Bankruptcy Act of 1898, § 571, 30 Stat. 561, this Court held that the referee had jurisdiction to détermine whether a preference has been re-ceived and to order return of the dividend. Pirie v. Chicago Title & Trust Co., 182 U. S. 438, 455-456? So
8 Bankruptcy Act §§ 57k and 571, 11 U. S. C. §§93 (k) and (Z) (1964 ed.), provide:
“(k) Claims which hâve been allowed may be reconsidered for cause and reallowed or rejected in whole or in part according to the equities of the case, before but not after the estate has been closed.
“(0 Whenever a claim shall hâve been reconsidered and rejected, in whole or in part, upon which a dividend has been paid, the trustée may recover from the creditor the amount of the dividend received upon the claim if rejected in whole, or the proportional part thereof if rejected only in part, and the trustée may also recover any excess dividend paid to any creditor. The court shall hâve summary jurisdiction of a proceeding by the trustée to recover any such dividends.”
9 Under the Act as it then stood, the preference involved in Pirie was not voidable or recoverable but nevertheless was ample ground for disallowance of the claim. But the creditor argued that com-pelling repayment of the dividend would constitute détermination of a “suit by the trustée” without the consent of the défendant contrary to the provisions of then § 23b (presently codified, without alterations material to the présent discussion, in 11 U. S. C. §46 (b) (1964 ed.)) that:
“b Suits by the trustée shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustée, might hâve brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed défendant.” 30 Stat. 552.
That argument was rejected by the Court on the ground the proceedings under review were not a “suit” within the meaning of the
KATCHEN v. LANDY.
333
323	Opinion of the Court.
too, proceedings under § 60d, 11 U. S. C. § 96 (d) (1964 ed.),10 for examination of the reasonableness of amounts paid in contemplation of bankruptcy to an attorney for services to be rendered for the bankrupt are within the summary jurisdiction of the referee although the Act does not expressly so provide. In re Wood and Henderson, 210 U. S. 246; Conrad, Rubin & Lesser v. Pender, 289 U. S. 472.
So far we hâve been discussing principles applicable to a case where the trustée présents a § 57g objection to a claim but does not seek the affirmative relief of sur-render of the preference. But once it is established that the issue of preference may be summarily adjudicated absent an affirmative demand for surrender of the pref-
quoted provision. 182 U. S., at 455-456. We apply that reasoning in our opinion today and hold that détermination of objections to daims, whether or not affirmative relief is decreed, does not con-stitute adjudication of a suit by the trustée, and thus it is not necessary to ascertain whether the creditor has “consented” to such détermination within the meaning of §23b. Rather, our decision is governed by the “traditional bankruptcy law that he who invokes the aid of the bankruptcy court by offering a proof of claim and demanding its allowance must abide the conséquences of that procedure. Wiswall v. Campbell, 93 ,U. S. 347, 351.” Gardner v. New Jersey, 329 U. S. 565, 573. As this is the basis of our decision, we obviously intimate no opinion concerning whether the referee has summary jurisdiction to adjudicate a demand by the trustée for affirmative relief, ail of the substantial factual and legal bases for which hâve not been disposed of in passing on objections to the claim.
1011 U. S. C. §96 (d) provides:
“(d) If a debtor shall, directly or indirectly, in contemplation of the filing of a pétition by or against him, pay money or transfer property to an attorney at law, for services rendered or to be rendered, the transaction may be examined by the court on its own motion or shall be examined by the court on pétition of the trustée or any creditor and shall be held valid only to the extent of a reasonable amount to be determined by the court, and the excess may be recovered by the trustée for the benefit of the estate. . . .”
334
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Opinion of the Court.
erence, it can hardly be doubted that there is also summary jurisdiction to order the return of the preference, This is so because in passing on a § 57g objection a bankruptcy court must necessarily détermine the amount of preference, if any, so as to ascertain whether the claim-ant, should he return the preference, has satisfied the condition imposed by § 57g on allowance of the claim. Schwartz v. Levine Malin, Inc., 111 F. 2d 81 (C. A. 2d Cir. 1940). Thus, once a bankruptcy court has dealt with the preference issue nothing remains for adjudication in a plenary suit. The normal rules of res judi-cata and collateral estoppel apply to the decisions of bankruptcy courts. Chicot County Drainage District n. Baxter State Bank, 308 U. S. 371, 376-377; Stoll v. Gottlieb, 305 U. S. 165. More specifically, a creditor who offers a proof of claim and demands its allowance is bound by what is judicially determined, Wiswall v. Campbell, 93 U. S. 347, 351; and if his claim is rejected, its validity may not be relitigated in another proceeding on the claim. Sampsell v. Impérial Paper Corp., 313 U. S. 215, 218-219; Lesser v. Gray, 236 U. S. 70, 75. The Courts of Appeals hâve uniformly applied these princi-ples to hold that a bankruptcy court’s resolution of the § 57g objection is res judicata in a subséquent action by the trustée under § 60 to recover the preference. Schwartz v. Levine de Malin, Inc., 111 F. 2d 81 (C. A. 2d Cir. 1940) ; Giflin v. Vought, 175 F. 2d 186 (C. A. 2d Cir. 1949) ; Ullman, Stem de Krausse v. Coppard, 246 F. 124 (C. A. 5th Cir. 1917) ; Breit v. Moore, 220 F. 97 (C. A. 9th Cir. 1915); Johnson v. Wilson, 118 F. 2d 557 (C. A. 9th Cir. 1941); see In re J. R. Pdlmenberg Sons, 76 F. 2d 935 (C. A. 2d Cir. 1935), aff’d sub nom. Bronx Brass Foundry, Inc. v. Irving Trust Co., 297 U. S. 230. To require the trustée to commence a plenary action in such circumstances would be a meaningless gesture, and it is well within the équitable powers of the bankruptcy
KATCHEN v. LANDY.
335
323	Opinion of the Court.
court to order return of the preference during the sum-mary proceedings on allowance and disallowance of daims. Compare In re Wood and Henderson, 210 U. S. 246, 256 (détermination of reasonableness of attorney’s fee would be res judicata in suit to recover the excess), with Conrad, Rubin & Lesser v. Pender, 289 U. S. 472 (upholding turnover order). What we said in Alexander n. Hillman, 296 U. S. 222, in connection with the juris-diction of a receivership court to entertain a counterclaim against a claimant in the receivership proceeding, is equally applicable here:
“By presenting their daims respondents subjected themselves to ail the conséquences that attach to an appearance ....
“Respondents’ contention means that, while in-voking the court’s jurisdiction to establish their right to participate in the distribution, they may deny its power to require them to account for what they misappropriated. In behalf of creditors and stockholders, the receivers reasonably may insist that, before taking aught, respondents may by the receivership court be required to make restitution. That requirement is in harmony with the rule gen-erally followed by courts of equity that having jurisdiction of the parties to controversies brought before them, they will décidé ail matters in dispute and decree complété relief.” 296 U. S., at 241-242. Our examination of the structure and purpose of the Bankruptcy Act and the provisions dealing with allowance of daims therefore leads us to conclude, and we so hold, that the Act does confer summary jurisdiction to compel a claimant to surrender preferences that under § 57g would require disallowance of the daim.11 A num-
11 See note 5, supra.
336
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Opinion of the Court.
ber of Courts of Appeals, including the court below, hâve reached similar results.12
Petitioner contends, however, that this reading of the statute violâtes his Seventh Amendment right to a jury trial. But although petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a fédéral plenary action by the trustée, Schoenthal n. Irving Trust Co., 287 U. S. 92, when the same issue arises as part of the process of allowance and disallowance of daims, it is triable in equity. The Bankruptcy Act, passed pursuant to the power given to Congress by Art. I, § 8, of the Constitution to establish uniform laws on the subject of bankruptcy, couverts the créditons legal claim into an équitable claim to a pro rata share of the res, Gardner v. New Jersey, 329 U. S. 565, 573-574, a share which can neither be deter-mined nor allowed until the creditor disgorges the alleged voidable preference he has already received. See Alexander v. Hillman, 296 U. S. 222, 242. As bankruptcy courts hâve summary jurisdiction to adjudicate contro-versies relating to property over which they hâve actual or constructive possession, Thompson v. Magnolia Petroleum Co., 309 U. S. 478, 481; Cline v. Kaplan, 323 U. S. 97, 98-99; May v. Henderson, 268 U. S. 111, 115-116, and as the proceedings of bankruptcy courts are inherently proceedings in equity, Local Loan Co.v. Hunt, 292 U. S. 234, 240; Pepper n. Litton, 308 U. S. 295, 304,
12 See the decisions cited in note 1, supra, upholding summary jurisdiction to grant affirmative relief on related counterclaims that would also be defenses to the claim, particularly In re Solar Mjg. Corp., 200 F. 2d 327, 331 (C. A. 3d Cir. 1952), cert. denied sub nom. Marine Midland Trust Co. v. McGirl, 345 U. S. 940; In re Majestic Radio & Télévision Corp., 227 F. 2d 152, 156 (C. A. 7th Cir. 1955), cert. denied sub nom. Dwyer n. Franklin, 350 U. S. 995. See also Florance v. Kresge, 93 F. 2d 784 (C. A. 4th Cir. 1938) ; Floro Realty & Inv. Co. v. Steem Electric Corp., 128 F. 2d 338 (C. A. 8th Cir. 1942).
KATCHEN v. LANDY.
337
323	Opinion of the Court.
there is no Seventh Amendment right to a jury trial for détermination of objections to claims, including § 57g objections. As this Court has previously said in answer-ing the argument that disputed claims must be tried before a jury:
“But those who use this argument lose sight of the fundamental principle that the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction. If it be conceded or clearly shown that a case belongs to this class, the trial of questions involved in it belongs to the court itself, no matter what may be its importance or complexity.
“So, in cases of bankruptcy, many incidental questions arise in the course of administering the bank-rupt estate, which would ordinarily be pure cases at law, and in respect of their facts triable by jury, but, as belonging to the bankruptcy proceedings, they become cases over which the bankruptcy court, which acts as a court of equity, exercises exclusive control. Thus a claim of debt or damages against the bankrupt is investigated by chancery methods.” Barton v. Barbour, 104 U. S. 126, 133-134. This has been the characteristic view of the courts. Carter v. Lechty, 72 F. 2d 320 (C. A. 8th Cir. 1934) ; In re Michigan Brewing Co., 24 F. Supp. 430 (W. D. Mich. 1938), aff’d, 101 F. 2d 1007 (C. A. 6th Cir. 1939); In re Rude, 101 F. 805 (D. C. D. Ky. 1900) ; In re Christensen, 101 F. 243 (D. C. N. D. lowa 1900). See also In re Wood and Henderson, 210 U. S. 246, 258; Pirie v. Chicago Title & Trust Co., 182 U. S. 438, 455-456.
And of course it makes no différence, so far as peti-tioner’s Seventh Amendment claim is concerned, whether the bankruptcy trustée urges only a § 57g objection
786-211 0-66—31
338
OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
or also seeks affirmative relief. In practical effect, the déniai of a jury trial would be no less were the bankruptcy court merely to détermine the existence and amount of the preference, since that détermination would be entitled to res judicata effect in any subséquent ple-nary action. And we hâve held that equity courts hâve power to decree complété relief and for that purpose may accord what would otherwise be legal remedies. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 291-292; Porter v. Warner Co., 328 U. S. 395, 398-399; Alexander v. Hillman, 296 U. S. 222; McGowan v. Parish, 237 U. S. 285, 296.
Petitioner’s final reliance is on the doctrine of Beacon Théâtres v. Westover, 359 U. S. 500, and Dairy Queen v. Wood, 369 U. S. 469, that “where both legal and équitable issues are presented in a single case, ‘only under the most impérative circumstances, circumstances which in view of the flexible procedures of the Fédéral Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior détermination of équitable daims.’ ” 369 U. S., at 472-473.
The argument here is that the same issues—whether the creditor has received a preference and, if so, its amount—may be presented either as équitable issues in the bankruptcy court or as legal issues in a plenary suit and that the bankruptcy court should stay its own proceedings and direct the bankruptcy trustée to commence a plenary suit so as to preserve petitioner’s right to a jury trial. Unquestionably the bankruptcy court would hâve power to give such an instruction to the trustée, Thompson v. Magnolia Petroleum Co., 309 U. S. 478, 483-484; see Bankruptcy Act § 2a (7), 11 U. S. C. § 11 (a)(7) (1964 ed.), and some lower courts hâve required such a procedure, B. F. Avery de Sons Co. v. Davis, 192 F. 2d 255 (C. A. 5th Cir. 1951), cert. denied, 342 U. S. 945;
KATCHEN v. LANDY.
339
323	Opinion of the Court.
Triangle Electric Co. v. Foutch, 40 F. 2d 353 (C. A. 8th Cir. 1930) ; see Katchen v. Landy, 336 F. 2d 535, 543 (C. A. lOth Cir. 1964) (Phillips, J., dissenting in part). Nevertheless we think this argument must be rejected.
At the outset, we note that the Dairy Queen doctrine, if applicable at ail, is applicable whether or not the trustée seeks affirmative relief. For, as we hâve said, détermination of the preference issues in the équitable proceeding would in any case render unneces-sary a trial in the plenary action because of the res judi-cata effect to which that détermination would be entitled. Thus petitioner’s argument would require that in every case where a § 57g objection is interposed and a jury trial is demanded the proceedings on allowance of daims must be suspended and a plenary suit initiated, with ail the delay and expense that course would entail. Such a resuit is not consistent with the équitable purposes of the Bankruptcy Act nor with the rule of Beacon Théâtres and Dairy Queen, which is itself an équitable doctrine, Beacon Théâtres v. Westover, 359 U. S., at 509-510. In neither Beacon Théâtres nor Dairy Queen was there involved a spécifie statutory scheme contemplating the prompt trial of a disputed claim without the intervention of a jury. We think Congress intended the trustee’s § 57g objection to be summarily determined; and to say that because the trustée could bring an independent suit against the creditor to recover his voidable preference, he is not entitled to hâve his statutory objection to the claim tried in the bankruptcy court in the normal manner is to dismember a scheme which Congress has prescribed. See Alexander v. Hillman, 296 U. S. 222, 243. Both Beacon Théâtres and Dairy Queen recognize that there might be situations in which the Court could proceed to résolve the équitable claim first even though the results might be dispositive of the issues involved in
340
OCTOBER TERM, 1965.
382 U. S.
Opinion of the Court.
the legal claim. To implement congressional intent, we think it essential to hold that the bankruptcy court may summarily adjudicate the § 57g objection; and, as we hâve held above, the power to adjudicate the objection carries with it the power to order surrender of the preference.
Affirmed.
Mr. Justice Black and Mr. Justice Douglas dissent for the reasons stated in the dissenting opinion of Judge Phillips in the Court of Appeals.
UNITED STATES v. YAZELL.
341
Syllabus.
UNITED STATES v. YAZELL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 10. Argued October 13, 1965.—Decided January 17, 1966.
The Small Business Administration (SBA) made a disaster loan to Yazell, and to his wife who is respondent here, following flood damage to their shop in Lampasas, Texas. The loan was indi-vidually negotiated. The chattel mortgage which secured the loan specifically made reference to Texas law in several respects. After default by the Yazells on the note, and foreclosure of the mortgage, the Government brought this suit against the Yazells for the deficiency. Respondent, Mrs. Yazell, moved for summary judgment on the ground that under the Texas law of coverture she had no capacity to bind herself personally by contract on the facts of this case, and hence the contract could not be enforced against her separate property. During the negotiation of the loan, the SBA had at no time indicated an intention that the Texas law in this regard would not apply, nor had the SBA required respondent to hâve her disability of coverture removed pursuant to Texas law. The District Court granted the motion for summary judgment, and the Court of Appeals affirmed, against the Govemment’s contention that even in the absence of any express fédéral statute or régulation on the matter or any indication in the loan contract itself, questions of capacity to contract with the SBA and to subject property to liability on such a contract are governed by fédéral and not local law, and that fédéral law should not recognize the state coverture doctrine. Held: There is no fédéral interest which requires that the local law be over-ridden in this case in order that the Fédéral Government be enabled to collect in supervention of the state law of coverture. It is not necessary to décidé whether the state law applies by reason of adoption by fédéral law or ex proprio vigore. Pp. 345-358.
(a)	This was “a custom-made, hand-tailored, specifically negotiated transaction. It was not a nationwide act of the Fédéral Government, emanating in a single form from a single source.” Pp. 345-348.
(b)	In the absence of spécifie provision in the fédéral statute or régulation, or in the contract itself, the fédéral interest in the collection of an amount due on a contract individually negotiated
342
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
by a fédéral agency does not justify displacing state law in the peculiarly local field of family and family-property rights and immunities. Pp. 348-349.
(c)	The right of the Fédéral Government to choose those with whom it contracts is not involved. Pp. 349-350.
(d)	State interests where family and family-property arrangements are involved should not be overridden by fédéral courts unless substantial national interests will be significantly impaired by application of the state law. Pp. 351-353.
(e)	Where fédéral judge-made law has been created to super-sede substantive state law, the fédéral interest has reflected a need, such as the necessity for uniform national application, for such supersession. Clearfteld Trust Co. v. United States, 318 U. S. 363, distinguished. Pp. 353-354.
(f)	This Court has, where appropriate, adopted state rules of law as the fédéral law to be applied, despite the conséquent diversity in the rights and obligations of the United States in the different States. Pp. 354-357.
334 F. 2d 454, affirmed.
Soliciter General Marshall argued the cause for the United States. On the brief were former Solicitor General Cox, Assistant Attorney General Douglas, Louis F. Claiborne, Sherman L. Cohn and Edward Berlin.
J. V. Hammett argued the cause and filed a brief for respondent.
Mr. Justice Fortas delivered the opinion of the Court.
This case présents an aspect of the continuing prob-lem of the interaction of fédéral and state laws in our complex fédéral System. Specifically, the question pre-sented is whether, in the circumstances of this case, the Fédéral Government, in its zealous pursuit of the balance due on a disaster loan made by the Small Business Administration, may obtain judgment against Ethel Mae
UNITED STATES v. YAZELL.
343
341	Opinion of the Court.
Yazell of Lampasas, Texas. At the time the loan was made, Texas law provided that a married woman could not bind her separate property unless she had first ob-tained a court decree removing her disability to contract.1 Mrs. Yazell had not done so. At ail relevant times she was a beneficiary of the peculiar institution of coverture which is now, with some exceptions, relegated to his-tory’s legal muséum.
The impact of the quaint doctrine of coverture upon the fédéral treasury is therefore of little conséquence. Even the Texas law which gave rise to the difficulty was repealed in 1963.2 The amount in controversy in this extensive litigation, about $4,000, is important only to the Yazell family. But the implications of the controversy are by no means minor. Using Clearfield Trust Co. v. United States, 318 U. S. 363, as its base, the Government here seeks to occupy new ground in the inévitable conflict between fédéral interest and state law. The Government was rebuffed by the trial and appellate courts. We hold that in the circumstances of this case, the state rule governs, and, accordingly, we affirm the decision of the United States Court of Appeals for the Fifth Circuit, 334 F. 2d 454.3
1 Tex. Rev. Civ. Stat. Ann. Art. 4626. This section, as amended by Acts 1963, 58th Leg., p. 1188, c. 472, § 6, now gives to Texas wives the capacity to contract. Under old Art. 4626 a married woman could hâve her disability removed.
2 See note 1, supra.
3 The Court of Appeals by a vote of two to one affirmed the decision of the District Court in favor of the wife, based upon the Texas law of coverture. The action was instituted by the United States to recover the balance due on a note of approximately $12,000, secured by a chattel mortgage. The note was signed by both husband and wife. The mortgage had been foreclosed, the pledged assets sold, and a deficiency judgment was rendered against the husband in this same action. No appeal was taken by the husband.
344	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Reference in some detail to the facts of this case will illuminate the problem.4 Delbert L. Yazell operated in Lampasas, Texas, a small shop to sell children’s clothing. The shop was called Yazell’s Little Ages. Occasionally, his wife, Ethel Mae, assisted in the business. The business, under Texas law, was the community property of husband and wife, who, however, were barred by the cov-erture statute from forming a partnership. Dillard v. Smith, 146 Tex. 227, 230, 205 S. W. 2d 366, 367. A dis-astrous flood occurred in Lampasas on May 12, 1957. The stock of Yazell’s Little Ages was ruined. Its fixtures were seriously damaged.5
The Small Business Administration had a régional office in Dallas, Texas. As of December 31, 1963, the agency had outstanding in Texas, generally under the supervision of its Dallas régional office, 1,363 business loans and 4,172 disaster loans, aggregating more than $60,000,000.6 Upon the occurrence of the Lampasas flood, the SBA opened a Disaster Loan Office in Lampasas, under the direction of the Dallas office.7
On June 10, 1957, Mr. Yazell conferred with a représentative of the SBA about a loan to enable him to cope with the disaster to his business. After a careful, de-tailed but commendably prompt investigation, the head of SBA’s Disaster Loan Office wrote Mr. Yazell on June 20, 1957, that authorization for a loan of $12,000 had been received. Yazell was informed that the loan would be made upon his compliance with certain requirements. He was told that a named law firm in Lampasas had been
4 In the discussion which follows, as specifically indicated by reference to “SBA file,” we hâve occasionally referred to the official file of the Small Business Administration on the Yazell loan to supplément the record with facts which disclose the agency’s practice.
5 SBA file.
6 Brief of the United States, p. 12.
7 SBA file.
UNITED STATES v. YAZELL.
345
341	Opinion of the Court.
employed by the SBA to assist him in complying with the terms of the authorization.8
Yazell and his wife “doing business as” Yazell’s Little Ages then signed a note in the amount of $12,000, payable to the order of SBA in Dallas at the rate of $120 per month including 3% interest. On the same day they also executed a chattel mortgage on their stock of mer-chandise and their store fixtures. By express reference to Article 4000 of the Revised Civil Statutes of Texas, the chattel mortgage exempted from its coverage retail sales made from the stock. The chattel mortgage was accompanied by a separate acknowledgment of Mrs. Yazell before a notary public, which was required by Texas law as a part of the institution of coverture. The notary attested, in the words of the applicable Texas statute, that “Ethel Mae Yazell, wife of Delbert L. Yazell . . . whose name is subscribed to the [chattel mortgage] . . . having been examined by me privily and apart from her husband . . . acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same . . . .” See Tex. Rev. Civ. Stat. Ann. Art. 6608. See also Art. 1300, 4618 (Supp. 1964), 6605. These statutes ail relate to conveyances of the marital homestead.
The note, chattel mortgage and accompanying documents were in due course sent to the Dallas office of SBA. Both the Lampasas law firm engaged by SBA to assist Yazell and the Acting Régional Counsel of SBA certified that “ail action has been taken deemed désirable . . . to assure the validity and legal enforceability of the Note.” Thereafter, the funds were made avail-able to Yazell pursuant to the terms of the loan.9
From the foregoing, it is clear (1) that the loan to Yazell was individually negotiated in painfully particu-
8 SBA file.
9 SBA file.
346	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
larized detail, and (2) that it was negotiated with spécifie reference to Texas law including the peculiar acknowledgment set forth above. None of the prior cases decided by this Court in which the fédéral interest has been held to override state law resembles this case in these respects; the différences are intensely material to the resolution of the issue presented.
Next, it seems clear (1) that the SBA was aware and is chargeable with knowledge that the contract would be subject to the Texas law of coverture; (2) that both the SBA and the Yazells entered into the contract without any thought that the defense of coverture would be un-available to Mrs. Yazell with respect to her separate property as provided by Texas law; and (3) that, in the circumstances, the United States is seeking the uncon-scionable advantage of recourse to assets for which it did not bargain. These points will be briefly elaborated before we reach the ultimate issue: whether, despite ail of the foregoing, some “fédéral interest” requires us to give the United States this advantage.
It will be noted that the transaction was custom-tailored by officiais of SBA located in Dallas and Lam-pasas, Texas, and undoubtedly familiar with Texas law. It was twice approved by Texas counsel who certified that “ail action has been taken deemed désirable” even though no effort was made to cause Mrs. Yazell to hâve her incapacity removed under Texas law.10 In at least two decisions since 1949, fédéral courts had applied the Texas law of coverture in actions under fédéral statutes.11 At no time does it appear that the SBA made the slightest suggestion to the Yazells or their
10 See note 1, supra.
11 United States v. Belt, 88 F. Supp. 510 (D. C. S. D. Tex.) (suit held barred by coverture); Texas Water Supply Corp. v. Reconstruction Finance Corp., 204 F. 2d 190 (C. A. 5th Cir.) (case held within an exception to coverture).
UNITED STATES v. YAZELL. 347
341	Opinion of the Court.
SBA-appointed counsel that it intended to enforce the contract against Mrs. Yazell’s separate property.12 The forms used, although specifically adapted to this transaction and to Texas law, made no reference to such an intent, and it is either probable or certain that no such intent existed. As stated above, the SBA now has more than 5,000 loans outstanding in Texas.13 The Solicitor General informed the Court that the SBA, in conformity with the general practice of government lending agencies, requires that the signature of the wife be obtained as a routine matter.14 If it had been intended that the resuit now sought by the Government would obtain, simple fairness as well as elementary craftsmanship would hâve dictated that in a Texas agreement the wife be advised, at least by formai notation, that she was, in the opinion of SBA, binding her separate property, despite Texas law to the contrary. Again, it must be empha-
12 SBA file.
13 The Ninth Circuit, in Bumb v. United States, 276 F. 2d 729 (C. A. 9th Cir.), aptiy observed in response to a claim by the Small Business Administration that the “need for uniformity” excused it from complying with a California “bulk sales” statute requiring notice of intent to mortgage:
“It is true that the Small Business Administration opérâtes throughout the United States, but such fact raises no presumption of the desirability of a uniform fédéral rule with respect to the validity of chattel mortgages in pursuance of the lending program of the Small Business Administration. The largeness of the business of the Small Business Administration offers no excuse for failure to comply with reasonable requirements of local law, which are designed to protect local creditors against undisclosed action by their local debtors which impair the value of their claims. It must be assumed that the Small Business Administration maintains competent personnel familiar with the laws of the various States in which it conducts business, and who are advised of the steps required by local law in order to acquire a valid security interest within the various States.” Id., at 738.
14Brief for the United States, p. 11.
348
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
sized that this was a custom-made, hand-tailored, specifi-cally negotiated transaction. It was not a nationwide act of the Fédéral Government, emanating in a single form from a single source.15
We now corne to the basic issue which this case présents to this Court. Is there a “fédéral interest” in collecting the deficiency from Mrs. Yazell’s separate prop-erty which warrants overriding the Texas law of cover-ture? Undeniably there is always a fédéral interest to collect moneys which the Government lends. In this case, the fédéral interest is to put the Fédéral Government in position to levy execution against Mrs. Yazell’s separate property, if she has any, for the unpaid balance of the $12,000 disaster loan after the stock of merchan-dise and fixtures of the store hâve been sold, after any other community property has been sold, and after Mr. Yazell’s leviable assets hâve been exhausted. The desire of the Fédéral Government to collect on its loans is understandable. Perhaps even in the case of a disaster loan, the zeal of its représentatives may be com-mended. But this serves merely to présent the question—not to answer it. Every creditor has the same interest in this respect; every creditor wants to collect.16 The United States, as sovereign, has certain preferences and priorities,17 but neither Congress nor this Court has
15 Contrast Clearfield Trust Co. v. United States, 318 U. S. 363. Compare also United States v. Helz, 314 F. 2d 301 (C. A. 6th Cir.), arising under the National Housing Act, 48 Stat. 1246, 12 U. S. C. § 1702 et seq., which issues separate forms for each State but does not negotiate with individual applicants. See United States v. View Crest Garden Apts., Inc., 268 F. 2d 380 (C. A. 9th Cir.), cert. denied, 361 U. S. 884.
16 In this case, the Yazells’ general creditors collected about 20% of their daims.
17 For example, Congress has provided for preference in the case of debts owed the United States on tax delinquencies. See 26 U. S. C. §§6321, 6323 (1964 ed.); 11 U. S. C. § 104 (a)(4) (1964 ed.). 31
UNITED STATES v. YAZELL.
349
341	Opinion of the Court.
ever asserted that they are absolute. For example, no contention will or can be made that the United States may by judicial fiat collect its loan with total disregard of state laws such as homestead exemptions.18 Accord-ingly, generalities as to the paramountcy of the fédéral interest do not lead inevitably to the resuit the Government seeks. Our problem remains: whether in connection with an individualized, negotiated contract, the Fédéral Government may obtain a preferred right which is not provided by statute or spécifie agency régulation, which was not a part of its bargain, and which requires overriding a state law dealing with the intensely local interests of family property and the protection (whether or not it is up-to-date or even welcome) of married women.
The Government asserts that this overriding fédéral interest can be found in the unlimited right of the Fédéral Government to choose the persons with whom it will contract, citing Perkins v. Lukens Steel Co., 310 U. S. 113, which is remote from the issue at hand.19 Realisti-
U. S. C. § 191 (1964 ed.) also provides a priority for the United States in some situations involving ordinary debts. See Kennedy, The Relative Priority of the Fédéral Government: The Pernicious Career of the Inchoate and General Lien, 63 Yale L. J. 905 (1954).
18 See pp. 354-356, infra.
19 The Government relies upon Perkins, at p. 127, for the proposition that the United States has “the unrestricted power . . . to détermine those with whom it will deal.” Brief for the United States, p. 9. Perkins had nothing to do with the question of the power of the United States to override state law declaring the incapacity of persons to contract. The Court there held that private companies alleging their right as potential bidders for govemment contracts lacked standing to challenge a fédéral statute requiring fédéral pro-curement contracts to include a minimum wage stipulation. The Government quotes the decision out of context, omitting the follow-ing italicized words: the Court stated that “Like private individuals and businesses, the Govemment enjoys the unrestricted power . . . to détermine those with whom it will deal, and to fix the ternis and
350
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
cally, in terms of Yazell’s case, this has nothing to do with our problem: The loan was made to enable Yazell to reopen the store after the disaster of the flood. The SBA chose its contractors with knowledge of the limited office of Mrs. Yazell’s signature under Texas law. That knowledge did not deter them. If they had “chosen” Mrs. Yazell as their contractor in the sense that her separate property would be liable for the loan, presumably they would hâve said so, and they would hâve proceeded with the formalities necessary under Texas law to hâve her disability removed.20 In ail reality, the assertion that this case involves the right of the United States to choose its beneficiaries cannot détermine the issue before us.21 This case is not a call to strike the shackles of an obsolète law from the hands of a beneficent Fédéral Government, nor is it a summons to do battle to vindicate the rights of women. It is much more mundane and commercial than either of these. The issue is whether the Fédéral Government may voluntarily and delib-erately make a negotiated con tract with knowledge of the limited capacity and liability of the persons with whom it contracts, and thereafter insist, in disregard of such limitation, upon collecting (a) despite state law to the contrary relating to family property rights and liabil-ities, and (b) in the absence of fédéral statute, régulation
conditions upon which it will make needed purchases.” Mrs. Yazell would subscribe to that proposition—indeed, the brunt of her case is that the Government, in entering ordinary commercial contracts, should be treated “like private individuals and businesses.”
20 See note 1, supra.
21 It is worth noting that in the only situation where the United States’ power to choose its contractors might arise—where a mar-ried woman has separate property in respect of which she seeks or the Government offers a loan—the Texas law expressly provided for her power to contract and to bind her separate property. Tex. Rev. Civ. Stat. Ann. Art. 4614.
UNITED STATES v. YAZELL.
351
341	Opinion of the Court.
or even any contract provision indicating that the state law would be disregarded.
The institution of coverture is peculiar and obsolète. It was repealed in Texas after the events of this case. It exists, in modified form, in Michigan.22 But the Govern-ment’s brief tells us that there are 10 other States which limit in some degree the capacity of married women to contract.23 In some of these States, such as California, the limitations upon the wife’s capacity and responsi-bility are part of an ingenious, complex, and highly pur-poseful distribution of property rights between husband and wife, geared to the institution of community property and designed to strike a balance between efficient management of joint property and protection of the separate property of each spouse.24 It is an appropriate inference from the Government’s brief that its position is that the Fédéral Government, in order to collect on a negotiated debt, may override ail such state arrangements de-spite the absence of congressional enactment or agency régulation or even any stipulation in the negotiated
22 Mich. Stat. Ann. §§ 26.161, 26.181, 26.182, 26.183. See Koen-geter v. Holzbaugh, 332 Mich. 280, 50 N. W. 2d 778; Weingarten, Creditors’ Rights, 10 Wayne L. Rev. 184 (1963).
23 Brief for the United States, p. 15, n. 10. The States are, in addition to Texas and Michigan : Alabama, Arizona, California, Florida, Georgia, Idaho, Indiana, Kentucky, Nevada, and North Carolina. With the exception of Michigan, see n. 22, supra, none of these States other than Texas has a coverture rule applicable to facts such as those presented by this case.
24 In California a wife has full capacity to contract. Cal. Civ. Code § 158. Her separate property is liable for her own debts, as are her eamings. Cal. Civ. Code §§ 167, 171. However, in connection with California’s community property law goveming the management and control of community property, see Cal. Civ. Code (Supp. 1964) §§ 172, 172a, the community property is gener-ally not subject to the debts of the wife. Cal. Civ. Code § 167. See also Ariz. Rev. Stat. Ann. §25-214; Nev. Rev. Stat. § 123.230.
352	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
contract or any warning to the persons with whom it contracts.25
We do not here consider the question of the constitu-tional power of the Congress to override state law in these circumstances by direct législation 26 or by appropriate authorization to an administrative agency coupled with suitable implementing action by the agency.27 We décidé only that this Court, in the absence of spécifie congres-sional action, should not decree in this situation that implémentation of fédéral interests requires overriding the particular state rule involved here. Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements. They should be over-ridden by the fédéral courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied.
Each State has its complex of family and family-property arrangements. There is presented in this case no reason for breaching them. We hâve no fédéral law
25 The Govemment’s argument, if accepted by this Court, would cast doubt, in addition, on state laws preventing wives from con-veying realty without the consent of their husbands—see, e. g., Ala. Code Tit. 34, §73; Fia. Stat. Ann. (Supp. 1964) §708.08; Ind. Ann. Stat. §38-102; Ky. Rev. Stat. §404.020 (executory sales contract) ; N. C. Gen. Stat. § 52-2—or from acting as guarantors or sureties—see, e. g., Ga. Code Ann. § 53-503 ; Ky. Rev. Stat. § 404.010.
26 See, e. g., United States v. Bess, 357 U. S. 51, which held that the exemptions from execution to satisfy fédéral tax liens provided in § 3691 of the Internai Revenue Code of 1939 (now 26 U. S. C. § 6334) are exclusive of state exemptions.
27 See, e. g., United States v. Shimer, 367 U. S. 374 (Pennsylvania rule precluding mortgagee who buys mortgaged property at fore-closure from seeking deficiency judgment held inconsistent with scheme of Vétérans Administration régulations under which mort-gage issued).
UNITED STATES v. YAZELL.
353
341	Opinion of the Court.
relating to the protection of the separate property of married women. We should not here invent one and impose it upon the States, despite our personal distaste for coverture provisions such as those involved in this case. Nor should we establish a principle which might east doubt upon the effectiveness in relevant types of fédéral suits of the laws of 11 other States relating to the contractual positions of married women, which, as the Government’s brief warns us, would be affected by our decision in the présent case. Clearly, in the case of these SBA loans there is no “fédéral interest” which justifies invading the peculiarly local jurisdiction of these States, in disregard of their laws, and of the subtleties reflected by the différences in the laws of the various States which generally reflect important and carefully evolved state arrangements designed to serve multiple purposes.
The decisions of this Court do not compel or embrace the resuit sought by the Government. None of the cases in which this Court has devised and applied a fédéral principle of law superseding state law involved an issue arising from an individually negotiated contract. None of these cases permitted fédéral imposition and enforce-ment of liability on a person who, according to state law, was not competent to contract. None of these cases overrode state law in the peculiarly state province of family or family-property arrangements.28
28 On the contrary, in De Sylva v. Ballentine, 351 U. S. 570, the Court applied state law to define “children” although the issue arose in connection with the right to renew a copyright—a peculiarly fédéral area. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204; Commissioner v. Stem, 357 U. S. 39. We do not regard Wissner v. Wissner, 338 U. S. 655, as an exception. There California sought to apply its community property rule that a wife has a half interest in her husband’s life Insurance if the premiums corne out of community property (his eamings), in dérogation of the fédéral statutory policy that soldiers hâve an absolute right to name the beneficiary of their National Service Life Insurance. The Court held
786-211 0-66—32
354
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
This Court’s decisions applying “fédéral law” to super-sede state law typically relate to programs and actions which by their nature are and must be uniform in character throughout the Nation. The leading case, Clearfield Trust Co. v. United States, 318 U. S. 363, involved the remédiai rights of the United States with respect to fédéral commercial paper. United States v. Allegheny County, 322 U. S. 174, was treated by the Court as involving the liability of property of the United States to local taxes.29 D’Oench, Duhme & Co. v. Fédéral Deposit Ins. Corp., 315 U. S. 447, involved the rights of the FDIC as an insurer-assignee of a bank as against the maker of a note given the bank on the secret under-standing it would not be called for payment. The bank deposit insurance program is general and standardized. In ail relevant aspects, the terms are explicitly dictated by fédéral law.30 The Court held that FDIC was entitled to a fédéral rule protecting it against misrepre-sentations as to the financial condition of the banks it insures, accomplished by secret arrangements incon-sistent with the policy of the applicable fédéral statutes.
On the other hand, in the type of case most closely resembling the présent problem, state law has invariably
that the California rule would directly hâve undercut congressional intent with respect to the Fédéral Government’s generalized, nation-wide insurance program.
29 The Court held that a state tax rule under which movable machinery was part of the realty of a manufacturer for purposes of an ad valorem property tax could not be applied so as to subject a manufacturer renting the machinery from the United States to such an enhancement of the value of its realty. The Court held that the title to the machinery was in the United States, and was effective to protect the machinery from local taxes. But compare Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204.
30 The statute involved in D’Oench, Duhme is now the Fédéral Deposit Insurance Act, 64 Stat. 873, 12 U. S. C. § 1811 et seq. (1964 ed.).
UNITED STATES v. YAZELL.
355
341	Opinion of the Court.
been observed. The leading case is Fink v. O’Neü, 106 U. S. 272. There the United States sought to levy execution against property defined by state law as homestead and exempted by the State from execution. This Court held that Revised Statutes § 916, now Rule 69 of the Fédéral Rules of Civil Procedure, governed, and that the United States’ remedies on judgments were limited to those generally provided by state law.31 These homestead exemptions vary widely. They resuit in a diver-sity of rules in the various States and in a limitation upon the power of the Fédéral Government to collect which is comparable to the coverture limitation.32 The
31 See also Custer v. McCutcheon, 283 U. S. 514. Rule 69 provides that procedure on execution shall be “in accordance with the practice and procedure of the state in which the district court is held . . . except that any statute of the United States govems to the extent that it is applicable.” With the one exception of fédéral tax cases, see n. 26, supra, state execution procedure seems to be applied without question, even in suits by the United States. See, e. g., United States v. Harpootlian, 24 F. 2d 646 (C. A. 2d Cir.) (applying state law on the time within which examination can be had of a judgment debtor after an execution against him is retumed unsatisfied, over an objection by the Government that this was an improper application of a statute of limitations to the sovereign) ; United States v. Miller, 229 F. 2d 839 (C. A. 3d Cir.) (Pennsylvania prohibition of gamishment of future debts of garnishee to debtor).
32 In Texas, the value of the homestead that is exempt from execution is $5,000, as of the time of its désignation as a homestead and without reference to the value of any improvements, Tex. Rev. Civ. Stat. Ann. Art. 3833; Tex. Const. Art. 16, §§50, 51. In Tennessee and Maine, the homestead exemption is $1,000, Tenn. Const. Art. 11, §11; Me. Rev. Stat. Ann. Tit. 14, §§4551, 4552; in California, it is $15,000 for the head of a family, $7,500 for ail others, Cal. Civ. Code §§1240, 1260 (Supp. 1964); cf. Cal. Const. Art. 17, §1. If Mrs. Yazell’s separate property were a homestead under Texas law, she might hâve been able to defeat execution on the judgment that nught hâve been entered against her in this suit to a far greater degree than some other debtor to the SBA could who happened to
356
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
purpose and theory of the two types of limitations are obviously related.33 Another illustration of acceptance of divergent and limiting state laws is afforded by Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204. In that case this Court held that the state classification of property owned by the Reconstruction Finance Corporation as “real property” for tax purposes would pre-vail in determining whether the property was within the class of property as to which Congress had waived the fédéral exemption from local taxation.
Generally, in the cases applying state law to limit or condition the enforcement of a fédéral right, the Court has insisted that the state law is being “adopted” as the fédéral rule. Even so, it has carefully pointed out that this theory would make it possible to “adopt,” as the
résidé in Tennessee or Maine; and a Californian would do even better than Mrs. Yazell.
Other exemptions from execution vary similarly. For example, Texas, Maine and California provide for detailed personal exemptions. In Texas, a family is exempt not only as to its homestead, but also its fumiture, cemetery lot, implements of husbandry, tools and books of a trade, family library and pictures, five cows and their calves, two mules, two horses, one wagon, one carnage, one gun, 20 hogs, 20 sheep, hamess, provisions and forage for home consumption, current wages, clothing, 20 goats, 50 chickens, 30 turkeys, 30 ducks,
30 geese, 30 guineas, and one dog. A somewhat less extensive list
is provided for persons who are not constituents of a family. Tex. Rev. Civ. Stat. Ann. Art. 3832, 3835. Cf. also Me. Rev. Stat. Ann.
Tit. 14, §4401; Cal. Civ. Proc. Code §§690-690.52 (1955 ed. and Supp. 1964). Texas also has other spécial protections, including a provision applicable to ferrymen, saving to them their ferryboat and tackle, Tex. Rev. Civ. Stat. Ann. Art. 3836.
33 Rule 64, adopting state provisional remedies for security in advance of judgment, can lead to the same kind of diversity as does Rule 69. Cf. De Beers Consolidated Mines, Ltd. v. United States, 325 U. S. 212. State provisional remedies vary greatly. See 7 Moore’s Fed. Prac. î 64.04 [3].
UNITED STATES v. YAZELL.
357
341	Opinion of the Court.
operative “fédéral” law, differing laws in the different States, depending upon the State where the relevant transaction takes place.34
Although it is unnecessary to décidé in the présent case whether the Texas law of coverture should apply ex proprio vigore—on the theory that the contract here was made pursuant and subject to this provision of state law—or by “adoption” as a fédéral principle, it is clear that the state rule should govern. There is here no need for uniformity. There is no problem in complying with state law; in fact, SBA transactions in each State are specifically and in great detail adapted to state law.35
34 “In our choice of the applicable fédéral rule we hâve occasionally selected state law.” Clearfteld Trust Co. v. United States, 318 U. S. 363, 367. The Court observed in Clearfteld that the difficulty of determining which state rule to apply could be a persuasive argument in favor of a fédéral rule. Ibid. No such difficulty exists here, of course.
In Royal Indemnity Co. v. United States, 313 U. S. 289, cited by the Government for the proposition that “the rights of the United States under contracts entered into as part of an authorized nationwide program are to be determined by fédéral and not by State law,” Brief for the United States, p. 7, the Court, while insisting that “the rule governing the interest to be recovered as damages for delayed payment of a contractual obligation to the United States is not controlled by state statute or local common law,” 313 U. S., at 296, nonetheless held that the statutory rate pre-vailing in the State where the obligation was undertaken and to be performed was a suitable one for adoption by the fédéral courts. Cf. also Board of Commissioners v. United States, 308 U. S. 343.
35 The Financial Assistance Manual of the Small Business Administration, SBA-500, is replete with admonitions to follow state law carefully. Thus §401.03 reads:
“Compliance with Applicable Laws. When the United States disburses its funds, it is exercising a constitutional function or power and its rights and duties are govemed by Fédéral rather than local law. However, it is frequently necessary, in the obtaining of a marketable title or enforceable security interest in property, to follow
358
382 U. S.
OCTOBER TERM, 1965.
Harlan, J., concurring.
There is in this case no defensible reason to override state law unless, despite the contrary indications in Fink v. O’Neïl and elsewhere as has been set forth, we are to take the position that the Fédéral Government is entitled to collect regardless of the limits of its contract and regard-less of any state laws, however local and peculiarly domestic they may be.
The decision below is
Affirmed.
Mr. Justice Harlan, concurring.
I join the Court’s opinion with a single qualification, namely, that I place no reliance on any of the particu-larities of the negotiations between the parties respecting this loan. In my view the conclusion that Texas law governs the issue before us is amply justified by the Court’s appraisal of the competing state and fédéral interests at stake, irrespective of whether the parties negotiated with spécifie reference to Texas law.
local procédural requirements and statutes. Accordingly, care should be used in following or meeting ail applicable requirements and statutes of the State in which the property is located, including the filing and refiling, recording and re-recording of any documents.” See also, e. g., §§ 401.06, 402.04, 403.03, 404.01, 404.02, 406.02, 407.03, 407.04 (“State laws vary as to the dominion a lender must exercise over assigned accounts receivable. ... In drafting servicing provisions . . . counsel should carefully consider the applicable laws of the State . . . .”), 408.01, 410.08 (“In order to guard against this Agency’s liability for payment of Insurance premiums under the standard mortgagee clause in any state the law of which . . . makes the mortgagee so liable, the régional director shall . . .
706.01. Section 1008.03 authorizes a Régional Director of SBA, “In instances where a disaster area is distantly located from the Régional office and where speed and economy of administration make such procedure advisable,” to recommend to the General Counsel that “local counsel be appointed and that he be authorized to rely on such counsel for ail legal matters and closing opinions.” See, in addition, 13 CFR (1965 Supp.) § 122.17.
UNITED STATES v. YAZELL.
359
341	Black, J., dissenting.
Mr. Justice Black, with whom Mr. Justice Douglas and Mr. Justice White join, dissenting.
Because I think the dissenting opinion of Judge Pretty-man in the Court of Appeals gives a more accurate pic-ture of the relevant facts and issues in this case than does the opinion of the Court, and because I agréé with the legal conclusion Judge Prettyman reached for the reasons he gave, I set out his dissent below and adopt it as my own.
“Mrs. Yazell and her husband, trading as a part-nership, borrowed money from the Fédéral Government through the Small Business Administration. They signed a note for the loan. They also signed, as security for the loan, a chattel mortgage on the merchandise in their store. They could not pay, and the Government foreclosed on the security. A deficiency remained. The Government sued on the note, praying judgment for the balance of the loan. Mrs. Yazell moved for summary judgment on the ground that she is a married woman and so, in Texas, no Personal judgment and no judgment afïecting her separate estate can be rendered against her, with a few* exceptions not here material. The District Court judge agreed with her, and so do my brethren on this court. I am contrari-minded.
“A loan from the Fédéral Government is a fédéral matter and should be governed by fédéral law. There being no fédéral statute on the subject, the courts must fashion a rule. This is the clear holding of Clearfield Trust Co. v. United States.1
“To effectuate the policy of the Small Business Act, loans of many hundreds of thousands of dollars each year to businesses must be made throughout the country. These loans can be made only under
G1318 ILS. 363 .. . (1943).”
360
382 U. S.
OCTOBER TERM, 1965.
Black, J., dissenting.
conditions which will reasonably assure repayment.2 I think the Act should be of uniform application throughout the country. If local rules are to govern fédéral contracts in respect to the capacity of mar-ried women to contract, so too should local rules as to ail other features of contractual capacity govern such contracts. Chaos which would nullify fédéral programs for disaster relief would arise. And of course there is no reason to restrict this decision to loans under the Small Business Act. It would nec-essarily apply with equal force to every other fédéral program which involves contracts between the Fédéral Government and individuals. A multitude of programs will be frustrated by it.
“It seems to me that, if a person has capacity to get money from the Fédéral Government, he has the capacity to give it back. The présent lawsuit does not involve a general liability for debt; it in volves merely the obligation to repay to the Government spécifie money borrowed from the Government. It seems to me that if a person borrows a horse from a neighbor he ought to be required to give it back if the owner wants it back, whether or not the bor-rower is a married woman. I suppose the Texas law, by nullifying repayments by married women, tends to minimize ill-advised borrowing. But I think the fédéral rule ought to be that you must repay what you borrow.
“It seems to me that United States v. Helz 3 was correctly decided by the Sixth Circuit and that it applies here. I would follow it.” 334 F. 2d 454, 456.
“215 U.S.C. §636(a)(7); 13 C.F.R. § 120.4-2(c) (1958). “3314 F.2d 301 (1963).”
UNITED STATES v. YAZELL.
361
341	Black, J., dissenting.
Though I think that Judge Prettyman’s dissent is enough to justify his rejection of the Texas law of “coverture” as a part of fédéral law, I consider it appro-priate to add another reason, which in itself would be enough for me. The Texas law of “coverture,” which was adopted by its judges and which the State’s législature has now largely abandoned, rests on the old common-law fiction that the husband and wife are one. This rule has worked out in reality to mean that though the husband and wife are one, the one is the husband. This fiction rested on what I had supposed is today a completely dis-credited notion that a married woman, being a female, is without capacity to make her own contracts and do her own business. I say “discredited” reflecting on the vast number of women in the United States engaging in the professions of law, medicine, teaching, and so forth, as well as those engaged in plain old business ventures as Mrs. Yazell was. It seems at least unique to me that this Court in 1966 should exalt this archaic remnant of a primitive caste System to an honored place among the laws of the United States.
362
OCTOBER TERM, 1965.
Syllabus.
382 U. S.
KOEHRING CO. v. HYDE CONSTRUCTION CO., INC., ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
No. 593. Decided January 17, 1966.
On March 10, 1964, the Court of Appeals for the Fifth Circuit issued an order stating that the District Court for the Southern District of Mississippi had erred in failing to comply with an earlier order to transfer the case to the District Court for the Northern District of Oklahoma and that pending physical transfer of the record “this order shall constitute a transfer to enable the parties to présent the matter to the District Court of Oklahoma.” The Oklahoma fédéral court assumed jurisdiction the next day and entered an order temporarily restraining respondents from proceeding with a state court trial in Mississippi. Respondents disregarded the restraining order and on March 14 the Oklahoma fédéral court found them in civil contempt. Respondents con-tinued with the state action and obtained a judgment against petitioner the enforcement of which the Oklahoma fédéral court enjoined, ordering a retrial in fédéral court in Oklahoma. The Court of Appeals for the Tenth Circuit reversed this decree on appeal, holding that the Oklahoma fédéral court lacked jurisdiction at the time it entered the original restraining order since it had not yet received the case file from the transferor court. Held: The Oklahoma District Court acquired jurisdiction on March 11 in accordance with the Fifth Circuit’s order and the Tenth Circuit erred in vacating the District Court’s orders on the stated jurisdictional ground. The provision in 28 U. S. C. § 1404 (a) that “a district court may transfer any civil action” does not preclude transfer by direct order of an appellate court where unusual circumstances, such as existed here, indicate the necessity thereof.
Certiorari granted; 348 F. 2d 643, reversed and remanded.
Steven E. Keane for petitioner.
Charles Clark for respondents.
KOEHRING CO. v. HYDE CONSTR. CO. 363
362	Per Curiam.
Per Curiam.
On March 11, 1964, pursuant to a transfer order issued by the Court of Appeals for the Fifth Circuit, the United States District Court for the Northern District of Okla-homa entered an order temporarily restraining respond-ents from proceeding with trial of a case in the Mississippi state courts. When respondents, in disregard of the temporary restraining order, proceeded to trial in Mississippi, the District Court on March 14 found them in civil contempt.1 Undeterred, respondents pressed the state court action to a conclusion and obtained a judgment against petitioner on April 8. But the District Court, on September 1, enjoined respondents from seek-ing to enforce the Mississippi judgment, required them to compensate petitioner for reasonable expenses in connection with the contempt proceeding, reserved decision as to whether they must also reimburse petitioner for expenses relating to the Mississippi litigation, and ordered the civil suit between the parties retried—this time in Oklahoma and in fédéral court.
Respondents appealed from this decree to the Court of Appeals for the Tenth Circuit which reversed, holding that at the time the District Court had entered the original restraining order it was without jurisdiction since it had not yet received the case file from the transférer court. We are asked to review that détermination. We grant the pétition and reverse.
The District Court had assumed jurisdiction of the cause and entered its restraining order on March 11, five days before the papers in the case were trans-ferred to it from Mississippi. It acted upon the basis of a certified copy of an order entered the previous day by
1 Criminal contempt charges were also filed, but are not involved in the présent pétition.
364
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
the Court of Appeals for the Fifth Circuit. That order provided not only that the District Court for the Southern District of Mississippi had erred in failing to comply with an earlier appellate mandate to transfer the case, but also that “pending the entry of the order of transfer by the District Judge and the physical filing of the record in Oklahoma, this order shall constitute a transfer to enable the parties to présent the matter to the District Court of Oklahoma.”
Although a fédéral appellate court does not ordinarily itself transfer a case to another district, but remands to the District Court for that purpose,2 the extraordinary action in this case was taken as a resuit of extraordinary circumstances. These included the fact that the Fédéral District Court in Mississippi had granted a motion to dismiss despite instructions from the Fifth Circuit to transfer the cause to Oklahoma,3 and the further fact that trial of a duplicative action in the Mississippi state courts brought by respondent Hyde Construction Company was to commence, and did in fact commence, on March 11—one day after the Fifth Circuit’s instanter transfer and the very day on which the Fédéral District Court in Oklahoma entered its order.
In the spécial circumstances of this case, we conclude that the District Court in Oklahoma had acquired jurisdiction on March 11 in accordance with the Fifth Circuit’s order for instanter transfer and that the Tenth Circuit erred in vacating the District Court’s orders on
2 Cf. Platt v. Minnesota Mining Co., 376 U. S. 240 (under Rule 21 (b) of the Fédéral Rules of Criminal Procedure).
3 The Fifth Circuit suggests that the District Court’s action was the resuit of misunderstanding over whether an answer had been filed and hence of its duty to grant a voluntary dismissal under Rule 41 (a)(l) of the Fédéral Rules of Civil Procedure, rather than the resuit of unreadiness to respect appellate instructions.
KOEHRING CO. v. HYDE CONSTR. CO. 365
362	Black, J., dissenting.
the stated jurisdictional ground. We do not read 28 U. S. C. § 1404 (a), providing that “a district court may transfer any civil action,” as precluding an appellate court, where unusual circumstances indicate the neces-sity thereof, from effecting a transfer by direct order.4 Accordingly, we grant the pétition, reverse the judgment, and remand to the District Court for the Northern District of Oklahoma for further proceedings consistent with this opinion, reserving to the parties the right to apply to that court to hâve the case transferred back to the Southern District of Mississippi because of changed conditions.5
Mr. Justice Black, with whom Mr. Justice Douglas joins, dissenting.
I think, as shown by the record and the carefully pre-pared opinions of the able judges in both the Fifth and the Tenth Circuits, that the circumstances of this case are both too complex and obscure, and the issues which con-cern among other things the relationship between state and fédéral courts and the transfer of cases between fédéral courts are ail too important to be treated in the cursory manner as they are by the Court here. This Court’s reversai of the judgment below, without giving respondents any opportunity for oral argument to support the thoroughly considered opinion and holding of the Tenth Circuit, seems more extraordinary to me than what the Court’s per curiam opinion refers to as the “extraordinary circumstances” in the courts below. I dissent from that course of action taken by this Court.
4 Drdbik v. Murphy, 246 F. 2d 408 (C. A. 2d Cir.), is not author-ity for the proposition that the transférée court fails to acquire jurisdiction until papers are received from the transférer court. On the contrary, Drdbik suggests that the transferor court may lose jurisdiction before that event.
5 This réservation was made in the opinion of the Fifth Circuit.
366
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD et al.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 87. Decided January 17, 1966.
Certiorari granted; judgments vacated and remanded.
Irving Abramson, Benjamin C. Sigal and Winn I. Newman for petitioner.
Soliciter General Cox, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Laurence S. Gold for National Labor Relations Board, and David L. Benetar and Sanjord Browde for General Electric Co., respondents.
Per Curiam.
The pétition for a writ of certiorari to the United States Court of Appeals for the Second Circuit is granted, the judgments are vacated and the case is remanded to that court for further considération in light of Automobile Workers v. Scofield, ante, p. 205.
LLOYD v. BRICK et al.
APPEAL FROM THE COURT OF APPEALS OF MARYLAND.
No. 679. Decided January 17, 1966.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
DECISIONS PER CURIAM.
367
382 U. S.	January 17, 1966.
ALTIERE v. UNITED STATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 100. Deeided January 17, 1966.
Certiorari granted; 343 F. 2d 115, vacated and remanded.
Anna R. Lavin and Maurice J. Walsh for petitioner.
Soliciter General Cox for the United States.
Per Curiam.
In the light of the suggestion of the Solicitor General and an independent examination of the record, the pétition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the United States District Court for the Northern District of Illinois for further proceedings in light of Sansone v. United States, 380 U. S. 343.
SMITH et al. v. AYRES, MAYOR, et al.
APPEAL FROM THE SUPREME COURT OF FLORIDA.
No. 690. Deeided January 17, 1966.
174 So. 2d 727, appeal dismissed and certiorari denied.
Robert J. Corber for appellants.
Wallace E. Sturgis, Jr., for appellees.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
368
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
PENNSYLVANIA RAILROAD CO. et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
No. 556. Decided January 17, 1966.
Affirmed.
Paul R. Duke and Edward A. Kaier for appellants.
Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Neil Brooks, Robert W. Ginnane and I. K. Hay for the United States et al. Léo A. Larkin, Samuel Mandell, Sidney Goldstein, F. A. Mulhern, Arthur L. Winn, Jr., Samuel H. Moerman, J. Raymond Clark and James M. Henderson for appellee Port of New York Authority.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
ATLANTIC GULF & PACIFIC CO. v. GEROSA, COMPTROLLER OF THE CITY OF NEW YORK.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 718. Decided January 17, 1966.
16 N. Y. 2d 1, 209 N. E. 2d 86, appeal dismissed.
Richard H. Appert for appellant.
Léo A. Larkin, Stanley Buchsbaum and Samuel J-Warms for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
DECISIONS PER CURIAM.
369
382 U. S.	January 17, 1966.
NATIONAL BUS TRAFFIC ASSOCIATION, INC., et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.
No. 635. Decided January 17, 1966.
Affirmed.
Robert J. Bernard, Drew L. Carraway, John S. Fessen-den and Richard R. Sigmon for appellants.
Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Robert W. Ginnane and Leonard S. Goodman for the United States et al.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
GREAT COASTAL EXPRESS, INC., et al. v. UNITED STATES et al.
APPPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.
No. 677. Decided January 17, 1966.
243 F. Supp. 943, affirmed.
John C. Bradley for appellants.
Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Jerry Z. Pruzansky and Robert W. Ginnane for the United States et al. Francis W. Mclnerny for Turner’s Express, Inc., et al., appellees.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
786-211 0-66—33
370
OCTOBER TERM, 1965.
January 17, 1966.
382 U.S.
NORTHWESTERN PACIFIC RAILROAD CO. v. PUBLIC UTILITIES COMMISSION OF
CALIFORNIA.
APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
No. 676. Decided January 17, 1966.
Appeal dismissed.
Thormund A. Miller, Jeremiah C. Waterman and Randolph Karr for appellant.
Mary Moran Pajalich and Hector Anninos for appellee.
Boris H. Lakusta for the City of San Rafael et al.
Per Curiam.
The motion of the City of San Rafael, California, et al. for leave to be named parties appellee is denied. The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
SCHILDHAUS v. ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 732. Decided January 17, 1966.
Appeal dismissed and certiorari denied.
Arnold Schildhaus, appellant, pro se.
John G. Bonomi and Michael Franck for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiçtion. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
DECISIONS PER CURIAM.
371
382 U. S.	January 17, 1966.
CONVOY CO. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON.
No. 719. Decided January 17, 1966.
Affirmed.
Marvin Handler and Moe M. Tonkon for appellant.
Soliciter General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Robert W. Ginnane, I. K. Hay and Betty Jo Christian for the United States et al. Donald W. Smith for Commercial Carriers, Inc., appellee.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
JOHN v. JOHN.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 699. Decided January 17, 1966.
16 N. Y. 2d 675, 210 N. E. 2d 457, appeal dismissed and certiorari denied.
Warner Pyne for appellant.
Irwin L. Germaise for appellee.
Per Curiam.
The motion to dispense with printing the motion to dismiss or affirm is granted.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
372
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
No. 510. Decided January 17, 1966.*
242 F. Supp. 890, affirmed.
Peter T. Beardsley, Richard R. Sigmon, Bryce Rea, Jr., and Ralph C. Busser, Jr., for appellants in No. 510. Cari Helmetag, Jr., for appellant in No. 511.
Solicitor General Marshall, Assistant Attorney General Turner, Lionel Kestenbaum and Robert W. Ginnane for the United States et al. John F. Donelan and John M. Cleary for National Industrial Traffic League, ap-pellee in both cases. Joseph E. Keller and W. H. Borghesani, Jr., for South Paterson Trucking Co., Inc., et al.; and William A. Goichman and Joseph C. Bruno for Pennsylvania Public Utility Commission, appellees in No. 511.
Per Curiam.
The motions to affirm are granted and the judgment is affirmed.
Mr. Justice Black and Mr. Justice Harlan are of the opinion that probable jurisdiction should be noted.
*Together with No. 511, Pennsylvania Railroad Co. v. United States et al., also on appeal from the same court.
DECISIONS PER CURIAM.
373
382 U. S.
January 17, 1966.
AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. UNITED STATES et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
No. 662. Decided January 17, 1966.
242 F. Supp. 597, affirmed.
Peter T. Beardsley, Richard R. Sigmon and Harry C. Ames, Jr., for appellants.
Soliciter General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Robert W. Ginnane and Betty Jo Christian for the United States et al. William M. Moloney, Hugh B. Cox, William H. Allen and James A. Bistline for Atchison, Topeka & Santa Fe Railway Co. et al., appellees.
Per Curiam.
The motion of the Atchison, Topeka & Santa Fe Railway Company et al. to be added as parties appellee is granted.
The motions to affirm are granted and the judgment is affirmed.
374
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
NEWSPAPER DRIVERS & HANDLERS LOCAL UNION NO. 372, INTERNATIONAL BROTHER-HOOD OF TEAMSTERS, CHAUFFEURS, WARE-HOUSEMEN & HELPERS OF AMERICA, INC. v. DETROIT NEWSPAPER PUBLISHERS ASSOCIATION ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 663. Decided January 17, 1966.
Certiorari granted; 346 F. 2d 527, judgments vacated and remanded.
David Previant for petitioner.
Philip T. Van Zile II for Detroit Newspaper Pub-lishers Association et al. ; and Soliciter General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for National Labor Relations Board, respondents.
Per Curiam.
The pétition for a writ of certiorari to the United States Court of Appeals for the Sixth Circuit is granted, the judgments are vacated and the case is remanded to that court with instructions that the case be remanded to the National Labor Relations Board for further considération in light of American Ship Building Co. v. Labor Board, 380 U. S. 300.
SEGAL v. ROCHELLE.
375
Syllabus.
SEGAL, dba SEGAL COTTON PRODUCTS, et al. v. ROCHELLE, TRUSTEE IN BANKRUPTCY.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 44. Argued November 17, 1965.—Decided January 18, 1966.
On September 27, 1961, the individual petitioners and their business partnership filed bankruptcy pétitions. After the end of that year loss-carryback fédéral income tax refunds were obtained for the individual petitioners based on the firm’s losses during 1961 prior to bankruptcy which were offset against income for 1959 and 1960 on which taxes had been paid. These refunds, on de-posit in a spécial account by the bankruptcy trustée, are claimed by petitioners on the ground that bankruptcy had not passed the refund daims to the trustée. The referee ruled against petitioners, as did the District Court and the Court of Appeals, the latter holding that the loss-carryback refund daims were both “property” and “transférable” at the time of the bankruptcy pétition and thus had passed to the trustée. Held:
1.	These inchoate daims for loss-carryback refunds constituted “property” as that term is used in § 70a (5) of the Bankruptcy Act. Pp. 379-381.
(a)	The classification as “property” is govemed by the pur-poses of the Act. P. 379.
(b)	The main thrust of § 70a (5) being to obtain for credi-tors everything of value possessed by the bankrupt in aliénable form at the time the pétition was filed, the term “property” has been generously construed and does not exclude interests which are novel or contingent or where enjoyment must be postponed. P. 379.
(c)	The term is limited by another purpose of the Act, which is to leave the bankrupt free after the date of the pétition to acquire new wealth. P. 379.
(d)	The loss-carryback refund claim is sufficiently rooted in the prebankruptcy past and so little enmeshed with the bank-rupt’s ability to make an unencumbered new start that it should be regarded as “property” under § 70a (5). P. 380.
2.	The refund daims were property which prior to filing the pétition could hâve been “transferred” within the meaning of §70a(5). Pp. 381-385.
376	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
(a)	The Assignment of Claims Act, 31 U. S. C. § 203, does not always prevent giving effect, between the parties, to a non-complying transfer, Martin v. National Surety Co., 300 U. S. 588. P. 384.
(b)	In Texas, where the petitioners resided and did business, the precedents leave little doubt that an assignment of the refund claims would normally be enforced in equity between the parties. Pp. 384-385.
336 F. 2d 298, affirmed.
Henry Klepak argued the cause and filed a brief for petitioners.
William J. Rochelle, Jr., argued the cause pro se. With him on the brief was Marvin S. Sloman.
Mr. Justice Harlan delivered the opinion of the Court.
This case, presenting a difficult question of bankruptcy law on which the circuits hâve differed, arises out of the following facts. On September 27, 1961, voluntary bankruptcy pétitions were filed in a fédéral court in Texas by Gerald Segal, Sam Segal, and their business partnership, Segal Cotton Products. A single trustée, Rochelle, was designated to serve in ail three proceedings. After the close of that calendar year, loss-carryback tax refunds were sought and obtained from the United States on behalf of Gerald and Sam Segal under Internai Revenue Code § 172. The losses underlying the refunds had been suffered by the partnership during 1961 prior to the filing of the bankruptcy pétitions; the losses were carried back to the years 1959 and 1960 to offset net in-come on which the Segals had both paid taxes. By agreement, Rochelle deposited the refunds in a spécial account, and the Segals applied to the referee in bankruptcy to award the refunds to them on the ground that bankruptcy had not passed the refund claims to the trustée.
SEGAL v. ROCHELLE.	377
375	Opinion of the Court.
Concluding that the refund daims had indeed passed under § 70a (5) of the Bankruptcy Act1 as “property ... which prior to the filing of the pétition . . . [the bank-rupt] could by any means hâve transferred,” the referee denied the Segals’ application. The District Court affirmed the déniai, and the Segals and their partnership appealed to the Court of Appeals for the Fifth Circuit.2 That court too rejected the Segals’ contention.
As the Court of Appeals here recognized, the Court of Appeals for the First Circuit in Fournier v. Rosenblum, 318 F. 2d 525, and the Court of Appeals for the Third Circuit in In re Sussman, 289 F. 2d 76, hâve both ruled squarely that a bankrupt’s loss-carryback refund daims based on losses in the year of bankruptcy do not pass to the trustée but instead the bankrupt is entitled to the refunds when they are ultimately paid. Concedédly, under § 70a (5) the trustée must acquire the bankrupt’s “property” as of the date the pétition is filed and property subsequently acquired belongs to the bankrupt. See note 1, supra; 4 Collier, Bankruptcy H 70.09 (14th ed. 1962). Since the tax laws allow a loss-carryback refund daim to be made only when the year
130 Stat. 565, as amended, 11 U. S. C. §110 (a)(5) (1964 ed.). In relevant part that section provides: “(a) The trustée of the estate of a bankrupt . . . shall . . . be vested by operation of law with the title of the bankrupt as of the date of the filing of the pétition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to ail of the following kinds of property wherever located . . . (5) property, including rights of action, which prior to the filing of the pétition he could by any means hâve transferred or which might hâve been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered . . . .”
■ The wife of Gerald Segal and the estate of the deceased wife of Sam Segal had unsuccessfully urged before the referee their own contingent rights to half the refunds, but review on this issue was not sought.
378	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
has closed, see I. R. C. §§ 172 (a), (c), 6411, both the First and Third Circuits reasoned that prior to the year’s end a loss-carryback refund claim was too tenu-ous to be classed as “property” which would pass under § 70a (5). Alternatively, the Third Circuit stated that because of the fédéral anti-assignment statute,3 inchoate refund claims were not in any event property “which prior to the filing of the pétition . . . [the bankrupt] could by any means hâve transferred,” as § 70a (5) also requires. Both circuits felt the resuit to be unfortunate, not least because the very losses generating the refunds often help precipitate the bankruptcy and in jury to the creditors, but both believed the statutory language left no option.
After detailed discussion of the problems, the Court of Appeals in this case resolved that the loss-carryback refund claims were both “property” and “transférable” at the time of the bankruptcy pétition and hence had passed to the trustée. 336 F. 2d 298. We granted certiorari because of the conflict and the significance of the issue in bankruptcy administration.4 380 U. S. 931.
3 Rev. Stat. §3477, as amended, 31 U. S. C. §203 (1964 ed.). The section, so far as relevant, States: “Ail transfers and assign-ments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the considération therefor . . . shall be abso-lutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.”
4 Considérable commentary has been directed to the problem. Practically ail the writers agréé that it is désirable for the trustée to receive the refunds although a minority contend that existing law will not permit this resuit. See Herzog, Bankruptcy Law—Modem Trends, 36 Ref. J. 18 (1962); 60 Nw. U. L. Rev. 122 (1965); 40 Notre Dame Law. 118 (1964) ; 14 Stan. L. Rev. 380 (1962) ; 40 Tex. L. Rev. 569 (1962); 42 Tex. L. Rev. 542 (1964); 17 U. Fia. L. Rev. 241 (1964); 16 U. Miami L. Rev. 345 (1961); 110 U. Pa. L. Rev. 275 (1961).
SEGAL v. ROCHELLE.
379
375	Opinion of the Court.
Conceding the question to be close, we are persuaded by the reasoning of the Fifth Circuit and we affirm its decision.
I.
We turn first to the question whether on the date the bankruptcy pétitions were filed, the potential daims for loss-carryback refunds constituted “property” as § 70a (5) employs that term. Admittedly, in interpreting this section “[i]t is impossible to give any categorical définition to the word ‘property,’ nor can we attach to it in certain relations the limitations which would be attached to it in others.” Fisher v. Cushman, 103 F. 860, 864. Whether an item is classed as “property” by the Fifth Amend-ment’s Just-Compensation Clause or for purposes of a state taxing statute cannot décidé hard cases under the Bankruptcy Act, whose own purposes must ultimately govern.
The main thrust of § 70a (5) is to secure for creditors everything of value the bankrupt may possess in aliénable or leviable form when he files his pétition. To this end the term “property” has been construed most gen-erously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed. E. g., Horton v. Moore, 110 F. 2d 189 (contingent, postponed interest in a trust) ; Kleinschmidt v. Schroeter, 94 F. 2d 707 (limited interest in future profits of a joint venture) ; see 3 Remington, Bankruptcy §§ 1177-1269 (Henderson ed. 1957). However, limitations on the term do grow out of other purposes of the Act; one purpose which is highly prominent and is relevant in this case is to leave the bankrupt free after the date of his pétition to accumulate new wealth in the future. Accordingly, future wages of the bankrupt do not constitute “property” at the time of bankruptcy nor, analogously, does an intended bequest to him or a prom-ised gift—even though state law might permit ail of these
380
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
to be alienated in advance. E. g., In re Coleman, 87 F. 2d 753 ; see 4 Collier, Bankruptcy O 70.09, 70.27 ( 14th ed. 1962). Turning to the loss-carryback refund claim in this case, we believe it is sufficiently rooted in the pre-bankruptcy past and so little entangled with the bank-rupts’ ability to make an unencumbered fresh start that it should be regarded as “property” under § 70a (5).
Temporally, two key éléments pointing toward realiza-tion of a refund existed at the time these bankruptcy pétitions were filed: taxes had been paid on net income within the past three years, and the year of bankruptcy at that point exhibited a net operating loss. The Segals stress in this Court that under the statutory scheme no refund could be claimed from the Government until the end of the year, but as cases already cited indicate, post-poned enjoyment does not disqualify an interest as “property.” That earnings by the bankrupt after filing the pétition might diminish or eliminate the loss-carryback refund claim does further qualify the interest, but we hâve already noted that contingency in the abstract is no bar and the actual risk that the refund claims may be erased is quite far from a certainty.5 Un-like a pre-bankruptcy promise of a gift or bequest, passing title to the trustée does not make it unlikely the gift or bequest will be effected. Nor does passing the claim hinder the bankrupt from starting out on a clean slate, for any administrative inconvenience to the bankrupt will not be prolonged, see 110 U. Pa. L. Rev., at 279-280, and the bankrupt without a refund claim to preserve has more reason to earn income rather than less.
5 So far as losses by the bankrupt after filing but before the year’s end might increase the refund—a situation not claimed to be présent in this case—the Court of Appeals suggested “[a] proration of the refund in the ratio of the losses before and after the filing date would be indicated . . . .” 336 F. 2d, at 302, n. 5.
SEGAL v. ROCHELLE.
381
375	Opinion of the Court.
We are told that if this loss-carryback refund claim is “property,” that label must also attach to loss-carryovers, that is, the application of pre-bankruptcy losses to earnings in future years. Since losses may be carried for-ward five years and in some cases even seven or ten years, L R. C. §§ 172 (b)(l)(B)-(D), great hardship for the estate is foreseen by petitioners in keeping it open for this length of time. While in fact the trustée can obviate this détriment to the estate—by selling a contingent claim in some instances or simply forgoing it—inconvenience and hindrance might be caused for the bankrupt individual. Without ruling in any way on a question not before us, it is enough to say that a carry-over into post-bankruptcy years can be distinguished conceptually as well as practically. The bankrupts in this case had both prior net income and a net loss when their pétitions were filed and apparently would hâve de-served an immédiate refund had their tax year terminated on that date; by contrast, the supposed loss-carryover would still need to be matched in some future year by earnings, earnings that might never eventuate at ail.
II.
Having concluded that the loss-carryback refund daims in this case constituted “property” at the time of the bankruptcy pétitions, it remains for us to décidé whether in addition they were property “which prior to the filing of the pétition . . . [the bankrupt] could by any means hâve transferred . ...”0 The prime ob-
6 The “choice of law” rules relevant to this question are not in dispute. What would constitute a “transfer” is a matter of fédéral law. 4 Collier, Bankruptcy 170.15, at 1035-1036 and n. 25 (14th ed. 1962). Whether an item could hâve been so transferred is determined generally by state law, save that on rare occasions overriding fédéral law may control this détermination or bear upon it. Id., at 1034-1035 and n. 22. The Segals were Texas residents, the business was apparently based in Texas, and the bankruptcy court was located there; no other State’s law is claimed to be relevant.
382
382 U.S.
OCTOBER TERM, 1965.
Opinion of the Court.
stade to an affirmative answer is 31 U. S. C. § 203, which renders “absolutely null and void” ail transfers of any claim against the United States unless among other conditions the claim has been allowed and the amount ascertained. See n. 3, supra. Plainly since the tax laws calculate the refund only on the full year’s expérience after the year has closed, the daims in the présent instance could not hâve been allowed or ascertained at the time the pétitions were filed.
The respondent argues that the transferability require-ment of § 70a (5) can be met by relying on the long-established rule that § 203 does not apply to prevent transfers by “operation of law.” See United States v. Aetna Surety Co., 338 U. S. 366, 373-374; Goodman v. Niblack, 102 U. S. 556, 560.7 The phrasing of § 70a (5), however, suggests that it contemplâtes a voluntary transfer and is not satisfied simply because property could hâve been transferred by operation of law, such as by death, bankruptcy, or judicial process. Not only is there practically no form of property that would not be transférable under the broader reading, but such a reading also makes redundant the alternative route for complying with § 70a (5) through showing that the property “might hâve been levied upon and sold under judicial process . ...”8 Admittedly, the Bankruptcy Act de-fines the word “transfer” in its general definitional section to include at least certain transfers that are “invol-
7 This exception is the simplest reason why § 203 does not interfère with the vesting in the trustée of property coming within § 70a (5), for ail transfers under § 70a are explicitly by “operation of law,” see n. 1, supra; but of course property must still qualify as transférable within the meaning of § 70a (5).
8 See n. 1, supra. The respondent has not argued that under Texas law the Segals’ inchoate refund daims would be subject to such judicial process, and apparently in Texas the daims’ contingent status would render this argument quite doubtful. See 26 Tex. Jur. 2d, Gamishment § 17 (1961), and cases there cited.
SEGAL v. ROCHELLE.
383
375	Opinion of the Court.
untary,”9 but legislative history indicates that the introduction of this latter term into the Act 40 years after its framing was not aimed at § 70a (5) at ail. See H. R. Rep. No. 1409, 75th Cong., Ist Sess., p. 5; Analysis of H. R. 12889, 74th Cong., 2d Sess., p. 7 (House Judi-ciary Comm. Print).
Difficulty in defining the term “transfer” is enhanced by the absence of any explanation for Congress’ having made transferability a condition in the first place. Bankruptcy Acts prior to the présent one enacted in 1898 had no like limitation on the trustee’s succession to property, see Bankruptcy Acts of 1867, § 14, 14 Stat. 522; of 1841, § 3, 5 Stat. 442; and of 1800, §§ 5,13, 2 Stat. 23, 25, and under the predecessor Act daims against the Government passed without impediment to the trustée. See, e. g., Erwin v. United States, 97 U. S. 392. This history and the chance that the 1898 limitation sought only to respect state policies against alienating property such as a contingent remainder or spendthrift trust fund argue for flatly ignoring the limitation in this instance. See 14 Stan. L. Rev., at 383-386. Nevertheless, we hâve been shown no legislative history on the point, and an uncertain guess at Congress’ intent provides dubious ground for disregarding its plain language. In any event, we are not prepared to accept this argument, just as we cannot now go beyond a narrow définition of the term “transfer,” in a case in which these points hâve not been thoroughly briefed by the parties.
9 Bankruptcy Act §1(30), as amended by the Chandler Act, 52 Stat. 842, as amended, 11 U. S. C. § 1 (30) (1964 ed.), perti-nently reads : “ ‘Transfer’ shall include the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale, assignment, payment, pledge, mortgage, lien, encumbrance, gift, security, or otherwise ....”
384
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
The Court of Appeals determined that despite § 203 a sufficient voluntary transfer of the loss-carryback refund claim could hâve been made prior to bankruptcy to sat-isfy § 70a (5), and on balance we share this view. In Martin v. National Surety Co., 300 U. S. 588, 596, a unanimous Court held that § 203, in spite of its broad language, “must be interpreted in the light of its pur-pose to give protection to the Government” so that between the parties effect might still be given to an assign-ment that failed to comply with the statute. The opinion reasoned that after daims hâve been collected by the assigner, requiring compliance with the invalid assignment by transfer of the recovery to the assignée presented no danger that the Government might become “embroiled in conflicting daims, with delay and embar-rassment and the chance of multiple liability.” 300 U. S., at 594. While other circumstances encouraged Martin to uphold the assignment and this Court has not faced the problem head-on since that time, we find no reason to retreat now from the basic holding in Martin which was both anticipated and followed by a number of other courts, state and fédéral. See California Bank v. United States Fid. de Guar. Co., 129 F. 2d 751; Royal Indem. Co. v. United States, 93 F. Supp. 891; Leonard v. Whaley, 91 Hun 304, 36 N. Y. Supp. 147; Ann., 12 A. L. R. 2d 460, 468-475 (1950). Among these States is Texas, whose precedents leave little doubt that an assignment of the daims at issue would be enforced in equity in the normal case. Trinity Univ. Ins. Co. v. First State Bank, 143 Tex. 164, 183 S. W. 2d 422; see United Hay Co. v. Ford, 124 Tex. 213, 76 S. W. 2d 480 (dictum).
It should not be pretended that this contemplated “transfer” is one in the fullest sense that term permits. For example, this Court has ruled that one holding a claim invalidly assigned under § 203 may not sue the Government upon it though he join his assigner as well.
SEGAL v. ROCHELLE.
385
375	Opinion of the Court.
United States v. Shannon, 342 U. S. 288. Yet it remains true that a Texas court of equity could and would compel the assignment of any refund received, if indeed it might not try to compel a reluctant assigner to collect the claim or make it over by a valid assignment when that became possible. This, we believe, suffices to make the Segals’ daims transférable within the meaning of § 70a (5). Cf. 4 Collier, Bankruptcy fl 70.37, at 1293, n. 6 (14th ed. 1962).
Affirmed.
786-211 0-66—34
386
OCTOBER TERM, 1965.
Syllabus.
382 U.S.
CALIFORNIA v. BUZARD.
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
No. 40. Argued November 16, 1965.—Decided January 18, 1966.
Respondent, a résident of Washington, was stationed in California under military orders. He bought an automobile while tempo-rarily assigned in Alabama, where he registered it and obtained Alabama license plates. California, on his return, insisted he could not use the Alabama plates in that State but that he had to register the car in California and obtain California plates. When he sought to do so he was advised that he had to pay a registration fee and a 2% “license fee” under the state revenue and tax code. He refused to pay the latter fee. Respondent was thereafter convicted for violating a California misdemeanor provision by driving a vehicle on California highways without registering it and paying “appropriate fees.” The California Suprême Court reversed the District Court of Appeal’s affirm-ance of the conviction, on the ground that California had im-properly conditioned registration of respondent’s car on payment of a fee from which he was exempt under § 514 of the Soldiers’ and Sailors’ Civil Relief Act of 1940. Section 514 (2) (b) of the Act provides for exemption in the case of motor vehicles, provided that the fee “required by” the home State has been paid. The court reasoned that in respondent’s case no such payment to the home State was necessary since the duty to register is imposed only as to cars driven on the home State’s highways and he had not driven in the home State that year; that the terms of the proviso were satisfied; and that, since no payment was required, respondent was not subject to the California tax. Held:
1.	The condition in § 514 (2) (b) for the exemption applicable to nonresident servicemen that they must hâve paid the licenses, fees, or excises “required by” the State of résidence or domicile means that they must hâve paid such licenses, fees, or excises “of” that State. It was not Congress’ intention to permit servicemen in respondent’s position completely to avoid registration and licensing requirements, which are within the State’s police power to impose. Servicemen may be required to register their cars and obtain license plates in host States if they do not do so in their home States, and may be required to pay ail taxes essential thereto. Pp. 391-392.
CALIFORNIA v. BUZARD.
387
386	Opinion of the Court.
2.	Congress did not intend to include in § 514 (2) (b) taxes imposed only to defray the costs of highway maintenance. Since California authorities had determined that Califomia’s 2% “license fee” serves primarily a revenue purpose and is not essential to assure registration of motor vehicles, it does not constitute a “license, fee, or excise” within the meaning of § 514 (2) (b) and nonresident servicemen are therefore exempt from its imposition regardless of whether they are required to register and license their motor vehicles in California because of a failure to do so in their home States. Pp. 392-396.
3.	As the California Suprême Court held, the invalidity as to the respondent of the 2% “license fee” constituted a valid defense to the misdemeanor violation for which he was convicted. P. 396.
61 Cal. 2d 833, 395 P. 2d 593, affirmed.
Doris H. Maier, Assistant Attorney General of California, argued the cause for petitioner. With her on the briefs were Thomas C. Lynch, Attorney General, and Edsel W. Haws, Deputy Attorney General.
Thomas Keister Greer argued the cause for respondent. With him on the brief was C. Ray Robinson.
Acting Solicitor General Spritzer, Acting Assistant Attorney General Jones and I. Henry Kutz filed a mémorandum for the United States, as amicus curiae, urging reversai.
Mr. Justice Brennan delivered the opinion of the Court.
Section 514 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 56 Stat. 777, as amended, provides a nonresident serviceman présent in a State in compliance with military orders with a broad immunity from that State’s personal property and income taxation. Section 514 (2)(b) of the Act further provides that
“the term ‘taxation’ shall include but not be limited to licenses, fees, or excises imposed in respect to
388	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State . . . of which the person is a résident or in which he is domiciled has been paid.” 1
The respondent here, Captain Lyman E. Buzard, was a résident and domiciliary of the State of Washington stationed at Castle Air Force Base in California. He had purchased an Oldsmobile while on temporary duty in Alabama, and had obtained Alabama license plates for it by registering it there. On his return, California refused to allow him to drive the car on California high-
x50 U. S. C. App. §574 (2)(b). Section 514, 50 U. S. C. App. § 574, reads in relevant part as follows :
“(1) For the purposes of taxation in respect of any person, or of his Personal property, income, or gross income, by any State, . . . such person shall not be deemed to hâve lost a résidence or domicile in any State, . . . solely by reason of being absent therefrom in compliance with military or naval orders, or to hâve acquired a résidence or domicile in, or to hâve become résident in or a résident of, any other State, . . . while, and solely by reason of being, so absent. For the purposes of taxation in respect of the Personal property, income, or gross income of any such person by any State, . . . of which such person is not a résident or in which he is not domiciled, . . . Personal property shall not be deemed to be located or présent in or to hâve a situs for taxation in such State, Territory, possession, or political subdivision, or district. . . .
“(2) When used in this section, (a) the term ‘personal property’ shall include tangible and intangible property (including motor vehicles), and (b) the term ‘taxation’ shall include but not be lim-ited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State . . . of which the person is a résident or in which he is domiciled has been paid.” (50 U. S. C. App. § 574.)
The unitalicized text was enacted in 1942, 56 Stat. 777. Con-cem whether nonresident servicemen were sufficiently protected from Personal property taxation by host States led to a clarifying amend-ment in 1944, 58 Stat. 722. That amendment gave §514 its two subsections. The italicized words in subsection (1) are the relevant additions to the original section. Subsection (2) was entirely new.
CALIFORNIA v. BUZARD.
389
386	Opinion of the Court.
ways with the Alabama plates, and, since he had not registered or obtained license tags in his home State, de-manded that he register and obtain license plates in California. When he sought to do so, it was insisted that he pay both the registration fee of $8 imposed by California’s Vehicle Code2 and the considerably larger “license fee” imposed by its Revenue and Taxation code.3 The license fee is calculated at “two (2) percent of the market value of the vehicle,” § 10752, and is “imposed ... in lieu of ail taxes according to value levied for State or local purposes on vehicles . . . subject to registration under the Vehicle Code . . . .” § 10758. Captain Buzard refused to pay the 2% fee,4 and was prosecuted and convicted for violating Vehicle Code § 4000, which provides that “[N]o person shall drive . . . any motor vehicle . . . upon a highway unless it is registered and the appropriate fees hâve been paid under this code.” The conviction, affirmed by the District Court of Appeal, 38 Cal. Rptr. 63, was reversed by the Suprême Court of California, 61 Cal. 2d 833, 395 P. 2d 593. We granted certiorari, 380 U. S. 931, to consider whether § 514 barred California from exacting the 2% tax as a condition of registering and licensing Captain Buzard’s car. We conclude that it did, and affirm.
The California Suprême Court’s reversai of Captain Buzard’s conviction depended on its reading of the
2 The relevant provisions of the Vehicle Code, enacted in 1935, and recodified in 1959, are §§ 4000, 4750 and 9250.
3 The relevant provisions of the Revenue and Taxation Code, enacted in 1939, are §§ 10751, 10752 and 10758.
4 Captain Buzard did not hâve sufficient cash to pay the $8 registration fee and the approximately $100 demanded in payment of the 2% tax and penalties. He testified without contradiction that at that time he “didn’t refuse to pay” the tax. “He [the registration officer] said, ‘Do you want to pay it now?’ and I said, T don’t hâve the money in cash with me, will you accept a check?’ and he said, ‘No.’ ” It was thereafter that Captain Buzard asserted his contention that the tax could not legally be assessed.
390
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
words “required by” in the proviso of § 514 (2)(b). In the context of the entire statute and its prior construction, it gave those words the effect of barring the host State from imposing a motor vehicle “license, fee, or excise” unless (1) there was such a tax owing to and assessed by the home State and (2) that tax had not been paid by the serviceman. The mandatory registration statute of Washington, as of most States, imposes the duty to register only as to cars driven on its high-ways, and Captain Buzard had not driven his car in Washington during the registration year. The court rea-soned that there was thus no “license, fee, or excise” owing to and assessed by his home State. Since there was on this view no tax “required by” Washington, the court concluded that California could not impose its tax, even though Captain Buzard had not paid any Washington tax.
If this reading of the phrase “required by” in the proviso were correct, no host State could impose any tax on the licensing or registration of a serviceman’s motor vehicle unless he had not paid taxes actually owing to and assessed by his home State. If the serviceman were under no obligation to his home State, and payment of taxes was a prerequisite of registration or licensing under the host State statutes, the host State authorities might consider themselves precluded from registering and licensing his car. The California court did not confront this conséquence of its construction, because it regarded the relevant provisions of California statutes as allowing registration and licensing whether or not taxes were paid; hence, the possibility of unregis-tered cars using the California highways was thought not to be at issue.8 The court’s construction, however, per-
5 “Défendant does not contend that California may not, as an exercise of its police power, require him to register his automobile. In fact, his attempt to register the vehicle independently of the
CALIFORNIA v. BUZARD.
391
386	Opinion of the Court.
tained to the fédéral, not the state, statute; if correct, it would similarly restrict the imposition of other host States’ registration and licensing tax provisions, whether or not they are as flexible as California’s. We must therefore consider the California court’s construction in the light of the possibility that in at least some host States, it would permit servicemen to escape registration requirements altogether.
Thus seen, the California court’s construction must be rejected. Although little appears in the legislative history to explain the proviso,6 Congress was clearly concerned that servicemen stationed away from their home State should not drive unregistered or unlicensed motor vehicles. Every State required in 1944, and re-quires now, that motor vehicles using its highways be registered and bear license plates. Such requirements are designed to facilitate the identification of vehicle
payment of fees and penalties was frustrated by the department. Defendant’s position is simply that the Soldiers’ and Sailors’ Civil Relief Act of 1940 . . . prohibits the collection of such fees as an incident to a proper exercise of the police power or otherwise. As a conséquence of the narrow question thus raised by the défendant, contentions which look to the purpose of registration in furtherance of proper law enforcement and administration fail to address them-selves to the issue.” 61 Cal. 2d, at 835, 395 P. 2d, at 594.
The statutory scheme severs the 2% tax provision of the Revenue and Taxation Code from the fiat registration fee of $8 requirement in the Vehicle Code. Vehicle Code § 4000, under which respondent was prosecuted, refers only to payments of “the appropriate fees . . . under this code” and Vehicle Code § 4750 refers only to “the required fee.” (Emphasis supplied.) The severability clause of the Revenue and Taxation Code, § 26, provides that if application of any provision of that Code to “any person or circumstance, is held mvalid . . . the application of the provision to other persons or circumstances, is not affected.”
6 H. R. Rep. No. 1514, 78th Cong., 2d Sess.; S. Rep. No. 959, 78th Cong., 2d Sess. There were no debates.
392
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
owners and the investigation of accidents, thefts, traffic violations and other violations of law. Commonly, if not universally, the statutes imposing the requirements of registration or licensing also prescribe fees which must be paid to authorize state officiais to issue the necessary documents and plates. To assure that service-men comply with the registration and licensing laws of some State, whether of their home State or the host State, we construe the phrase “license, fee, or excise required by the State . . as équivalent to “license, fee, or excise of the State. . . Thus read, the phrase merely indicates Congress’ récognition that, in one form or another, ail States hâve laws governing the registration and licensing of motor vehicles, and that such laws impose certain taxes as conditions thereof. The service-man who has not registered his car and obtained license plates under the laws “of” his home State, whatever the reason, may be required by the host State to register and license the car under its laws.
The proviso is to be read, at the least, as assuring that § 514 would not hâve the effect of permitting serv-icemen to escape the obligation of registering and licensing their motor vehicles. It has been argued that §514 (2) (b) also represents a congressional judgment that servicemen should contribute to the costs of highway maintenance, whether at home or where they are sta-tioned, by paying whatever taxes the State of registration may levy for that purpose. We conclude, however, that no such purpose is revealed in the section or its legislative history and that its intent is limited to the purpose of assuring registration. Since at least the 2% tax here involved has been held not essential to that purpose as a matter of state law, we affirm the California Suprême Court’s judgment.
It is plain at the outset that California may collect the 2% tax only if it is a “license, fee, or excise” on a motor
CALIFORNIA v. BUZARD.
393
386	Opinion of the Court.
vehicle or its use. The very purpose of § 514 in broadly freeing the nonresident serviceman from the obligation to pay property and income taxes was to relieve him of the burden of supporting the governments of the States where he was présent solely in compliance with military orders. The statute opérâtes whether or not the home State imposes or assesses such taxes against him. As we said in Damer on v. Brodhead, 345 U. S. 322, 326, “. . . though the evils of potential multiple taxation may hâve given rise to this provision, Congress appears to hâve chosen the broader technique of the statute care-fully, freeing servicemen from both income and property taxes imposed by any state by virtue of their presence there as a resuit of military orders. It saved the sole right of taxation to the state of original résidence whether or not that state exercised the right.” Motor vehicles were included as personal property covered by the statute. Even if Congress meant to do more by the proviso of §514 (2) (b) than insure that the car would be regis-tered and licensed in one of the two States, it would be inconsistent with the broad purposes of § 514 to read subsection (2) (b) as allowing the host State to impose taxes other than “licenses, fees, or excises” when the “license, fee, or excise” of the home State is not paid.7
Although the Revenue and Taxation Code expressly denominates the tax “a license fee,” § 10751, there is no persuasive evidence Congress meant state labels to be conclusive; therefore, we must décidé as a matter of fédéral law what “licenses, fees, or excises” means in the statute. See Storaasli v. Minnesota, 283 U. S. 57, 62. There is nothing in the legislative history to show that Congress intended a tax not essential to assure registration, such as the California “license fee,” to fall within the
7 Contra, Whiting v. City of Portsmouth, 202 Va. 609, 118 S. E. 2d 505; Snapp v. Neal, 250 Miss. 597, 164 So. 2d 752, reversed today, post, p. 397.
394	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
category of “licenses, fees, or excises” host States might impose if home State registration was not effected. While it is true that a few state taxes in effect in 1944, like the California 2% “license fee,” were imposed solely for revenue purposes, the great majority of state taxes also served to enforce registration and licensing statutes.8 No discussion of existing state laws appears in the Com-mittee Reports. There is thus no indication that Con-gress was aware that any State required that servicemen contribute to the costs of highway maintenance without regard to the relevance of süch requirements to the non-revenue purposes of state motor vehicle laws.
8 Most States in 1944, as now, conditioned registration and the issuance of license plates upon the payment of a registration fee measured by horsepower, weight or some combination of these factors. See, e. g., Del. Rev. Code 1935, § 5564 (weight) ; Page’s Ohio Gen. Code (1945 Repl. Vol.), §6292 (weight); Mo. Rev. Stat. Ann. 1942, §8369 (horsepower); N. J. Rev. Stat. 1937, §39:3-8 (horse-power) ; Conn. Gen. Stat. Rev. 1930, § 1578 (cubic displacement) ; lowa Code 1939, § 5008.05 (value and weight) ; Digest Ark. Stat. 1937, §6615 (horsepower and weight).
Other States charged a flat fee. See, e. g., Ore. Comp. Laws 1940, §§ 115-105, 115-106; Ariz. Code 1939, § 66-256; Alaska Comp. Laws 1933, §3151.
A few States, such as California, charged both a fiat registration fee and a larger, variable “license fee” measured by vehicle value. See, e. g., Cal. Vehicle Code 1935, §§ 140, 148, 370, Cal. Rev. & Tax. Code 1939, §§ 10751-10758; Remington’s Wash. Rev. Stat. (1937 Repl. Vol.), §§6312-16, 6312-102; compare Miss. Code 1942, §§ 9352-19, 9352-03 (certificate of payment of ad valorem tax required of those who must pay it) ; Wyo. Comp. Stat. 1945, §§ 60-103, 60-104 (fiat fee plus ad valorem fee; ad valorem fee to be paid only by persons actually driving in the State).
The statutes commonly recited that these fees, whatever their measure, were imposed for the privilège of using the State’s high-ways; the proceeds were usually devoted to highway purposes. Even where property value was the measure of the fees, they were characterized as privilège, not property, taxes. See, e. g., Ingels v. Riley, 5 Cal. 2d 154, 53 P. 2d 939 (1936).
CALIFORNIA v. BUZARD.
395
386	Opinion of the Court.
The conclusion that Congress lacked information about the California practice does not preclude a détermination that it meant to include such taxes, levied only for revenue, as “licenses, fees, or excises.” But in deciding that question in the absence of affirmative indication of con-gressional meaning, we must consider the overall purpose of § 514 as well as the words of subsection (2) (b). Taxes like the California “license fee” serve pri-marily a revenue interest, narrower in purpose but no different in kind from taxes raised to defray the general expenses of government.9 It is from the burden of taxes serving such ends that nonresident servicemen were to be freed, in the main, without regard to whether their home States imposed or sought to collect such taxes from them. Dameron v. Brodhead, supra. In recent amendments, Congress has reconfirmed this basic purpose.10 We do not think that subsection (2) (b) should be read as im-pinging upon it. Rather, reading the Act, as we must, “with an eye friendly to those who dropped their affairs to answer their country’s call,” Le Maistre v. Le fl ers, 333 U. S. 1, 6, we conclude that subsection (2) (b) refers only to those taxes which are essential to the functioning of the host State’s licensing and registration laws in their application to the motor vehicles of nonresident service-men. Whether the 2% tax is within the reach of the fédéral immunity is thus not to be tested, as California argues, by whether its inclusion frustrâtes the administration of California’s tax policies. The test, rather, is whether the inclusion would deny the State power to
9Indeed, the 2% “license fee” was adopted in 1935 as a substi-tute for local ad valorem taxation of automobiles, which had proved administratively impractical. Stockwell, Studies in California State Taxation, 1910-1935, at pp. 108-110 (1939) ; Final Report of the California Tax Commission 102 (1929). Its basis remains the location of the automobile in the State.
10 Pub. L. § 87-771, 76 Stat. 768.
396	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
enforce the nonrevenue provisions of state motor vehicle législation.
Whatever may be the case under the registration and licensing statutes of other States, California authorities hâve made it clear that the California 2% tax is not imposed as a tax essential to the registration and licensing of the serviceman’s motor vehicle.11 Not only did the California Suprême Court regard the statutes as permitting registration without payment of the tax, but the District Court of Appeal, in another case grow-ing out of this controversy, expressly held that “[t]he registration statute has an entirely different purpose from the license fee statutes, and it is clearly severable from them.” Buzard v. Justice Court, 198 Cal. App. 2d 814, 817, 18 Cal. Rptr. 348, 349-350.12 The California Suprême Court also held, in effect, that invalidity of the “license fee” as applied was a valid defense to prosecu-tion under Vehicle Code § 4000. In these circumstances, and since the record is reasonably to be read as showing that Captain Buzard would hâve registered his Oldsmo-bile but for the demand for payment of the 2% tax, the California Suprême Court’s reversai of his conviction is
Affirmed.
11 It is not clear from the California courts’ opinions whether they regard the $8 registration fee as a fee essential to the registration and licensing of the motor vehicle. Therefore that question remains open for détermination in the state courts.
12 See note 5, supra.
SNAPP v. NEAL.
397
Opinion of the Court.
SNAPP v. NEAL, STATE AUDITOR, et al.
CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI.
No. 16. Argued November 15-16, 1965. Decided January 18, 1966.
Imposition by a host State of an ad valorem tax on a nonresident serviceman’s house trader, where the serviceman had paid no “license, fee, or excise” to his home State, held invalid under § 514 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, an ad valorem tax not being within the category of a motor vehicle “license, fee, or excise” under §514 (2)(b). California v. Buzard, ante, p. 386, followed. P. 398.
250 Miss. 597, 164 So. 2d 752, reversed.
Leon D. Hubert, Jr., argued the cause for petitioner. With him on the briefs was Cari J. Felth.
Martin R. McLendon, Assistant Attorney General of Mississippi, argued the cause for respondents. With him on the brief was Joe T. Patterson, Attorney General.
Acting Solicitor General Spritzer, Acting Assistant Attorney General Jones and I. Henry Kutz filed a brief for the United States, as amicus curiae, urging reversai.
Mr. Justice Brennan delivered the opinion of the Court.
This is a companion case to California v. Buzard, ante, p. 386, decided today. The State of Mississippi levied an ad valorem tax against a house trader of the petitioner, Sergeant Jesse E. Snapp. Sergeant Snapp was stationed under military orders at Crystal Springs Air Force Base, Mississippi. He bought the trader in Mississippi and moved it on Mississippi highways to a private trader park near the Air Force Base where he placed it on movable concrète blocks and used it as a home. He did not register or license the trader, or pay
398
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
any taxes on it in his home State of South Carolina. He challenged the Mississippi tax as a tax on his Personal property prohibited by the Soldiers’ and Sailors’ Civil Relief Act of 1940, 54 Stat. 1178, as amended in 1944, § 514, 50 U. S. C. App. § 574.* The Mississippi Suprême Court sustained the levy on the ground that, as applied to motor vehicles, § 514 (2) (b) conditions the nonresident serviceman’s immunity from its ad valorem tax on the serviceman’s prior payment of the fees im-posed by his home State. The court reasoned that since §514 (2) (b) “stipulâmes] expressly that the taxation should not be limited to privilège and excise taxes, it necessarily follows that the prohibited tax must include the only other general branch of taxation, that is, ad valorem. It is emphasized that the fédéral statute is meant to include ad valorem taxes as being one of the taxes for which the serviceman is immune, provided he compiles with the laws of his home state conceming registration of the motor vehicle. If he fails to so comply, as was done in this case at bar, he is no longer en-titled to protection of the Act of Congress.” 250 Miss. 597, at 614-615, 164 So. 2d 752, at 760. We granted certiorari, 380 U. S. 931. We reverse on the authority of our holding today in Buzard that the failure to pay the motor vehicle “license, fee, or excise” of the home State entitles the host State only to exact motor vehicle taxes qualifying as “licenses, fees, or excises”; the ad valorem tax, as the Mississippi Suprême Court acknowl-edged, is not such an exaction. We thus hâve no occasion to décidé whether the Mississippi Suprême Court was correct in holding that the house trader was a “motor vehicle” within the meaning of §514 (2)(b).
Reversed.
*The relevant text of the statute is in California v. Buzard, ante, p. 388, n. 1.
GIACCIO v. PENNSYLVANIA.
399
Syllabus.
GIACCIO v. PENNSYLVANIA.
APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA.
No. 47. Argued December 6, 1965.—Decided January 19, 1966.
Appellant was acquitted following a jury trial on a misdemeanor indictment. Costs were assessed against him under an 1860 Pennsylvania statute permitting jurors to “détermine, by their verdict, whether the [acquitted] défendant shall pay the costs,” and providing for his commitment to jail in default of payment or security. The jury had been instructed that it could place the prosecution costs on appellant though found guiltless of the charges if nevertheless it found him guilty of “some misconduct” less than that charged but which had brought on the prosecution and warranted some penalty short of conviction. The trial court upheld appellant’s contention that the statute violated due process requirements of the Fourteenth Amendment. The intermediate appellate court reversed the trial court and was sustained by the State Suprême Court. Held: The 1860 Act violâtes the Due Process Clause because of vagueness and the absence of any standards that would prevent arbitrary imposition of costs. Pp. 402-405.
(a)	Regardless of whether the Act is “penal” or “civil,” it must meet the due process requirements of the Fourteenth Amendment. P. 402.
(b)	The absence of any statutory standards is not cured by judicial interprétations that allow juries to impose costs on a défendant where they find the défendant’s conduct though not unlawful was “reprehensible” or “improper” or where the jury finds that the défendant committed “some misconduct.” Pp. 402-405.
415 Pa. 139, 202 A. 2d 55, reversed and remanded.
Peter Hearn argued the cause for appellant. With him on the brief were James C. N. Paul and Paul J. Mishkin.
John S. Halsted argued the cause for appellee. With him on the brief were Walter E. Alessandroni, Attorney General of Pennsylvania, Graeme Murdock, Deputy Attorney General, and A. Alfred Delduco.
400	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
Mr. Justice Black delivered the opinion of the Court.
Appellant Giaccio was indicted by a Pennsylvania grand jury and charged with two violations of a state statute which makes it a misdemeanor to wantonly point or discharge a firearm at any other person.1 In a trial before a judge and jury appellant’s defense was that the firearm he had discharged was a starter pistol which only fired blanks. The jury returned a verdict of not guilty on each charge, but acting pursuant to instructions of the court given under authority of a Pennsylvania statute of 1860, assessed against appellant the court costs of one of the charges (amounting to $230.95). The Act of 1860, set out below,2 provides among other things that:
“. . . in ail cases of acquittais by the petit jury on indictments for [offenses other than félonies], the. jury trying the same shall détermine, by their verdict, whether the county, or the prosecutor, or the
1 Act of June 24, 1939, Pub. L. 872, § 716, Pa. Stat. Ann., Tit. 18, § 4716.
2 Act of March 31, 1860, Pub. L. 427, § 62, Pa. Stat. Ann., Tit. 19, § 1222, provides:
“In ail prosecutions, cases of felony excepted, if the bill of indict-ment shall be returned ignoramus, the grand jury returning the same shall décidé and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in ail cases of acquittais by the petit jury on indictments for the offenses afore-said, the jury trying the same shall détermine, by their verdict, whether the county, or the prosecutor, or the défendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the défendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their retum or verdict; and whenever the jury shall détermine as aforesaid, that the prosecutor or défendant shall pay the costs, the court in which the said détermination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days.”
GIACCIO v. PENNSYLVANIA.
401
399	Opinion of the Court.
défendant shall pay the costs . . . and whenever the jury shall détermine as aforesaid, that the . . . défendant shall pay the costs, the court in which the said détermination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days.”
Appellant made timely objections to the validity of this statute on several grounds,3 including an objection that the statute is unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause because it authorizes juries to assess costs against acquitted défendants, with a threat of imprisonment until the costs are paid, without prescribing definite standards to govern the jury’s détermination. The trial court held the 1860 Act void for vagueness in violation of due process, set aside the jury’s verdict imposing costs on the appellant, and vacated the “sentence imposed upon Défendant that he pay said costs forthwith or give security to pay the same within ten (10) days and to stand committed until he had complied therewith.”4 The Superior Court of Pennsylvania, one judge dissenting, reversed the trial court closing its opinion this way:
“We can find no reason that would justify our holding it [the 1860 Act] unconstitutional.
“Order reversed, sentence reinstated.” 5
The State Suprême Court, again with one judge dissenting, agreed with the Superior Court and affirmed its judg-
3 One objection was that the Act violâtes the Equal Protection Clause of the Fourteenth Amendment because it discriminâtes against défendants in misdemeanor cases by imposing greater burdens upon them than upon défendants in felony cases and cases involving summary offenses. We do not reach or décidé this question.
4 30 Pa. D. & C. 2d 463 (Q. S. Chester, 1963).
5 202 Pa. Super. 294, 310, 196 A. 2d 189, 197.
786-211 0-66—35
402	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
ment.6 This left appellant subject to the judgment for costs and the “sentence” to enforce payment. We noted jurisdiction to consider the question raised concerning vagueness and absence of proper standards in the 1860 Act. 381 U. S. 923. We agréé with the trial court and the dissenting judges in the appellate courts below that the 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable défendants to protect themselves against arbitrary and discriminatory impositions of costs.
1.	In holding that the 1860 Act was not unconstitu-tionally vague the State Superior and Suprême Courts rested largely on the déclaration that the Act “is not a penal statute” but simply provides machinery for the collection of costs of a “civil character” analogous to im-posing costs in civil cases “not as a penalty but rather as compensation to a litigant for expenses. . . .” But admission of an analogy between the collection of civil costs and collection of costs here does not go far towards settling the constitutional question before us. Whatever label be given the 1860 Act, there is no doubt that it provides the State with a procedure for depriving an acquitted défendant of his liberty and his property. Both liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by the simple label a State chooses to fasten upon its conduct or its statute. So here this state Act whether labeled “penal” or not must meet the challenge that it is unconstitutionally vague.
2.	It is established that a law fails to meet the require-ments of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to
6 415 Pa. 139, 202 A. 2d 55.
GIACCIO v. PENNSYLVANIA.
403
399	Opinion of the Court.
décidé, without any legally fixed standards, what is pro-hibited and what is not in each particular case. See, e. g., Lanzetta v. New Jersey, 306 U. S. 451; Baggett v. Bullitt, 377 U. S. 360. This 1860 Pennsylvania Act con-tains no standards at ail, nor does it place any conditions of any kind upon the jury’s power to impose costs upon a défendant who has been found by the jury to be not guilty of a crime charged against him. The Act, without imposing a single condition, limitation or contingency on a jury which has acquitted a défendant simply says the jurors “shall détermine, by their verdict, whether . . . the défendant, shall pay the costs” whereupon the trial judge is told he “shall forthwith pass sentence to that effect, and order him [défendant] to be committed to the jail of the county” there to remain until he either pays or gives security for the costs. Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safe-guard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. This state Act as written does not even begin to meet this constitutional requirement.
3.	The State contends that even if the Act would hâve been void for vagueness as it was originally written, subséquent state court interprétations hâve provided standards and guides that cure the former constitutional defi-ciencies. We do not agréé. Ail of the so-called court-created conditions and standards still leave to the jury such broad and unlimited power in imposing costs on acquitted défendants that the jurors must make déterminations of the crucial issue upon their own notions of what the law should be instead of what it is. Pennsylvania decisions hâve from time to time said expressly, or at least implied, that juries having found a défendant not
404
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
guilty may impose costs upon him if they find that his conduct, though not unlawful, is “reprehensible in some respect,” “improper,” outrageous to “morality and justice,” or that his conduct was “not reprehensible enough for a criminal conviction but sufficiently reprehensible to deserve an equal distribution of costs” or that though acquitted “his innocence may hâve been doubtful.” 7 In this case the trial judge instructed the jury that it might place the costs of prosecution on the appellant, though found not guilty of the crime charged, if the jury found that “he has been guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a resuit of which he should be required to pay some penalty short of conviction [and] ... his misconduct has given rise to the prosecution.”
It may possibly be that the trial court’s charge cornes nearer to giving a guide to the jury than those that preceded it, but it still falls short of the kind of legal standard due process requires. At best it only told the jury that if it found appellant guilty of “some misconduct” less than that charged against him, it was authorized by law to saddle him with the State’s costs in its unsuccessful prosecution. It would be difficult if not impossible for a person to préparé a defense against such general abstract charges as “misconduct,” or “reprehensible conduct.” If used in a statute which imposed forfeitures, punishments or judgments for costs, such loose and unlimiting terms would certainly cause the statute to fail to measure up to the requirements of the Due Process Clause. And these terms are no more effective to make a statute valid which standing alone is void for vagueness.
‘ The foregoing quotations appear in a number of Pennsylvania cases including Commonwealth v. Tilghman, 4 S. & R. 127; Baldwin v. Commonwealth, 26 Pa. 171; Commonwealth v. Daly, 11 Pa. Dist. 527 (Q. S. Clearfield) ; and in the opinion of the Superior Court in this case, 202 Pa. Super. 294, 196 A. 2d 189.
GIACCIO v. PENNSYLVANIA. 405
399	Fortas, J., concurring.
We hold that the 1860 Act is constitutionally invalid both as written and as explained by the Pennsylvania courts.8 The judgment against appellant is reversed and the case is remanded to the State Suprême Court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Stewart, concurring.
I concur in the Court’s détermination that the Pennsylvania statute here in question cannot be squared with the standards of the Fourteenth Amendment, but for reasons somewhat different from those upon which the Court relies. It seems to me that, despite the Court’s disclaimer,* much of the reasoning in its opinion serves to cast grave constitutional doubt upon the settled practice of many States to leave to the unguided discrétion of a jury the nature and degree of punishment to be imposed upon a person convicted of a criminal offense. Though I hâve serious questions about the wisdom of that practice, its constitutionality is quite a different matter. In the présent case it is enough for me that Pennsylvania allows a jury to punish a défendant after finding him not guilty. That, I think, violâtes the most rudimentary concept of due process of law.
Mr. Justice Fortas, concurring.
In my opinion, the Due Process Clause of the Fourteenth Amendment does not permit a State to impose a penalty or costs upon a défendant whom the jury has found not guilty of any offense with which he has been charged.
8	In so holding we intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding défendants guilty of a crime the power to fix punishment within legally prescribed limits.
*See n. 8, ante.
406
OCTOBER TERM, 1965.
Syllabus.
382 U.S.
TEHAN, SHERIFF v. UNITED STATES EX REL. SHOTT.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 52. Argued November 18, 1965.—Decided January 19, 1966.
In 1961 respondent was tried and convicted in an Ohio court for violation of the Ohio Securities Act. Respondent had not taken the stand and the prosecutor commented extensively, as permitted by Ohio law, on his failure to testify. The conviction was affirmed by an Ohio court of appeals, the State Suprême Court declined review, and this Court dismissed an appeal and denied certiorari in 1963. Shortly thereafter respondent sought a writ of habeas corpus, alleging various constitutional violations at his trial. The fédéral District Court dismissed the pétition, but the Court of Appeals reversed, noting that on the day preceding oral argument of the appeal the Suprême Court in Malloy v. Hogan, 378 U. S. 1, held that the Fifth Amendment’s freedom from self-incrimination is also protected by the Fourteenth against state abridgment, and reasoning that the protection includes freedom from comment on failure to testify. In Griffin v. California, 380 U. S. 609, this Court held that adverse comment on a defendant’s failure to testify in a state criminal trial violâtes the privilège against self-incrimination, and the parties here were requested to brief and argue the question of the retroactivity of that doctrine. Held: The doctrine of Griffin v. California will not be applied retrospec-tively. Linkletter v. Walker, 381 U. S. 618, followed. Pp. 409-419.
337 F. 2d 990, vacated and remanded.
Calvin W. Prem argued the cause for petitioner. With him on the brief was Melvin G. Rueger.
Thurman Arnold argued the cause for respondent. With him on the brief were James G. Andrews, Jr., and John A. Lloyd, Jr.
Thomas C. Lynch, Attorney General of California, Arlo E. Smith, Chief Assistant Attorney General, Albert
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W. Harris, Jr., Assistant Attorney General, and Derald E. Granberg, Deputy Attorney General, filed a brief for the State of California, as amicus curiae, urging reversai.
Mr. Justice Stewart delivered the opinion of the Court.
In 1964 the Court held that the Fifth Amendment’s privilège against compulsory self-incrimination “is also protected by the Fourteenth Amendment against abridg-ment by the States.” Malloy v. Hogan, 378 U. S. 1, 6. In Griffin v. California, decided on April 28, 1965, the Court held that adverse comment by a prosecutor or trial judge upon a defendant’s failure to testify in a state criminal trial violâtes the fédéral privilège against compulsory self-incrimination, because such comment “cuts down on the privilège by making its assertion costly.” 380 U. S. 609, 614. The question before us now is whether the rule of Griffin v. California is to be given rétrospective application.
I.
In the summer of 1961 the respondent was brought to trial before a jury in an Ohio court upon an indictment charging violations of the Ohio Securities Act.1 The respondent did not testify in his own behalf, and the prosecuting attorney in his summation to the jury com-mented extensively upon that fact.2 The jury found
1 Ohio Rev. Code §§1707.01-1707.45.
2 Since 1912 a provision of the Ohio Constitution has permitted a prosecutor to comment upon a defendant’s failure to testify in a criminal trial. Article I, § 10, of the Constitution of Ohio provides, in part, as follows: “No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel.”
Section 2945.43 of the Revised Code of Ohio contains substantially the same wording.
408
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
the respondent guilty, the judgment of conviction was affirmed by an Ohio court of appeals, and the Suprême Court of Ohio declined further review. 173 Ohio St. 542, 184 N. E. 2d 213. The respondent then brought his case to this Court, claiming several constitutional errors but not attacking the Ohio comment rule as such. On May 13, 1963, we dismissed the appeal and denied certiorari, Mr. Justice Black dissenting. 373 U. S. 240. Ail avenues of direct review of the respondent’s conviction were thus fully foreclosed more than a year before our decision in Malloy v. Hogan, supra, and ahnost two years before our decision in Griffin v. California, supra.
A few weeks after our déniai of certiorari the respondent sought a writ of habeas corpus in the United States District Court for the Southern District of Ohio, again alleging various constitutional violations in his state trial. The District Court dismissed the pétition, and the respondent appealed to the United States Court of Appeals for the Sixth Circuit. On November 10, 1964, that court reversed, noting that “the day before the oral argument of this appeal, the Suprême Court in Malloy v. Hogan . . . reconsidered its previous rulings and held that the Fifth Amendment’s exception from self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States,” and reasoning that “the protection against self-incrimination under the Fifth Amendment includes not only the right to refuse to answer incriminating questions, but also the right that such refusai shall not be commented upon by counsel for the prosecution.” 337 F. 2d 990, 992.
We granted certiorari, requesting the parties “to brief and argue the question of the retroactivity of the doctrine announced in Griffin v. California . . .	381
U. S. 923. Since, as we hâve noted, the original Ohio
TEHAN v. SHOTT.
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judgment of conviction in this case became final long before Griffin v. California was decided by this Court, that question is squarely presented.3
II.
In Linkletter v. Walker, 381 U. S. 618, we held that the exclusionary rule of Mapp v. Ohio, 367 U. S. 643, was not to be given rétroactive effect. The Linkletter opinion reviewed in some detail the competing con-ceptual and jurisprudential théories bearing on the prob-lem of whether a judicial decision that overturns pre-viously established law is to be given rétroactive or only prospective application. Mr. Justice Clark’s opinion for the Court outlined the history and theory of the problem in terms both of the views of the commentators and of the decisions in this and other courts which hâve reflected those views. It would be a needless exercise here to survey again a field so recently and thoroughly explored.4
3 The Suprême Court of California and the Suprême Court of Ohio hâve both considered the question, and each court has unani-mously held that under the controlling principles discussed in Linkletter v. Walker, 381 U. S. 618, the Griffin rule is not to be applied retroactively in those States. In re Gaines, 63 Cal. 2d 234, 404 P. 2d 473; Pinch v. Maxwell, 3 Ohio St. 2d 212, 210 N. E. 2d 883.
As in Linkletter, the question in the présent case is not one of "pure prospectivity.” The rule announced in Griffin was applied to reverse Griffin’s conviction. Compare England v. Louisiana State Board of Medical Examiners, 375 U. S. 411. Nor is there any question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced. Cf. O’Connor v. Ohio, ante, p. 286.
The précisé question is whether the rule of Griffin v. California is to be applied to cases in which the judgment of conviction was rendered, the availability of appeal exhausted, and the time for pétition for certiorari elapsed or a pétition for certiorari finally denied, ail before April 28, 1965.
4 See Linkletter v. Walker, 381 U. S. 618, 622-628.
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Rather, we take as our starting point Linkletter’s conclusion that “the accepted rule today is that in appro-priate cases the Court may in the interest of justice make the rule prospective,” that there is “no impedi-ment—constitutional or philosophical—to the use of the same rule in the constitutional area where the exigencies of the situation require such an application,” in short that “the Constitution neither prohibits nor requires rétrospective effect.” Upon that premise, resolution of the issue requires us to “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether rétrospective operation will further or retard its operation.” 381 U. S., at 628-629.5
III.
Twining v. New Jersey was decided in 1908. 211 U. S. 78. In that case the plaintiffs in error had been con-victed by the New Jersey courts after a trial in which the judge had instructed the jury that it might draw an adverse inference from the défendants’ failure to testify. The plaintiffs in error urged in this Court two propositions: “first, that the exemption from compulsory self-incrimination is guaranteed by the Fédéral Constitution against impairment by the States; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at bar.” 211 U. S., at 91. In a lengthy opinion which thoroughly considered both the Privilèges and Immunities Clause and the Due Process Clause of the Fourteenth Amendment, the Court held, explicitly and unambiguously, “that the exemption from compulsory self-incrimination in the courts of the States is
5 For a recent commentary on the Linkletter decision and a sug-gested alternative approach to the problem, see Mishkin, The Suprême Court 1964 Term—Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56.
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not secured by any part of the Fédéral Constitution.” 211 U. S., at 114. Having thus rejected the first proposition advanced by the plaintiffs in error, the Court re-frained from passing on the second. That is, the Court did not décidé whether adverse comment upon a defend-ant’s failure to testify constitutes a violation of the fédéral constitutional right against self-incrimination.6
The rule thus established in the Twining case was reaffirmed many times through the ensuing years. In an opinion for the Court in 1934, Mr. Justice Cardozo cited Twining for the proposition that “[t]he privilège against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.” Snyder v. Massachusetts, 291 U. S. 97, 105. Two years later Chief Justice Hughes, writing for a unanimous Court, reiterated the explicit statements of the rule in Twining and Snyder, noting that “[t]he 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.” Brown v. Mississippi, 297 U. S. 278, 285. In 1937 the Court again approved the Twining doctrine in Palko v. Connecticut, 302 U. S. 319, 324, 325-326. In Adamson v. California, 332 U. S. 46, the issue was once more presented to the Court in much the same form as it had been presented almost 40 years earlier in Twining. In Adamson there had been com-
6 “We hâve assumed only for the purpose of discussion that what was done in the case at bar was an infringement of the privilège against self-incrimination. We do not intend, however, to lend any countenance to the truth of that assumption. The courts of New Jersey, in adopting the rule of law which is complained of here, hâve deemed it consistent with the privilège itself and not a déniai of it. . . . The authorities upon the question are in conflict. We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the States is not secured by any part of the Fédéral Constitution.” 211 U. S., at 114.
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Opinion of the Court.	382 U. S.
ment by judge and prosecutor upon the defendant’s failure to testify at his trial, as permitted by the California Constitution. The Court again followed Twining in holding that the Fourteenth Amendment does not re-quire a State to accord the privilège against self-incrimination, and, as in Twining, the Court did not reach the question whether adverse comment upon a defendant’s failure to testify would violate the Fifth Amendment privilège.7 Thereafter the Court continued to adhéré to the Twining rule, notably in Knapp v. Schweitzer, decided in 1958, 357 U. S. 371, 374, and in Cohen v. Hurley, decided in 1961, 366 U. S. 117, 127-129.
In récapitulation, this brief review clearly demon-strates: (1) For more than half a century, beginning in 1908, the Court adhered to the position that the Fédéral Constitution does not require the States to accord the Fifth Amendment privilège against self-incrimination. (2) Because of this position, the Court during that period never reached the question whether the fédéral guarantee against self-incrimination prohibits adverse comment upon a defendant’s failure to testify at his trial.8 Although there were strong dissenting voices,9 the Court made not the slightest déviation from that position during a period of more than 50 years.
Thus matters stood in 1964, when Malloy v. Hogan announced that the Fifth Amendment privilège against self-incrimination is protected by the Fourteenth Amend-
7 As the Court pointed out in Adamson, 332 U. S., at 50, n. 6, this question had never arisen in the fédéral courts, because a fédéral statute had been interpreted as prohibiting adverse comment upon a defendant’s failure to testify in a fédéral criminal trial. See 20 Stat. 30, as amended, now 18 U. S. C. § 3481 ; Bruno v. United States, 308 U. S. 287; Wilson v. United States, 149 U. S. 60.
8 In the fédéral judicial System, the matter was controlled by a statute. See n. 7, supra.
9 See, e. g., Mr. Justice Black’s historié dissenting opinion in Adamson v. California, 332 U. S., at 68.
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ment against abridgment by the States (378 U. S., at 6). Less than a year later, on April 28, 1965, Griffin v. California held that the Fifth Amendment “in its bearing on the States by reason of the Fourteenth Amendment, for-bids . . . comment by the prosecution on the accused’s silence . . .	(380 U. S., at 615.)
IV.
Thus we must reckon here, as in Linkletter, 381 U. S., at 636, with decisional history of a kind which Chief Justice Hughes pointed out “is an operative fact and may hâve conséquences which cannot justly be ignored. The past cannot always be erased by a new judicial déclaration.” Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374. It is against this back-ground that we look to the purposes of the Griffin rule, the reliance placed upon the Twining doctrine, and the effect on the administration of justice of a rétrospective application of Griffin. ' See Linkletter v. Walker, 381 U. S., at 636.
In Linkletter, the Court stressed that the prime pur-pose of the rule of Mapp v. Ohio,10 rejecting the doctrine of Wolf v. Colorado11 as to the admissibility of uncon-stitutionally seized evidence, was “to deter the lawless action of the police and to effectively enforce the Fourth Amendment.” 381 U. S., at 637. There we could not “say that this purpose would be advanced by making the rule rétrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved.” Ibid.
No such single and distinct “purpose” can be attrib-uted to Griffin v. California, holding it constitutionally impermissible for a State to permit comment by a judge or prosecutor upon a defendant’s failure to testify in a
10 367 U. S. 643.
11338 U. S. 25.
414
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Opinion of the Court.
criminal trial. The Griffin opinion reasoned that such comment “is a penalty imposed by courts for exercising a constitutional privilège. It cuts down on the privilège by making its assertion costly.” 380 U. S., at 614. It follows that the “purpose” of the Griffin rule is to be found in the whole complex of values that the privilège against self-incrimination itself represents, values described in the Malloy case as reflecting “récognition that the American System of criminal prosecution is accusa-torial, not inquisitorial, and that the Fifth Amendment privilège is its essential mainstay. . . . Governments, state and fédéral, are thus constitutionally compelled to establish guilt by evidence independently and freely se-cured, and may not by coercion prove a charge against an accused out of his own mouth.” 12 378 U. S., at 7-8.
12 These values were further catalogued in Mr. Justice Goldberg’s opinion for the Court in Murphy v. Waterfront Comm’n, 378 U. S. 52, announced the same day as Malloy v. Hogan, 378 U. S. 1: “The privilège against self-incrimination ‘registers an important advance in the development of our liberty—“one of the great landmarks in man’s struggle to make himself civilized.” ’ Ullmann v. United States, 350 U. S. 422, 426. [The quotation is from Griswold, The Fifth Amendment Today (1955), 7.] It reflects many of our fundamental values and most noble aspirations : our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial System of criminal justice; our fear that self-incriminat-ing statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictâtes ‘a fair state-individual balance by requiring the govemment to leave the individual alone until good cause is shown for disturbing him and by requiring the gov-ernment in its contest with the individual to shoulder the entire load/ 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ United States v. Grunewald, 233 F. 2d 556, 581-582 (Frank, J., dissenting), rev’d 353 U. S. 391; our distrust of self-deprecatory statements; and our realization that the privilège, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to
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406	Opinion of the Court.
Insofar as these “purposes” of the Fifth Amendment privilège against compulsory self-incrimination bear on the question before us in the présent case, several considérations become immediately apparent. First, the basic purposes that lie behind the privilège against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial System in which even the guilty are not to be convicted unless the prosecution “shoulder the entire load.” Second, since long before Twining v. New Jersey, ail the States hâve by their own law respected these basic purposes by extending the protection of the testimonial privilège against self-incrimination to every défendant tried in their criminal courts. In Twining the Court noted that “ail the States of the Union hâve, from time to time, with varying form but uniform meaning, included the privilège in their constitutions, except the States of New Jersey and lowa, and in those States it is held to be part of the existing law.” 211 U. S., at 92. See also 8 Wigmore, Evidence § 2252 (McNaughton rev. 1961). It follows that such variations as may hâve existed among the States in the application of their respective guarantees against self-incrimination during the 57 years between Twining and Griflin did not go to the basic purposes of the fédéral privilège. And finally, the innocent.’ Quinn v. United States, 349 U. S. 155, 162.” 378 U. S., at 55. “[T]he privilège against self-incrimination repre-sents many fondamental values and aspirations. It is ‘an expression of the moral striving of the community ... a reflection of our common conscience . . . .’ Malloy v. Hogan, ante, p. 9, n. 7, quoting Griswold, The Fifth Amendment Today (1955), 73. That is why it is regarded as so fundamental a part of our constitutional fabric, despite the fact that ‘the law and the lawyers . . . hâve never made up their minds just what it is supposed to do or just whom it is intended to protect.’ Kalven, Invoking the Fifth Amendment Some Legal and Impractical Considérations, 9 Bull. Atomie Sci. 181, 182.” 378 U. S., at 56, n. 5.
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Opinion of the Court.
insofar as strict application of the fédéral privilège against self-incrimination reflects the Constitution’s concern for the essential values represented by “our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ ” 13 any impingement upon those values re-sulting from a State’s application of a variant from the fédéral standard cannot now be remedied. As we pointed out in Linkletter with respect to the Fourth Amendment rights there in question, “the ruptured privacy . . . cannot be restored.” 381 U. S., at 637.
As in Mapp, therefore, we deal here with a doctrine which rests on considérations of quite a different order from those underlying other recent constitutional decisions which hâve been applied retroactively. The basic purpose of a trial is the détermination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. See Gideon v. Wainwright, 372 U. S. 335; Doughty v. Maxwell, 376 U. S. 202; Griffin v. Illinois, 351 U. S. 12; Eskridge v. Washington Prison Board, 357 U. S. 214. The same can surely be said of the wrongful use of a coerced confession. See Jackson v. Denno, 378 U. S. 368; McNerlin n. Denno, 378 U. S. 575; Reck v. Pâte, 367 U. S. 433. By contrast, the Fifth Amend-ment’s privilège against self-incrimination is not an ad-junct to the ascertainment of truth. That privilège, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values— values reflecting the concern of our society for the right of each individual to be let alone. To recognize this is no more than to accord those values undiluted respect.
13 See n. 12, supra.
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There can be no doubt of the States’ reliance upon the Twining rule for more than half a century, nor can it be doubted that they relied upon that constitutional doctrine in the utmost good faith. Two States amended their constitutions so as expressly to permit comment upon a defendant’s failure to testify, Ohio in 1912,14 and California in 1934.15 At least four other States foliowed some variant of the rule permitting comment.16
Moreover, this reliance was not only invited over a much longer period of time, during which the Twining doctrine was repeatedly reaffirmed in this Court, but was of unquestioned legitimacy as compared to the reliance of the States upon the doctrine of Wolf v. Colorado, con-sidered in Linkletter as an important factor militating against the rétroactive application of Mapp. During the 12-year period between Wolf v. Colorado and Mapp v. Ohio, the States were aware that illégal seizure of evidence by state officers violated the Fédéral Constitution.17 In the 56 years that elapsed from Twining to Malloy, by contrast, the States were repeatedly told that comment upon the failure of an accused to testify in a state criminal trial in no way violated the Fédéral Constitution.18
14 See n. 2, supra.
15 California Constitution, Art. I, § 13.
16 See State v. Heno, 119 Conn. 29, 174 A. 181; State v. Ferguson, 226 lowa 361, 372-373, 283 N. W. 917, 923; State v. Corby, 28 N. J. 106, 145 A. 2d 289; State v. Sandoval, 59 N. M. 85, 279 P. 2d 850.
17 In Wolf v. Colorado, 338 U. S. 25, it was unequivocally deter-mined by a unanimous Court that the Fédéral Constitution, by vir-tue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers. “The security of one’s privacy against arbitrary intrusion by the police . . . is . . . implicit in 'the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause.” 338 U. S., at 27-28.
18 See, for example, Scott v. California, 364 U. S. 471, where, as late as December 1960, only a single member of the Court ex-pressed dissent from the dismissal of an appeal challenging the constitutionality of the California comment rule.
786-211 0-66—36
418
382 U. S.
OCTOBER TERM, 1965.
Opinion of the Court.
The last important factor considered by the Court in Linkletter was “the effect on the administration of justice of a rétrospective application of Mapp.” 381 U. S., at 636. A rétrospective application of Griffin v. California would create stresses upon the administration of justice more concentrated but fully as great as would hâve been created by a rétrospective application of Mapp. A rétrospective application of Mapp would hâve had an impact only in those States which had not them-selves adopted the exclusionary rule, apparently some 24 in number.19 A rétrospective application of Griffin would hâve an impact only upon those States which hâve not themselves adopted the no-comment rule, apparently six in number.20 But upon those six States the impact would be very grave indeed. It is not in every criminal trial that tangible evidence of a kind that might raise Mapp issues is offered. But it may fairly be assumed that there has been comment in every single trial in the courts of California, Connecticut, lowa, New Jersey, New Mexico, and Ohio, in which the défendant did not take the witness stand—in accordance with state law and with the United States Constitution as explicitly interpreted by this Court for 57 years.
Empirical statistics are not available, but expérience suggests that California is not indulging in hyperbole when in its amicus curiae brief in this case it tells us that “Prior to this Court’s decision in Griffin, literally thou-sands of cases were tried in California in which comment was made upon the failure of the accused to take the stand. Those reaping the greatest benefit from a rule compelling rétroactive application of Griffin would be [those] under lengthy sentences imposed many years before Griffin. Their cases would offer the least like-
19 See Elkins v. United States, 364 U. S. 206, at 224-225 (Appendix).
20 See notes 2, 15, and 16, supra.
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406	Opinion of the Court.
lihood of a successful retrial since in many, if not most, instances, witnesses and evidence are no longer avail-able.” There is nothing to suggest that what would be true in California would not also be true in Connecticut, lowa, New Jersey, New Mexico, and Ohio. To require ail of those States now to void the conviction of every person who did not testify at his trial would hâve an impact upon the administration of their' criminal law so devastating as to need no élaboration.
V.
We hâve proceeded upon the premise that “we are neither required to apply, nor prohibited from applying, a decision retrospectively.” Linkletter v. Walker, 381 U. S., at 629. We hâve considered the purposes of the Griffin rule, the reliance placed upon the Twining doctrine, and the effect upon the administration of justice of a rétrospective application of Griffin. After full considération of ail the factors, we are not able to say that the Griffin rule requires rétrospective application.
The judgment is vacated and the case remanded to the Court of Appeals for the Sixth Circuit for considération of the claims contained in the respondent’s pétition for habeas corpus, claims which that court has never considered.
It is so ordered.
Mr. Justice Black, with whom Mr. Justice Douglas joins, dissents for substantially the same reasons stated in his dissenting opinion in Linkletter v. Walker, 381 U. S. 618, at 640.
The Chief Justice took no part in the decision of this case.
Mr. Justice Portas took no part in the considération or decision of this case.
420	OCTOBER TERM, 1965.
January 24, 1966.	382 U. S.
BANKS v. CALIFORNIA.
ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT.
No. 87, Mise. Decided January 24, 1966.
Certiorari granted; vacated and remanded.
Petitioner pro se.
Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Charles W. Rumph, Deputy Attorney General, for respondent.
Per Curiam.
The motion for leave to proceed in forma pauperis and the pétition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the District Court of Appeal of California, First Appellate District, for further proceedings in light of Griffin v. California, 380 U. S. 609.
The Chief Justice took no part in the considération of this motion and pétition.
ODELL v. STATE DEPARTMENT OF PUBLIC WELFARE OF WISCONSIN et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN.
No. 896, Mise. Decided January 24, 1966.
Appeal dismissed.
Per Curiam.
The appeal is dismissed for want of jurisdiction.
DECISIONS PER CURIAM.
421
382 U. S.	January 24, 1966.
PEW v. COMMANDANT, U. S. COAST GUARD.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
No. 824, Mise. Decided January 24, 1966.
Appeal dismissed and certiorari denied.
Appellant pro se.
Solicitor General Marshall for appellee.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
ESCALERA v. SUPREME COURT OF PUERTO RICO.
APPEAL FROM THE SUPREME COURT OF PUERTO RICO.
No. 849, Mise. Deeided January 24, 1966.
Appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
422
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
CHICAGO & NORTH WESTERN RAILWAY CO. et al. v. CHICAGO, BURLINGTON & QUINCY RAILROAD CO. et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.
No. 751. Decided January 24, 1966*
242 F. Supp. 414, affirmed.
Jordan Jay Hillman, Bryce L. Hamilton and John C. Danielson for appellants in No. 751. Robert W. Ginnane and Leonard S. Goodman for appellant in No. 752.
Eldon Martin, Robert J. Cooney, Frank S. Farrell, Robert G. Gehrz, William P. Higgins, Curtis H. Berg, John H. Bishop, Louis E. Torinus, Jr., and Paul M. Sand for appellees in both cases.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
Mr. Justice Fortas took no part in the considération or decision of these cases.
*Together with No. 752, Interstate Commerce Commission v. Chicago, Burlington & Quincy Railroad Co. et al., also on appeal from the same court.
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 423
Syllabus.
BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al. v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. et al.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS.
No. 69. Argued December 8-9, 1965.—Decided January 31, 1966*
Appellees, a group of interstate railroads operating in Arkansas, sued in District Court for declaratory and injunctive relief on the ground that two Arkansas statutes which provided for train crews of minimum sizes were unconstitutional. Appellees claimed that as to them the statutes violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Commerce Clause; that they discriminated against interstate, and favored intrastate, commerce because by exempting lines below certain mileages they excluded from coverage ail intrastate railroads but included most of the interstate railroads operating in Arkansas; and that they invaded a legislative field primarily pre-empted by the Fédéral Government with the enactment in 1963 of Public Law 88-108. That statute provided for compulsory arbitration of then current collective bargaining disputes over the use of railroad firemen and over manning levels for railroad crews and for arbitration awards that were to expire two years after the awards went into effect. A three-judge District Court granted appellees’ motion for summary judgment on the single ground that the Arkansas statutes conflicted with Public Law 88-108, which was held to pre-empt the field of régulation. Held:
1.	Since there were substantial constitutional challenges in this case in addition to the pre-emption issue, it was proper to convene a three-judge District Court, from whose judgment a direct appeal lies to this Court. Swift & Co. v. Wickham, ante, p. 111, dis-.tinguished. P. 428.
2.	It was not the legislative purpose of Public Law 88-108 to pre-empt the field of manning-level régulation and supersede States’ full-crew laws, nor was that the effect of the statute or of the arbitration awards made thereunder. Pp. 429-437.
*Together with No. 71, Hardin et al. v. Chicago, Rock Island & Pacific Railroad Co. et al., also on appeal from the same court.
424
OCTOBER TERM, 1965.
Syllabus.
382 U.S.
(a)	As held in Missouri Pac. R. Co. v. Norwood, 283 U. S. 249, at 256, one of three cases in which this Court upheld the Arkansas statutes against fédéral pre-emption charges, Congress in the absence of a clearly expressed purpose, will not be held to hâve intended to prevent exercise of the States’ police power to regulate crew sizes. P. 429.
(b)	The problem of railroad manning levels, and particularly whether or not rétention of firemen is necessary, has led to constant collective bargaining disputes between the railroads and unions. Public Law 88-108 was enacted to deal with such a dispute which began in 1959 and by 1963, despite various settlement efforts, reached an impasse which threatened to resuit in a nationwide strike. Pp. 429-431.
(c)	The statute was intended to deal with that emergency on a temporary basis only and was not designed either perma-nently to supplant collective bargaining over manning levels or to supersede state full-crew laws. Pp. 431-437.
3.	The record in this case does not support a conclusion that the mileage bases fixed for application of the statutes were irra-tional and discriminatory. Pp. 437-438.
4.	The cause is remanded to the District Court for considération of the constitutional issues not yet decided. P. 438.
239 F. Supp. 1, reversed and remanded.
James E. Y oungdahl argued the cause for appellants in No. 69. With him on the briefs was Eugene F. Mooney. Jack L. Lessenberry argued the cause for appellants in No. 71. With him on the brief was Bruce Bennett, Attorney General of Arkansas.
Robert V. Light and Dennis G. Lyons argued the cause for appellees in both cases. With them on the brief were Thurman Arnold, W. J. Smith, H. H. Friday and R. W. Y ost.
Briefs of amici curiae, urging reversai, were filed by Bronson C. La Follette, Attorney General, and Béatrice Lamport, Assistant Attorney General, for the State of Wisconsin; by John J. O’Connell, Attorney General, and Frank P. Rayes, James R. Cunningham and Paul
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 425
423	Opinion of the Court.
Coughlin, Assistant Attorneys General, for the State of Washington ; and by the following Attorneys General for their respective States: Arthur K. Bolton of Georgia, John J. Dillon of Indiana, Jack P. F. Gremillion of Louisiana, Forrest H. Anderson of Montana, Frank L. Farrar of South Dakota, and Waggoner Carr of Texas.
Briefs of amici curiae, urging affirmance, were filed by William P. Rogers, Robert M. Lane, Gerald E. Dwyer, Victor F. Condello, Jordan Jay Hillman, Joseph S. GUI and Woodrow L. Taylor for Associated Railways of Indiana et al., and by Francis M. Shea, Richard T. Con-way, William H. Dempsey, Jr., Ralph J. Moore, Jr., James R. Wolfe and Charles I. Hopkins, Jr., for the National Railway Labor Conférence.
Opinion of the Court by Mr. Justice Black, announced by Mr. Chief Justice Warren.
Appellees, a group of Interstate railroads operating in Arkansas,, brought this action in a United States District Court asking that court to déclaré two Arkansas statutes unconstitutional and to enjoin two Arkansas Prosecuting Attorneys, appellants here, from enforcing or attempting to enforce the two state statutes. The railroad brother-hoods, also appellants here, were allowed to intervene in the District Court in order to defend the validity of the state statutes. One of those statutes, enacted in 1907, makes it an offense for a railroad operating a line of more than 50 miles to haul freight trains consisting of more than 25 cars without having a train crew consisting of not less than an engineer, a fireman, a conductor and three brakemen . ...” 1 The second statute challenged by the railroads, enacted in 1913, makes it an offense for any railroad operating with lines 100 miles or more
xArk. Laws 1907, Act 116, Ark. Stat. Ann. §§73-720 through 73-722 (1957).
426
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Opinion of the Court.
in length to engage in switching activities in cities of designated populations, with “less than one [1] engi-neer, a fireman, a foreman and three [3] helpers. . . .”2 The complaint charged that, as applied to the plaintiff railroads, both statutes (1) operate in an “arbitrary, capricious, discriminatory and unreasonable” manner in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) unduly interfère with, burden and needlessly increase the cost of Interstate commerce in violation of the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, and contrary to the National Transportation Policy expressed in the Interstate Commerce Act; (3) discriminate against interstate commerce in favor of local or intrastate commerce; and (4) by seeking to regulate and control the number of persons working on interstate railroad locomotives and cars invade a field of législation pre-empted by the Fédéral Government primarily through fédéral enactment of Public Law 88-108 passed by Congress in 1963.3 This law was passed to avert a nationwide railroad strike threatened by a labor dispute between the national railroads and the brotherhoods over the number of employées that should be used on trains.
In their complaint the railroads admitted that this Court had on three separate occasions, in 1911,4 in 1916,® and again in 1931,® sustained the constitutionality of both state statutes against the same Fourteenth Amendment and Commerce Clause challenges made in the
2	Ark. Act 67 of 1913, Ark. Stat. Ann. §§ 73-726 through 73-729 (1957).
3	77 Stat. 132, 45 U. S. C. following § 157 (1964 ed.).
4	Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453.
5	St. Louis, I. M. & S. R. Co. v. Arkansas, 240 U. S. 518.
6	Missouri Pac. R. Co. v. Norwood, 283 U. S. 249, 290 U. S. 600. See also latter case below, 13 F. Supp. 24.
ENGINEERS v. CHICAGO, R. L & P. R. CO. 427
423	Opinion of the Court.
présent action. The complaint alleged, however, that improvements hâve now been so great in locomotives, freight cars, couplers, brakes, trackage, roadbeds, and operating methods that the facts on which the prior holdings rested no longer exist. The brotherhoods and the two défendant Prosecuting Attorneys answered the complaint asserting the constitutionality of the Acts and denying that there had been a change in conditions so significant as to justify any departure from this Court’s prior decisions. The brotherhoods’ answer alleged that modem developments had actually multi-plied the dangers of railroading thus making the Arkansas statutes more necéssary than ever. The pleadings therefore, at least to some extent, presented factual issues calling for the introduction and détermination of evidence under prior holdings of this Court. See, e. g., Southern Pacific Co. v. Arizona, 325 U. S. 761. At this stage of the trial, however, the railroads, claiming there was no substantial dispute in the evidence with reference to any relevant issues, filed a motion for summary judgment under Rule 56, Fed. Rules Civ. Proc, alleging that: (1) Both state statutes are “pre-empted by fédéral législation in conflict therewith, to-wit: Public Law 88-108 and the award of Arbitration Board No. 282 pursuant thereto; the Railway Labor Act ... ; and the Interstate Commerce Act . . . particularly the preamble thereto”; (2) the state statutes constitute discriminatory législation against interstate commerce in violation of the Commerce Clause; and (3) the state statutes deny the railroads equal protection of the laws in violation of the Fourteenth Amendment. Without hearing any evidence the three-judge court convened to consider the case sus-tained the railroads’ motion for summary judgment, holding, one judge dissenting, that the Arkansas statutes are “in substantial conflict with Public Law 88-108 ... and the proceedings thereunder, and are therefore unenforce-
428
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Opinion of the Court.
able against the plaintiffs . . . .” 239 F. Supp. 1, 29. The District Court did not purport to rule on the other questions presented in the motion for summary judgment and the complaint. We noted probable jurisdiction, 381 U. S. 949.
A few weeks ago this Court held in Swift & Co. v. Wickham, ante, p. 111, that an allégation that a state statute is pre-empted by a fédéral statute does not allégé the unconstitutionality of the state statute so as to call for the convening of a three-judge court under 28 U. S. C. § 2281 (1964 ed.). Thus, under Swift, the pre-emption issue in this case standing alone would not hâve justified a three-judge court, and hence would not hâve justified direct appeal to us under 28 U. S. C. § 1253 (1964 ed.). The complaint here, however, also challenged the Arkansas statutes as being in violation of the Commerce, Due Process, and Equal Protection Clauses. In briefs submitted to us after oral argument the appellants hâve argued that ail these constitutional challenges are so in-substantial as a matter of law that they are insufficient to make this an appropriate case for a three-judge court. We cannot accept that argument. Whatever the ulti-mate holdings on the questions may be we cannot dismiss them as insubstantial on their face. Nor does the fact that the pre-emption issue alone was passed on by the District Court keep this from being a three-judge case. Had ail the issues been tried by the District Court and had that court enjoined enforcement of the state laws on pre-emption alone, we would hâve had jurisdiction of a direct appeal to us under 28 U. S. C. § 1253 (1964 ed.). Florida Lime de Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73. The same is true here where the state laws were enjoined on the basis of pre-emption but the other constitutional challenges were left unde-cided. Thus we hâve jurisdiction and so proceed to the merits.
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 429
423	Opinion of the Court.
I.
We first consider the question of pre-emption. Congress unquestionably has power under the Commerce Clause to regulate the number of employées who shall be used to man trains used in interstate commerce. In the absence of congressional législation on that subject, however, the States hâve extensive power of their own to regulate in this field, particularly to protect the safety of railroad employées and the public. This Court said in Missouri Pac. R. Co. v. Norwood, one of the pre-vious decisions upholding the constitutionality of these Arkansas statutes, that:
“In the absence of a clearly expressed purpose so to do Congress will not be held to hâve intended to prevent the exertion of the police power of the States for the régulation of the number of men to be employed in such crews.” 283 U. S., at 256.
See also the same case, 290 U. S. 600.
In view of Norwood and the two preceding cases, ail of which sustained the constitutionality of the Arkansas statutes over charges of fédéral pre-emption, the question presented to this Court is whether in adding the 1963 compulsory arbitration Act to previous fédéral législation, Congress intended to pre-empt this field and supersede state législation like that of Arkansas, or, stated another way, whether application of the Arkansas law “would operate to frustrate the purpose of the [1963] fédéral législation.” Teamsters Union v. Morton, 377 U. S. 252, 258.
Since the railroad unions first gained strength in this country the problem of manning trains has presented an issue of constant dispute between the railroads and the unions. Some States, such as Arkansas, believing per-haps that many railroads might not voluntarily assume the expense necessary to hire enough workers for their
430
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Opinion of the Court.
trains to make the operations as safe as they could and should be, passed laws providing for the minimum size of the train crews. Where these laws were not in effect the question of the size of the crews was settled by collective bargaining, though not without great difficulty. It was this sensitive and touchy problem which brought on the explosive collective bargaining impasse that triggered the 1963 Act which the railroads now contend was intended to permanently supersede the 1907 and 1913 Arkansas statutes. Such a permanent supersession would, of course, amount to an outright repeal of the statutes by Congress.
The particular dispute which eventually led to the enactment of Public Law 88-108 began in 1959 when the Nation’s major railroads notified the brotherhoods that they considered it to be the right of management to hâve the unrestricted discrétion to décidé how many employées should be used to man trains, and that they did not in-tend to submit that subject to collective bargaining in the future. The brotherhoods protested, serving counter-proposals on the railroads. As a resuit the représentatives of each side met to try to negotiate a new collective bargaining agreement. On the question of the size of the crews the negotiators stuck and would not budge. The railroad negotiators insisted that changed conditions, particularly the substitution of diesel and electrically pro-pelled engines for steam engines, had made firemen com-pletely unnecessary employées. They continued to insist that the railroads should be left free to décidé for them-selves when and how many firemen should be used, if any at ail. Throughout ail negotiations, and up to now, the brotherhoods hâve insisted that a fireinan is needed even on a diesel engine, particularly to aid the engineer as a lookout for safety purposes, and to help make needed repairs and adjustments while the train is moving, should the engine for any reason fail to function. Agreement on
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 431
423	Opinion of the Court.
this question proving impossible in the 1959 negotiations, President Eisenhower, acting at the request of both sides, appointed a Presidential Commission to try to adjust the dispute. After long investigation and considération the Commission reported. Its report was unsatisfactory to the brotherhoods, not wholly satisfactory to the railroads, and did not resuit in any settlement. The dispute dragged on. Another report was made by the President’s Ad-visory Committee on Labor-Management Policy but it also failed to bring about an agreement.
Ail efforts at agreement having failed, President Kennedy, on July 22, 1963, reported to Congress that on July 29 the railroads “can be expected to initiate work rules changes .... And the brotherhoods thereupon can be expected to strike.” “This Nation,” he said, “stands on the brink of a nationwide rail strike that would, in very short order, create widespread économie chaos and distress.” Pointing out the disastrous conséquences that might occur to the country should a strike take place, the President recommended législation to provide “for an intérim remedy while awaiting the results of further bar-gaining by the parties.” He recommended that “for a 2-year period during which both the parties and the public can better inform themselves on this problem . . . intérim work rules changes proposed by either party to which both parties cannot agréé should be submitted for approval, disapproval or modification to the Interstate Commerce Commission in accordance with the procedures and provisions of section 5 of the Interstate Commerce Act . . . .” President Kennedy repeatedly emphasized to the Congress his hope that the dispute could even-tually be settled by collective bargaining. He stated his belief that advances in railroad technology had made it necessary to reduce the railroad labor force, but he in-sisted that the public should help beat the burden of this réduction in order that it not fall entirely on those em-
432
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OCTOBER TERM, 1965.
Opinion of the Court.
ployees who would lose their jobs. He warned the Congress that it was highly necessary “ ‘for workers to enjoy reasonable protection against the harsh effects of too sud-den change.’ ” In his message the President expressed no desire to hâve Congress pass a law that would finally and completely dispose of the problem of the number of men who should man the crew of a train, but instead warned that “It would be wholly inappropriate to make general and permanent changes in our labor relations statutes on this basis” and that any “ ‘revolutionary changes even for the better carry a high price in disrup-tion . . . (that) might exceed the value of the improve-ments.’ ” Thus the President’s message did not in any way indicate a purpose on his part to disturb the existing pattern of full-crew laws by supersession of them, either temporarily or permanently.
Congress enacted the bill proposed by the President with one significant change. He had recommended that a binding détermination of the issues not resolved by collective bargaining be made by the Interstate Commerce Commission. At least one brotherhood witness testified before the Senate Commerce Committee to an appréhension that the Interstate Commerce Commission if given the power requested would déclaré States’ full-crew laws superseded by orders of the Commission.7 Subséquent to this both the House and Senate Committees dropped a section of the proposed bill that would hâve vested power in the Commission to make binding settlements.8 Instead of that section the Act passed by Congress provided for establishment of an arbitration board to consist of seven members, two appointed by the railroads, two by the unions and three to be appointed by the President
7 Hearings before Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., lst Sess., 629.
8 S. Rep. No. 459, 88th Cong., lst Sess., 9.
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 433 423	Opinion of the Court.
should the four members named by the railroads and unions fail to agréé among themselves on an additional three. The arbitration board was given power to résolve the dispute over the firemen and full-crew questions. Their award was to be a complété and final disposition of these issues for a period not exceeding two years from the date the awards would take effect. Awards were made by such a board which the railroads now claim call for supersession of the state laws. We hold that neither the Act itself nor the awards made under it can hâve such an effect.
The text of the Act and the awards made under it con-tain no section specifically pre-empting the States’ full-crew laws nor is there any spécifie saving clause indicat-ing lack of intent to pre-empt them. Appellees argue, however, that the terms of the Act and the awards are inconsistent with the operation of the state laws and thus the laws are no longer valid. But Congress wanted to do as little as possible in solving the dispute which was before it, and we note that this dispute was not over the size of crews in States which had full-crew laws, for there the size of crews was regulated by statute and not by collective bargaining agreements. The railroads made this very point before the Senate Commerce Committee when a spokesman for three railroads, in commenting on the few jobs that would be lost if the brotherhoods accepted the railroads’ proposai, said, “25.9 percent of the firemen positions in freight and yard service must be maintained because pf the provisions of so-called full-crew laws of the States of [listing 13 States including Arkansas].”9 It appears, therefore, that Congress did not need to pre-empt the state laws in order to eliminate this collective bargaining impasse, and further examina
9 Hearings before the Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., lst Sess., 707.
786-211 0-66—37
434	OCTOBER TERM, 1965.
Opinion of the Court.	382 U. S.
tion of the legislative history of Public Law 88-108 confirms our view that Congress had no intention of su-perseding the state full-crew laws by passage of that Act.
The Présidents proposai was interpreted and ex-plained to the House Committee on Interstate and Foreign Commerce by the Secretary of Labor. On the subject of state full-crew laws he told that Committee:
“I call attention to such statements as those of the Missouri Railroad Company v. Norwood, the Suprême Court case in 1930 in which the Court said, ‘In the absence of a clearly stated purpose so to do Congress will not be held to hâve intended to pre-vent the assertion of the police power of the States for the régulation of the number of men to be em-ployed in such crews.’ It would be the intention reflected here that the issuance of an intérim ruling, subject to termination in a time period or at the agreement of the parties, would not hâve the effect of affecting any State full crew law.” 10
The Chairman of the House Committee on several occasions emphatically stated both in the hearings and on the House floor that the bill was not intended, either as proposed or as passed, to supersede state laws. On one occasion he said:
“This issue was raised in the course of the hearings before the committee. Questions were asked of the various people representing management and the labor industry and witnesses representing the labor brotherhoods, the employées’ représentatives, and the Secretary of Labor. It was made rather clear in the course of the hearings that it would in no way affect the provisions of State laws. The committee in executive session discussed the question
10 Hearings before the House Committee on Interstate and Foreign Commerce on H. J. Res. No. 565, 88th Cong., Ist Sess., 78.
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 435
423	Opinion of the Court.
and concluded that it was not the intent of the committee in any way to affect State laws. On page 14 of the committee report we included, in order that this history might be made, this language : ‘The committee does not intend that any award made under this section may supersede or modify any State law relating to the manning of trains.’ ” 11 The Chairman of the Committee then went on to tell the House, after referring to this Court’s holding in Missouri Pac. R. Co. v. Norwood,
“Therefore, since this bill does not mention the subject of State laws, and since, as the committee report shows, we do not intend to affect these laws, I am confident they are not afifected by the bill.
“I think that is about as clear as we can make it.”
Many statements like those quoted above point to the fact that both the Senate and the House members did not intend by enacting Public Law 88-108 to supersede state laws. This sentiment was voiced by witnesses rep-resenting both labor and railroads as well as by public officiais of the Nation. The railroads seek to offset these carefully considered expressions by reference to a single incident. On one of the occasions when Représentative Harris, Chairman of the House Committee reporting the bill, had stated that the Act would not supersede the state law, Représentative Smith of Virginia, Chairman of the Rules Committee of the House, interrupted Représentative Harris to make the statement set out below.12
11109 Cong. Rec. 16122 (1963). See also the Committee Report referred to by Chairman Harris, H. R. Rep. No. 713, 88th Cong., Ist Sess., 14.
12 “Mr. SMITH of Virginia. Mr. Speaker, the colloquy between the gentleman from California [Mr. Sisk], and the chairman of the Committee on Interstate and Foreign Commerce, the gentleman from Arkansas [Mr. Harris], raises a question that has not previously been discussed on the floor of the House. It was discussed in the
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Opinion of the Court.
This single statement by Congressman Smith was hardly enough to cast doubt in the minds of the members of the House as to the accuracy of the statement made by Congressman Harris, Chairman of the Committee which reported the bill. The substance of Congressman Smith’s statement was:
“I think the provisions of the Constitution are such and the decisions of the courts are such that there is no way in which a State can overcome the power of the Fédéral Government under the interstate commerce clause.”
committee yesterday before the Committee on Unies. I do not like to remain silent in view of the statement that a State law can overcome the constitutional provision which gives exclusive jurisdiction to the Fédéral Government in matters of interstate commerce. I do not know what precedents may hâve been found with reference to this question, but of course, in the matter of purely intrastate commerce under our Constitution the State, of course, would hâve authority, but when it cornes to dealing with interstate commerce I think the provisions of the Constitution are such and the decisions of the courts are such that there is no way in which a State can overcome the power of the Fédéral Government under the interstate commerce clause.
“I simply wanted to make my own position clear with reference to that question, for whatever it may be worth.
“Mr. EDMONDSON. Mr. Speaker, will the gentleman yield?
“Mr. SMITH of Virginia. I yield to the gentleman from Oklahoma.
“Mr. EDMONDSON. I thank the distinguished chairman of the Committee on Rules for yielding to me at this point. Would this not mean in effect that about the only kind of train operation in which State laws would prevail would be in the switching of cars involving switch engine operations?
“Mr. SMITH of Virginia. Of course, it is just a question of what is or what constitutes interstate commerce. Now, as you know, the decisions of the courts and the actions of the Congress hâve gone a long way in putting almost everything under interstate commerce.” 109 Cong. Rec. 16122 (1963).
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423	Opinion of the Court.
This statement was, of course, correct but it has little relevance as to whether the bill was intended to exercise the power of the Fédéral Government to supersede state laws.
In the face of the clear congressional history of this Act we could not hold that either the Act itself or the arbitration awards made under it supersede the Arkansas state laws.
II.
The railroads contend that the District Court would hâve been justified in holding the two Arkansas Acts unconstitutional on the second ground of their motion for summary judgment which is that the two Acts “con-stitute discriminatory législation against interstate commerce in favor of intrastate commerce.” Aside from the fact that such an argument was apparently rejected in the prior cases upholding the constitutionality of the Arkansas statutes we think it is wholly without merit. The argument is based on the fact that the 1907 state law exempts railroads with less than 50 miles of track and the 1913 law exempts railroads with less than 100 miles of track. None of the State’s 17 intrastate railroads hâve more than 50 miles of track. It turns out that none of them are subject to either of the two state laws while 10 of the 11 interstate railroads are subject to the 1907 Act and eight of them are subject to the 1913 Act. It is impossible for us to say as a matter of law that this différence in treatment by the State, based on the differing mileage of railroads, is without any rational basis as the railroads contend. Certainly some régulations based on different mileage of railroads might be wholly rational, reasonable, and désirable. We cannot say on the record now before us that classification according to the length of mileage in these two statutes constitutes discrimination against interstate commerce in violation of the Com-
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Douglas, J., dissenting.
merce Clause or the Equal Protection Clause. See Florida Lime de Avocado Growers, Inc. v. Paul, 373 U. S. 132, 137.
The judgment of the District Court is reversed and the cause is remanded to that court for considération of the constitutional issues left undecided by its previous judgment.
It is so ordered.
Mr. Justice Portas took no part in the considération or decision of this case.
Mr. Justice Douglas, dissenting.
We ail agréé that Congress has ample power to regulate the number of employées used to man railroad trains operating in interstate commerce. Unlike the majority, however, I believe that Congress has exercised that power, and respectfully dissent from the Court’s conclusion to the contrary.
The bargaining impasse which prompted the passage of Public Law 88-108 (77 Stat. 132) represented, in a sense, only the exposed top of a large iceberg. Lurking beneath the surface of the controversy were the twin problems of automation and technological unemploy-ment. Congress was well aware of the developing conflict between innovation and job security. When President Kennedy sought a legislative solution to the pending crisis in the railroad industry, he reminded Congress that :
. . this dispute over railroad work rules is part of a much broader national problem. Unemploy-ment, whether created by so-called automation, by a shift of industry to new areas, or by an overall shortage of market demand, is a major social burden.
“This problem is particularly but not exclusively acute in the railroad industry. Forty percent fewer
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 439
423	Douglas, J., dissenting.
employées than were employed at the beginning of this decade now handle substantially the same volume of rail traffic. The rapid replacement of steam locomotives by diesel engines for 97 percent of ail freight tonnage has confronted many firemen, who hâve spent much of their career in this work, with the unpleasant prospect of human obsolescence. . . . The Presidential Commission was established in part, it said, because of the need to close the gap between technology and work.” (See Hearings before Senate Committee on Commerce on S. J. Res. 102, 88th Cong., Ist Sess., 11-12.)
The Presidential Railroad Commission to which President Kennedy referred was established by President Eisenhower’s order in I960,1 and was charged with in-vestigating the dispute which arose out of the railroads’ proposed élimination of firemen on diesel engines, and the réduction of the number of other crew members, in freight and yard service. After an extensive study, the Commission issued its report containing detailed findings on ail aspects of the dispute. The Commission’s recommendations included the élimination of firemen on diesels in freight service and the réduction of the number of brakemen and switchmen. It recommended financial benefits for those separated from service.
This Presidential Railroad Commission was well aware that, however désirable might be a nationwide solution to the problem, the continued existence of state “full crew” laws made this impossible:
“[M]ost of the législation of this kind was enacted prior to 1920. These laws apparently fail to en vision modem railroad operations. We feel that our recommendations with respect to this issue should hâve nationwide application. We recognize that
1 Executive Order No. 10891, Nov. 1,1960.
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Douglas, J., dissenting.
there will be difficulty in applying the rule recom-mended by us in States where ‘full crew’ laws hâve been enacted. How the restriction of those laws may be lifted, however, is a matter which goes beyond our charge.” 2
Then came Public Law 88-108, § 3 of which empowers the Board to “résolve the matters on which the parties were not in agreement” and to make a binding award which “shall constitute a complété and final disposition of the . . . issues.” Section 7 (a) lays down standards for the Board:
(1)	“[T]he effect of the proposed award upon adéquate and safe transportation service”;
(2)	“[T]he effect of the proposed award upon . . . the interests of the carrier and employées affected”; and
(3)	“[D]ue considération to the narrowing of the areas of disagreement which has been accomplished in bargaining and médiation.”
Today the Court concludes that Congress sought only to shear off the visible portion of the iceberg, leaving the continued existence of state “full crew” laws as a bar to the resolution of these matters.
That the state statutes in question conflict with the fédéral arbitration awards is plain. Congress directed the National Arbitration Board to résolve the dispute as to the necessity of firemen on diesel freights and as to the minimum size of train and switching crews. The Board has declared that, in general, firemen are not to be required. And through local boards, the number of brakemen, switchmen, and helpers to be used in various operations is fixed.3 These state laws, however, compel
2 Report of the Presidential Railroad Commission (1962), at p. 64.
3 The national award provided for the élimination of 90% of the firemen’s jobs in each local seniority district, except that firemen would in ail cases be required on yard locomotives lacking a “dead-man” control. In addition, jobs had to be made available to lire-
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 441
423	Douglas, J., dissenting.
the use of firemen in virtually ail interstate operations and fix the size of train crews at levels usually exceeding those fixed by the local awards.4 States lacking such laws are, in light of the Court’s decision, free to enact them and thereby, in effect, imperil Public Law 88-108 and the arbitration awards made under it. This Court has held that a state statute must fall in the face of an inconsistent provision in a collective bargaining agreement negotiated pursuant to the command of fédéral law, Teamsters Union v. Oliver, 358 U. S. 283, even though Congress did not prescribe the particular terms of the agreement. And see California v. Taylor, 353 U. S. 553. We hâve here something more than collective bargaining agreements. These arbitration awards are binding directives, resolving a labor-management dispute, issued under the direction and authority of Congress.
The problems submitted to the Arbitration Board con-cerned primarily two central issues: (1) continued use of firemen on diesel-electric or electric locomotives which do not use steam power, and on which the work of firing men retained in service pursuant to the employment protective provisions of the award which, in general, provided that any fireman with 10 years’ seniority had to be retained either as a fireman or an engineer. Firemen with between two and 10 years’ seniority had to be retained in engine service or offered a comparable position.
As for brakemen and switchmen, the award established procedures for binding local arbitration whereby the number of other crew members might be fixed on a local basis, subject to certain employment protective conditions established by the national Board. The applicable local awards for Arkansas railroad operations provide for two brakemen on main-line operations and one brakeman on branch-line operations. In switching operations, the local awards provide, with certain exceptions, for one helper.
4 Thus Arkansas law requires a fireman on every train, with certain exceptions, while the arbitration award permits abolition of 90% of the firemen’s positions. Arkansas requires three brakemen while the arbitration award requires no more than two. Similar conflicts appear in respect to the yard operations.
442	OCTOBER TERM, 1965.
Douglas, J., dissenting.	382 U. S.
boilers need not be performed; (2) the makeup or “con-sist” of train service crews in road and yard. These are matters recognized by the Board as governed in some States “by statute or administrative decision.” Indeed, a resolution of them in many situations might involve overriding or disregarding conflicting local régulations. Any realistic view of the scope and nature of the impasse the parties had reached would necessarily endow the Board with power to résolve conflicts between what it deemed to be the désirable national policy on the one hand and conflicting state laws on the other.
The issues were far-reaching ; they included questions in the realm of économies, of railroad technology, and of sociology. This was a controversy that years of collective bargaining, study, informed analysis, persuasion, and debate had not been able to résolve. The Board’s seven members 5 held 29 days of hearings, received the testimony of more than 40 witnesses recorded in nearly 5,000 pages of transcript, examined more than 200 docu-mentary exhibits, and made inspection trips to four railroad yards in the Chicago area. Its award6 was con-curred in by the two carrier members and dissented from by the labor members.7 The opinion of the neutral members of the Board details the conclusions the panel reached. It States, as to the question of firemen, that :
“although we think it clear that firemen are pres-ently performing useful services, we agréé with the
5 The Chairman of the Board was Ralph T. Seward. The other two neutral members were Benjamin Aaron and James J. Healy. Representing the carriers were Guy W. Knight and J. E. Wolfe. Representing the labor organizations were H. E. Gilbert and R. H. McDonald.
6 See note 3, supra.
7 The carrier members, while “disappointed with certain of [the] provisions” of the award, noted the “care and diligence” which the Board had displayed in reaching its decision. The labor members contended that the Board had not been true to the congressional command and that its conclusions were erroneous.
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 443
423	Douglas, J., dissenting.
[Presidential Railroad] Commission ‘that firemen-helpers are not so essential for the safe and efficient operation of road freight and yard diesels that there should continue to be either a national rule or local rules requiring their assignment on ail such diesels.’ ”8
The Board found, in respect to the other members of the train crew, that “the consist of crews necessary to assure safety and to prevent undue workloads must be determined primarily by local conditions. A national prescription of crew size would be wholly unrealistic.” The Board established procedures for local arbitration of these issues. And, the Board added,
“It is clear from the evidence before us that the myriad of local arrangements has led to numerous inconsistencies in the manning of crews. It is equally clear that some of the existing rules, origi-nating as they did more than a half-century ago, are anachronistic and do not reflect the présent state of railroad technology and operating conditions.”
8 The opinion States that the “lookout fonction presently assigned to the fireman is also performed by the head brakeman in road freight service and by ail members of the train crew in yard service. In the great majority of cases the lack of a fireman to perform the related fonctions of lookoot and signal passing will not endanger safety or impair efficiency becaose these fonctions can be, as they are now, performed by other crew members.”
The mechanical doties performed by firemen, the Board foond, coold in large part “be performed by the engineer while the locomotive is in service and by shop maintenance personnel at other times.”
Finally, the Board foond that relief of the engineer by the fire-man is of critical importance only in the event of sodden incapaci-tation. “In road freight service the osoal presence of the head brakeman in the cab obviâtes the need for a fireman in soch an emergency.”
444
382 U. S.
OCTOBER TERM, 1965.
Douglas, J., dissenting.
The Board’s concern with safety is apparent from a reading of the neutral members’ opinion. As that opinion puts it:
“It may be fairly stated that concern with safety has pervaded this entire proceeding. It was apparent in the présentations and arguments by ail the organizations and by the carriers, and was further emphasized by the inquiries which members of the Board directed to witnesses and counsel.”
We are in no position, of course, to pass judgment on the work of the Arbitration Board, nor is it our function to do so. But it is apparent that this panel had the power and the tools to résolve the controversy. Its award constitutes a national solution to the question of firemen and establishes the procedures, already utilized in respect to these railroads operating in Arkansas, for resolution of the crew consist issue.
I conclude that the effect of Public Law 88-108 and the awards made pursuant to it was to supersede state “full crew” législation. Of course, were the intent of Congress shown to be otherwise, that would be dispositive. Unlike the majority, I do not think that the bits and pièces of legislative debate cited in the Court’s opinion can be regarded as a controlling statement of legislative intent. If anything, the legislative history of Public Law 88-108 suggests that Congress refused to accept the suggestion that, if it wished to avoid the supersession of state “full crew” laws, it should expressly say so.
The majority points to statements made by Congress-man Harris, Chairman of the House Committee on Interstate and Foreign Commerce, to the effect that the bill would hâve no effect on state laws. But when he stated his conclusion on the floor of the House, he was imme-diately challenged by Congressman Smith, Chairman of the Rules Committee. Under the circumstances, it
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 445
423	Douglas, J., dissenting.
seems inappropriate to regard Congressman Harris’ views as wholly authoritative. The testimony of Sec-retary Wirtz, also referred to by the Court, was followed by a legal mémorandum submitted by the Secretary. This mémorandum suggests that the Interstate Commerce Commission would, under the proposed législation, hâve the power to supersede state législation, and that to avoid this the Commission might expressly provide to the contrary in its orders.9
The absence of an express disclaimer of intent to supersede state laws was called to the attention of Congress. Testifying before the House Committee, Secretary Wirtz did so.10 The General Counsel of the Interstate Commerce Commission told the Committee that if “the Congress wants to be doubly certain, for example, that no such legal conséquence follows it could be done” by expressly stating that no supersession is intended.11 To this the Chairman responded:
“I appreciate your very frank response, because I think it has sort of been left up in the air as to what
9 See Hearings before House Committee on Interstate and Foreign Commerce on H. J. Res. No. 565, 88th Cong., Ist Sess., 112-113. The reference to the Interstate Commerce Commission was made, of course, because at that stage Congress was considering the législation in the form proposed by the President, which contemplated resolution of the dispute by the Commission.
The report of the Committee reflects the view of its Chairman and states that state full-crew laws would not be superseded. H. R. Rep. No. 713, 88th Cong., Ist Sess., 14. It bears repeating that this position was challenged by Congressman Smith on the floor of the House. And it is also significant that the report of the Senate Commerce Committee (S. Rep. No. 459, 88th Cong., Ist Sess.) makes no mention of the pre-emption question, despite references to it in the Committee’s hearings. See note 13 and accompanying text and note 14, injra.
10 See Hearings before House Committee on Interstate and Foreign Commerce on H. J. Res. 565, 88th Cong., Ist Sess., 111.
11 Id., at p. 614.
446
382 U.S.
OCTOBER TERM, 1965.
Douglas, J., dissenting.
the courts might do. There has been expression as to what is intended and what some might hâve thought but I think we also hâve to provide clarity wherever it is necessary in order that the Commission may hâve guidance in its effort to carry out the responsibility should it so be directed.” 12
The Commission’s General Counsel testified to the same effect before the Senate Commerce Committee:
“If it were desired to make that absolutely certain, if that is the desire of Congress, it can be done by just a phrase . . . .”13
Despite this advice, Congress did not include a “saving” clause.14
12 Ibid.
13 Hearings before Senate Committee on Commerce on S. J. Res. No. 102, 88th Cong., Ist Sess., 401.
14 The possibility that the bill would resuit in the supersession of state laws was noted at other points in the Senate Commerce Committee hearings. A représentative of the Brotherhood of Locomotive Engineers testified:
“Mr. DAVIDSON. Mr. Chairman, I was just handed a note that I would like to read into the record, if I may.
“Senator PASTORE. Ail right.
“Mr. DAVIDSON. General Counsel for the ICC, at the House hearing today, stated if this bill passes, the Commission would hâve jurisdiction over States’ minimum crew bills.
“Senator PASTORE. I don’t want to pass any judgment on that. You hâve read it into the record. I will check that.” Id., at 478.
The General Counsel of the Railway Labor Executives’ Association testified: “I certainly visualize that as a bare minimum the carriers will contend that the effect [of] orders of the Commission authorizing decreases in crew consist—either of enginecrew or train-crew—would operate to overrule full crew laws in those States that hâve them. Perhaps that explains the alacrity with which the carriers embraced the President’s recommendation and endorsed it.” Id., at 629.
As stated by the District Court: “A complété review of the legislative history will reveal that some members of Congress thought
ENGINEERS v. CHICAGO, R. I. & P. R. CO. 447
423	Douglas, J., dissenting.
Congress was faced, at the time it enacted Public Law 88-108, with more than the threat of a crippling strike. It had before it the recommendations of the Presidential Railroad Commission. It had been told by the President of the seriousness of the problem of technological unemployment arising from automation. Congress re-sponded by establishing a procedure for resolution of the railroad industry’s pressing économie problem with ample considération of the “safety” issue. It is incon-ceivable that Congress intended to solve only part of the problem when it directed the Arbitration Board to make a binding award which “shall constitute a complété and final disposition of the . . . issues.”
In sum, I agréé with District Court that, “There is nothing in the Act itself or in the history that indicates that the Congress intended to résolve this problem of national magnitude by législation that would be effective in only some 30 States that do not regulate crew consists by law or administrative régulation.” 239 F. Supp. 1, 23.
Although automation was a prime concern of the President and the Congress, the Court holds that the lawmakers cloaked their concern in such weasel-like words as not to reach the roots of the problem. With ail respect, I dissent.
that the législation would pre-empt state crew consist laws, and others thought it would not. It is perfectly clear that the Com-mittees in both Houses had it brought effectively to their attention that the législation might hâve a pre-empting effect, and if such préemption was not the desire and intention of the Congress, it should so expressly state in the bill. There was no such expression although the bill was amended in many other respects after the hearings before both Committees had been concluded.” 239 F. Supp., pp. 22-23.
448
OCTOBER TERM, 1965.
Per Curiam.
382 U. S.
UNITED STATES v. CALIFORNIA.
No. 5, Original. Decided June 23, 1947, and May 17, 1965.—Order and Decree Entered October 27, 1947.—Supplémentai
Decree Entered January 31, 1966.
The motion by the United States for the entry of a supplémentai decree is granted and a supplémentai decree is entered.
Opinions reported: 332 U. S. 19, 381 U. S. 139; order and decree reported: 332 U. S. 804.
Solicitor General Marshall, Louis F. Claiborne and George S. Swarth for the United States.
Thomas C. Lynch, Attorney General of California, Jay L. Shavelson, Assistant Attorney General, Richard H. Keatinge, Spécial Assistant Attorney General, and Warren J. Abbott and N. Gregory Taylor, Deputy Attorneys General, for the State of California.
Per Curiam.
In accordance with the Court’s opinion in United States v. California, 381 U. S. 139, proposed decrees hâve been submitted by the parties. The Court has examined such proposed decrees and the briefs and papers submitted in support thereof, and enters the following decree:
Supplémentai Decree.
The United States having moved for entry of a supplémentai decree herein, and the matter having been re-ferred to the late William H. Davis as Spécial Master to hold hearings and recommend answers to certain questions with respect thereto, and the Spécial Master having held such hearings and having submitted his report, and the issues having been modified by the supplémentai complaint of the United States and the answer of the
UNITED STATES v. CALIFORNIA. 449
448	Per Curiam.
State of California thereto, and the parties having filed amended exceptions to the report of the Spécial Master, and the Court having received briefs and heard argument with respect thereto and having by its opinion of May 17, 1965, approved the recommendations of the Spécial Master, with modifications, it is Ordered, Adjudged and Decreed that the decree heretofore entered in this cause on October 27, 1947, 332 U. S. 804, be, and the same is hereby, modified to read as follows:
1.	As against the State of California and ail persons claiming under it, the subsoil and seabed of the continental shelf, more than three geographical miles sea-ward from the nearest point or points on the coast line, at ail times pertinent hereto hâve appertained and now appertain to the United States and hâve been and now are subject to its exclusive jurisdiction, control and power of disposition. The State of California has no title thereto or property interest therein.
2.	As used herein, “coast line” means—
(a)	The line of mean lower low water on the main-land, on islands, and on low-tide élévations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island; and
(b)	The line marking the seaward limit of inland waters.
The coast line is to be taken as heretofore or hereafter modified by natural or artificial means, and includes the outermost permanent harbor works that form an intégral part of the harbor System within the meaning of Article 8 of the Convention on the Territorial Sea and the Con-tiguous Zone, T. I. A. S. No. 5639.
3.	As used herein—
(a)	“Island” means a naturally-formed area of land surrounded by water, which is above the level of mean high water;
786-211 0-66—38
450	OCTOBER TERM, 1965.
Per Curiam.	382 U. S.
(b)	“Low-tide élévation” means a naturally-formed area of land surrounded by water at mean lower low water, which is above the level of mean lower low water but not above the level of mean high water;
(c)	“Mean lower low water” means the average élévation of ail the daily lower low tides occurring over a period of 18.6 years;
(d)	“Mean high water” means the average élévation of ail the high tides occurring over a period of 18.6 years;
(e)	“Geographical mile” means a distance of 1852 meters (6076.10333 ... U. S. Survey Feet or approxi-mately 6076.11549 International Feet).
4.	As used herein, “inland waters” means waters land-ward of the baseline of the territorial sea, which are now recognized as internai waters of the United States under the Convention on the Territorial Sea and the Contigu-ous Zone. The inland waters referred to in paragraph 2 (b) hereof indu de—
(a)	Any river or stream flowing directly into the sea, landward of a straight line across its mouth;
(b)	Any port, landward of its outermost permanent harbor works and a straight line across its entrance;
(c)	Any “historié bay,” as that term is used in paragraph 6 of Article 7 of the Convention, defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations;
(d)	Any other bay (defined as a well-marked Coastal indentation having such pénétration, in proportion to the width of its entrance, as to contain landlocked waters, and having an area, including islands within the bay, at least as great as the area of a semicircle whose diameter equals the length of the closing line across the entrance of the bay, or the sum of such closing lines if the bay has more than one entrance), landward of a straight line across its entrance or, if the entrance is more than 24
UNITED STATES v. CALIFORNIA. 451
448	Per Curiam.
geographical miles wide, landward of a straight line not over 24 geographical miles long, drawn within the bay so as to enclose the greatest possible amount of water. An estuary of a river is treated in the same way as a bay.
5.	In drawing a closing line across the entrance of any body of inland water having pronounced headlands, the line shall be drawn between the points where the plane of mean lower low water meets the outermost extension of the headlands. Where there is no pronounced head-land, the line shall be drawn to the point where the line of mean lower low water on the shore is intersected by the bisector of the angle formed where a line projecting the general trend of the line of mean lower low water along the open coast meets a line projecting the general trend of the line of mean lower low water along the tributary waterway.
6.	Roadsteads, waters between islands, and waters between islands and the mainland are not per se inland waters.
7.	The inland waters of the Port of San Pedro are those enclosed by the breakwater and by straight lines across openings in the breakwater; but the limits of the port, east of the eastern end of the breakwater, are not determined by this decree.
8.	The inland waters of Crescent City Harbor are those enclosed within the breakwaters and a straight line from the outer end of the west breakwâter to the Southern extremity of Whaler Island.
9.	The inland waters of Monterey Bay are those enclosed by a straight line between Point Pinos and Point Santa Cruz.
10.	The description of the inland waters of the Port of San Pedro, Crescent City Harbor, and Monterey Bay, as set forth in paragraphs 7, 8, and 9 hereof, does not imply that the three-mile limit is to be measured from the seaward limits of those inland waters in places where
452	OCTOBER TERM, 1965.
Per Curiam.	382 U. S.
the three-mile limit is placed farther seaward by the application of any other provision of this decree.
11.	The folio wing are not historié inland waters, and do not comprise inland waters except to the extent that they may be enclosed by lines as hereinabove described for the enclosure of inland waters other than historié bays:
(a)	Waters between the Santa Barbara or Channel Islands, or between those islands and the mainland;
(b)	Waters adjacent to the coast between Point Conception and Point Hueneme;
(c)	Waters adjacent to the coast between Point Fer-min and Point Lasuen (identified as the bluffs at the end of the Las Boisas Ridge at Huntington Beach) ;
(d)	Waters adjacent to the coast between Point Lasuen and the western headland of Newport Bay;
(e)	Santa Monica Bay;
(f)	Crescent City Bay;
(g)	San Luis Obispo Bay.
12.	With the exceptions provided by § 5 of the Sub-merged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313 (1964 ed.), and subject to the powers reserved to the United States by § 3 (d) and § 6 of said Act, 67 Stat. 31, 32, 43 U. S. C. §§ 1311 (d) and 1314 (1964 ed.), the State of California is entitled, as against the United States, to the title to and ownership of the tidelands along its coast (defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water) and the submerged lands, minerais, other natural resources and improvements underlying the inland waters and the waters of the Pacific Océan within three geographical miles seaward from the coast line and bounded on the north and south by the northem and Southern boundaries of the State of California, in-cluding the right and power to manage, administer, lease, develop and use the said lands and natural resources
UNITED STATES v. CALIFORNIA.
453
448	Per Curiam.
ail in accordance with applicable State law. The United States is not entitled, as against the State of California, to any right, title or interest in or to said lands, improve-ments and natural resources except as provided by § 5 of the Submerged Lands Act.
13.	The parties shall submit to the Court for its approval any stipulation or stipulations that they may enter into, identifying with greater particularity ail or any part of the boundary line, as defined by this decree, between the submerged lands of the United States and the submerged lands of the State of California, or identifying any of the areas reserved to the United States by § 5 of the Submerged Lands Act. As to any portion of such boundary line or of any areas claimed to hâve been reserved under § 5 of the Submerged Lands Act as to which the parties may be unable to agréé, either party may apply to the Court at any time for entry of a further supplémentai decree.
14.	The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises.
The Chief Justice, Mr. Justice Clark, and Mr. Justice Portas took no part in the formulation of this decree.
454
OCTOBER TERM, 1965.
January 31, 1966.
382 U.S.
UNITED STATES et al. v. WILSON & CO., INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 56. Deeided January 31, 1966.
335 F. 2d 788, remanded.
Solicitor General Marshall for the United States et al.
Howard J. Trienens for respondents American Téléphoné & Telegraph Co. et al.
Per Curiam.
The joint motion of counsel to remand is granted and the case is remanded to the United States Court of Appeals for the Seventh Circuit in order to permit the entry of a decree of restitution in accordance with the agreement of the parties.
BECK v. McLEOD, ATTORNEY GENERAL OF SOUTH CAROLINA.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH CAROLINA.
No. 770. Deeided January 31, 1966.
240 F. Supp. 708, affirmed.
Samuel C. Craven for appellant.
Daniel R. McLeod, Attorney General of South Caro-lina, and Everett N. Brandon, Assistant Attorney General, for appellee.
Per Curiam.
The judgment is affirmed.
382 U. S.
DECISIONS PER CURIAM.
455
January 31, 1966.
RAINSBERGER v. NEVADA.
APPEAL FROM THE SUPREME COURT OF NEVADA.
No. 368, Mise. Decided January 31, 1966.
81 Nev. 92, 399 P. 2d 129, appeal dismissed.
Samuel S. Lionel for appellant.
Paul C. Parraguirre for appellee.
Per Curiam.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial fédéral question.
NAWROCKI v. MICHIGAN.
APPEAL FROM THE SUPREME COURT OF MICHIGAN.
No. 966, Mise. Decided January 31, 1966.
376 Mich. 252, 136 N. W. 2d 922, appeal dismissed and certiorari denied.
Per Curiam.
The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a pétition for a writ of certiorari, certiorari is denied.
456
OCTOBER TERM, 1965.
January 31, 1966.
382 U. S.
PLATT, CHIEE JUDGE, U. S. DISTRICT COURT v. MINNESOTA MINING & MANUFACTURING CO.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 274. Decided January 31, 1966.
Certiorari granted; 345 F. 2d 681, vacated and remanded.
Solicitor General Marshall, former Solicitor General Cox, Acting Assistant Attorney General Wright and Lionel Kestenbaum for petitioner.
John T. Chadwell, Glenn W. McGee, Allan J. Reniche, William H. Abbott and John L. Connolly for respondent.
Per Curiam.
Upon considération of the suggestion of mootness filed by the Solicitor General and upon an examination of the entire record, the pétition for a writ of certiorari is granted, the judgment of the United States Court of Appeals for the Seventh Circuit is vacated and the case is remanded to that court with instructions to dismiss the mandamus proceeding as moot.
Reporter’s Note.
The next page is purposely numbered 801. The numbers between 456 and 801 were intentionally omitted, in order to make it possible to publish the orders in the current advance sheets or preliminary prints of the United States Reports with permanent page numbers, thus making the official citations immediately available.
ORDERS FROM END OF OCTOBER TERM, 1964, THROUGH JANUARY 31, 1966.
Cases Dismissed in Vacation.
No. 231, Mise. Meunier v. United States. C. A. 5th Cir. Pétition for writ of certiorari dismissed July 8, 1965, pursuant to Rule 60 of the Rules of this Court.
No. 93. Crâne Co. v. Evans-Hailey Co., Inc. Appeal from D. C. M. D. Tenn. dismissed July 21, 1965, pursuant to Rule 60 of the Rules of this Court. Cecil Sims for appellant.
No. 20, Original. Kansas v. Colorado. Motion for leave to file bill of complaint dismissed August 2, 1965, pursuant to Rule 60 of the Rules of this Court. Robert C. Londerholm, Attorney General of Kansas, and Charles N. Henson, Jr., Assistant Attorney General, for plaintiff. Duke W. Dunbar, Attorney General of Colorado, James D. Geissinger and Raphaël J. Moses, Assistant Attorneys General, and Donald H. Hamburg, Spécial Assistant Attorney General, for défendant.
No. 54. Milgram Food Stores, Inc. v. Ketchum, Supervisor, Missouri Department of Liquor Control. Sup. Ct. Mo. Pétition for writ of certiorari dismissed August 2, 1965, pursuant to Rule 60 of the Rules of this Court. F. Philip Kirwan for petitioner. Reported below: 384 S. W. 2d 510.
No. 326. M & J Diesel Locomotive Filter Corp. ET AL. v. Briggs et al. C. A. 7th Cir. Pétition for writ of certiorari dismissed August 19, 1965, pursuant to Rule 60 of the Rules of this Court. Edwin A. Rothschild for petitioners. Reported below: 342 F. 2d 573.
801
802
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 171, Mise. Stanley v. New York. Ct. App. N. Y. Pétition for writ of certiorari dismissed August 31, 1965, pursuant to Rule 60 of the Rules of this Court.
No. 236. Consolidated Freightways Corp. of Dela-ware v. United States et al. Appeal from D. C. N. D. Cal. dismissed September 1, 1965, pursuant to Rule 60 of the Rules of this Court. William H. Dempsey, Jr., and Eugene T. Liipjert for appellant. Solicitor General Cox, Assistant Attorney General Turner, Lionel Kesten-baum, I. Daniel Stewart, Jr., Robert W. Ginnane and Robert S. Burk for the United States. Earle V. White for appellee Everts’ Commercial Transport, Inc. Reported below: 237 F. Supp. 391.
No. 475, Mise. Craig v. Nebraska. C. A. 8th Cir. Pétition for writ of certiorari dismissed September 21, 1965, pursuant to Rule 60 of the Rules of this Court.
October 11, 1965.
Miscellaneous Orders.
No. 38. Rosenblatt v. Baer. Sup. Ct. N. H. (Certiorari granted, 380 U. S. 941.) Motion of American Civil Liberties Union for leave to file brief, as amicus curiae, granted. Osmond K. Fraenkel, Edward J. Ennis and Melvin L. Wulj for American Civil Liberties Union, as amicus curiae, urging reversai. Stanley M. Brown for respondent, in opposition to the motion.
No. 29. United States v. Ewell et al. Appeal from D. C. S. D. Ind. (Probable jurisdiction noted, 381 U. S. 909.) Motion for appointment of counsel granted. It is ordered that David B. Lockton, Esquire, of Indian-apolis, Indiana, be, and he is hereby, appointed to serve as counsel on behalf of Clarence Ewell, an appellee in this case.
ORDERS.
803
382 U. S.	October 11, 1965.
No. 18, Original. Illinois v. Missouri. Motion to make complaint more definite^ and certain granted. Norman H. Anderson, Attorney General of Missouri, Harold L. McFadden, Assistant Attorney General, and Stanley M. Rosenblum on the motion. [For earlier orders herein, see 379 U. S. 952; 380 U. S. 901, 969.]
No. 12. Western Pacific Railroad Co. et al. v. United States et al. D. C. N. D. Cal. (Probable jurisdiction noted, 379 U. S. 956.) Joint motion to re-move case from summary calendar and for permission for two attorneys to présent oral argument for each side granted. E. Barrett Prettyman, Jr., for appellants; Acting Solicitor General Spritzer and Robert W. Ginnane for the United States et al., and Frank S. Farrell for Northern Pacific Railway Co. et al., appellees, on the motion.
No. 42. Ginzburg et al. v. United States. C. A. 3d Cir. (Certiorari granted, 380 U. S. 961.) Motion of petitioners to remove case from summary calendar denied. Sidney Dickstein on the motion.
No. 88. In re Mackay. Sup. Ct. Alaska. Motion to defer considération of the pétition for writ of certiorari granted. Joseph A. Bail and Edgar Paul Boyko on the motion.
No. 104. Kent v. United States. C. A. D. C. Cir. (Certiorari granted, 381 U. S. 902.) Motion to remove this case from summary calendar granted. Myron G. Ehrlich on the motion.
No. 346. Canada Packers, Ltd. v. Atchison, Topeka & Santa Fe Railway Co. et al. C. A. 7th Cir. The Solicitor General is invited to file a brief expressing the views of the United States.
804	OCTOBER TERM, 1965.
October 11, 1965.	382 U. S.
No. 355. Littell v. Nakai. C. A. 9th Cir. The Solicitor General is inyited to file a brief expressing the views of the United States.
No. 308, Mise. Plunkett v. Lane, Warden. Motion for leave to file pétition for writ of habeas corpus denied. Treating the papers submitted as a pétition for writ of certiorari, certiorari is denied.
No. 177, Mise. Langston v. Kearney, Warden;
No. 179, Mise. Henderson v. Maxwell, Warden;
No. 195, Mise. Brown v. Florida;
No. 204, Mise. Huffman v. Maroney, Correctional SuPERINTENDENT ;
No. 245, Mise. Martinez v. Wilson, Warden, et al. ;
No. 306, Mise. Cruz v. Beto, Corrections Director;
No. 309, Mise. Smith v. California et al. ;
No. 329, Mise. Jamison v. Kearney, Warden;
No. 330, Mise. Parker v. Maxwell, Warden;
No. 349, Mise. Hayes v. Pâte, Warden;
No. 391, Mise. Bey v. Anderson, Jail Superin-tendent;
No. 393, Mise. Mitchell v. Florida;
No. 440, Mise. Schack v. Florida et al.;
No. 447, Mise. Archie v. New Mexico;
No. 450, Mise. Dangler v. Wainwright, Corrections Director, et al. ; and
No. 532, Mise. Cline v. Dunbar. Motions for leave to file pétitions for writs of habeas corpus denied.
No. 22, Mise. Davis v. Beto, Corrections Director. Motion for leave to file pétition for writ of habeas corpus denied. Petitioner pro se. Waggoner Carr, Attorney General of Texas, Hawthome Phillips, First Assistant Attorney General, Stanton Stone, Executive Assistant Attorney General, and Howard M. Fender, Assistant Attorney General, for respondent.
ORDERS.
805
382 U. S.	October 11, 1965.
No. 260, Mise. DeSimone v. Chief Justice of Illinois Suprême Court et al. Motion for leave to file pétition for writ of mandamus denied.
No. 58, Mise. Lyons v. Klatte, State Hospital Superintendent. Motion for leave to file pétition for writ of habeas corpus denied. Treating the papers sub-mitted as a pétition for writ of certiorari, certiorari is denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Robert R. Granucci and Jay S. Linderman, Deputy Attorneys General, for respondent.
No. 501, Mise. Acuff v. Cook Machinery Co., Inc. Motion for leave to file pétition for writ of injunction and for other relief denied.
No. 18, Mise. Caldwell v. Underwood, U. S. District Judge, et al. Motion for leave to file pétition for writ of mandamus denied.
No. 19, Mise. Miller v. Biggs, Chief Judge, U. S. Court of Appeals. Motion for leave to file pétition for writ of mandamus denied. David H. Kubert for petitioner. Philip W. Amram and Gilbert Hahn, Jr., for respondent. Emil F. Goldhaber, Spécial Assistant Attorney General of Pennsylvania, filed a mémorandum for the Commonwealth of Pennsylvania.
No. 232, Mise. Doster v. Coash, Circuit Judge, et al. Motion for leave to file pétition for writ of mandamus denied.
No. 251, Mise. Ginsberg, Trustée v. Fulton, U. S. District Judge. Motion for leave to file pétition for writ of mandamus denied. Daniel L. Ginsberg for petitioner. Solicitor General Cox, Acting Assistant Attorney General Jones, Harold C. Wilkenfeld and Crombie J. D. Garrett for respondent.
806
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 117, Mise. Parson v. Anderson, Jail Superin-tendent. Motion for leave to file pétition for writ of habeas corpus denied. Petitioner pro se. Soliciter General Cox for respondent.
No. 91, Mise. Wallach v. Chandler, Chief Judge, U. S. District Court, et al. Motion for leave to file pétition for writ of mandamus and/or prohibition denied.
Probable Jurisdiction Noted.
No. 28, Mise. Butts v. Harrison, Governor of Virginia, et al. Appeal from D. C. E. D. Va. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted and case transferred to appellate docket. The case is Consolidated with No. 48 and a total of two hours is allotted for oral argument. Robert L. Segar, Max Dean, Len W. H oit and J. A. Jordan, Jr., for appellant. Robert Y. Button, Attorney General of Virginia, and Richard N. Harris, Assistant Attorney General, for appellees. Reported below: 240 F. Supp. 270.
No. 303. United States v. Von's Grocery Co. et al. Appeal from D. C. S. D. Cal. Probable jurisdiction noted. Mr. Justice Fortas took no part in the considération or decision of this case. Solicitor General Cox, Acting Assistant Attorney General Wright, Robert B. Hummel, Elliott H. Moyer and James J. Coyle for the United States. William W. Alsup and Warren M. Christopher for appellees. Reported below: 233 F. Supp. 976.
No. 238. United States v. Sealy, Inc. Appeal from D. C. N. D. 111. Probable jurisdiction noted. Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel and Gerald Kadish for the United States. John T. Chadwell, Richard W. McLaren and Richard S. Rhodes for appellee.
ORDERS.
807
382 U. S.	October 11, 1965.
No. 318. Burns, Governor of Hawaii v. Richardson et al. ;
No. 323. Cravalho et al. v. Richardson et al.; and
No. 409. Abe et al. v. Richardson et al. Appeals from D. C. Hawaii. Motion of Harold S. Roberts for leave to file brief, as amicus curiae, in Nos. 318 and 323, granted. Probable jurisdiction noted. The cases are Consolidated and a total of three hours is allotted for oral argument. Mr. Justice Fortas took no part in the considération or decision of these cases. Bert T. Kobayashi, Attorney General of Hawaii, Bertram T. Kanbara and Nobuki Kamida, Deputy Attorneys General, Thurman Arnold, Abe Fortas and Dennis G. Lyons for appellant in No. 318 and for appellee Burns in Nos. 323 and 409. James T. Funaki and Eugene W. I. Lau for appellants in No. 323. Kazuhisa Abe for appellants in No. 409. Richard K. Sharpless on motion of Harold S. Roberts for leave to file brief, as amicus curiae, in Nos. 318 and 323. Reported below: 238 F. Supp. 468; 240 F. Supp. 724.
No. 291. United States v. Standard Oil Co. Appeal from D. C. M. D. Fia. Probable jurisdiction noted. Solicitor General Cox, Assistant Attorney General Vin-son, Ralph S. Spritzer and Béatrice Rosenberg for the United States. Earl B. Hadlow and John H. Wilbur for appellee.
Certiorari Granted.
No. 106. Fédéral Trade Commission v. Borden Co. C. A. 5th Cir. Certiorari granted. Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hum-mel, Gerald Kadish, James Md. Henderson and Charles C. Moore, Jr., for petitioner. John E. F. Wood, Kent V. Lukingbeal, Robert C. Johnston, Philip S. Campbell and C. Brien Dillon for respondent. Reported below: 339 F. 2d 133.
786-211 0-66—39
808
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 118. Fédéral Trade Commission v. Brown Shoe Co., Inc. C. A. 8th Cir. Certiorari granted. Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Donald L. Hardison, James Mcl. Henderson, Thomas F. Howder and Gerald J. Thain for petitioner. Robert H. McRoberts for respondent. Re-ported below: 339 F. 2d 45.
No. 147. Georgia v. Rachel et al. C. A. 5th Cir. Certiorari granted. Eugene Cook, Attorney General of Georgia, Albert Sidney Johnson, Deputy Assistant Attorney General, Lewis R. Slaton, Jr., Solicitor General, and J. Robert Sparks, Assistant Solicitor General, for petitioner. Reported below: 342 F. 2d 336.
No. 280. Accardi et al. v. Pennsylvania Railroad Co. C. A. 2d Cir. Certiorari granted. Solicitor General Cox, Assistant Attorney General Douglas, Ralph S. Spritzer, Alan S. Rosenthal and Richard S. Salzman for petitioners. Edward F. Butler and R. L. Duff for respondent. Reported below : 341. F. 2d 72.
No. 387. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO v. Hoosier Cardinal Corp. C. A. 7th Cir. Certiorari granted. Joseph L. Rauh, Jr., John Silard, Stephen I. Schlossberg and Har-riett R. Taylor for petitioner. John E. Early for respondent. Reported below: 346 F. 2d 242.
No. 351. Commissioner of Internal Revenue v. Tellier et ux. C. A. 2d Cir. Certiorari granted. Solicitor General Cox, Acting Assistant Attorney General Jones, Harry Baum and Robert A. Bernstein for petitioner. Michael Kaminsky for respondents. Reported below: 342 F. 2d 690.
ORDERS.
809
382 U. S.	October 11, 1965.
No. 243. United Mine Workers of America v. Gibbs. C. A. 6th Cir. Certiorari granted. W illard P. Owens, E. H. Ray son and R. R. Kramer for petitioner. Harold E. Brown for respondent. Reported below: 343 F. 2d 609.
No. 161. Surowitz v. Hilton Hotels Corp. et al. C. A. 7th Cir. Certiorari granted. The Chief Justice took no part in the considération or decision of this pétition. Sidney M. Davis, Richard F. Watt and Walter J. Rockler for petitioner. Leslie Hodson, Don H. Reuben and Lawrence Gunnels for Hilton Hotels Corp., and Albert E. Jenner, Jr., and Samuel W. Block for Hilton et al., respondents. Reported below: 342 F. 2d 596.
No. 210. Stevens v. Marks, New York Suprême Court Justice. App. Div., Sup. Ct. N. Y., lst Jud. Dept. ; and
No. 290. Stevens v. McCloskey, Sheriff. C. A. 2d Cir. Certiorari granted limited to Question 1 presented by the pétitions which reads as follows:
“1. Is Article 1, Section 6 of the New York State Constitution and Section 1123 of the New York City Charter répugnant to the United States Constitution in that any public officer who refuses to sign a waiver of immunity and daims a privilège against self-incrimination sufïers a penalty of loss of his public position and is barred from public employment for five years under the New York State Constitution and forever under the New York City Charter?”
The cases are Consolidated and a total of two hours is allotted for oral argument. Gérard E. Maloney for petitioner. Frank S. Hogan and H. Richard Uviller for respondents. Reported below: No. 210, 22 App. Div. 2d 683, 253 N. Y. S. 2d 401; No. 290, 345 F. 2d 305.
810
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 127. United States v. O’Malley et al., Execu-tors. C. A. 7th Cir. Certiorari granted. Solicitor General Cox, Assistant Attorney General Oberdorfer and Loring W. Post for the United States. Thomas P. Sullivan for respondents. Reported below : 340 F. 2d 930.
No. 282. Amell et al. v. United States. Ct. Cl. Certiorari granted. Lee Pressman, David Scribner and Joan Stem Kiok for petitioners. Solicitor General Cox for the United States.
No. 341. Wallis v. Pan American Petroleum Corp. et al. C. A. 5th Cir. Certiorari granted. The Solicitor General is invited to file a brief expressing the views of the United States. Murray F. Cleveland for petitioner. Morris Wright and Percy Sandel for Pan American Petroleum Corp., and E. L. Brunini for McKenna, respondents. Reported below: 344 F. 2d 432.
No. 168, Mise. Elfbrandt v. Russell et al. Sup. Ct. Ariz. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket. W. Edward Morgan for petitioner. Darrell F. Smith, Attorney General of Arizona, Philip M. Haggerty, Assistant Attorney General, and Norman E. Green for respondents. Reported below: 97 Ariz. 140, 397 P. 2d 944.
No. 99, Mise. Brookhart v. Ohio. Sup. Ct. Ohio. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket. Petitioner pro se. William B. Saxbe, Attorney General of Ohio, and Léo J. Conway, Assistant Attorney General, for respondent. Reported below: 2 Ohio St. 2d 36, 205 N. E. 2d 911.
ORDERS.
811
382 U. S.	October 11, 1965.
Certiorari Denied. (See also No. 170, ante, p. 13; No.
184,	ante, p. 14; No. 358, ante, p. 21; No. 12, Mise., ante, p. 20; No. 81, Mise., ante, p. 22; No. 137, Mise., ante, p. 21; No. 202, Mise., ante, p. 23; No. 248, Mise., ante, p. 24; No. 281, Mise., ante, p. 19; No. 342, Mise., ante, p. 17; and Mise. Nos. 58 and 308, supra.)
No. 64. Eastern Air Lines, Inc. v. Flight Engi-neers’ International Association et al. C. A. 5th Cir. Certiorari denied. E. Smythe Gambrell and W. Glen Harlan for petitioner. I. J. Gromfine and Herman Sternstein for respondents. Acting Solicitor General Spritzer, Assistant Attorney General Douglas, Morton Hollander, Sherman L. Cohn and John C. Eldridge for the United States, as amicus curiae, in support of the pétition. [For earlier order herein, see 381 U. S. 908.] Reported below: 340 F. 2d 104.
No. 66. List v. Lerner, dba Lerner & Co., et al. C. A. 2d Cir. Certiorari denied. Arthur F. Driscoll, Edward C. Rajtery, Milton M. Rosenbloom and Edmund C. Grainger, Jr., for petitioner. Leonard I. Schreiber for Lerner, and William E. Friedman for H. Hentz & Co. et al., respondents. Acting Solicitor General Spritzer, Philip A. Loomis, Jr., David Ferber and Michael Joseph for the United States, as amicus curiae. [For earlier order herein, see 381 U. S. 908.] Reported below: 340 F. 2d 457.
No. 68. Sigal v. United States. C. A. 3d Cir. Certiorari denied. Michael von Moschzisker for petitioner. Solicitor General Cox, Assistant Attorney General Vin-son and Béatrice Rosenberg for the United States. Reported below: 341 F. 2d 837.
812
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 78. Atlantic & Gulf Stevedores, Inc. v. Eller-man Lines, Ltd. C. A. 3d Cir. Certiorari denied. Francis E. Marshall for petitioner. Mark D. Alspach for respondent. Reported below : 339 F. 2d 673.
No. 80. Ring v. New Jersey. Super. Ct. N. J. Certiorari denied. Cari E. Ring for petitioner. Guy W. Calissi for respondent. Reported below: 85 N. J. Super. 341, 204 A. 2d 716.
No. 83. Crombie v. Crombie. Dist. Ct. App. Cal., lst App. Dist. Certiorari denied. Paul E. Sloane for petitioner. Walter E. Hettman and Julian D. Brewer for respondent.
No. 91. Wiper, Executrix v. Great Lakes Engineering Works. C. A. 6th Cir. Certiorari denied. Harvey Goldstein and Donald C. Miller for petitioner. Leroy G. Vandeveer for respondent. Reported below: 340 F. 2d 727.
No. 95. Berata et al. v. United States. C. A. 2d Cir. Certiorari denied. Albert J. Krieger for petitioners. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 343 F. 2d 469.
No. 96. Hall v. United States. C. A. 4th Cir. Certiorari denied. Edmund D. Campbell for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 342 F. 2d 849.
No. 98. Walker v. Foster et al. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. John Joseph Leahy for respondents.
ORDERS.
813
382 U. S.	October 11, 1965.
No. 97. Commissioner of Internal Revenue v. Fender Sales, Inc. C. A. 9th Cir. Certiorari denied. Solicitor General Cox, Assistant Attorney General Ober-dorjer, Melva M. Graney and David I. Granger for petitioner. Reported below : 338 F. 2d 924.
No. 99. Henriques v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied. Bert B. Rand for petitioner.
No. 101. Shephard, Guardian v. Commissioner of Internal Revenue. C. A. 6th Cir. Certiorari denied. William R. Bagby for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorfer and Melva M. Graney for respondent. Reported below: 340 F. 2d 27.
No. 102. Economy Forms Corp. v. Trinity Universal Insurance Co. et al. C. A. 8th Cir. Certiorari denied. Harlan J Thoma and Herbert L. Meschke for petitioner. Rodger John Walsh for respondents. Reported below: 340 F. 2d 613.
No. 103. United Draperies, Inc. v. Commissioner of Internal Revenue. C. A. 7th Cir. Certiorari denied. Harold R. Bumstein, John W. Hughes and George Brode for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorfer, Meyer Rothwacks and Fred E. Youngman for respondent. Reported below: 340 F. 2d 936.
No. 107. Waltham Watch Co. et al. v. Fédéral Trade Commission. C. A. D. C. Cir. Certiorari denied. B. Paul Noble for petitioners. Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, James Mcl. Henderson, Charles C. Moore, Jr., and Lester A. Klaus for respondent.
814
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 105. Williams v. Howard Johnson’s, Inc., of Washington. C. A. 4th Cir. Certiorari denied. Petitioner pro se. James H. Simmonds and Richard A. Mehler for respondent. Reported below: 342 F. 2d 727.
No. 108. Stephenson v. United States. C. C. P. A. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below: 52 C. C. P. A. (Cust.) 17.
No. 115. Dunscombe v. Sayle, Executrix. C. A. 5th Cir. Certiorari denied. John Wattawa for petitioner. C. Robert Burns for respondent.
No. 116. Helms v. United States. C. A. 5th Cir. Certiorari denied. Joe B. Goodwin for petitioner. Solicitor General Cox, Assistant Attorney General Oberdorfer and Joseph M. Howard for the United States. Reported below: 340 F. 2d 15.
No. 110. Van Zandt et ux. v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. R. B. Cannon for petitioners. Solicitor General Cox, Assistant Attorney General Oberdorjer, Gilbert E. Andrews and Frederick E. Youngman for respondent. Reported below: 341 F. 2d 440.
No. 113. U. S. Industries, Inc., et al. v. United States District Court for the Southern District of California et al. C. A. 9th Cir. Certiorari denied. Frank D. MacDowell, Gordon Johnson, Jesse R. O’Malley and Julian O. Von Kalinowski for petitioners. Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum and Elliott Moyer for the United States District Court, Joseph L. Alioto for No-Joint Concrète Pipe Co. et al., and John Joseph Hall for Perovich et al., respondents. Reported below: 345 F. 2d 18.
ORDERS.
815
382 U. S.	October 11, 1965.
No. 109. Albritton Engineering Corp. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. L. G. Clinton, Jr., for petitioner. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Melvin Pollack for respondent. Reported below: 340 F. 2d 281.
No. 117. VOGEL ET AL. V. CORPORATION COMMISSION of Oklahoma et al. Sup. Ct. Okla. Certiorari denied. Cari L. Shipley for petitioners. Ferrill H. Rogers for Corporation Commission of Oklahoma, respondent. Reported below: 399 P. 2d 474.
No. 120. Cheyenne River Sioux Tribe of Indians v. United States et al. C. A. 8th Cir. Certiorari denied. William Howard Payne for petitioner. Solicitor General Cox for the United States. Reported below: 338 F. 2d 906.
No. 126. Lippi v. United States. C. A. 3d Cir. Certiorari denied. Edward L. Carey and Walter E. Gill-crist for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 342 F. 2d 218.
No. 129. Crance et al. v. United States. C. A. 8th Cir. Certiorari denied. Edgar Shook for petitioners. Solicitor General Cox, Assistant Attorney General Weisl, Roger P. Marquis and Richard N. Countiss for the United States. Reported below: 341 F. 2d 161.
No. 130. Rucker, Guardian v. Fifth Avenue Coach Lines, Inc., et al. Ct. App. N. Y. Certiorari denied. Jacob D. Fuchsberg, Irving Malchman and Léo Pjeffer for petitioner. Stuart Riedel for respondents. Reported below: 15 N. Y. 2d 516, 202 N. E. 2d 548.
816
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 133. Hitai v. Immigration and Naturalization Service. C. A. 2d Cir. Certiorari denied. Francis L. Giordano for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Philip R. Monahan for respondent. Reported below: 343 F. 2d 466.
No. 134. Drexel & Co. et al. v. Hall et al. C. A. 2d Cir. Certiorari denied. Ralph M. Carson for petitioners. Wm. Francis Cor son for respondents. Reported below: 340 F. 2d 731.
No. 136. Pavgouzas v. Immigration and Naturalization Service. C. A. 3d Cir. Certiorari denied. Jacob J. Kilimnik and Gregory G. Ijagakos for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for respondent. Reported below : 341 F. 2d 920.
No. 138. Exchange National Bank of Olean v. Insurance Co. of North America. C. A. 2d Cir. Certiorari denied. Robert M. Diggs for petitioner. Richard E. Moot for respondent. Reported below: 341 F. 2d 673.
No. 146. Milk Drivers & Dairy Employées Local Union No. 584, International Brotherhood of Team-sters, Chauffeurs, Warehousemen & Helpers of America v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Samuel J. Cohen for petitioner. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 341 F. 2d 29.
No. 142. Flying Tiger Line, Inc. v. Mertens, Ad-ministrator, et al. C. A. 2d Cir. Certiorari denied. Austin P. Magner and George N. Tompkins, Jr., for petitioner. Clarence Fried for respondents. Reported below: 341 F. 2d 851.
ORDERS.
817
382 U. S.	October 11, 1965.
No. 139. Tellier et ux. v. Commissioner of Inter-nal Revenue. C. A. 2d Cir. Certiorari denied. Michael Kaminsky for petitioners. Solicitor General Cox, Assistant Attorney General Oberdorfer, Harry Baum and Robert A. Bernstein for respondent. Reported below: 342 F. 2d 690.
No. 148. Trimble v. Texas State Board of Registration for Professional Engineers. Ct. Civ. App. Tex., 8th Sup. Jud. Dist. Certiorari denied. John R. Lee for petitioner. Waggoner Carr, Attorney General of Texas, and Hawthome Phillips, T. B. Wright, J. C. Davis and Pat Bailey, Assistant Attorneys General, for respondent. Reported below: 388 S. W. 2d 331.
No. 145. Miller v. New York. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Frank S. Hogan and H. Richard Uviller for respondent.
No. 157. Marchese et al. v. United States et al. C. A. 9th Cir. Certiorari denied. Burton Marks, Russell E. Parsons and Sol C. Berenholtz for petitioners. Solicitor General Cox, Assistant Attorney General Vinson and Philip R. Monahan for the United States et al. Reported below : 341 F. 2d 782.
No. 162. Jerrold Electronics Corp. et al. v. Wes-coast Broadcasting Co., Inc. C. A. 9th Cir. Certiorari denied. Israël Packel for petitioners. Reported below: 341 F. 2d 653.
No. 164. POTTER ET AL., DBA PoTTER’s CAMERA STORE v. United States. Ct. Cl. Certiorari denied. Joseph Goldberg for petitioners. Solicitor General Cox, Assistant Attorney General Douglas, Morton Hollander and David L. Rose for the United States. Reported below: 167 Ct. Cl. 28.
818
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 152. Demers v. Brown et al. C. A. lst Cir. Certiorari denied. Reported below: 343 F. 2d 427.
No. 153. Banks v. United States. C. A. 2d Cir. Certiorari denied. Joseph I. Stone for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
No. 165. McMaster v. United States; and
No. 166. Wolff v. United States. C. A. 6th Cir. Certiorari denied. Morris A. Shenker and Murry L. Randall for petitioner in No. 165. George Gregory Man-tho for petitioner in No. 166. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 343 F. 2d 176.
No. 167. Gardiner v. United States. C. A. 5th Cir. Certiorari denied. Robert R. Slaughter for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 341 F. 2d 896.
No. 168. Mt. Mansfield Télévision, Inc. v. United States. C. A. 2d Cir. Certiorari denied. Charles D. Post for petitioner. Solicitor General Cox and Acting Assistant Attorney General Roberts for the United States. Reported below : 342 F. 2d 994.
No. 171. Village of Port Chester v. Catherwood, Industrial Commissioner, et al. App Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. Charles H. Tuttle and Godjrey P. Schmidt for petitioner. Louis J. Lefkowitz, Attorney General of New York, and Paxton Blair, Solicitor General, for Catherwood, and John R. Harold for Bucci et al., respondents.
ORDERS.
819
382 U. S.	October 11, 1965.
No. 169. Sun Ray Drug Co. v. Lieberman. Super. Ct. Pa. Certiorari denied. Samuel Kagle and Oscar Brown for petitioner. Reported below: 204 Pa. Super. 348, 204 A. 2d 783.
No. 172. Houghton v. Pire. C. A. D. C. Cir. Certiorari denied. Carleton U. Edwards II for petitioner. Francis D. Thomas, Jr., for respondent.
No. 173. Pinciotti v. United States; and
No. 174. Gosser v. United States. C. A. 6th Cir. Certiorari denied. Russell Morton Brown for petitioner in No. 173. Bennett Boskey and Merritt W. Green for petitioner in No. 174. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 339 F. 2d 102.
No. 175. Luster et al. v. United States. C. A. 6th Cir. Certiorari denied. Petitioners pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 342 F. 2d 763.
No. 176. Jenkins Bros. v. Local 5623, United Steelworkers of America, et AL. C. A. 2d Cir. Certiorari denied. Morgan P. Ames and Clifford R. Oviatt, Jr., for petitioner. Bernard Kleiman, Elliot Bredhoff and Michael H. Gottesman for respondents. Reported below : 341 F. 2d 987.
No. 177. Southwest Engineering Co. v. United States. C. A. 8th Cir. Certiorari denied. Wallace N. Springer, Jr., for petitioner. Solicitor General Cox, Assistant Attorney General Douglas, Alan S. Rosenthal and Jack H. Weiner for the United States. Reported below: 341 F. 2d 998.
820
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 178. Page et al. v. Pan American Petroleum Corp. et al. Ct. Civ. App. Tex., 13th Sup. Jud. Dist. Certiorari denied. Willett Wilson for petitioners. Cecil N. Cook, Roy L. Merrill, Dwight H. Austin and Joyce Cox for respondents. Reported below: 381 S. W. 2d 949.
No. 183. Associated Press v. Taft-Ingalls Corp., formerly Cincinnati Times-Star Co. ; and
No. 185. Taft-Ingalls Corp. v. Associated Press. C. A. 6th Cir. Certiorari denied. William P. Rogers, Timothy S. Hogan and H. Allen Lochner for petitioner in No. 183 and for respondent in No. 185. Robert T. Keeler for petitioner in No. 185 and for respondent in No. 183. Reported below: 340 F. 2d 753.
No. 186. Price et al. v. Price. Super. Ct. Mass., Norfolk County. Certiorari denied. John D. O’Reilly, Jr., for petitioners. George Welch for respondent. Reported below: See 348 Mass. 663, 204 N. E. 2d 902.
No. 187. Durovic v. Palmer et al. C. A. 7th Cir. Certiorari denied. Julius L. Sherwin for petitioner. Soliciter General Cox, Assistant Attorney General Vin-son, Béatrice Rosenberg and William W. Goodrich for respondents. Reported below: 342 F. 2d 634.
No. 188. Scherer & Sons, Inc. v. International Ladies' Garment Workers’ Union, Local No. 415, AFL-CIO, et al. C. A. 5th Cir. Certiorari denied. Joseph A. Perkins for petitioner. Morris P. Glushien for respondent International Ladies’ Garment Workers’ Union. Reported below: 341 F. 2d 298.
No. 194. Baker v. Simmons Co. C. A. Ist Cir. Certiorari denied. Maurice Schwartz for petitioner. ITïL liam E. Anderson for respondent. Reported below 342 F. 2d 991.
ORDERS.
821
382 U. S.	October 11, 1965.
No. 189. Lichtenstein, aka Wells v. United States. C. A. 5th Cir. Certiorari denied. Joseph Aronstein for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 341 F. 2d 476.
No. 190. Coil v. United States. C. A. 8th Cir. Certiorari denied. Richard J. Bruckner for petitioner. Solicitor General Cox, Assistant Attorney General Vin-son, Béatrice Rosenberg and Marshall Tamor Golding for the United States. Reported below: 343 F. 2d 573.
No. 192. Sessoms v. Union Savings & Trust Co. C. A. 6th Cir. Certiorari denied. Ralph Rudd and Charles R. Miller for petitioner. Ashley M. Van Duzer, Paul W. Walter and Arthur P. Steinmetz for respondent. Reported below: 338 F. 2d 752.
No. 193. Dewey v. American National Bank et al. Ct. Civ. App. Tex., 7th Sup. Jud. Dist. Certiorari denied. Petitioner pro se. L. A. White for American National Bank, and H. A. Berry for Owen et al., respondents. Reported below: 382 S. W. 2d 524.
No. 195. DeLucia et al. v. New York. Ct. App. N. Y. Certiorari denied. William Sonenshine for petitioners. Frank D. O’Connor and Benj. J. Jacobson for respondent. Reported below: 15 N. Y. 2d 294, 206 N. E. 2d 324.
No. 197. G. L. Christian & Associates v. United States. Ct. Cl. Certiorari denied. Gilbert A. Cuneo, Norman R. Crozier, Jr., Chester H. Johnson, O. D. Hite, William Hillyer, Wilson Johnston, Eldon H. Crowell and David V. Anthony for petitioner. Solicitor General Cox for the United States. Reported below: 170 Ct. Cl. 902.
822
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 196. WOFFORD ET AL. V. NORTH CAROLINA STATE Highway Commission. Sup. Ct. N. C. Certiorari denied. Roy L. Deal for petitioners. Reported below: 263 N. C. 677, 140 S. E. 2d 376.
No. 198. Stuff v. E. C. Publications, Inc., et al. C. A. 2d Cir. Certiorari denied. Martin M. Pollak and Samuel J. Stoll for petitioner. Martin J. Scheiman for respondents. Reported below : 342 F. 2d 143.
No. 199. Diaz et al. v. United States. C. A. 5th Cir. Certiorari denied. G. Wray GUI and Paul H. Brinson for petitioners. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 341 F. 2d 912.
No. 200. Bâtes, dba Fratelli's Restaurant v. Board of Liquor Control et al. Sup. Ct. Ohio. Certiorari denied. Alvin J. Savinell for petitioner. William B. Saxbe, Attorney General of Ohio, for respondents.
No. 201. Penzien et al. v. Dielectric Products Engineering Co., Inc. Sup. Ct. Mich. Certiorari denied. Harold A. Cranefield for petitioners. Raymond K. Dykema for respondent. Reported below: 374 Mich. 444, 132 N. W. 2d 130.
No. 208. Machinery, Scrap Iron, Métal & Steel Chauffeurs, Warehousemen, Handlers, Helpers, Alloy Fabricators, Theatrical, Exposition, Convention & Trade Show Employées, Local Union No. 714, International Brotherhood of Teamsters v. Madden, Régional Director, National Labor Relations Board. C. A. 7th Cir. Certiorari denied. Mayer Goldberg for petitioner. Solicitor General Cox, Arnold Ordman, Dom-inick L. Manoli and Norton J. Corne for respondent. Reported below: 343 F. 2d 497.
ORDERS.
823
382 U. S.	October 11, 1965.
No. 203. McCloskey & Co., Inc. v. Wymard et al., Receivers. C. A. 3d Cir. Certiorari denied. Paul M. Rhodes and Frederick Bernays Wiener for petitioner. Edward Cohen for respondents. Reported below: 342 F. 2d 495.
No. 205. Grene v. United States. C. A. 5th Cir. Certiorari denied. Joseph W. Wyatt for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 341 F. 2d 916.
No. 207. Jacobs v. Tennessee. Sup. Ct. Tenn. Certiorari denied. James H. Bateman and William C. Wilson for petitioner. George F. McCanless, Attorney General of Tennessee, and Thomas E. Fox, Assistant Attorney General, for respondent.
No. 209. Lombard et al. v. United States. C. A. D. C. Cir. Certiorari denied. Byron N. Scott for petitioners. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Théodore George Gilinsky for the United States.
No. 214. Home News Publishing Co., Inc., et al. v. Wirtz, Secretary of Labor. C. A. 5th Cir. Certiorari denied. Irving M. Wolff for petitioners. Solicitor General Cox, Charles Donahue, Bessie Margolin and Robert E. Nagle for respondent. Reported below: 341 F. 2d 20.
Nos. 215 and 314. Adjmi et al. v. United States. C. A. 5th Cir. Certiorari denied. Jacob Kossman for petitioners. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: No. 215, 343 F. 2d 164; No. 314, 346 F. 2d 654.
786-211 0-66—40
824
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 216. Mackey v. United States. C. A. 7th Cir. Certiorari denied. Frederick Bernays Wiener and Robert J. Downing for petitioner. Solicitor General Cox, As-sistant Attorney General Jones and Meyer Rothwacks for the United States. Reported below: 345 F. 2d 499.
No. 217. Pepperidge Farm, Inc. v. Bryan, U. S. District Judge. C. A. 2d Cir. Certiorari denied. Robert MacCrate and Edward W. Keane for petitioner. Louis Nizer for respondent.
No. 220. Smith et al. v. United States. C. A. 6th Cir. Certiorari denied. William F. Hopkins for petitioners. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 343 F. 2d 847.
No. 221. Joe Graham Post No. 119, American Légion v. United States. C. A. 5th Cir. Certiorari denied. William E. Logan for petitioner. Solicitor General Cox and Assistant Attorney General Jones for the United States. Reported below : 340 F. 2d 474.
No. 225. Miami Herald Publishing Co. v. Boire, Régional Director, National Labor Relations Board. C. A. 5th Cir. Certiorari denied. D. P. S. Paul and Parker D. Thomson for petitioner. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 343 F. 2d 17.
No. 239. United Specialty Advertising Co. et al. v. Furr’s, Inc., et al. Ct. Civ. App. Tex., 8th Sup. Jud. Dist. Certiorari denied. Maurice J. Hindin and W. B. Browder, Jr., for petitioners. William L. Kerr for respondents. Reported below : 385 S. W. 2d 456.
ORDERS.
825
382 LT. S.	October 11, 1965.
No. 223. Carter v. Winter et al. Sup. Ct. 111. Certiorari denied. Robert Weiner for petitioner. Alfred F. Newkirk, Montgomery S. Winning and Richard W. Galiher for respondents. Reported below: 32 111. 2d 275, 204 N. E. 2d 755.
No. 224. Gautier, Tax Assessor, et al. v. Florida Greenheart Corp. Sup. Ct. Fia. Certiorari denied. St. Julien P. Rosemond for petitioners. Richard Steel for respondent. Reported below: 172 So. 2d 589.
No. 228. Broadwell et al. v. United States. C. A. 4th Cir. Certiorari denied. Don T. Evans for petitioners. Solicitor General Cox, Acting Assistant Attorney General Jones, Joseph Kovner and George F. Lynch for the United States. Reported below: 343 F. 2d 470.
No. 231. Dun & Bradstreet, Inc. v. Nicklaus, Trustée in Bankruptcy. C. A. 8th Cir. Certiorari denied. Chester Bordeau and Robert V. Light for petitioner. D. D. Panich for respondent. Reported below: 340 F. 2d 882.
No. 233. Spino v. United States. C. A. 7th Cir. Certiorari denied. John N. Stanton for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below : 345 F. 2d 372.
No. 246. Vetere et al. v. Allen, Commissioner of Education of New York, et al. Ct. App. N. Y. Certiorari denied. C. William Gaylor, Mason L. Hampton, Jr., and James M. Marrin for petitioners. 'Charles A. Brind for Allen et al., and Robert L. Carter for Mitchell et al., respondents. Reported below: 15 N. Y. 2d 259, 206 N. E. 2d 174.
826
OCTOBER TERM, 1965.
October 11, 1965.
382 U.S.
No. 237. Avallone v. United States. C. A. 5th Cir. Certiorari denied. Nicholas J. Capuano for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Philip R. Monahan for the United States. Reported below: 341 F. 2d 296.
No. 240. McDaniel v. United States. C. A. 5th Cir. Certiorari denied. Alton F. Curry for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 343 F. 2d 785.
No. 242. McGuire v. United States. C. A. 6th Cir. Certiorari denied. J. Leonard Walker for petitioner. Solicitor General Cox, Acting Assistant Attorney General Jones, Meyer Rothwacks and John M. Brant for the United States. Reported below: 347 F. 2d 99.
No. 244. Nicole et al. v. Berdecia et al. Sup. Ct. Puerto Rico. Certiorari denied. Carlos D. Vazques for petitioners.
No. 247. Northern Lights Shopping Center, Inc. v. New York. Ct. App. N. Y. Certiorari denied. Daniel F. Mathews, Sr., for petitioner. Louis J. Lef-kowitz, Attorney General of New York, Paxton Blair, Solicitor General, and Julius L. Sackman for respondent. Reported below: 15 N. Y. 2d 688, 204 N. E. 2d 333.
No. 249. Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, United Steel-workers of America, AFL-CIO, et al. C. A. 9th Cir. Certiorari denied. Marion B. Plant for petitioner. Bernard Kleiman, Elliot Bredhoff, Michael H. Gottesman and Jay Darwin for respondents. Reported below 344 F. 2d 300.
ORDERS.
827
382 U. S.	October 11, 1965.
No. 248. Central Packing Co., Inc. v. Ryder Truck Rental, Inc. C. A. lOth Cir. Certiorari denied. Edward A. Smith and George Schwegler, Jr., for petitioner. Douglas Stripp and Russell W. Baker for respondent. Reported below: 341 F. 2d 321.
No. 252. Estate of Sperling v. Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Morris Horowitz for petitioner. Solicitor General Cox, Assistant Attorney General Jones and Robert N. Anderson for respondent. Reported below: 341 F. 2d 201.
No. 254. CLEMENTS ET AL. V. ILLINOIS. Sup. Ct. 111. Certiorari denied. Charles A. Bellows and Julius Lucius Echeles for petitioners. Reported below: 32 111. 2d 232, 204 N. E. 2d 724.
No. 255. Local 50, American Bakery & Confec-TIONERY WORKERS UNION, AFL-CIO V. NATIONAL LABOR Relations Board. C. A. 2d Cir. Certiorari denied. Howard N. Meyer, Henry Kaiser, George Kaufmann and Ronald Rosenberg for petitioner. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 339 F. 2d 324.
No. 257. Crown Life Insurance Co. v. Varas. Super. Ct. Pa. Certiorari denied. John G. Laylin and Owen B. Rhoads for petitioner. James M. Marsh and J. Harry LaBrum for respondent. Solicitor General Cox on the mémorandum for the United States transmitting the views of the Government of Canada. Reported below: 204 Pa. Super. 176, 203 A. 2d 505.
No. 259. Tomaszek v. Illinois. App. Ct. 111., lst Dist. Certiorari denied. Frank G. Whalen for petitioner. Reported below: 54 111. App. 2d 254, 204 N. E. 2d 30.
828
OCTOBER TERM, 1965.
October 11, 1965.
382 U.S.
No. 261. Hayden v. United States. C. A. 9th Cir. Certiorari denied. Al Matthews for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 343 F. 2d 459.
No. 263. Wagner v. United States. C. A. 2d Cir. Certiorari denied. Moses M. Falk for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States.
No. 264. Martin et al. v. New York. Ct. App. N. Y. Certiorari denied. Robert L. Carter and Barbara A. Morris for petitioners. William Cahn for respondent.
No. 266. Knapp-Monarch Co. v. Casco Products Corp. C. A. 7th Cir. Certiorari denied. Norman Lett-vin for petitioner. Granger Cook, Jr., for respondent. Reported below: 342 F. 2d 622.
No. 267. Mitchell et al. v. Malvern Gravel Co. Sup. Ct. Ark. Certiorari denied. Peyton Ford for petitioners. James W. Chesnutt and Joe W. McCoy for respondent. Reported below: 238 Ark. 848, 385 S. W. 2d 144.
No. 268. Joseph v. United States. C. A. 5th Cir. Certiorari denied. G. W. GUI for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 343 F. 2d 755.
No. 277. Silverstein v. United States. C. A. 2d Cir. Certiorari denied. Boris Kostelanetz and Raymond Rubin for petitioner. Solicitor General Cox, Acting Assistant Attorney General Jones, Meyer Roth-wacks and Burton Berkley for the United States.
ORDERS.
829
382 U. S.	October 11, 1965.
No. 262. Burge v. United States. C. A. 9th Cir. Certiorari denied. Clifford J. Groh and George Kaufmann for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 333 F. 2d 210; 342 F. 2d 408.
No. 271. Quarles v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 385 S. W. 2d 395.
No. 278. Stupak v. United States. C. A. 3d Cir. Certiorari denied. John E. Evans, Sr., for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States.
No. 279. Blanchard, dba Blanchard Construction Co. v. St. Paul Fire & Marine Insurance Co. C. A. 5th Cir. Certiorari denied. George E. Morse for petitioner. Raymond A. Hepner for respondent. Reported below: 341 F. 2d 351.
No. 284. Stirone v. Markley, Warden. C. A. 7th Cir. Certiorari denied. Lloyd F. Engle, Jr., and N. George Nasser for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Doar and Harold H. Greene for respondent. Reported below : 345 F. 2d 473.
No. 286. DiFronzo v. United States; and
No. 287. Calzavara v. United States. C. A. 7th Cir. Certiorari denied. Charles A. Bellows for petitioner in No. 286. George F. Caïlaghan, Julius Lucius Echeles and Melvin B. Lewis for petitioner in No. 287. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Robert S. Erdahl for the United States. Reported below: 345 F. 2d 383.
830
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 289. Yenowine et al. v. State Farm Mutual Automobile Insurance Co. C. A. 6th Cir. Certiorari denied. Petitioners pro se. Joe H. Taylor for respondent. Reported below: 342 F. 2d 957.
No. 292. Primrose Super Market of Salem, Inc. v. National Labor Relations Board. C. A. Ist Cir. Certiorari denied. William F. Joy for petitioner. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent.
No. 293. Sherman et al., dba Livernois Auto Parts v. Goerlich’s, Inc., et al. C. A. 6th Cir. Certiorari denied. Harry S. Stark for petitioners. Fred A. Smith for respondent Goerlich’s, Inc. Reported below: 341 F. 2d 988.
No. 295. Winn-Dixie Stores, Inc., et al. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. O. R. T. Bowden for petitioners. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 341 F. 2d 750.
No. 296. Bankers Bond Co., Inc., et al. v. All States Investors, Inc., et al. C. A. 6th Cir. Certiorari denied. Wilbur Fields for petitioners. Gavin H. Cochran and Royal H. Brin, Jr., for All States Investors, Inc., and Henry J. Stites for Dunne et al., respondents. Reported below: 343 F. 2d 618.
No. 297. J. A. Tobin Construction Co. et al. v. United States. C. A. lOth Cir. Certiorari denied. F. Philip Kirwan for petitioners. Solicitor General Cox, Assistant Attorney General Weisl and S. Billinysley Hill for the United States. Reported below: 343 F. 2d 422.
ORDERS.
831
382 U. S.	October 11, 1965.
No. 294. Megge et al. v. United States. C. A. 6th Cir. Certiorari denied. LuVeme Conway for petitioners. Solicitor General Cox for the United States. Reported below: 344 F. 2d 31.
No. 298. Daniel Construction Co., Inc. v. National Labor Relations Board. C. A. 4th Cir. Certiorari denied. Robert T. Thompson for petitioner. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Melvin Pollack for respondent. Reported below: 341 F. 2d 805.
No. 299. Jarvis et al. v. United States et al. C. A. 5th Cir. Certiorari denied. Raymond K. Kierr for petitioners. Solicitor General Cox, Assistant Attorney General Douglas, Morton Hollander and Richard S. Salzman for the United States et al.
No. 300. Ambold v. Seaboard Air Line Railroad Co. C. A. 4th Cir. Certiorari denied. Howard I. Legum and Louis B. Fine for petitioner. Eppa Hunton IV and Lewis T. Booker for respondent. Reported below : 345 F. 2d 30.
No. 301. Teitelbaum v. United States et al. C. A. 7th Cir. Certiorari denied. Abraham Teitelbaum, petitioner, pro se. Acting Solicitor General Spritzer and Acting Assistant Attorney General Jones for the United States et al. Reported below: 342 F. 2d 672.
No. 307. Bencel, Administratrix, et al. v. Frost et al. C. A. 3d Cir. Certiorari denied. Nathan Baker for petitioners. Victor C. Hansen for respondents.
No. 309. Taylor v. Baltimore & Ohio Railroad Co. C. A. 2d Cir. Certiorari denied. Jacob D. Fuchsberg for petitioner. Donald M. Dunn and Eugene Z. DuBose for respondent. Reported below: 344 F. 2d 281.
832
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 304. Tradeways Inc. v. Chrysler Corp. C. A. 2d Cir. Certiorari denied. W. Mahlon Dickerson for petitioner. Francis S. Bensel for respondent. Reported below: 342 F. 2d 350.
No. 306. Rochester Gas & Electric Corp. v. Fédéral Power Commission. C. A. 2d Cir. Certiorari denied. Edward F. Huber and T. Cari Nixon for petitioner. Solicitor General Cox, Richard A. Solomon, Howard E. Wahrenbrock, Joseph B. Hobbs and Joséphine H. Klein for respondent. Reported below : 344 F. 2d 594.
No. 310. Peerless Insurance Co. v. United States et al. C. A. 2d Cir. Certiorari denied. Morris K. Sie-gel and Murray Brensilber for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 343 F. 2d 759.
No. 311. Pool v. United States. C. A. 9th Cir. Certiorari denied. Russell E. Parsons for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 344 F. 2d 943.
No. 313. Hammons v. Texas & New Orléans Railroad Co. Ct. Civ. App. Tex., 12th Sup. Jud. Dist. Certiorari denied. John P. Spiller for petitioner. Tom Martin Davis for respondent. Reported below: 382 S. W. 2d 155.
No. 317. James H. Matthews & Co. v. National Labor Relations Board. C. A. 3d Cir. Certiorari denied. Nicholas Unkovic for petitioner. Acting Solicitor General Spritzer, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 342 F. 2d 129.
ORDERS.
833
382 U. S.	October 11, 1965.
No. 316. Zobel v. South Dakota. Sup. Ct. S. D. Certiorari denied. Daniel J. Andersen for petitioner. Frank L. Farrar, Attorney General of South Dakota, Walter W. André, Assistant Attorney General, and Robert A. Miller, Spécial Assistant Attorney General, for respondent. Reported below: --------- S. D. ----, 134 N. W.
2d 101.
No. 320. Massengill v. United States. C. A. 4th Cir. Certiorari denied. R. R. Ryder for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 346 F. 2d 125.
No. 321. Fotochrome, Inc. v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Louis Fischoff for petitioner. Acting Solicitor General Spritzer, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 343 F. 2d 631.
No. 322. Stevenson et al. v. Silverman et al. Sup. Ct. Pa. Certiorari denied. Lawrence J. Richette for petitioners. Samuel D. Stade for respondents. Reported below: 417 Pa. 187, 208 A. 2d 786.
No. 324. Wilson et al. v. Louisiana. Sup. Ct. La. Certiorari denied. Lloyd F. Love for petitioners. Reported below: 247 La. 405,171 So. 2d 664.
No. 325. DeWelles v. United States. C. A. 7th Cir. Certiorari denied. A. L. Wirin and Fred Okrand for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 345 F. 2d 387.
834
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 327. Buck v. Superior Court of California. Sup. Ct. Cal. Certiorari denied. Sorrell Trope and Eugene L. Trope for petitioner.
No. 329. Hasbrook et ux. v. United States. C. A. 2d Cir. Certiorari denied. Charles D. Post for petitioners. Acting Solicitor General Spritzer and Acting Assistant Attorney General Jones for the United States. Reported below: 343 F. 2d 811.
No. 330. Wade v. United States. C. A. 5th Cir. Certiorari denied. Zach H. Douglas for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 344 F. 2d 1016.
No. 331. Coleman v. McGettrick, Sheriff. Sup. Ct. Ohio. Certiorari denied. James R. Willis for petitioner. John T. Corrigan for respondent. Reported below: 2 Ohio St. 2d 177, 207 N. E. 2d 552.
No. 332. Studemeyer v. Mac y, Chairman, U. S. Civil Service Commission, et al. C. A. D. C. Cir. Certiorari denied. Donald M. Murtha and Claude L. Dawson for petitioner. Acting Solicitor General Spritzer for respondents. Reported below: 120 U. S. App. D. C. 259, 345 F. 2d 748.
No. 335. Florida East Coast Railway v. Martin County, Florida. Sup. Ct. Fia. Certiorari denied. David W. Peck and Roy H. Steyer for petitioner. Dean Tooker for respondent. Reported below: 171 So. 2d 873.
No. 342. Palisi v. Louisville & Nashville Rail-road Co., Inc. C. A. 5th Cir. Certiorari denied. Albert Sidney Johnston, Jr., for petitioner. A. F. Lankford III for respondent. Reported below: 342 F. 2d 799.
ORDERS.
835
382 U. S.	October 11, 1965.
No. 333. Hulburt Oil & Grease Co. of Illinois v. Hulburt Oil & Grease Co. of Pennsylvania. C. A. 7th Cir. Certiorari denied. J. Willison Smith, Jr., for petitioner. Norman A. Miller for respondent. Reported below: 346 F. 2d 260.
No. 334. National Maritime Union of America, AFL-CIO v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Abraham E. Freedman for petitioner. Acting Solicitor General Spritzer, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 342 F. 2d 538.
No. 339. Verzi et al. v. Ohio. Sup. Ct. Ohio. Certiorari denied. Marvin A. Koblentz for petitioners.
No. 340. In-Sink-Erator Manufacturing Co. v. Waste King Corp. C. A. 7th Cir. Certiorari denied. Charles B. Cannon and George J. Kuehnl for petitioner. Ford W. Harris, Jr., for respondent. Reported below: 346 F. 2d 248.
No. 344. Michigan Mutual Liability Co. et al. v. Arrien, Deputy Commissioner, Bureau of Employées Compensation, U. S. Department of Labor, et al. C. A. 2d Cir. Certiorari denied. James B. Magnor and Charles N. Fiddler for petitioners. Acting Solicitor General Spritzer, Assistant Attorney General Douglas, Alan S. Rosenthal and David L. Rose for respondents. Reported below : 344 F. 2d 640.
No. 348. Krystoforski v. United States. C. A. 6th Cir. Certiorari denied. George F. Mehling for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
836
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 350. Ruhl v. Railroad Retirement Board. C. A. 7th Cir. Certiorari denied. Anthony A. DiGrazia, Harry A. Carlson and Hugh M. Matchett for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Douglas, Morton Hollander and Richard S. Salzman for respondent. Reported below : 342 F. 2d 662.
No. 353. Kohler Co. v. National Labor Relations Board et al. C., A. D. C. Cir. Certiorari denied. Lyman C. Conger, Edward J. Hammer and E. Riley Casey for petitioner. Acting Solicitor General Spritzer, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Nancy M. Sherman for the National Labor Relations Board, and Joseph L. Rauh, Jr., John Silard and Stephen I. Schlossberg for Local 833, United Automobile, Air-craft and Agricultural Implement Workers, respondents. Briefs of amici curiae, in support of the pétition, were filed by Eugene Adams Keeney and Guy Farmer for the Chamber of Commerce of the United States, by Lambert H. Miller for the National Association of Manufacturers of the United States, and by Walter S. Davis for the Wisconsin Manufacturers’ Association. Reported below: 112 U. S. App. D. C. 107, 300 F. 2d 699; 120 U. S. App. D. C. 259, 345 F. 2d 748.
No. 359. Johnson v. United States. C. A. 6th Cir. Certiorari denied. L.- W. Massey for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 345 F. 2d 457.
No. 360. Marshall et al. v. Mayor and Board of Selectmen, City of McComb. Sup. Ct. Miss. Certiorari denied. Robert L. Carter, Barbara A. Morris and Jack H. Young for petitioners. Reported below: 251 Miss. 750, 171 So. 2d 347.
ORDERS.
837
382 U. S.	October 11, 1965.
No. 356. I. Posner, Inc., et al. v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Isidore Drimmer and Daniel H. Greenberg for petitioners. Acting Solicitor General Spritzer, Arnold Ordman, Dom-inick L. Manoli and Norton J. Corne for respondent. Reported below: 342 F. 2d 826.
No. 361. Kamsler v. H. A. Seinscheimer Co. C. A. 7th Cir. Certiorari denied. Petitioner pro se. David Jacker for respondent. Reported below: 347 F. 2d 740.
No. 362. Matthews, Trustée in Bankruptcy v. James Talcott, Inc. C. A. 7th Cir. Certiorari denied. C. Severin Buschmann for petitioner. Charles B. Feible-man and Gene E. Wilkins for respondent. Reported below: 345 F. 2d 374.
No. 363. Perry v. Zysset et al. C. A. 7th Cir. Certiorari denied. George B. Christensen for petitioner. Albin C. Ahlberg and Warren C. Horton for respondents.
No. 364. Froehlich et al. v. District Judges, U. S. District Court for the Southern District of New York, et al. C. A. 2d Cir. Certiorari denied. Harold Dublirer for petitioners. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for respondents.
No. 365. Lux Art Van Service, Inc. v. Pollard. C. A. 9th Cir. Certiorari denied. Sidney Weissberger for petitioner. Raymond F. Hayes for respondent. Reported below: 344 F. 2d 883.
No. 370. Hammonds et al. v. City of Corpus Christi. C. A. 5th Cir. Certiorari denied. Sidney P. Chandler for petitioners. I. M. Singer for respondent. Reported below: 343 F. 2d 162.
838
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 369. Hamadeh v. Immigration and Natural-ization Service. C. A. 7th Cir. Certiorari denied. Otto Oplatka for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for respondent. Reported below: 343 F. 2d 530.
No. 371. McCarthy et ux. v. Conley, District Director of Internal Revenue. C. A. 2d Cir. Certiorari denied. Edward P. J. McCarthy for petitioners. Acting Solicitor General Spritzer and Acting Assistant Attorney General Jones for respondent. Reported below: 341 F. 2d 948.
No. 374. Smith v. Crouch, Sheriff. Sup. Ct. Tenn. Certiorari denied. Bernard H. Cantor for petitioner. George F. McCanless, Attorney General of Tennessee, and Edgar P. Calhoun, Assistant Attorney General, for respondent.
No. 376. Paine Drug Co. v. New York. County Ct., Monroe County, N. Y. Certiorari denied. Robert L. Beck for petitioner. Reported below: 39 Mise. 2d 824, 241 N. Y. S. 2d 946.
No. 377. Angelini v. United States. C. A. 7th Cir. Certiorari denied. Anna R. Lavin for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Glazer for the United States. Reported below : 346 F. 2d 278.
No. 378. Howard v. United States. C. A. Ist Cir. Certiorari denied. Stanley H. Rudman for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 345 F. 2d 126.
ORDERS.
839
382 U. S.	October 11, 1965.
No. 379. Robinson v. United States. C. A. lOth Cir. Certiorari denied. Jacob A. Dickinson, Sam A. Crow and Bill G. Honeyman for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vin-son, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 345 F. 2d 1006.
No. 380. Robinson v. United States. C. A. lOth Cir. Certiorari denied. Jacob A. Dickinson, Sam A. Crow and Bill G. Honeyman for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vin-son and Béatrice Rosenberg for the United States. Reported below: 345 F. 2d 1007.
No. 381. Retail Clerks International Association, Local Unions Nos. 128, 633 and 954 v. Lion Dry Goods, Inc., et al. C. A. 6th Cir. Certiorari denied. Joseph E. Finley, Sol G. Lippman and Tim L. Bomstein for petitioners. Merritt W. Green for respondents. Reported below: 341 F. 2d 715.
No. 388. Chisholm, Administratrix, et al. v. Bil-lings, Executor, et al. Sup. Ct. Ga. Certiorari denied. Hamilton Douglas for petitioners. George E. C. Hayes for respondents. Reported below : 220 Ga. 870, 142 S. E. 2d 781.
No. 390. Machel v. California. Dist. Ct. App. Cal., Ist App. Dist. Certiorari denied. James C. Purcell for petitioner. Reported below: 234 Cal. App. 2d 37, 44 Cal. Rptr. 126.
No. 394. Hesmer Foods, Inc. v. Campbell Soup Co. C. A. 7th Cir. Certiorari denied. John D. Clouse for petitioner. Thomas M. Scanlon and Richard E. Deer for respondent. Reported below: 346 F. 2d 356.
786-211 0-66—41
840
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 389. Garcia-Gonzales v. Immigration and Nat-uralization Service. C. A. 9th Cir. Certiorari denied. Joseph S. Hertogs for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for respondent. Reported below: 344 F. 2d 804.
No. 393. Sill Corp. v. United States. C. A. lOth Cir. Certiorari denied. Roland Boyd, John J. Geraghty and William VanDercreek for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Weisl, Roger P. Marquis and Raymond N. Zagone for the United States. Reported below: 343 F. 2d 411.
No. 403. National Maritime Union of America, AFL-CIO v. National Labor Relations Board. C. A. D. C. Cir. Certiorari denied. Abraham E. Freedman for petitioner. Acting Solicitor General Spritzer, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 120 U. S. App. D. C. 299, 346 F. 2d 411.
No. 405. Semel v. United States. C. A. 4th Cir. Certiorari denied. Joseph J. Lyman and Josiah Lyman for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 347 F. 2d 228.
No. 128. WlLLHEIM ET AL. V. MuRCHISON ET AL., DBA Murchison Brothers, et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Leonard I. Schreiber for petitioners. Stuart N. Updike for Murchison et al., and Samuel E. Gates and Robert J. Geniesse for Investors Diversified Services, Inc., respondents. Reported below: 342 F. 2d 33.
ORDERS.
841
382 U. S.	October 11, 1965.
No. 114. Carlo Bianchi & Co., Inc. v. United States. Ct. Cl. Motion to use record in No. 529, October Terni, 1962, granted. Certiorari denied. William H. Matthews for petitioner. Solicitor General Cox, Assistant Attorney General Douglas, Morton Hollander and David L. Rose for the United States. Reported below: 167 Ct. Cl. 364.
No. 137. V. L. Smithers Manufacturing Co. v. O’BrIEN ET AL., DBA ILLINOIS WHOLESALE FLORIST. C. A. 7th Cir. Certiorari denied. Mr. Justice Portas took no part in the considération or decision of this pétition. H. F. McNenny for petitioner. John Rex Allen for respondents. Reported below: 340 F. 2d 952.
No. 160. Brotherhood of Locomotive Firemen & Enginemen v. Central of Georgia Railway Co. C. A. 5th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Harold C. Heiss and Russell B. Day for petitioner. John B. Miller, Charles J. Bloch, W. Graham Claytor, Jr., and Richard S. Arnold for respondent. Reported below: 341 F. 2d 213.
No. 182. Jachimiec v. Schenley Industries, Inc., et al. C. A. 7th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Milton V. Freeman and Sheldon O. Collen for petitioner. Sidney R. Zatz, Milton H. Cohen and Peyton Ford for respondents.
No. 265. Brandano et al. v. Handman et al. C. A. lst Cir. Certiorari denied. Mr. Justice Portas took no part in the considération or decision of this pétition. Joseph Zallen for petitioners. Diana J. Auger for respondents.
842
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 155. Hughes Tool Co. v. Trans World Airlines, Inc. C. A. 2d Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Chester C. Davis for petitioner. John F. Sonnett, Cari S. Rowe, Dudley B. Tenney, Marshall H. Cox, Jr., and Abraham P. Ordover for respondent. Reported below: 339 F. 2d 56.
No. 222. Atlas-Pacific Engineering Co. v. Geo. W. Ashlock Co. C. A. 9th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Edward B. Gregg and Melvin R. Stidham for petitioner. Frank A. Neal and James M. Naylor for respondent. Reported below: 339 F. 2d 288.
No. 272. Caparotta, dba Kings Brush Co. v. American Technical Machinery Corp. C. A. 2d Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Ralph L. Chap-pell for petitioner. John M. Calimafde for respondent. Reported below : 339 F. 2d 557.
No. 288. Welsh Co. v. Chernivsky, dba Comfy Babe Co. C. A. 7th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Lawrence H. Cohn and Ewing Laporte for petitioner. John Rex Allen for respondent. Reported below: 342 F. 2d 586.
No. 302. Mortimer v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Abe Krash and John F. Kelly for petitioner. Solicitor General Cox, Acting Assistant Attorney General Jones and John P. Burke for the United States. Reported below: 343 F. 2d 500.
ORDERS.
843
382 U. S.	October 11, 1965.
No. 328. Space Aero Products Co., Inc., et al. v. R. E. Darling Co., Inc. Ct. App. Md. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Abe Fortas, Dennis G. Lyons, Joseph Sherbow, Edward F. Shea, Jr., and Rourke J. Sheehan for petitioners. James P. Donovan and Jack H. Olender for respondent. Reported below: 238 Md. 93, 208 A. 2d 74.
No. 337. Hanson et al. v. No-Joint Concrète Pipe Co. C. A. 9th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Charles F. Scanlan for petitioners. Jack E. Hursh for respondent. Reported below: 344 F. 2d 13.
No. 354. S. W. Farber, Inc. v. Texas Instruments, Inc. C. A. 3d Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Hobart N. Durham, John C. Vassil and Thomas N. O’Neill, Jr., for petitioner. Robert F. Davis for respondent. Reported below: 344 F. 2d 957.
No. 398. Doyle v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision or this pétition. Moses Krislov and Arthur H. Christy for petitioner. Acting Solicitor General Spritzer for the United States. Reported below: 348 F. 2d 715.
No. 181. Burchinal v. United States. C. A. lOth Cir. Motion to dispense with printing the pétition granted. Certiorari denied. Isaac Mellman and Gerald N. Mellman for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 342 F. 2d 982.
844
OCTOBER TERM, 1965.
October 11, 1965.	382 U. S.
No. 150. Haluska v. Gardner, Secretary of Health, Education and Welfare. C. A. 8th Cir. Motion to dispense with printing the pétition granted. Certiorari denied. Petitioner pro se. Solicitor General Cox for respondent.
No. 163. Lynch v. Industrial Indemnity Co. et al. C. A. 9th Cir. Motion to dispense with printing the pétition granted. Certiorari denied.
No. 202. Franklin et ux. v. United States et al. C. A. 7th Cir. Motion to dispense with printing the pétition granted. Certiorari denied. Harry L. Arkin for petitioners. Solicitor General Cox for the United States et al., and Newell S. Boardman and Jay M. Smyser for Chicago Helicopter Airways, Inc., et al., respondents. Reported below: 342 F. 2d 581.
No. 232. Marth et ux. v. Commissioner of Inter-nal Revenue. C. A. 9th Cir. Motion to dispense with printing the pétition granted. Certiorari denied. Petitioners pro se. Solicitor General Cox, Acting Assistant Attorney General Jones and Harold C. Wilkenfeld for respondent. Reported below: 342 F. 2d 417.
No. 273. Cuban Truck & Equipment Co. v. United States. Ct. Cl. Motion to dispense with printing the pétition granted. Certiorari denied. Charles Bragman for petitioner. Acting Solicitor General Spritzer for the United States. Reported below: 166 Ct. Cl. 381, 333 F. 2d 873.
No. 401. Tomiyasu et al. v. Golden et ux. Sup. Ct. Nev. Motion to dispense with printing the pétition granted. Certiorari denied. Harry E. Claiborne for petitioners. Howard W. Babcock for respondents. Reported below: 81 Nev. 140, 400 P. 2d 415.
ORDERS.
845
382 U. S.	October 11, 1965.
No. 151. Dargusch v. Columbus Bar Association. Sup. Ct. Ohio. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Stewart took no part in the considération or decision of this pétition. Joseph L. Rauh, Jr., John Silard and Carlton S. Dargusch, Jr., for petitioner. John L. Davies, Jr., and Sol Morton Isaac for respondent. Reported below: 177 Ohio St. 95, 202 N. E. 2d 625.
No. 158. Eastern Air Lines, Inc., et al. v. Northeast Airlines, Inc., et al. C. A. Ist Cir. Motion of International Association of Machinists et al. to be named parties respondent granted. Motion for leave to supplément the pétition granted. Certiorari denied. Mr. Justice Black and Mr. Justice Portas took no part in the considération or decision of these motions or the pétition. John W. Cross, E. Smythe Gambrell and Harold L. Russell for petitioners. Henry E. Foley and Loyd M. Starrett for respondent Northeast Airlines, Inc. Edward J. Hickey, Jr., James L. Highsaw, Jr., and William J. Hickey for International Association of Machinists et al. Reported below : 345 F. 2d 484, 488.
No. 180. Tatum et al. v. Singer et al. Sup. Ct. Miss. Motion for abstention denied. Certiorari denied. Joshua Green and Garner W. Green for petitioners. John C. Satterfield for respondents. Reported below: 251 Miss. 661, 171 So. 2d 134.
No. 213. Shelton v. Missouri-Kansas-Texas Railroad Co. Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Charles Gullett, Robert Doss and Russell M. Baker for petitioner. William Ralph Elliott for respondent. Reported below : 383 S. W. 2d 842.
846
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 250. Stitzel-Weller Distillery v. Department of Revenue of Kentucky. Ct. App. Ky. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Millard Cox for petitioner. William S. Riley, Assistant Attorney General of Kentucky, for respondent. Reported below: 387 S. W. 2d 602.
No. 315. Fuentes-Torres v. Immigration and Nat-uralization Service. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Milton T. Simmons for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Philip R. Monahan for respondent. Reported below : 344 F. 2d 911.
No. 338. Mohr et al. v. State Highway Commission of Missouri. Sup. Ct. Mo. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Hyman G. Stein for petitioners. Robert L. Hyder for respondent. Reported below: 388 S. W. 2d 855, 862.
Nos. 235 and 251. Gradsky v. United States. C. A. 5th Cir. Motion of B. J. Gradsky to be added as party petitioner in No. 235 denied. Certiorari denied. Sidney M. Dubbin for petitioner in No. 235. Milton E. Grus-mark for petitioner in No. 251. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 342 F. 2d 426.
No. 6, Mise. McCoy v. California. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Albert W. Harris, Jr., and Jay S. Linderman, Deputy Attorneys General, for respondent.
ORDERS.
847
382 U. S.	October 11, 1965.
No. 253. Mohasco Industries, Inc. v. E. T. Bar-wick Mills, Inc., et al. C. A. 5th Cir. Motion for leave to file supplément to the pétition granted. Certiorari denied. Mr. Justice Portas took no part in the considération or decision of the motion or the pétition. Stanton T. Lawrence, Jr., for petitioner. Charles H. Walker for respondents. Reported below: 340 F. 2d 319.
No. 260. Nyyssonen, Administratrix v. Bendix Corp. C. A. Ist Cir. Motion for leave to supplément the record granted. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this motion and pétition. David Rines and Robert H. Rines for petitioner. Morris Relson for respondent. Reported below: 342 F. 2d 531.
No. 7, Mise. Taylor v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 8, Mise. Morris v. Missouri. Sup. Ct. Mo. Certiorari denied. Petitioner pro se. Norman H. Anderson, Attorney General of Missouri, and William A. Peter-son and Howard L. McFadden, Assistant Attorneys General, for respondent.
No. 16, Mise. Butler v. United States. C. A. 8th Cir. Certiorari denied. Francis Breidenbach for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 340 F. 2d 63.
No. 17, Mise. Oyler v. Willingham, Warden. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar and Harold H. Greene for respondent. Reported below: 338 F. 2d 260.
848
OCTOBER TERM, 1965.
October 11, 1965.
382 U.S.
No. 9, Mise. Gravley v. Carter. Super. Ct. Bartow County, Ga. Certiorari denied. Petitioner pro se. Albert Sidney Johnson, Assistant Attorney General of Georgia, for respondent.
No. 13, Mise. Brown v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar and Harold H. Greene for the United States.
No. 20, Mise. Lebron v. Warden of Détention Headquarters. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar and Harold H. Greene for respondent. Reported below : 339 F. 2d 887.
No. 26, Mise. Vatelli v. Wilson, Warden. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Albert W. Harris, Jr., and Derald E. Granberg, Deputy Attorneys General, for respondent.
No. 27, Mise. Gori v. United States. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Miller and Béatrice Rosenberg for the United States. Reported below: 339 F. 2d 263.
No. 31, Mise. Lewis v. Illinois. Sup. Ct. 111. Certiorari denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, and Richard A. Michael, Assistant Attorney General, for respondent.
No. 32, Mise. Smith v. Taylor, Warden. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar and Harold H. Greene for respondent.
ORDERS.
849
382 U. S.	October 11, 1965.
No. 21, Mise. Scalzo v. Hurney, District Director, Immigration and Naturalization Service. C. A. 3d Cir. Certiorari denied. Richard R. Ransom for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for respondent. Reported below : 338 F. 2d 339.
No. 33, Mise. Purifoy v. Florida. Sup. Ct. Fia. Certiorari denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and James G. Mahomer, Assistant Attorney General, for respondent.
No. 34, Mise. Hyde v. McMann, Warden. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Louis J. Lejkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Frank J. Panizzo, Assistant Attorney General, for respondent.
No. 36, Mise. Wilson v. McGee, Administrator, et al. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., and Michael R. Marron, Deputy Attorneys General, for respondents.
No. 39, Mise. Kaufman v. Taxicab Bureau, Baltimore City Police Department. Ct. App. Md. Certiorari denied. Leonard J. Kerpelman for petitioner. Reported below: 236 Md. 476, 204 A. 2d 521.
No. 41, Mise. Reed v. United States. Ct. Cl. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 42, Mise. Samurine v. United States. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below : 337 F. 2d 857.
850
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 44, Mise. Norris v. United States. C. A. 7th Cir. Certiorari denied. Frederick R. Tourkow and Richard C. Ver Wiebe for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 341 F. 2d 527.
No. 45, Mise. DeGregory v. United States. C. A. 3d Cir. Certiorari denied. Eleanor Jackson Piel for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Béatrice Rosenberg and Daniel H. Ben-son for the United States. Reported below: 341 F. 2d 277.
No. 46, Mise. Lucas v. McMann, Warden. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Frank S. Hogan and H. Richard Uviller for respondent.
No. 47, Mise. Curry v. Weakley, Reformatory Superintendent, et al. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar, Harold H. Greene and Gerald P. Choppin for respondents.
No. 48, Mise. Acosta v. Fitzharris, Correctional Superintendent. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Robert R. Granucci, Deputy Attorney General, for respondent.
No. 50, Mise. Klein v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 340 F. 2d 547.
ORDERS.
851
382 U. S.	October 11, 1965.
No. 49, Mise. Luaces v. May, Warden. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar, and Harold H. Greene for respondent.
No. 51, Mise. Prysock v. Weakley, Reformatory Superintendent. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar and Harold H. Greene for respondent.
No. 57, Mise. Doub v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below : 341 F. 2d 572.
No. 61, Miscj Johnson v. United States. C. A. D. C. Cir. Certiorari denied. James J. Laughlin and William J. Garber for petitioner. Solicitor General Cox, Assistant Attorney General Miller, Béatrice Rosenberg and Sidney M. Glazer for the United States.
No. 62, Mise. Von Atzinger v. New Jersey. Sup. Ct. N. J. Certiorari denied. Petitioner pro se. John G. Thevos for respondent.
No. 63, Mise. Barnes v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
No. 71, Mise. Richardson v. Markley, Warden. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar and Harold H. Greene for respondent. Reported below: 339 F. 2d 967.
852
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 64, Mise. Davis v. United States. C. A. D. C. Cir. Certiorari denied. Russell Morton Brown, Maurice C. Goodpasture and John J. Dwyer for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States.
No. 67, Mise. Miller v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 73, Mise. Fennell v. United States. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 339 F. 2d 920.
No. 74, Mise. Grizzell v. Wainwright, Corrections Director. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and William D. Roth, Spécial Assistant Attorney General, for respondent.
No. 76, Mise. Peterson v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 78, Mise. Baylor v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 120 U. S. App. D. C. 157, 344 F. 2d 542.
No. 83, Mise. Muench v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 340 F. 2d 307.
ORDERS.
853
382 U. S.	October 11, 1965.
No. 82, Mise. Higginbotham v. United States Civil Service Commission. C. A. 3d Cir. Certiorari denied. Paul A. Simmons for petitioner. Solicitor General Cox, Assistant Attorney General Douglas, Sherman L. Cohn and Richard S. Salzman for respondent. Reported below: 340 F. 2d 165.
No. 84, Mise. Crain v. Texas. Ct. Crim. App. Tex. Certiorari denied. Petitioner pro se. Waggoner Carr, Attorney General of Texas, Hawthome Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, and Howard M. Fonder and Charles B. Swanner, Assistant Attorneys General, for respondent.
No. 86, Mise. Daly v. United States. C. A. D. C. Cir. Certiorari denied. John J. Dwyer and Jean F. Dwyer for petitioner. Solicitor General Cox for the United States. Reported below: 119 U. S. App. D. C. 353, 342 F. 2d 932.
No. 88, Mise. Wears v. Ohio et al. Sup. Ct. Ohio. Certiorari denied.
No. 89, Mise. Montgomery v. New York. Ct. App. N. Y. Certiorari denied. Robert Welch Mullen for petitioner. Reported below: 15 N. Y. 2d 732, 205 N. E. 2d 206.
No. 95, Mise. Waltreus v. California. Sup. Ct. Cal. Certiorari denied. Morris Lavine for petitioner. Reported below: 62 Cal. 2d 218, 397 P. 2d 1001.
No. 96, Mise. Steenbergen v. Illinois. Sup. Ct. Ill. Certiorari denied. John R. Snively for petitioner. Reported below: 31 Ill. 2d 615, 203 N. E. 2d 404.
854
OCTOBER TERM, 1965.
October 11, 1965.	382 U. S.
No. 92, Mise. Bridges v. Florida. Sup. Ct. Fia. Certiorari denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and John S. Burton, Assistant Attorney General, for respondent.
No. 94, Mise. Sten v. United States. C. A. 2d Cir. Certiorari denied. Osmond K. Fraenkel for petitioner. Solicitor General Cox, Assistant Attorney General Vin-son, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 342 F. 2d 491.
No. 98, Mise. McAbee v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 101, Mise. Duval v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Glazer for the United States.
No. 104, Mise. Black v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 341 F. 2d 583.
No. 106, Mise. Everist v. Illinois. App. Ct. 111., Ist Dist. Certiorari denied. R. Eugene Pincham and Charles B. Evins for petitioner. Daniel P. Ward and Elmer C. Kissane for respondent. Reported below: 52 111. App. 2d 73, 201 N. E. 2d 655.
No. 109, Mise. McMullen v. Gardner, Secretary of Health, Education and Welfare. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for respondent. Reported below: 335 F. 2d 811.
ORDERS.
855
382 U. S.	October 11, 1965.
No. 108, Mise. Thomas et al. v. United States. C. A. 6th Cir. Certiorari denied. R. Eugene Pincham for petitioners. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Marshall Tamor Golding for the United States. Reported below: 342 F. 2d 132.
No. 110, Mise. Whittington v. Cameron, Hospital Superintendent. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Doar and Harold H. Greene for respondent. Reported below: 120 U. S. App. D. C. 179, 344 F. 2d 564.
No. 111, Mise. Leak v. New York. Ct. App. N. Y. Certiorari denied.
No. 112, Mise. Cerrano v. Fleishman, Customs Agent, et al. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Douglas, Morton Hollander and Edward Berlin for respondents. Reported below: 339 F. 2d 929.
No. 113, Mise. Myartt v. Wisconsin. Sup. Ct. Wis. Certiorari denied.
No. 118, Mise. Vaughn v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
No. 119, Mise. Richmond v. Wainwright, Corrections Director. Sup. Ct. Fia. Certiorari denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and James G. Mahorner, Assistant Attorney General, for respondent.
786-211 0-66—42
856
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 121, Mise. Silver v. California. Sup. Ct. Cal. Certiorari denied.
No. 122, Mise. Shelton et al. v. United States. C. A. D. C. Cir. Certiorari denied. Samuel K. Abrams for petitioners. Solicitor General Cox, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 120 U. S. App. D. C. 65, 343 F. 2d 347.
No. 123, Mise. Crâne et al. v. California. C. A. 9th Cir. Certiorari denied.
No. 126, Mise. De Vaughn v. United States. C. A. 2d Cir. Certiorari denied. Leon B. Polsky for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States.
No. 127, Mise. Sanchez v. United States. C. A. 9th Cir. Certiorari denied. Stephen R. Reinhardt for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Théodore George Gilinsky for the United States. Reported below: 341 F. 2d 225.
No. 129, Mise. Taylor v. Ward et al. Ct. App. Md. Certiorari denied. Leonard J. Kerpelman for petitioner.
No. 133, Mise. Spiesel v. City of New York. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Léo A. Larkin, Seymour B. Quel and Benjamin Offner for respondent. Reported below: 342 F. 2d 800.
No. 135, Mise. Hairston v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States.
ORDERS.
857
382 U. S.	October 11, 1965.
No. 132, Mise. Allen v. Rundle, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 134, Mise. Whitworth v. Florida. Sup. Ct. Fia. Certiorari denied.
No. 136, Mise. Durham v. Missouri. Sup. Ct. Mo. Certiorari denied.
No. 138, Mise. Summers v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 139, Mise. McKenna v. Myers, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. Reported below: 342 F. 2d 998.
No. 143, Mise. Bales v. Hayes. C. A. 9th Cir. Certiorari denied.
No. 144, Mise. Harris v. Myers, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 145, Mise. Woody v. Missouri. Sup. Ct. Mo. Certiorari denied.
No. 146, Mise. Williams v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below: 344 F. 2d 264.
No. 149, Mise. Thompson v. Heinze, Warden. C. A. 9th Cir. Certiorari denied.
No. 150, Mise. Carter v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
858
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 151, Mise. Fields v. California. Sup. Ct. Cal. Certiorari denied.
No. 152, Mise. Elksnis v. Fay, Warden. C. A. 2d Cir. Certiorari denied.
No. 153, Mise. Olson v. Tahash, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 344 F. 2d 139.
No. 154, Mise. Arnold v. Bostick. C. A. 9th Cir. Certiorari denied. Reported below: 339 F. 2d 879.
No. 156, Mise. Capolino v. Kelly, Collector of Customs. C. A. 2d Cir. Certiorari denied. Léo Otis for petitioner. Solicitor General Cox for respondent. Reported below: 339 F. 2d 1023.
No. 157, Mise. Hudson v. Arceneaux et al. Sup. Ct. La. Certiorari denied. J. Minos Simon for petitioner.
No. 159, Mise. Burton v. Indiana. Sup. Ct. Ind. Certiorari denied. Reported below: --------- Ind. ----, 202
N. E. 2d 165;------Ind.-----, 204 N. E. 2d 218.
No. 160, Mise. Williams v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 343 F. 2d 472.
No. 161, Mise. Pearson et ux. v. Birdwell et al. Sup. Ct. Cal. Certiorari denied. Edgar Paul Boyko for petitioners.
No. 163, Mise. Maddox v. Holman, Warden. C. A. 5th Cir. Certiorari denied.
ORDERS.
859
382 U. S.	October 11, 1965.
No. 164, Mise. Riffle v. United States District Court for the Northern District of Ohio. C. A. 6th Cir. Certiorari denied.
No. 165, Mise. Williams v. Heinze, Warden. C. A. 9th Cir. Certiorari denied.
No. 166, Mise. Vesay v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States.
No. 167, Mise. Williams v. Levin, U. S. District Judge. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for respondent.
No. 170, Mise. Miguel v. United States. C. A. 2d Cir. Certiorari denied. Rudolph Lion Zalowitz and Frédéric A. Johnson for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 340 F. 2d 812.
No. 173, Mise. Rhodes v. New York. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Benj. J. Jacobson for respondent.
No. 178, Mise. Walker v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Marshall Tamor Golding for the United States. Reported below : 342 F. 2d 22.
No. 181, Mise. Johnson v. Pennsylvania et al. C. A. 3d Cir. Certiorari denied.
No. 184, Mise. Olguin v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied.
860
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 180, Mise. Herman v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 186, Mise. Budner v. New York. Ct. App. N. Y. Certiorari denied. Harry Krauss for petitioner. Frank S. Hogan and H. Richard Uviller for respondent. Reported below: 15 N. Y. 2d 253, 206 N. E. 2d 171.
No. 188, Mise. Richter v. Minnesota. Sup. Ct. Minn. Certiorari denied. Reported below: 270 Minn. 307, 133 N. W. 2d 537.
No. 189, Mise. Sanchez v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below: 341 F. 2d 565.
No. 190, Mise. Wilson v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 342 F. 2d 782.
No. 192, Mise. Byers v. Crouse, Warden. C. A. lOth Cir. Certiorari denied. Reported below: 339 F. 2d 550.
No. 193, Mise. Kanton v. United States. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below : 345 F. 2d 427.
No. 198, Mise. Smith v. Industrial Accident Commission of California et al. C. A. 9th Cir. Certiorari denied.
ORDERS.
861
382 U. S.	October 11, 1965.
No. 191, Mise. Crossley v. Tahash, Warden. Sup. Ct. Minn. Certiorari denied.
No. 199, Mise. Kerner v. Gardner, Secretary qf Health, Education and Welfare. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for respondent. Reported below : 340 F. 2d 736.
No. 200, Mise. Haley, Administratrix v. Baltimore & Ohio Railroad Co. et al. C. A. 7th Cir. Certiorari denied. Maurice R. Kraines for petitioner. John L. Rogers, Jr., for respondents. Reported below: 341 F. 2d 732.
No. 208, Mise. Pheaster v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 209, Mise. Smith v. United States. C. A. 5th Cir. Certiorari denied. Orville A. Harlan for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 343 F. 2d 539.
No. 210, Mise. Moore v. California. Sup. Ct. Cal. Certiorari denied.
No. 214, Mise. Sawyer v. Rhay, Penitentiary Su-perintendent. C. A. 9th Cir. Certiorari denied. Reported below: 340 F. 2d 990.
No. 215, Mise. Witherspoon v. Pâte, Warden. C. A. 7th Cir. Certiorari denied.
No. 216, Mise. Grimble v. Brown, Administrator, et al. Sup. Ct. La. Certiorari denied. Reported below: 247 La. 376, 171 So. 2d 653.
862
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 218, Mise. Vega et al. v. National Labor Relations Board. C. A. Ist Cir. Certiorari denied. Ginoris Vizcarra for petitioners. Solicitor General Cox, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 341 F. 2d 576.
No. 220, Mise. Whalem v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 120 U. S. App. D. C. 331, 346 F. 2d 812.
No. 227, Mise. Levy v. United States. Ct. Cl. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below: 169 Ct. Cl. 1020.
No. 228, Mise. Oliver v. Louisiana. Sup. Ct. La. Certiorari denied. Maurice R. W oui je for petitioner. Reported below: 247 La. 729, 174 So. 2d 509.
No. 229, Mise. Glover v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States.
No. 230, Mise. Fair v. Bryant, Governor of Florida. Sup. Ct. Fia. Certiorari denied.
No. 235, Mise. Lucas v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 343 F. 2d 1.
No. 236, Mise. Foster v. Parker et al. C. A. 9th Cir. Certiorari denied.
ORDERS.
863
382 U. S.	October 11, 1965.
No. 237, Mise. Lake v. Cameron, Hospital Superin-tendent. C. A. D. C. Cir. Certiorari denied.
No. 238, Mise. Peters v. Cox, Warden. C. A. lOth Cir. Certiorari denied. Reported below: 341 F. 2d 575.
No. 239, Mise. Howard v. Wisconsin. Sup. Ct. Wis. Certiorari denied. Reported below: 26 Wis. 2d 652, 133 N. W. 2d 284.
No. 240, Mise. Dawson v. City Council of Butte, Montana, et al. C. A. 9th Cir. Certiorari denied. Joseph P. Monaghan for petitioner. John H. Risken for respondent Herweg.
No. 241, Mise. Frace v. Russell, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. Reported below: 341 F. 2d 901.
No. 242, Mise. McClenny v. United States. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 346 F. 2d 125.
No. 243, Mise. Auth v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.
No. 244, Mise. White v. Wilson, Warden. Super. Ct. Cal., County of Marin. Certiorari denied.
No. 247, Mise. Bowers v. United States. C. A. 5th Cir. Certiorari denied. Joseph H. Davis for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Ben-son for the United States. Reported below: 344 F. 2d 124.
864
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 246, Mise. Benveniste v. Denno, Warden. C. A. 2d Cir. Certiorari denied. Frances Kahn for petitioner. Louis J. Lejkowitz, Attorney General of New York, and Mortimer Sattler, Assistant Attorney General, for respondent.
No. 250, Mise. Stevenson v. New York. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Benj. J. Jacobson for respondent.
No. 253, Mise. Wilson v. United States. C. A. D. C. Cir. Certiorari denied. Joël E. Hoffman and Monroe H. Freedman for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Glazer for the United States. Reported below: 120 U. S. App. D. C. 72, 344 F. 2d 166.
No. 259, Mise. Lepiscopo v. United States. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below : 343 F. 2d 474.
No. 261, Mise. Shobe v. Heinze, Warden, et al. Sup. Ct. Cal. Certiorari denied.
No. 262, Mise. Nauton v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 264, Mise. Stiltner v. Washington. Sup. Ct. Wash. Certiorari denied.
No. 267, Mise. Harris v. Pâte, Warden. Sup. Ct. 111. Certiorari denied.
No. 270, Mise. Creason v. North Carolina. Sup. Ct. N. C. Certiorari denied.
ORDERS.
865
382 U. S.	October 11, 1965.
No. 271, Mise. Swanner v. Thomas, Warden, et al. Ct. App. Ky. Certiorari denied.
No. 275, Mise. D’Antonio v. New York. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Frank S. Hogan for respondent.
No. 277, Mise. Dash v. LaVallee, Warden. Ct. App. N. Y. Certiorari denied.
No. 280, Mise. Veney v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 120 U. S. App. D. C. 157, 344 F. 2d 542.
No. 282, Mise. Fernandez v. Wilson, Warden, et al. C. A. 9th Cir. Certiorari denied.
No. 284, Mise. Wood v. Conneaut Lake Park, Inc. Sup. Ct. Pa. Certiorari denied. George S. Goldstein for petitioner. Stuart A. Culbertson for respondent. Reported below: 417 Pa. 58, 209 A. 2d 268.
No. 285, Mise. Smith v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied.
No. 298, Mise. Thacker v. Ward Markham Co. Sup. Ct. N. C. Certiorari denied. Petitioner pro se. John H. Anderson and Willis Smith, Jr., for respondent. Reported below: 263 N. C. 594, 140 S. E. 2d 23.
No. 291, Mise. Byrd v. Oregon. Sup. Ct. Ore. Certiorari denied. Petitioner pro se. George Van Hoomis-sen for respondent. Reported below: 240 Ore. 159, 400 P. 2d 522.
866
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 286, Mise. Catena v. Gennetti, Trustée. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Pace Reich for respondent.
No. 294, Mise. Lyons v. California. Sup. Ct. Cal. Certiorari denied.
No. 296, Mise. Gaines v. United States. Ct. Cl. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States.
No. 301, Mise. Passante v. Herold, State Hospital Director. C. A. 2d Cir. Certiorari denied.
No. 302, Mise. Martinez v. Colorado. Sup. Ct. Colo. Certiorari denied. Reported below: ------Colo.------, 399 P. 2d 415.
No. 304, Mise. Root v. Cunningham, Penitentiary Superintendent. C. A. 4th Cir. Certiorari denied. Reported below: 344 F. 2d 1.
No. 305, Mise. Harris v. Bruzee et al. C. A. D. C. Cir. Certiorari denied.
No. 307, Mise. Davis v. Wilson, Warden, et al. Sup. Ct. Cal. Certiorari denied.
No. 312, Mise. Downs v. Crouse, Warden. C. A. lOth Cir. Certiorari denied.
No. 313, Mise. Simmons v. Oswald et al. C. A. 2d Cir. Certiorari denied.
No. 316, Mise. Creswell v. Texas. Ct. Crim. App. Tex. Certiorari denied. D. B. Mauzy for petitioner. Reported below: 387 S. W. 2d 887.
ORDERS.
867
382 U. S.	October 11, 1965.
No. 322, Mise. Harper v. Florida. Sup. Ct. Fia. Certiorari denied.
No. 325, Mise. Thompson v. Michigan. Sup. Ct. Mich. Certiorari denied.
No. 326, Mise. Ross v. New York. C. A. 2d Cir. Certiorari denied. Reported below: 341 F. 2d 823.
No. 328, Mise. Oksten v. Florida. Sup. Ct. Fia. Certiorari denied.
No. 333, Mise. Young v. United States. C. A. 8th Cir. Certiorari denied. John Raeburn Green for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 344 F. 2d 1006.
No. 334, Mise. Runnels v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied. Francis Conklin for petitioner.
No. 344, Mise. Canady v. Wilkins, Warden. C. A. 2d Cir. Certiorari denied.
No. 347, Mise. Hayes v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied.
No. 351, Mise. Bund v. LaVallee, Warden, et al. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Frank S. Hogan and Harold Roland Shapiro for respondents. Reported below: 344 F. 2d 313.
No. 356, Mise. Atkinson et al. v. United States. C. A. 8th Cir. Certiorari denied. Kenneth K. Simon for petitioners. Solicitor General Cox for the United States. Reported below: 344 F. 2d 97.
868
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 340, Mise. Bradford v. Commissioner of Internai. Revenue. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for respondent.
No. 352, Mise. Schultz v. Mullins, Warden, et al.
C. A. 5th Cir. Certiorari denied.
No. 355, Mise. Bruce v. Pennsylvania. C. A. 3d Cir. Certiorari denied.
No. 361, Mise. Wolenski v. Sweney, Judge. C. A. 3d Cir. Certiorari denied.
No. 364, Mise. Strickland v. Myers, Correctional Superinte ndent. C, A. 3d Cir. Certiorari denied.
No. 365, Mise. Lluveras v. New York. Sup. Ct. N. Y., N. Y. County. Certiorari denied.
No. 371, Mise. Fletcher v. Beto, Corrections Di-rector. Ct. Crim. App. Tex. Certiorari denied. William E. Gray for petitioner.
No. 374, Mise. Hanovich v. Maxwell, Warden. C. A. 6th Cir. Certiorari denied. Irving Harris for petitioner. Reported below: 342 F. 2d 161.
No. 376, Mise. Holland v. Gladden, Warden. C. A. 9th Cir. Certiorari denied.
No. 377, Mise. Farrant v. Bennett, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 347 F. 2d 390.
No. 379, Mise. Talbert v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 195 Kan. 149, 402 P. 2d 810.
ORDERS.
869
382 U. S.	October 11, 1965.
No. 372, Mise. Bent v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox for the United States. Reported below: 340 F. 2d 703.
No. 380, Mise. Seymore v. New York. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Louis J. Lejkowitz, Attorney General of New York, Paxton Blair, Solicitor General, and Winifred C. Stanley, Assistant Attorney General, for respondent.
No. 381, Mise. Olivo v. Fay, Warden. C. A. 2d Cir. Certiorari denied.
No. 382, Mise. Wellington v. Florida. Sup. Ct. Fia. Certiorari denied.
No. 383, Mise. Keys v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vin-son and Béatrice Rosenberg for the United States. Reported below: 120 U. S. App. D. C. 343, 346 F. 2d 824.
No. 385, Mise. Swanson v. Reincke, Warden. C. A. 2d Cir. Certiorari denied. Petitioner pro se. John D. LaBelle for respondent. Reported below: 344 F. 2d 260.
No. 398, Mise. Cruz v. Colorado. Sup. Ct. Colo. Certiorari denied. Petitioner pro se. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and James F. P amp, Assistant Attorney General, for respondent. Reported below: — Colo. —, 401 P. 2d 830.
No. 402, Mise. Fjellhammer v. United States et al. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States.
870
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 395, Mise. Golenbock v. Wallack, Warden. C. A. 2d Cir. Certiorari denied.
No. 401, Mise. Muza v. California Adult Author-ity et al. Sup. Ct. Cal. Certiorari denied.
No. 404, Mise. Salzano v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States.
No. 405, Mise. Di Silvestro v. United States. C. A. 2d Cir. Certiorari denied. Joseph W. Di Silvestro, petitioner, pro se. Acting Solicitor General Spritzer, Assistant Attorney General Douglas and Morton Hollander for the United States.
No. 408, Mise. Salgado v. United States. C. A. 2d Cir. Certiorari denied. Joseph I. Stone for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 347 F. 2d 216.
No. 409, Mise. Johnson v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States.
No. 417, Mise. Batchelor v. United States. Ct. Cl. Certiorari denied. Cari L. Shipley and Thomas A. Ziebarth for petitioner. Acting Solicitor General Spritzer for the United States. Reported below: 169 Ct. Cl. 180.
No. 418, Mise. Krennrich v. United States. Ct. Cl. Certiorari denied. Cari L. Shipley, Thomas A. Ziebarth and Samuel Resnicoff for petitioner. Acting Solicitor General Spritzer for the United States. Reported below: 169 Ct. Cl. 6, 340 F. 2d 653.
ORDERS.
871
382 U. S.	October 11, 1965.
No. 426, Mise. Warriner v. Fink et al. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Irving B. Levenson for respondents.
No. 434, Mise. Schatz v. Gardner, Secretary of Health, Education and Welfare. C. A. 2d Cir. Certiorari denied. J. Stanley Shaw for petitioner. Acting Solicitor General Spritzer for respondent. Reported below: 346 F. 2d 685.
No. 444, Mise. White v. United States. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States. Reported below: 342 F. 2d 379.
No. 445, Mise. Choy v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 344 F. 2d 126.
No. 463, Mise. Pheribo v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 346 F. 2d 559.
No. 29, Mise. McFadden v. Illinois. Sup. Ct. 111. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Petitioner pro se. William G. Clark, Attorney General of Illinois, and Richard A. Michael, Assistant Attorney General, for respondent. Reported below: 32 111. 2d 101, 203 N. E. 2d 888.
No. 103, Mise. Davis v. Ohio. Sup. Ct. Ohio. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted.
786-211 0-66—43
872
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 217, Mise. Jackson v. New York. Ct. App. N. Y. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted.
No. 219, Mise. Hughes et al. v. Kropp, Warden. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Petitioners pro se. Frank J. Kelley, Attorney General of Michigan, Luke Quinn, Assistant Attorney General, and Robert A. Derengoski, Solicitor General, for respondent.
No. 254, Mise. Tuttle v. Utah. Sup. Ct. Utah. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. George H. Searle for petitioner. Phil L. Hansen, Attorney General of Utah, and Ronald N. Boyce, Assistant Attorney General, for respondent. Reported below: 16 Utah 2d 288, 399 P. 2d 580.
No. 90, Mise. Whaley v. Cavanaugh et al. C. A. 9th Cir. Certiorari denied. The Chief Justice took no part in the considération or decision of this pétition. Reported below: 341 F. 2d 295.
No. 141, Mise. Lewis v. Aderholdt et al. C. A. D. C. Cir. Motion of National Capital Area Civil Lib-erties Union for leave to file brief, as amicus curiae, granted. Certiorari denied. Philip Shinberg for petitioner. Chester H. Gray, Milton D. Korman and Hubert B. Pair for Aderholdt, and Thomas A. Flannery and Stephen A. Trimble for Washington Terminal Co., re-spondents. Monroe H. Freedman for National Capital Area Civil Liberties Union, as amicus curiae, in support of the pétition.
ORDERS.
873
382 U. S.	October 11, 1965.
Rehearing Denied.
No. 86, October Term, 1964. Zemel v. Rusk, Secre-tary of State, et al., 381 U. S. 1 ;
No. 245, October Term, 1964. Waterman Steamship Corp. v. United States, 381 U. S. 252 ;
No. 246, October Term, 1964. National Bulk Carriers, Inc. v. United States, 381 U. S. 933;
No. 292, October Term, 1964. Atlantic Refining Co. v. Fédéral Trade Commission, 381 U. S. 357;
No. 296, October Term, 1964. Goodyear Tire & Rubber Co. v. Fédéral Trade Commission, 381 U. S. 357;
No. 347, October Term, 1964. Jaben v. United States, 381 U. S. 214;
No. 832, October Term, 1964. Avgikos v. Louisiana, 381 U. S. 924;
No. 972, October Term, 1964. Holland Furnace Co.
V. SCHNACKENBERG, U. S. ClRCUIT JUDGE, ET AL., 381 U. S. 924;
No. 997, October Term, 1964. Strollo v. United States, 381 U. S. 912;
No. 1011, October Term, 1964. Serman v. United States, 381 U. S. 912 ;
No. 1017, October Term, 1964. Interlake Steamship Co. v. Nielsen et al., 381 U. S. 934;
No. 1053, October Term, 1964. Randall et al. v. Commissioner of Internal Revenue, 381 U. S. 935;
No. 1056, October Term, 1964. Tjonaman v. A/S Glittre et al., 381 U. S. 925;
No. 1067, October Term, 1964. W. M. R. Watch Case Corp. et al. v. Fédéral Trade Commission, 381 U. S. 936;
No. 1106, October Term, 1964. Ratke et al. v. United States, 381 U. S. 939; and
No. 513, Mise., October Term, 1964. Crawford v. Bannan, Warden, 381 U. S. 955. Pétitions for rehearing denied. Mr. Justice Fortas took no part in the considération or decision of these pétitions.
874
OCTOBER TERM, 1965.
October 11, 1965.
382 U. S.
No. 612, Mise., October Term, 1964. Berman v. Fay, Warden, 381 U. S. 955;
No. 657, Mise., October Term, 19Ç4. Gray v. United States, 381 U. S. 926 ;
No. 730, Mise., October Term, 1964. Valcarcel v. United States, 381 U. S. 926;
No. 743, Mise., October Term, 1964. Lloyd v. United States, 381 U. S. 952;
No. 890, Mise., October Term, 1964. Castle v. United States, 381 U. S. 953;
No. 998, Mise., October Term, 1964. Wells v. United States, 381 U. S. 927;
No. 1047, Mise., October Term, 1964. Goldberg v. Office Employés International Union, Local 153, et al., 381 U. S. 939 ;
No. 1055, Mise., October Term, 1964. Hilbrich v. United States, 381 U. S. 941 ;
No. 1159, Mise., October Term, 1964. Uselding v. United States, 381 U. S. 941 ;
No. 1058, Mise., October Term, 1964. Halyshyn v. United States, 381 U. S. 928;
No. 1117, Mise., October Term, 1964. McLeod v. Ohio, 381 U. S. 356;
No. 1118, Mise., October Term, 1964. Gunston v. United States, 381 U. S. 930;
No. 1122, Mise., October Term, 1964. Clark v. Payne, 381 U. S. 943;
No. 1130, Mise., October Term, 1964. Nelms v. United States, 381 U. S. 943;
No. 1150 Mise., October Term, 1964. Macfadden v. Heinze, Warden, et AL., 381 U. S. 944; and
No. 1237, Mise., October Term, 1964. Stewart v. Michigan et al., 381 U. S. 931. Pétitions for rehearing denied. Mr. Justice Fortas took no part in the considération or decision of these pétitions.
ORDERS.
875
382 U. S.	October 11, 13, 18, 1965.
No. 120, October Term, 1964. Gottesman et al. v. General Motors Corp. et al., 379 U. S. 882, 940. Motion for leave to file second pétition for rehearing denied. Mr. Justice Harlan and Mr. Justice Fortas took no part in the considération or decision of this motion.
No. 256, October Term, 1964. Estes v. Texas, 381 U. S. 532. Motion for leave to file pétition for rehearing denied. Mr. Justice Fortas took no part in the considération or decision of this motion.
No. 580, Mise., October Term, 1964. Hall v. Pinto, Prison Superintendent, 381 U. S. 930;
No. 968, Mise., October Term, 1964. Walker v. Su-perior Court of California, City and County of San Francisco, et al., 381 U. S. 932; and
No. 1106, Mise., October Term, 1964. McIntosh v. United States, 381 U. S. 947. Pétitions for rehearing denied. The Chief Justice and Mr. Justice Fortas took no part in the considération or decision of these pétitions.
October 13, 1965.
Dismissal Under Rule 60.
No. 586, Mise. Thomas v. Davis, Clerk of the Suprême Court of the United States. On motion for leave to file pétition for writ of mandamus. Dismissed pursuant to Rule 60 of the Rules of this Court.
October 18, 1965.
Assignment Order.
An order of The Chief Justice designating and as-signing Mr. Justice Reed (retired) to perform judicial duties in the United States Court of Claims beginning
876
OCTOBER TERM, 1965.
October 18, 1965.
382 U. S.
November 1, 1965, and ending June 30, 1966, and for such further time as may be required to complété unfin-ished business, pursuant to 28 U. S. C. § 294 (a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295.
Miscellaneous Orders.
No. 14, Original. Louisiana v. Mississippi et al. The case is set for argument on the Report of the Spécial Master and the exceptions thereto. Two hours are al-lotted for oral argument. [For earlier orders herein, see 375 U. S. 803, 950; 377 U. S. 901; 381 U. S. 947.]
No. 345, October Term, 1964. Maryland, for the use of Levin, et al. v. United States, 381 U. S. 41. The respondent is requested to file, within 20 days, a response to the pétition for rehearing limited to the question as to whether this case should be remanded to the District Court for further proceedings with respect to the unresolved issues tendered in the petitioners’ bill of com-plaint. Mr. Justice Fort as took no part in the considération of this pétition. Théodore E. Wolcott on the pétition for rehearing.
No. 57. Hazeltine Research, Inc., et al. v. Brenner, COMMISSIONER OF PATENTS. C. A. D. C. Cir. (Certiorari granted, 380 U. S. 960.) Motion of Irwin M. Aisenberg for leave to file brief, as amicus curiae, granted. Mr. Justice Fortas took no part in the considération or decision of this motion. Irwin M. Aisenberg on the motion to file brief, as amicus curiae, urging reversai.
No. 575, Mise. Edwards v. Weakley, Reformatory Superintendent. Motion for leave to file pétition for writ of habeas corpus denied.
ORDERS.
877
382 U. S.	October 18, 1965.
No. 256, Mise. Ellhamer v. California. Motion for leave to file pétition for writ of habeas corpus denied. Treating the papers submitted as a pétition for writ of certiorari, certiorari is denied.
Probable Jurisdiction Noted.
No. 396. DeGregory v. Attorney General of New Hampshire. Appeal from Sup. Ct. N. H. Probable jurisdiction noted. Howard S. Whiteside for appellant. William May nard, Attorney General of New Hampshire, R. Peter Shapiro, Assistant Attorney General, and Joseph F. Gall, Spécial Assistant Attorney General, for appellee. Reported below: 106 N. H. 262, 209 A. 2d 712.
Certiorari Granted. (See No. 919, Oct. Term, 1961, ante, p.
25; No. 123, ante, p. 32; and No. 23, Mise., ante, p. 36.)
Certiorari Denied. (See also No. 281, ante, p. 39; and No. 256, Mise., supra.)
No. 211. Metromedia, Inc. v. American Society of Composers, Authors & Publishers et al. C. A. 2d Cir. Certiorari denied. Robert A. Dreyer and George A. Katz for petitioner. Simon H. Rijkind, Herman Finkelstein and Jay H. Topkis for the American Society of Composers, Authors & Publishers, and Acting Solicitor General Spritzer, Assistant Attorney General Turner, Lionel Kestenbaum and I. Daniel Stewart, Jr., for the United States, respondents. Reported below: 341 F. 2d 1003.
No. 336. DeLong Corp. v. Oregon State Highway Commission et al. C. A. 9th Cir. Certiorari denied. Bert B. Rand, Hans A. Nathan and George W. Mead for petitioner. Robert Y. Thornton, Attorney General of Oregon, and George E. Rohde, Alan H. Johansen, J. Robert Patterson and Frank C. McKinney, Assistant Attorneys General, for respondents. Reported below: 343 F. 2d 911.
878
OCTOBER TERM, 1965.
October 18, 1965.
382 U. S.
No. 349. Sabena Belgian World Airways (Société Anonyme Belge d’Exploitation de la Navi[g]ation Aerienne) v. LeRoy, Administrator. C. A. 2d Cir. Certiorari denied. George Warner Clark, John D. Cola-mari and Martin Fogelman for petitioner. George W. Herz for respondent. Reported below: 344 F. 2d 266.
No. 367. Skahill, Administratrix v. Capital Airlines, Inc., et al. C. A. 2d Cir. Certiorari denied. Augustine P. Turnbull for petitioner. William J. Jun-kerman for respondents.
No. 392. Stager v. Florida East Coast Railway Co. Sup. Ct. Fia. and/or Dist. Ct. App. Fia., 3d Dist. Certiorari denied. B. Nathaniel Richter for petitioner. George C. Bolles for respondent. Reported below: 163 So. 2d 15.
No. 399. Smith, Administratrix, et al. v. United States et al. C. A. 4th Cir. Certiorari denied. Marvin Schwartz and Calvin W. Breit for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, David L. Rose and Robert V. Zener for respondents. Louis R. Harolds for the American Trial Lawyers Association, as amicus curiae, in support of the pétition. Reported below: 346 F. 2d 449.
No. 400. Owens et al. v. United States. C. A. 7th Cir. Certiorari denied. Sam Adam for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States. Reported below : 346 F. 2d 329.
No. 402. Dempster Brothers, Inc. v. Cohn, Trustée in Bankruptcy. C. A. 7th Cir. Certiorari denied. John H. Wessel for petitioner. Irvin B. Charne for respondent. Reported below: 343 F. 2d 527.
ORDERS.
879
382 U. S.	October 18, 1965.
No. 408. Janigan v. Taylor et al. C. A. Ist Cir. Certiorari denied. Matthew Brown for petitioner. Charles C. Cabot, Jr., for respondents. Reported below: 344 F. 2d 781.
No. 410. Trailways of New England, Inc. v. Amal-GAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & Motor Coach Employées of America, AFL-CIO, Division 1318. C. A. Ist Cir. Certiorari denied. Morris J. Levin, Betty Southard Murphy and Richard R. Para-dise for petitioner. Earle W. Putnam for respondent. Reported below: 343 F. 2d 815.
No. 391. Railway Express Agency, Inc. v. Civil Aeronautics Board et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Fortas took no part in the considération or decision of this pétition. William Q. Keenan and John E. Powell for petitioner. Solicitor General Marshall, Assistant Attorney General Turner, Lionel Kestenbaum, Gerald Kadish, O. D. Oz-ment and Robert L. Toomey for the Civil Aeronautics Board, and Alfred V. J. Prather, Warren E. Baker and Robert L. Stem for American Airlines, Inc., et al., respondents. Reported below: 120 U. S. App. D. C. 228, 345 F. 2d 445.
No. 43, Mise. Lott v. Michigan et al. Sup. Ct. Mich. Certiorari denied. Petitioner pro se. Frank J. Kelley, Attorney General of Michigan, for respondents.
No. 130, Mise. Sturgis v. United States. C. A. 3d Cir. Certiorari denied. Herman I. Pollock for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States. Reported below: 342 F. 2d 328.
880
OCTOBER TERM, 1965.
October 18, 1965.
382 U. S.
No. 176, Mise. Smith v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States. Reported below: 340 F. 2d 953.
No. 182, Mise. Burke v. United States. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson and Philip R. Monahan for the United States. Reported below: 342 F. 2d 593.
No. 283, Mise. Jackson v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 344 F. 2d 922.
No. 314, Mise. Anderson et al. v. United States. C. A. lOth Cir. Certiorari denied. Petitioners pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome Feit for the United States. Reported below: 344 F. 2d 792.
No. 335, Mise. Colligan v. New York. App. Div., Sup. Ct. N. Y., Ist Jud. Dept. Certiorari denied. Petitioner pro se. Frank S. Hogan and H. Richard Uviller for respondent.
No. 358, Mise. Schultz v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States.
No. 360, Mise. Wright v. Blackwell, Warden. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for respondent.
ORDERS.
881
382 U. S.	October 18, 1965.
No. 410, Mise. Evans v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 346 F. 2d 512.
No. 413, Mise. Hurley v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 415, Mise. Shisoff v. New York. Ct. App. N. Y. Certiorari denied. Frances Kahn for petitioner. Frank S. Hogan and Harold Roland Shapiro for respondent.
No. 416, Mise. Collins v. Kentucky. Ct. App. Ky. Certiorari denied. Reported below: 392 S. W. 2d 77.
No. 420, Mise. Davis v. California et al. Sup. Ct. Cal. Certiorari denied.
No. 422, Mise. Blunt v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 430, Mise. Lowther v. Maxwell, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 347 F. 2d 941.
No. 431, Mise. Kelly v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below:. 194 Kan. 258, 398 P. 2d 344.
No. 432, Mise. Richardson v. Holman, Warden. Sup. Ct. Ala. Certiorari denied.
No. 436, Mise. Long v. Pâte, Warden. C. A. 7th Cir. Certiorari denied.
882
OCTOBER TERM, 1965.
October 18, 1965.
382 U. S.
No. 437, Mise. Hensley v. Texas. Ct. Crim. App. Tex. Certiorari denied. Joe F. Ramsey, Jr., for petitioner. Reported below: 388 S. W. 2d 424.
No. 438, Mise. Saulsbury v. Green, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. Reported below: 347 F. 2d 828.
No. 439, Mise. Grimes v. Crouse, Warden. C. A. lOth Cir. Certiorari denied.
No. 441, Mise. Scherck v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States.
No. 443, Mise. Wilson v. California. Sup. Ct. Cal. Certiorari denied.
No. 449, Mise. Bell v. United States. C. A. 7th Cir. Certiorari denied. Marshall Patner for petitioner. Solicitor General Marshall for the United States. Reported below: 345 F. 2d 354.
No. 464, Mise. Williams v. New York. Ct. App. N. Y. Certiorari denied.
No. 465, Mise. Ruark v. Colorado. Sup. Ct. Colo. Certiorari denied. Petitioner pro se. Duke W. Dunbar, Attorney General of Colorado, and John P. Moore, Assistant Attorney General, for respondent. Reported below: — Colo.------, 402 P. 2d 637.
No. 468, Mise. Arwine v. Bannan, Warden. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Frank J. Kelley, Attorney General of Michigan, Robert A. Deren-goski, Solicitor General, and Luke Quinn, Assistant Attorney General, for respondent. Reported below: 346 F. 2d 458.
ORDERS.
883
382 U. S.	October 18, 1965.
No. 472, Mise. Hargrove v. Brown, Administrator, et al. Sup. Ct. La. Certiorari denied. Reported below: 247 La. 689, 174 So. 2d 120.
No. 473, Mise. Dillard v. Bomar, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 342 F. 2d 789.
No. 474, Mise. Paneitz v. Indiana. Sup. Ct. Ind. Certiorari denied. Reported below: ----- Ind. ----, 204
N. E. 2d 350.
No. 482, Mise. Maritote, Administratrix, et al. v. Desilu Productions, Inc., et al. C. A. 7th Cir. Certiorari denied. Harold R. Gordon for petitioners. Newell S. Boardman for respondents. Reported below: 345 F. 2d 418.
No. 485, Mise. Finfer v. Cohen, Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. Edwin J. McDermott for petitioner. Solicitor General Marshall for respondent. Reported below: 344 F. 2d 38.
No. 489, Mise. Newcombe v. New York. Ct. App. N. Y. Certiorari denied.
No. 503, Mise. Davis v. Bomar, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 344 F. 2d 84.
No. 510, Mise. Shively v. United States. C. A. 5th Cir. Certiorari denied. Vincent P. McCauley for petitioner. Solicitor General Marshall for the United States. Reported below : 345 F. 2d 294.
No. 511, Mise. In re Duarte. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States.
884	OCTOBER TERM, 1965.
October 18, 1965.	382 U. S.
No. 224, Mise. Simmons v. Union News Co. C. A. 6th Cir. Certiorari denied. Dee Edwards for petitioner. Frédéric S. Glover, Jr., for respondent. Reported below: 341 F. 2d 531.
Mr. Justice Black, with whom The Chief Justice concurs, dissenting.
I would grant certiorari in this case. While petitioner présents other interesting and important questions con-cerning the right of trial by jury under the Seventh Amendment and concerning the power of a district court to grant summary judgment, my opinion is addressed to the question of whether the courts below were right in denying petitioner Simmons a court trial of her claim that she had been wrongfully discharged without “just cause” in violation of the collective bar-gaining agreement under which she was employed. The ground for refusing to let her try her case was that her employer and her union had agreed between themselves that her discharge was for “just cause.” I think the courts below were wrong. The material facts upon which I base my conclusion are these :
Petitioner was one of about a dozen employées working at the lunch counter in respondent’s restaurant in a rail-way station. For about a year prior to petitioner’s discharge, profits at the lunch counter lagged behind those expected by respondent. Respondent suspected that this was due either to the mishandling or to the actual stealing of its funds or goods. The collective bargaining agreement provided that no employée should be discharged without “just cause” and that prospective discharges would be discussed by the employer and the union. Pursuant to the contract, the company’s représentative went to the union’s représentative to discuss what could be done in order to improve the profit situation at the lunch counter. The company représentative suggested that ail of the counter employées be discharged and others take
SIMMONS v. UNION NEWS CO.
885
884	Black, J., dissenting.
their places. The union représentative objected. After lengthy negotiations, however, a plan was agreed upon by the company and the union under which five of the employées would be immediately laid off for a two-week period. If at the end of the period, records indi-cated that there was a significant improvement in the company’s business at the lunch counter, it was agreed that the five employées were to be discharged. The five were laid off including the petitioner and Gladys Hildreth.1 When the company convinced the union that the lunch counter profits had increased during the period, the union agreed with respondent that the workers should be discharged permanently. Both petitioner and Miss Hildreth vigorously protested. They urged the union to carry their protest ail the way up through the various stages of negotiations leading to arbitration. The union représentative, however, refused to give any help to petitioner and Miss Hildreth. Then, petitioner, by herself, took the matter up with the company, endeavoring to settle it as a personal grievance of her own. The company refused to negotiate with petitioner in any way whatever, notwithstanding § 9 (a) of the National Labor Relations Act, as amended,2 which states in part, “That any individual employée or a group of employées shall hâve the right at any time to présent grievances to their employer and to hâve such grievances adjusted, without the intervention of the bargaining représentative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect.” Petitioner, out of a job, then brought this action against the company for the alleged breach of contract in discharging her.
^See Union News Co. v. Hildreth, 295 F. 2d 658; Hildreth v. Union News Co., 315 F. 2d 548, certiorari denied, 375 U. S. 826.
2 61 Stat. 143, 29 U. S. C. § 159 (a) (1964 ed.).
886
382 U. S.
OCTOBER TERM, 1965.
Black, J., dissenting.
Although this Court has gone very far in some of its cases with reference to the power of a collective bargain-ing union to process the personal grievances of its members, it has not yet gone so far as to say that where there is a personal grievance for breach of a collective bargain-ing agreement, the employée can be deprived of an inde-pendent judicial détermination of the claim by an agreement between the union and the employer that no breach exists. But this is exactly what was done to petitioner and Miss Hildreth. Though I dissented in Republic Steel Corp. v. Maddox, 379 U. S. 650,1 was, and still am of the belief that the majority opinion purported to préserve the right of an employée to sue his employer if his union refused to press his grievances. However, I fear that the decisions below in the Hildreth case and in this one go a long way toward effectively destroying whatever redress this Court left the individual employée in Maddox. The courts below refused to make their own détermination of whether Miss Hildreth’s and petitioner’s discharges were made for “just cause.” Instead, they allowed the employer’s defense that “just cause” was sim-ply what the employer and the union jointly wanted it to be. While we often say that nothing is decided by a déniai of certiorari, ail of us know that a déniai of certiorari in this case, following the déniai of certiorari in the Hildreth case, will undoubtedly lead people to believe, and I fear with cause, that this Court is now approving such a forfeiture of contractual daims of individual employées.
This case points up with great emphasis the kind of injustice that can occur to an individual employée when the employer and the union hâve such power over the employee’s claim for breach of contract. Here no one has claimed from the beginning to the end of the Hildreth lawsuit or this lawsuit that either of these individuals was guilty of any kind of misconduct justifying her discharge. Each was one of twelve employées engaged in
SIMMONS v. UNION NEWS CO.
887
884	Black, J., dissenting.
the operation of a lunch counter. In the Hildreth case respondent’s supervisor testified that he had no knowledge that any of the employées discharged were in any way responsible for the lunch counter’s unsuccessful operation. The manager of the lunch counter stated that he did not know of “one single thing” that Miss Hildreth had done to reduce the counter’s profits. We must assume that had petitioner here been given an oppor-tunity to try her case, the same facts would hâve appeared. Moreover, petitioner allégés that she was prepared to show that subséquent to her discharge, the office girl who counted the money received at the lunch counter was found to be embezzling those funds and was discharged for it. Miss Hildreth had worked for respondent for nine and one-half years, and petitioner for fifteen years, prior to their discharges. There is no evidence that respondent had ever been dissatisfied with their work before the company became disappointed with its lunch counter about a year prior to the discharges. Yet both were discharged for “just cause,” as determined not by a court but by an agreement of the company and the union.
I would not construe the National Labor Relations Act as giving a union and an employer any such power over workers. In this case there has been no bargain made on behalf of ail the workers represented by the union. Rather there has been a sacrifice of the rights of a group of employées based on the belief that some of them might possibly hâve been guilty of some kind of misconduct that would reduce the employer’s profits. Fully recognizing the right of the collective bargaining représentative to make a contract on the part of the workers for the future, I cannot believe that those who passed the Act intended to give the union the right to negotiate away alleged breaches of a contract claimed by individual employées.
The plain fact is that petitioner has lost her job, not because of any guilt on her part, but because there is a
786-211 0-66—44
888
OCTOBER TERM, 1965.
October 18, 1965.
382 U. S.
suspicion that some one of the group which was dis-charged was guilty of misconduct. The sum total of what has been done here is to abandon the fine, old American idéal that guilt is Personal. Our System of jurisprudence should not tolerate imposing on the innocent punishment that should be laid on the guilty. If the construction of the labor law given by the courts below is to stand, it should be clearly and unequivocally announced by this Court so that Congress can, if it sees fit, consider this question and protect the just daims of employées from the joint power of employers and unions.
No. 513, Mise. Holmes v. Myers, Correctional Superinte ndent. C. A. 3d Cir. Certiorari denied. Reported below: 347 F. 2d 234.
No. 520, Mise. Carter et al. v. United States. C. A. 2d Cir. Certiorari denied. Frédéric A. Johnson and Rudolph Lion Zalowitz for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidnéy M. Glazer for the United States. Reported below: 347 F. 2d 220.
No. 528, Mise. Fair v. City of Tampa et al. Sup. Ct. Fia. Certiorari denied.
No. 540, Mise. Miller v. Commissioner of Inter-nal Revenue. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for respondent.
No. 357, Mise. Price v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Fortas took no part in the considération or decision of this pétition. Dennis G. Lyons for petitioner. Acting Solicitor General Spritzer for the United States. Reported below: 121 U. S. App. D. C. 62, 348 F. 2d 68.
ORDERS.
889
382 U. S.	October 18, 25, 1965.
No. 553, Mise. Lujan v. United States. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer for the United States. Reported below: 348 F. 2d 156.
Rehearing Denied.
No. 5, Original. United States v. California, 381 U. S. 139. Pétition for rehearing denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that the rehearing should be granted. The Chief Justice, Mr. Justice Clark and Mr. Justice Portas took no part in the considération or decision of this pétition.
October 25, 1965.
Miscellaneous Orders.
No. 23, Original. United States v. Alabama;
No. 24, Original. United States v. Mississippi; and
No. 25, Original. United States v. Louisiana. The motions to expedite considération are granted and the défendants are directed to file responses to the motions for leave to file bills of complaint on or before November 10, 1965. Attorney General Katzenbach, Solicitor General Marshall, Assistant Attorney General Doar, Ralph S. Spritzer and Louis F. Claiborne on the motions.
No. 554, Mise. Johnson v. Maxwell, Warden. Motion for leave to file pétition for writ of habeas corpus denied.
Certiorari Granted.
No. 120, Mise. Perry v. Commerce Loan Co. C. A. 6th Cir. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket. Reported below: 340 F. 2d 588.
890
OCTOBER TERM, 1965.
October 25, 1965.
382 U. S.
No. 382. Pâte, Warden v. Robinson. C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The parties are requested to brief and argue, in addition to the questions presented, the question whether any of the further proceedings contemplated in the opinion of the Court of Appeals should be conducted in the appropriate Illinois courts rather than in the District Court. William G. Clark, Attorney General of Illinois, and Richard A. Michael and A. Zola Graves, Assistant Attorneys General, for petitioner. Respondent pro se. Reported below: 345 F. 2d 691.
No. 331, Mise. Collier v. United States. Motion for leave to file pétition for writ of mandamus denied. Treating the papers submitted as a pétition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit, certiorari is granted. Motion for leave to proceed in forma pauperis granted. The case is transferred to the appellate docket. Petitioner pro se. Act-ing Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States.
Certiorari Denied. (See also No. 522, Mise., ante, p.
43; and No. 551, Mise., ante, p. 42.)
No. 414. Klebanow et al., Executors v. Chase Manhattan Bank et al. C. A. 2d Cir. Certiorari denied. Max Freund and Abraham M. Glickman for petitioners. William Eldred Jackson for respondents. Reported below: 343 F. 2d 726.
No. 427. Jesse v. Washington. Sup. Ct. Wash. Certiorari denied. Reported below: 65 Wash. 2d 510, 397 P. 2d 1018.
ORDERS.
891
382 U. S.	October 25, 1965.
No. 419. Barnes v. Sind et al. C. A. 4th Cir. Certiorari denied. Joseph L. Rauh, Jr., John Silard and Daniel H. Pollitt for petitioner. Morris D. Schwartz and Leon H. A. Pierson for respondents. Reported below: 341 F. 2d 676; 347 F. 2d 324.
No. 421. Local 1291, International Longshore-men’s Association, AFL-CIO v. National Labor Relations Board. C. A. 3d Cir. Certiorari denied. Abraham E. Freedman and Martin J. Vigderman for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below : 345 F. 2d 4.
No. 426. Bain v. Nicodemus et al. C. A. D. C. Cir. Certiorari denied. James E. Hogan for petitioner. J. Louis Monarch for respondents. Reported below: 120 U. S. App. D. C. 116, 344 F. 2d 501.
No. 430. Chung Leung et al. v. Esperdy, District Director, Immigration and Naturalization Service. C. A. 2d Cir. Certiorari denied. Abraham Lebenkoff for petitioners. Acting Solicitor General Spritzer, As-sistant Attorney General Vinson, L. Paul Winings and Charles Gordon for respondent.
No. 418. Bumb, Trustée in Bankruptcy v. Hart-well Corp. C. A. 9th Cir. Certiorari denied. Waller Taylor II for petitioner. John C. Gemmill for respondent. Reported below: 345 F. 2d 453.
No. 431. Glick et al. v. Ballentine Produce, Inc. C. A. 8th Cir. Certiorari denied. Elwyn L. Cady, Jr., for petitioners. James W. Benjamin for respondent. Reported below: 343 F. 2d 839.
892
OCTOBER TERM, 1965.
October 25, 1965.
382 U. S.
No. 432. Holmes et al. v. Eddy et al. C. A. 4th Cir. Certiorari denied. Petitioners pro se. Solicitor General Marshall, Assistant Attorney General Douglas, Philip A. Loomis, Jr., and Walter P. North for Securities and Exchange Commission et al., respondents. Reported below: 341 F. 2d 477.
No. 433. Shamrock Oil & Gas Corp. v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. H. A. Berry and W. M. Sutton for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Melva M. Graney and Thomas L. Stapleton for respondent. Reported below: 346 F. 2d 377.
No. 435. Berman, trading as Scott Construction Co., ET AL. V. HeRRICK ET AL., TRADING AS LEWIS TOWER Building. C. A. 3d Cir. Certiorari denied. Samuel Sacks for petitioners. Louis J. Goffman for respondents. Reported below: 346 F. 2d 116.
No. 140. Blau v. Max Factor & Co. et al. C. A. 9th Cir. Motion of petitioner for leave to submit addi-tional authority granted. Certiorari denied. Morris J. Levy and Robert W. Kenny for petitioner. Cari J. Schuck and Wayne H. Knight for Max Factor & Co., and Frédéric H. Sturdy for Factor et al., respondents. Reported below: 342 F. 2d 304.
No. 500. Halpern et al., dba Burlington Broad-casting Co. v. Fédéral Communications Commission et al. C. A. D. C. Cir. Certiorari denied. Morton H. Wilner for petitioners. J. Roger Wollenberg for West Jersey Broadcasting Co., and Arthur W. Scharjeld for Giordano, respondents.
ORDERS.
893
382 U. S.	October 25, 1965.
No. 204. Mid-Florida Télévision Corp. v. Fédéral Communications Commission et al. C. A. D. C. Cir. Motion to use the record in No. 698, October Term, 1963, granted. Motion to direct the Fédéral Communications Commission and the Solicitor General to file a statement of their position denied. Certiorari denied. Paul Dobin for petitioner. Edward P. Morgan and Edward S. O’Neill for WORZ, Inc., respondent. Reported below: 120 U. S. App. D. C. 191, 345 F. 2d 85.
No. 413. POLLACK ET AL. V. COMMISSIONER OF PATENTS. C. A. D. C. Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Morris Lavine for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, Sherman L. Cohn and Robert V. Zener for respondent. Reported below: 120 U. S. App. D. C. 318, 346 F. 2d 799.
No. 114, Mise. Phillips v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 590. Florida-Georgia Télévision Co., Inc. v. Fédéral Communications Commission; and
No. 678. Jacksonville Broadcasting Corp. v. Florida-Georgia Télévision Co., Inc. C. A. D. C. Cir. Motion of Jacksonville Broadcasting Corp. to be added as a party respondent in No. 590 denied. Certiorari denied. Warner W. Gardner, Lawrence J. Latto, William H. Dempsey, Jr., Bernard Koteen, Alan Y. Naftalin and Richard F. Wolfson for petitioner in No. 590. Charles H. Murchison for petitioner in No. 678. William H. Dempsey, Jr., for respondent in No. 678. Reported below: 121 U. S. App. D. C. 69, 348 F. 2d 75.
894
OCTOBER TERM, 1965.
October 25, 1965.
382 U. S.
No. 434. Anderson, Governor of Kansas, et al. v. Harris et al. Sup. Ct. Kan. Certiorari denied. Mr. Justice Portas took no part in the considération or decision of this pétition. Robert C. Londerholm, Attorney General of Kansas, and Charles N. Henson, Jr., Assistant Attorney General, for petitioners. William Y. Chalfant for respondents. Reported below: 194 Kan. 302, 400 P. 2d 25.
No. 276, Mise. Gonzalez v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States.
No. 318, Mise. Santos v. United States. C. A. Ist Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 375, Mise. Hutcherson v. United States. C. A. D. C. Cir. Certiorari denied. Aloysius B. Mc-Cabe for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 120 U. S. App. D. C. 274, 345 F. 2d 964.
No. 423, Mise. Prater v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 414, Mise. Grisham v. United States. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 344 F. 2d 689.
ORDERS.
895
382 U. S.	October 25, 1965.
No. 394, Mise. Bennett v. Adamowski et al. C. A. 7th Cir. Certiorari denied.
No. 452, Mise. Cyronne-De Virgin v. Missouri et al. C. A. 8th Cir. Certiorari denied. Reported below: 341 F. 2d 568.
No. 461, Mise. Cummings v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 477, Mise. Goldstein v. Washington. Sup. Ct. Wash. Certiorari denied. Reported below: 65 Wash. 2d 901, 400 P. 2d 368.
No. 487, Mise. Rising v. North Carolina. Sup. Ct. N. C. Certiorari denied.
No. 508, Mise. Groza v. Lemmon et al. Sup. Ct. Cal. Certiorari denied.
No. 527, Mise. Cantrell v. Maxwell, Warden, et al. C. A. 6th Cir. Certiorari denied.
No. 530, Mise. Bennett v. Pâte, Warden. C. A. 7th Cir. Certiorari denied.
No. 531, Mise. Saylors v. Rhay, Penitentiary Su-perintendent. Sup. Ct. Wash. Certiorari denied.
No. 535, Mise. Rollins v. Haskins, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. Reported below: 348 F. 2d 454.
No. 545, Mise. Fernandez v. Klinger. C. A. 9th Cir. Certiorari denied. Reported below : 346 F. 2d 210.
896
OCTOBER TERM, 1965.
October 25, 1965.
382 U. S.
No. 560, Mise. Smart v. Heinze, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 347 F. 2d 114.
No. 561, Mise. Rather v. Maryland. C. A. 4th Cir. Certiorari denied.
No. 565, Mise. Bales v. Heinze, Warden. C. A. 9th Cir. Certiorari denied.
No. 578, Mise. Turpin v. Maxwell, Warden. C. A. 6th Cir. Certiorari denied.
No. 585, Mise. Haddad v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 349 F. 2d 511.
No. 588, Mise. Edwards v. Warden, Maryland Peni-tentiary. Ct. App. Md. Certiorari denied. Reported below: 238 Md. 646, 210 A. 2d 526.
No. 2, Mise. Milne v. Milne. Ct. App. Md. Certiorari denied on the représentation of the Attorney General of Maryland that there may be an adéquate state remedy available to petitioner. Petitioner pro se. Thomas B. Finan, Attorney General of Maryland, and Edward L. Blanton, Jr., Assistant Attorney General, filed a brief expressing the views of the State of Maryland.
No. 526, Mise. Snell v. Alabama. Sup. Ct. Ala. Motion to strike brief of respondent denied. Certiorari denied. Petitioner pro se. Richmond M. Flowers, Attorney General of Alabama, and Paul T. Gish, Jr., Assistant Attorney General, for respondent. Reported below: 278 Ala. 73, 175 So. 2d 766.
ORDERS.
897
382 U. S. October 29, November 4, 5, 1965.
October 29, 1965.
Dismissals Under Rule 60.
No. 89. Joint Council 53, International Brother-HOOD OF TeAMSTERS, CHAUFFEURS, WAREHOUSEMEN & Helpers of America, et al. v. Meyer et al. ; and
No. 94. Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. v. Meyer et al. Sup. Ct. Pa. Pétitions for writs of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Edward Davis for petitioners in No. 89. Richard H. Markowitz for petitioners in No. 94. Paul L. Jaffe for respondents. Reported below: 416 Pa. 401, 206 A. 2d 382.
November 4, 1965.
Dismissal Under Rule 60.
No. 841, Mise. Cephus v. United States. C. A. D. C. Cir. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 122 U. S. App. D. C. 187, 352 F. 2d 663.
November 5, 1965.
Miscellaneous Orders.
No. 23, Original. United States v. Alabama;
No. 24, Original. United States v. Mississippi; and
No. 25, Original. United States v. Louisiana. The motions for leave to file bills of complaint are denied. Attorney General Katzenbach, Solicitor General Marshall, Assistant Attorney General Doar, Ralph S. Spritzer and Louis F. Claïbome for the United States. Richmond M. Flowers, Attorney General of Alabama, and Gordon Madison, Assistant Attorney General, for de-fendant in No. 23, Original. [For earlier order in these cases, see ante, p. 889.]
898
382 U. S.
OCTOBER TERM, 1965.
November 5, 8, 1965.
No. 22, Original. South Carolina v. Katzenbach, Attorney General of the United States. The motion for leave to file a bill of complaint is granted. The défendant shall file his answer on or before November 20, 1965. The plaintiff shall file its brief on the merits on or before December 20, 1965. The défendant shall file his brief on the merits on or before January 5, 1966. The case is set for oral argument on Monday, January 17, 1966. Any State may submit a brief, amicus curiae, on or before December 20, 1965, and any such State desiring to participate in the oral argument, as amicus curiae, shall file with the Clerk of the Court a request for permission to do so on or before December 20, 1965. Mr. Justice Black, Mr. Justice Harlan and Mr. Justice Stewart would deny the motion for leave to file the bill of complaint. Daniel R. McLeod, Attorney General of South Carolina, David W. Robinson and David W. Robinson II for plaintiff. Solicitor General Marshall for défendant.
November 8, 1965.
Order Appointing Librarian.
It is Ordered that Henry Charles Hallam, Jr., be, and he is hereby, appointed Librarian of this Court in the place of Miss Helen Newman, deceased.
Miscellaneous Orders.
No. 27. Gunther v. San Diego & Arizona Eastern Railway Co. C. A. 9th Cir. (Certiorari granted, 380 U. S. 905.) Motion of the Railway Labor Executives’ Association for leave to file a brief, as amicus curiae, granted. Clarence M. Mulholland, Edward J. Hickey, Jr., and Richard R. Lyman for the Railway Labor Executives’ Association, as amicus curiae, urging reversai. Waldron A. Gregory and William R. Denton for respondent, in opposition.
ORDERS.
899
382 U. S.
November 8, 1965.
No. 411. Marsh, Secretary of State of Nebraska, et al. v. Dworak et al. Appeal from D. C. Neb. Motion of appellants to defer considération of the motion to dismiss and to defer filing brief in opposition granted. Mr. Justice Fortas took no part in the considération or decision of this motion. Clarence A. H. Meyer, Attorney General of Nebraska, and Richard H. Williams and Robert A. Nelson, Assistant Attorneys General, for appellants. August Ross and Robert E. O’Connor for appellees.
No. 657. Brookhart v. Ohio. Sup. Ct. Ohio. (Certiorari granted, ante, p. 810.) Motion for the ap-pointment of counsel granted, and it is ordered that Lawrence Herman, Esquire, and Gerald A. Messerman, Esquire, both of Columbus, Ohio, be, and they are hereby, appointed to serve as counsel for petitioner in this case.
No. 567, Mise.
No. 652, Mise.
No. 653, Mise, and
Smith v. Gagnon, Warden;
Wells v. United States;
Davis v. Kearney, Warden, et al.;
No. 677, Mise. Trew v. Wainwright, Corrections Director. Motions for leave to file pétitions for writs of habeas corpus denied.
No. 453, Mise. Bowens v. Alexander, Director, Bureau of Fédéral Prisons, et al. Motion for leave to file pétition for writ of mandamus denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar and David Rubin for respondents.
No. 542, Mise. Moore v. Rodak. Motion for leave to file pétition for writ of mandamus denied. Petitioner pro se. Solicitor General Marshall for respondent.
900
OCTOBER TERM, 1965.
November 8, 1965.
382 U.S.
Probable Jurisdiction Noted.
No. 404. United States v. Pabst Brewing Co. et al. Appeal from D. C. E. D. Wis. Probable jurisdiction noted. Solicitor General Cox, Assistant Attorney General Turner, Frank I. Goodman, Robert B. Hummel and Irwin A. Seibel for the United States. John T. Chad-well, Glenn JF. McGee, David A. Nelson, Joseph R. Gray and Ray T. McCann for appellee Pabst Brewing Co. Reported below: 233 F. Supp. 475.
No. 368. A Book Named “John Cleland’s Mem-OIRS OF A W0MAN OF PLEASURE” V. ATTORNEY GENERAL of Massachusetts. Appeal from Sup. Jud. Ct. Mass. Probable jurisdiction noted. The motion of the appel-lant to advance oral argument is granted and the case is set to follow No. 49. Charles Rembar for appellant. Reported below: 349 Mass. 69, 206 N. E. 2d 403.
Certiorari Granted. (See also No. 420, ante, p. 68;
and No. 369, Mise., ante, p. 69.)
No. 487. Malat et ux. v. Riddell, District Director of Internal Revenue. C. A. 9th Cir. Certiorari granted. George T. Altman for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Melva M. Graney and Carolyn R. Just for respondent. Reported below: 347 F. 2d 23.
No. 440. United States v. Utah Construction & Mining Co. Ct. Cl. Certiorari granted. The case is set for oral argument immediately following No. 439. Acting Solicitor General Spritzer, Assistant Attorney General Douglas, Morton Hollander and David L. Rose for the United States. Gardiner Johnson and Thomas E. Stanton, Jr., for respondent. Reported below: 168 Ct. Cl. 522, 339 F. 2d 606.
ORDERS.
901
382 U. S.	November 8, 1965.
No. 439. United States v. Anthony Grâce & Sons, Inc. Ct. Cl. Certiorari granted. Acting Solicitor General Spritzer, Assistant Attorney General Douglas, Morton Hollander and David L. Rose for the United States. Reported below: 170 Ct. Cl. 688, 345 F. 2d 808.
Certiorari Denied. (See also No. 550, Mise., ante, p. 67.)
No. 372. McCullough et ux. v. United States. Ct. Cl. Certiorari denied. Robert T. Molloy and George E. Bailey for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Philip R. Miller for the United States. Reported below: 170 Ct. Cl. 1, 344 F. 2d 383.
No. 437. Gottone v. United States. C. A. lOth Cir. Certiorari denied. Walter L. Gerash for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 345 F. 2d 165.
No. 441. Downing v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 348 F. 2d 594.
No. 444. Seven-Up Co. v. Get Up Corp. C. A. 6th Cir. Certiorari denied. Beverly W. Pattishall for petitioner. Walter J. Halliday for respondent. Reported below: 340 F. 2d 954.
No. 448. Sternfels v. Board of Regents of Uni-versity of State of New York et al. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. Kenneth Simon for petitioner.
902
OCTOBER TERM, 1965.
November 8, 1965.
382 U.S.
No. 446. SNC Manufacturing Co., Inc. v. National Labor Relations Board. C. A. D. C. Cir. Certiorari denied. Walter S. Davis for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 122 U. S. App. D. C. 145, 352 F. 2d 361.
No. 450. Violet Trapping Co., Inc. v. Tennessee Gas Transmission Co. Sup. Ct. La. Certiorari denied. John W. Bryan, Jr., for petitioner. Ernest A. Carrere, Jr., Clyde R. Brown and H. A. Messmore for respondent. Reported below: 248 La. 49, 176 So. 2d 425.
No. 451. Bond v. Twin Lakes Réservoir & Canal Co. et al. Sup. Ct. Colo. Certiorari denied. W. David McClain, Edwin A. Williams and Eugene A. Bond for petitioner. Eugene S. Hames for respondents. Reported below: ---Colo.-----, 401 P. 2d 586.
No. 452. Ridgeway v. Arkansas. Sup. Ct. Ark. Certiorari denied. Lee Ward for petitioner. Bruce Bennett, Attorney General of Arkansas, and Béryl Anthony, Jr., Assistant Attorney General, for respondent. Reported below: 239 Ark. 377, 389 S. W. 2d 617.
No. 454. Borough of Ford City v. United States. C. A. 3d Cir. Certiorari denied. George P. Cheney, Jr., for petitioner. Solicitor General Marshall, Assistant Attorney General Weisl, Roger P. Marquis and Howard O. Sigmond for the United States. Reported below: 345 F. 2d 645.
No. 455. In re Anonymous, an Attorney v. Co-ORDINATING COMMITTEE ON DISCIPLINE. . Ct. App. N. Y. Certiorari denied. Leonard Feldman for petitioner. Angelo T. Cometa for respondent.
ORDERS.
903
382 U. S.	November 8, 1965.
No. 456. Murphy v. Larkin, Corporation Counsel, City of New York, et al. Ct. App. N. Y. Certiorari denied. Francis X. Tucker, Spencer Pinkham and Ver-non Murphy, pro se, for petitioner. Léo A. Larkin, pro se, and for other respondents.
No. 457. Ivey et al. v. United States. C. A. 5th Cir. Certiorari denied. Joseph G. Bramberg for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 346 F. 2d 157.
No. 458. Polikoff v. Levy et al. App. Ct. 111., Ist Dist. Certiorari denied. Milton H. Cohen for petitioner. Nat M. Kahn for respondents. Reported below : 55 111. App. 2d 229, 204 N. E. 2d 807.
No. 460. Palmer v. United States. C. A. 5th Cir. Certiorari denied. William F. Walsh for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States. Reported below: 340 F. 2d 48.
No. 462. Zamaroni v. Philpott, District Director of Internal Revenue. C. A. 7th Cir. Certiorari denied. Stanley M. Rosenblum and Merle L. Silverstein for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph M. Howard and Burton Berkley for respondent. Reported below: 346 F. 2d 365.
No. 465. Tillamook County Creamery Association v. Tillamook Cheese & Dairy Association. C. A. 9th Cir. Certiorari denied. J. Pierre Kolisch and Warren A. McMinimee for petitioner. Stephen W. Blore for respondent. Reported below: 345 F. 2d 158.
786-211 0-66—45
904
OCTOBER TERM, 1965.
November 8, 1965.
382 U. S.
No. 459. Johnson v. Goodyear Tire & Rubber Co. et al. C. A. 9th Cir. Certiorari denied.
No. 463. J. E. Schecter Corp. v. Carrier Corp. et al. C. A. 2d Cir. Certiorari denied. Chauncey H. Levy for petitioner. Herman N. Schwartz for respondents. Reported below: 347 F. 2d 153.
No. 464. Lloyd A. Fry Roofing Co. v. Volasco Products Co. C. A. 6th Cir. Certiorari denied. Bur-ton F. Weitzenfeld for petitioner. William C. Wilson for respondent. Reported below: 346 F. 2d 661.
No. 466. Lippi v. United States. C. A. 3d Cir. Certiorari denied. Jacob W. Friedman for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph M. Howard and John P. Burke for the United States. Reported below: 347 F. 2d 33.
No. 467. Brown v. United States. C. A. 2d Cir. Certiorari denied. Daniel H. Greenberg and Marvin Margolis for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 348 F. 2d 661.
No. 468. Colson Corp. v. National Labor Relations Board. C. A. 8th Cir. Certiorari denied. James M. Reeves for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 347 F. 2d 128.
No. 469. Largo v. United States. C. A. 7th Cir. Certiorari denied. Max Cohen for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Philip R. Monahan for the United States. Reported below: 346 F. 2d 253.
ORDERS.
905
382 U. S.
November 8, 1965.
No. 470. Watwood v. Morrison et al.
C. A. D. C.
Cir. Certiorari denied.
No. 472. Addabbo et al. v. Donovan et al. Ct. App. N. Y. Certiorari denied. Bernard Kessler for petitioners. Léo A. Larbin, Seymour B. Quel and Sidney P. Nadel for respondents. Reported below: 16 N. Y. 2d 619, 209 N. E. 2d 112.
No. 473. Estwing Manufacturing Co., Inc. v. Singer, Guardian. Ct. App. N. Y. Certiorari denied. Herbert Burstein for petitioner. Stephen E. Burgio for respondent. Reported below: 15 N. Y. 2d 443, 209 N. E. 2d 68.
No. 475. Great Lakes Carbon Corp. v. Continental Oïl Co. et al. C. A. 5th Cir. Certiorari denied. Earl Bdbcock, Wayne L. Benedict and >8. W. Plauché, Jr., for petitioner. Richard Russell Wolfe and Cullen R. Liskow for respondents. Reported below: 345 F. 2d 175.
No. 476. United Brotherhood of Carpenters & Joiners of America, Local 1780, et al. v. Reynolds Electrical & Engineering Co., Inc. Sup. Ct. Nev. Certiorari denied. Morton Galane for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, Morton Hollander and John C. Eldridge for respondent. Reported below: 81 Nev. 199, 401 P. 2d 60.
No. 479. Morrison v. United States. C. A. 2d Cir. Certiorari denied. Raymond A. Brown and Irving I. Vogelman for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States. Reported below: 348 F. 2d 1003.
906
OCTOBER TERM, 1965.
November 8, 1965.
382 U. S.
No. 474. Naumkeag Théâtres Co., Inc. v. New England Théâtres, Inc., et al. C. A. Ist Cir. Certiorari denied. Timothy J. Davern for petitioner. Robert W. Meserve, John R. Hally and Stuart Aurons for respondents. Reported below: 345 F. 2d 910.
No. 478. Village of Alsip v. United States. C. A. 7th Cir. Certiorari denied. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph Kovner and Herbert Grossman for the United States. Reported below: 345 F. 2d 365.
No. 481. Babcock Boulevard Land Co., Inc., et al. v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. John B. Nicklas, Jr., for petitioners. Walter E. Ales-sandroni, Attorney General of Pennsylvania, and George R. Specter and Robert W. Cunliffe, Assistant Attorneys General, for respondent.
No. 485. Davis v. Hoover, Director, Fédéral Bureau of Investigation, et al. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for respondents. Reported below: 346 F. 2d 567.
No. 486. Gusow et al. v. United States. C. A. lOth Cir. Certiorari denied. O. John Rogge for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Ben-son for the United States. Reported below: 347 F. 2d 755.
No. 488. Hullum, Administratrix v. St. Louis Southwestern Railway Co. Ct. Civ. App. Tex., 12th Sup. Jud. Dist. Certiorari denied. Max Garrett for petitioner. Clyde W. Fiddes and Jack W. Flock for respondent. Reported below: 384 S. W. 2d 163.
ORDERS.
907
382 U. S.	November 8, 1965.
No. 406. Crouch, Probate Judge v. Shields, Guardian. Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Motion to strike portions of respondent’s brief and motion to defer considération of pétition denied. Certiorari denied. Petitioner pro se. Joseph P. Burt for respondent. Reported below: 385 S. W. 2d 580.
No. 461. Arber et al. v. American Airlines, Inc. C. A. lst Cir. Certiorari denied. Mr. Justice Portas took no part in the considération or decision of this pétition. David B. Kaplan for petitioners. Reported below: 345 F. 2d 130.
No. 482. Eckel v. Brenner, Commissioner of Patents. C. A. D. C. Cir. Certiorari denied. Mr. Justice Portas took no part in the considération or decision of this pétition. William Douglas Sellers, George A. Brace and Munson H. Lane for petitioner. Solicitor General Marshall, Assistant Attorney General Douglas, Sherman L. Cohn and Jack H. Weiner for respondent.
No. 480. Fawcett, Administratrix v. Missouri Pacific Railroad Co. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. John A. Hickman for petitioner. William C. Dowdy, Jr., for respondent. Reported below: 347 F. 2d 233.
No. 213, Mise. Ball v. United States. C. A. 6th Cir. Certiorari denied. John Frank Dugger for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 344 F. 2d 925.
No. 421, Mise. Summers v. Washington et al. Sup. Ct. Wash. Certiorari denied.
908
OCTOBER TERM, 1965.
November 8, 1965.
382 U. S.
No. 55, Mise. Richard v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, former Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 341 F. 2d 475.
No. 225, Mise. Hobbs v. United States. C. A. 7th Cir. Certiorari denied. George L. Saunders for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 340 F. 2d 848.
No. 317, Mise. Conner v. United States. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 345 F. 2d 794.
No. 332, Mise. Powers v. California. Super. Ct. Cal., City and County of S. F. Certiorari denied.
No. 366, Mise. Starnes v. Markley, Warden. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar, David Rubin and Gerald P. Choppin for respondent. Reported below: 343 F. 2d 535.
No. 392, Mise. Oliver v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 539, Mise. Ramirez-Villa v. Immigration and Naturalization Service. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for respondent. Reported below: 347 F. 2d 985.
ORDERS.
909
382 U. S.	November 8, 1965.
No. 386, Mise. Frady et al. v. United States. C. A. D. C. Cir. Certiorari denied. Henry Lincoln Johnson, Jr., for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 121 U. S. App. D. C. 78, 348 F. 2d 84.
No. 411, Mise. Williams v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
No. 469, Mise. Crowder v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 346 F. 2d 1.
No. 470, Mise. Chapman v. United States. C. A. 9th Cir. Certiorari denied. Abe F. Levy for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 346 F. 2d 383.
No. 486, Mise. Saylor v. United States Board of Parole et al. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar, David Rubin and Gerald P. Choppin for respondents. Reported below: 120 U. S. App. D. C. 206, 345 F. 2d 100.
No. 515, Mise. Turner v. Fay, Warden. C. A. 2d Cir. Certiorari denied.
No. 524, Mise. Hernandez v. California. C. A. 9th Cir. Certiorari denied.
910
OCTOBER TERM, 1965.
November 8, 1965.
382 U. S.
No. 523, Mise. Hall v. United States. C. A. 2d Cir. Certiorari denied. Leon B. Polsky for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 346 F. 2d 875.
No. 533, Mise. Clark v. Illinois. C. A. 7th Cir. Certiorari denied.
No. 541, Mise. Brown v. Brough, Warden. C. A. 4th Cir. Certiorari denied. Reported below: 346 F. 2d 149.
No. 546, Mise. Golden v. United States. Ct. Cl. Certiorari denied. Cari L. Shipley and Thomas A. Zie-barth for petitioner. Solicitor General Marshall for the United States. Reported below: 170 Ct. Cl. 904.
No. 549, Mise. Mitchell v. Florida. C. A. 5th Cir. Certiorari denied.
No. 558, Mise. Goodman v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 568, Mise. Buffington v. Martin, Warden. C. A. 2d Cir. Certiorari denied.
No. 572, Mise. Mountjoy v. Mountjoy. C. A. D. C. Cir. Certiorari denied. Isadore B. Katz for petitioner. Charles C. Collins for respondent. Reported below: 121 U. S. App. D. C. 27, 347 F. 2d 811.
No. 623, Mise. Johnson v. Evening Star News-paper Co. et al. C. A. D. C. Cir. Certiorari denied. Ira M. Lowe for petitioner. Reported below: 120 U. S. App. D. C. 122, 344 F. 2d 507.
ORDERS.
911
382 U. S.
November 8, 1965.
No. 570, Mise. Corey v. United States. C. A. Ist Cir. Certiorari denied. Russell Morton Brown and Maurice C. Goodpasture for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 346 F. 2d 65.
No. 574, Mise. Lang v. Alabama. Sup. Ct. Ala. Certiorari denied. Reported below: 278 Ala. 295, 177 So. 2d 920.
No. 576, Mise. Leyde v. Rhay, Penitentiary Superintendent. Super. Ct. Wash., Walla Walla County. Certiorari denied.
No. 583, Mise. Reece v. Rhay, Penitentiary Superintendent, et al. Sup. Ct. Wash. Certiorari denied.
No. 604, Mise. Capson v. United States. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 347 F. 2d 959.
No. 629, Mise. Privitera v. Kross, Correction Com-missioner. C. A. 2d Cir. Certiorari denied. Leon B. Polsky for petitioner. Frank S. Hogan and H. Richard Uviller for respondent. Reported below: 345 F. 2d 533.
Rehearing Denied.
No. 642, Mise., October Term, 1964. Walker v. In-ternal Revenue Service et al., 380 U. S. 926, 989. Motion for leave to file second pétition for rehearing denied. The Chief Justice and Mr. Justice Fortas took no part in the considération or decision of this motion.
912
382 U. S.
OCTOBER TERM, 1965.
November 8, 15, 1965.
No. 36, Mise. Wilson v. McGee, Administrator, et al., ante, p. 849;
No. 220, Mise. Whalem v. United States, ante, p. 862;
No. 296, Mise. Gaines v. United States, ante, p. 866; and
No. 393, Mise. Mitchell v. Florida, ante, p. 804. Pétitions for rehearing denied.
November 15, 1965.
Miscellaneous Orders.
No. 45. LinN v. United Plant Guard Workers of America, Local 114, et al. C. A. 6th Cir. (Certiorari granted, 381 U. S. 923.) The motion of Schnell Tool & Die Corp. et al. is granted insofar as permission to file a brief, as amici cwriae, is requested, and is denied insofar as permission to participate in oral argument is requested. Russell E. Leasure and Ralph Atkinson on the motion.
No. 492. McFaddin Express, Inc., et al. v. Adley Corp. et al. C. A. 2d Cir. The Solicitor General is invited to file a brief expressing the views of the United States.
No. 281, Mise. O’Connor v. Ohio. Appeal from Sup. Ct. Ohio. (Appeal dismissed and certiorari denied, ante, p. 19.) The appellee is requested to file a response to the pétition for rehearing within thirty days.
No. 626, Mise. Pasquinzo v. United States;
No. 685, Mise. Conover v. Herold, State Hospital Director;
No. 709, Mise. Tom v. United States; and
No. 715, Mise. Adams v. Rundle, Correctional Superintendent. Motions for leave to file pétitions for writs of habeas corpus denied.
ORDERS.
913
382 U. S.	November 15, 1965.
No. 689, Mise. Williams v. Florida. Motion for leave to file pétition for writ of habeas corpus denied. Treating the papers submitted as a pétition for writ of certiorari, certiorari is denied.
Probable Jurisdiction Noted.
No. 445. Illinois Central Railroad Co. et al. v. Norfolk & Western Railway Co. et al. ;
No. 484. Calumet Harbor Terminals, Inc., et al. v. Norfolk & Western Railway Co. et al. ; and
No. 543. United States et al. v. Norfolk & Western Railway Co. et al. Appeal from D. C. N. D. Ohio. Probable jurisdiction noted. Cases Consolidated and a total of two hours allotted for oral argument. William J. O’Brien, Jr., Robert Mitten, Robert H. Bierma, Edmund A. Schroer and John C. Lawyer for appellants in No. 445. Charles B. Myers for appellants in No. 484. Solicitor General Marshall, Assistant Attorney General Turner, Lionel Kestenbaum, Jerry Z. Pruzansky, Robert W. Ginnane and Robert S. Burk for the United States et al. in No. 543. John L. Bordes and Martin L. Cassell for Chicago, Rock Island & Pacific Railroad Co. et al., appellees in ail cases. Reported below: 241 F. Supp. 974.
Certiorari Granted. (See also Nos. 415 and 416, ante, p. 103.)
No. 412. Shillitani v. United States. C. A. 2d Cir. Certiorari granted limited to Questions 1 and 2 presented by the pétition which read as follows:
“1. Was the appellant denied his constitutional right to indietment and trial by jury?
“2. Does the ‘admixture of civil and criminal con-tempt’ invalidate the judgment of conviction?”
Albert J. Krieger for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Glazer for the United States. Reported below: 345 F. 2d 290.
914
OCTOBER TERM, 1965.
November 15, 1965.
382 U. S.
No. 383. Neely v. Martin K. Eby Construction Co., Inc. C. A. lOth Cir. Certiorari granted. In addition to ail the questions presented by the pétition, counsel are requested to brief and discuss at oral argument the following questions:
“1. Whether the Court of Appeals, after deciding that respondent should hâve been granted a judgment n. o. v., had power under Rule 50 of the Fédéral Rules of Civil Procedure and our decisions in Cône v. West Virginia Pulp & Paper Co., 330 U. S. 212; Globe Liquor Co. v. San Roman, 332 U. S. 571; and Weade v. Dichmann, Wright & Pugh, 337 U. S. 801, to order the case dismissed and thereby deprive petitioner of any opportunity to invoke the trial court’s discrétion on the issue of whether petitioner should hâve a new trial?
“2. Whether the Court of Appeals erred in ordering the District Court not merely to enter a judgment n. o. v. for respondent but to dismiss plaintiff’s case in view of Rule 50 (c) (2) of the Fédéral Rules of Civil Procedure which gives a party whose verdict has been set aside the right to make a motion for a new trial not later than 10 days after entry of the judgment notwithstanding the verdict?”
Charles A. Friedman for petitioner. Anthony F. Zar-lengo and Joseph S. McCarthy for respondent. Reported below: 344 F. 2d 482.
No. 489. Utah Pie Co. v. Continental Baking Co. et al. C. A. lOth Cir. Certiorari granted. In addition to ail the questions presented by the pétition, counsel are requested to brief and discuss at oral argument the following questions:
1. Whether, if this Court affirms the judgment and order of the Court of Appeals directing the District Court to enter judgment for respondents, petitioner can then make a motion for new trial under Rule 50 (c) (2) of
ORDERS.
915
382 U. S.	November 15, 1965.
the Fédéral Rules of Civil Procedure within 10 days of the District Court’s entry of judgment for respondents?
“2. Whether, if under the order of the Court of Appeals, petitioner cannot make a motion for new trial under Rule 50 (c) (2) within 10 days of the District Court’s entry of judgment against him, the order of the Court of Appeals directing the District Court to enter judgment for respondents is compatible with Rule 50 (b) as interpreted by this Court in Cône v. West Virginia Pulp & Paper Co., 330 U. S. 212; Globe Liquor Co. v. San Roman, 332 U. S. 571; and Weade v. Dichmann, Wright Pugh, 337 U. S. 801?
“3. Whether Rule 50 (d) of the Fédéral Rules of Civil Procedure provides the Court of Appeals with any au-thority to direct the entry of judgment for respondents?”
Joseph L. Alioto for petitioner. John H. Schafer for Continental Baking Co., Peter W. Billings and James R. Baird, Jr., for Carnation Co., and George P. Lamb and Carrington Shields for Pet Milk Co., respondents. Reported below: 349 F. 2d 122.
No. 502. Dennis et al. v. United States. C. A. lOth Cir. Certiorari granted limited to Questions 1, 2, and 3 presented by the pétition, which read as follows :
“1. Whether the indictment States the offense of conspiracy to defraud the United States;
“2. Whether, in the comparative light of American Communications Assn. v. Douds, 339 U. S. 382, and United States v. Archie Brown, 381 U. S. 437, Section 9 (h) of the Taft-Hartley Act is constitutional;
“3. Whether the trial court erred in denying petitioners’ motions for the production, to the defense or the Court, of grand jury testimony of prosecution witnesses.”
Nathan Witt, George J. Francis and Teljord Taylor for petitioners. Solicitor General Marshall, Assistant Attorney Yeagley and George B. Searls for the United States.
916
OCTOBER TERM, 1965.
November 15, 1965.
382 U. S.
Gerhard P. Van Arkel, Charles F. Brannan, John F. O’Donnell, Joseph L. Rauh, Jr., Eugene Cotton, Mel-vin L. Wulf, Jacob Sheinkman, Joseph M. Jacobs and John Ligtenberg for the American Civil Liberties Union et al., in support of the pétition. Reported below: 346 F. 2d 10.
No. 442. Pappadio v. United States. C. A. 2d Cir. Certiorari granted limited to Questions 1, 2, and 3 pre-sented by the pétition which read as follows:
“1. Whether petitioner should hâve been granted a trial by jury on a charge of criminal contempt of court where he has been sentenced to two years’ imprisonment.
“2. Whether the District Court could legally sentence petitioner to two years’ imprisonment for contempt of court foliowing a non-jury hearing under Rule 42 (b) of the Fédéral Rules of Criminal Procedure.
“3. Whether, assuming arguendo that a sentence of two years may be imposed for criminal contempt without a trial by jury, there was an abuse of discrétion in sen-tencing petitioner to two years’ imprisonment for refus-ing to answer five questions where he had answered more than one hundred questions.”
Case placed on the summary calendar and set for argument immediately following No. 412.
Jacob Kossman for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 346 F. 2d 5.
No. 490. Sheppard v. Maxwell, Warden. C. A. 6th Cir. Motion of the American Civil Liberties Union et al. for leave to file brief, as amici curiae, granted. Certiorari granted. F. Lee Bailey and Russell A. Sherman for petitioner. William B. Saxbe, Attorney General of Ohio, and David L. Kessler, Assistant Attorney General, for respondent. Bernard A. Berkman and Mel-
ORDERS.
917
382 U. S.	November 15, 1965.
vin L. Wulf for the American Civil Liberties Union et al., as amici curiae, in support of the pétition. John T. Corrigan and Gertrude Bauer Mahon for the State of Ohio, as amicus curiae, on behalf of respondent. Reported below : 346 F. 2d 707.
No. 67. Cheff v. Schnackenberg, U. S. Circuit Judge, et al. C. A. 7th Cir. Certiorari granted limited to Question 3 presented by the pétition which reads as follows :
“3. Whether, after déniai of a demand for jury trial, the sentence of imprisonment of six months imposed upon petitioner is constitutionally permissible under Article III and the Sixth Amendment.”
Case placed on the summary calendar and set for argument immediately following No. 442.
Richard M. Keck for petitioner. Solicitor General Cox, E. K. Elkins and Miles J. Brown for respondents. Reported below: 341 F. 2d 548.
Certiorari Denied. (See also Nos. 497 and 498, ante, p. 107; No. 512, ante, p. 108; No. 520, ante, p. 108; and No. 689, Mise., supra.)
No. 493. Hammons v. Oregon. Sup. Ct. Ore. Certiorari denied. Milton Heller for petitioner. George Van Hoomissen and George M. Joseph for respondent.
No. 504. Shelton v. Georgia. Ct. App. Ga. Certiorari denied. Wesley R. Asinoj for petitioner. Lewis R. Slaton and J. Walter LeCraw for respondent. Reported below: 111 Ga. App. 351, 141 S. E. 2d 776.
No. 507. Fata v. Co-ordinating Committee on Discipline. Ct. App. N. Y. Certiorari denied. Matthew H. Brandenburg for petitioner. Angelo T. Cometa for respondent.
918
OCTOBER TERM, 1965.
November 15, 1965.
382 U. S.
No. 491. Cross, dba Cross Poultry Co. v. National Labor Relations Board. C. A. 4th Cir. Certiorari denied. Eugene C. Brooks, Jr., and Lucius W. Pullen for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 346 F. 2d 165.
No. 495. Vitasafe Corp. et al. v. United States. C. A. 3d Cir. Certiorari denied. Milton A. Bass and Solomon H. Friend for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Paul R. Walsh for the United States. Reported below: 345 F. 2d 864.
No. 509. A/S Skaugaas (I. M. Skaugen), as Owner of The Skaustrand v. Dredge Cartegena et al. C. A. 4th Cir. Certiorari denied. Charles S. Haight and Car-lyle Barton, Jr., for petitioner. John F. Gerity and John H. Skeen, Jr., for respondents. Reported below: 345 F. 2d 275.
No. 513. Harvey v. Lyons et al. Sup. Ct. N. J. Certiorari denied. Petitioner pro se. David S. Bâte for respondents.
No. 515. Ewing, Executor v. Rountree, District Director of Internal Revenue. C. A. 6th Cir. Certiorari denied. S. Shepherd Tate for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Gilbert E. Andrews for respondent. Reported below: 346 F. 2d 471.
No. 514. Deutsch v. New York. App. Div., Sup. Ct. N. Y., Ist Jud. Dept. Certiorari denied. George J. Malinsky for petitioner. Frank S. Hogan and H. Richard Uviller for respondent.
ORDERS.
919
382 U. S.	November 15, 1965.
No. 516. Pacific Far East Line, Inc. v. Jones Stevedoring Co. C. A. 9th Cir. Certiorari denied. John Hays for petitioner. Reported below: 346 F. 2d 642.
No. 517. Hunter v. Talbot. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Joseph M. Howard for respondent. Reported below: 345 F. 2d 513.
No. 519. Gish v. Missouri. Sup. Ct. Mo. Certiorari denied.
No. 522. Boughner v. Schulze, Spécial Agent, Internal Revenue Service, et al. C. A. 7th Cir. Certiorari denied. William A. Barnett for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph M. Howard and Burton Berkley for respondent Schulze. Reported below: 350 F. 2d 666.
No. 524. Schwartz, Executrix v. The Nassau et al. C. A. 2d Cir. Certiorari denied. Henry Wimpf-heimer for petitioner. J. Daniel Dougherty and Charles N. Fiddler for respondents. Reported below: 345 F. 2d 465.
No. 587, Mise. Schlette v. Halbert, U. S. District Judge, et al. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar and David L. Norman for respondent Halbert.
No. 483. Gray v. Wilson, Warden. C. A. 9th Cir. Motion for leave to file supplément to pétition granted. Certiorari denied. Marshall W. Krause and Lawrence Speiser for petitioner. Reported below: 345 F. 2d 282.
786-211 0-66—46
920	OCTOBER TERM, 1965.
November 15, 1965.	382 U. S.
No. 483, Mise. Goodwin v. United States;
No. 484, Mise. Vaughn v. United States; and
No. 603, Mise. Williams v. United States. C. A. D. C. Cir. Certiorari denied. Petitioners pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 121 U. S. App. D. C. 9, 347 F. 2d 793.
No. 529, Mise. Mitchell v. United States. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 344 F. 2d 935.
No. 566, Mise. Keaton v. United States. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 349 F. 2d 374.
No. 580, Mise. Scott v. MacDougall et al. Sup. Ct. S. C. Certiorari denied. Reported below: 246 S. C. 252, 143 S. E. 2d 457.
No. 599, Mise. Hunt v. California. Sup. Ct. Cal. Certiorari denied.
No. 606, Mise. Tahtinen v. California. C. A. 9th Cir. Certiorari denied.
No. 622, Mise. Gomez v. Colorado. Sup. Ct. Colo. Certiorari denied.
No. 620, Mise. Colter v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
ORDERS.
921
382 U. S.	November 15, 1965.
No. 617, Mise. Gadsden et al. v. Fripp et al. C. A. 4th Cir. Certiorari denied. Reported below: 343 F. 2d 824.
No. 634, Mise. D’Ambrosio v. Fay, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 349 F. 2d 957.
No. 635, Mise. Blasetti v. Warden, Attica Prison. C. A. 2d Cir. Certiorari denied. Frances Kahn for petitioner.
No. 641, Mise. Muza v. California Adult Author-ity et al. Sup. Ct. Cal. Certiorari denied.
No. 642, Mise. Polk v. Minnesota Commissioner of Corrections et al. C. A. 8th Cir. Certiorari denied.
No. 651, Mise. Williams v. Jett, Sheriff, et al. Sup. Ct. Tenn. Certiorari denied. Petitioner pro se. George F. McCanless, Attorney General of Tennessee, and William H. Lassiter, Jr., Assistant Attorney General, for respondents.
No. 670, Mise. Farrell v. Gardner, Secretary of Health, Education and Welfare. C. A. 7th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for respondent.
No. 290, Mise. Barksdale v. Louisiana. Sup. Ct. La. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Jack Green-berg, Michael Meltsner, Robert F. Collins and Nils R. Douglas for petitioner. Jack P. F. Gremillion, Attorney General of Louisiana, William P. Schuler, Assistant Attorney General, and Jim Garrison for respondent. Reported below: 247 La. 198, 170 So. 2d 374.
922
OCTOBER TERM, 1965.
November 15, 1965.
382 U. S.
Rehearing Denied.
No. 107. Waltham Watch Co. et al. v. Fédéral
Trade Commission, ante, p. 813;
No. 174. Gosser v. United States, ante, p. 819;
No. 296. Bankers Bond Co., Inc., et al. v. All States Investors, Inc., et al., ante, p. 830;
No. 308. Maddox v. Willis et al., ante, p. 18;
No. 41, Mise. Reed v. United States, ante, p. 849 ;
No. 42, Mise. Samurine v. United States, ante, p. 849;
No. 101, Mise. Duval v. United States, ante, p. 854;
No. 109, Mise. McMullen v. Gardner, Secretary of Health, Education and Welfare, ante, p. 854;
No. 133, Mise. Spiesel v. City of New York, ante, p. 856;
No. 166, Mise. Vesay v. United States, ante, p. 859;
No. 170, Mise. Miguel v. United States, ante, p. 859;
No. 179, Mise. Henderson v. Maxwell, Warden, ante, p. 804;
No. 227, Mise. Levy v. United States, ante, p. 862;
No. 314, Mise. Anderson et al. v. United States, ante, p. 880;
No. 342, Mise. Hourihan v. Mahoney, ante, p. 17;
No. 426, Mise. Warriner v. Fink et al., ante, p. 871 ;
No. 431, Mise. Kelly v. Kansas, ante, p. 881 ; and
No. 436, Mise. Long v. Pâte, Warden, ante, p. 881. Pétitions for rehearing denied.
No. 22, Mise. Davis v. Beto, Corrections Director, ante, p. 804. Pétition for rehearing denied. The Chief Justice took no part in the considération or decision of this pétition.
ORDERS.
923
382 U. S.	November 16, 19, 22, 1965.
November 16, 1965.
Dismissal Under Rule 60.
No. 579. General Auto Supplies, Inc., et al. v. Fédéral Trade Commission. C. A. 7th Cir. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Bernard Mellitz, Malcolm I. Frank and Teljord B. Orbison for petitioners. Reported below: 346 F. 2d 311.
November 19, 1965.
Dismissal Under Rule 60.
No. 573. Frank et al. v. United States. C. A. D. C. Cir. Pétition for writ of certiorari as to petitioner Frank dismissed pursuant to Rule 60 of the Rules of this Court. Edward L. Carey and Walter E. Gïllcrist for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 120 U. S. App. D. C. 392, 347 F. 2d 486.
November 22, 1965.
Miscellaneous Orders.
No. 359. Johnson v. United States. C. A. 6th Cir. (Certiorari denied, ante, p. 836.) The Solicitor General is requested to file a response to the pétition for a rehearing within thirty days.
No. 718, Mise. Williamson et al. v. Blankenship, Judge, et al. C. A. 5th Cir. Motion for leave to file pétition for writ of certiorari denied.
No. 676, Mise. Walker v. Superior Court of California IN AND FOR THE ClTY AND COUNTY OF SAN FRANCISCO. Motion for leave to file pétition for writ of prohibition denied. The Chief Justice took no part in the considération or decision of this motion.
924
OCTOBER TERM, 1965.
November 22, 1965.
382 U. S.
No. 56, Mise. In re Disbarment of Harris. It hav-ing been reported to the Court that Eldon C. Harris of Cut Bank, State of Montana, has been disbarred from the practice of law by the Suprême Court of the State of Montana, duly entered on the 4th day of March, 1965, and this Court by order of March 29, 1965, having suspended the said Eldon C. Harris from the practice of law in this Court and directed that a rule issue requiring him to show cause why he should not be disbarred;
And it appearing that the said rule was duly issued and served upon the respondent, and that the time within which to file a retum to the rule has expired;
It is Ordered that the said Eldon C. Harris be, and he is hereby, disbarred from the practice of law in this Court and that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court.
Probable Jurisdiçtion Noted.
No. 545. Joseph E. Seagram & Sons, Inc., et al. v. Hostetter, Chairman, New York State Liquor Au-thority, ET al. Appeal from Ct. App. N. Y. Probable jurisdiçtion noted. Herbert Brownell and Thomas F. Daly for appellants. Louis J. Lejkowitz, Attorney General of New York, Ruth Kessler Toch, Assistant Solicitor General, and Robert L. Harrison, Assistant Attorney General, for appellees. Reported below: 16 N. Y. 2d 47, 209 N. E. 2d 701.
Certiorari Granted. (See also No. 543, October Term, 1963, ante, p. 158.)
No. 80, Mise. Westover v. United States. C. A. 9th Cir. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket and set for oral argument immediately following No. 397, Mise. Petitioner
ORDERS.
925
382 U. S.	November 22, 1965.
pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States. Reported below: 342 F. 2d 684.
No. 535. United States v. Catto et al. C. A. 5th Cir. Certiorari granted. Solicitor General Marshall, Acting Assistant Attorney General Jones, Acting Assistant Attorney General Roberts, Jack S. Levin and Melva M. Graney for the United States. Ben F. Foster for Catto et al., and Claibome B. Gregory for Wardlaw et al., respondents. Reported below: 344 F. 2d 225, 227.
No. 397, Mise. Vignera v. New York. Ct. App. N. Y. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket and set for oral argument immediately following No. 419, Mise. Robert S. Rifkind for petitioner. William I. Siegel for respondent. Reported below: 15 N. Y. 2d 970, 207 N. E. 2d 527.
No. 419, Mise. Miranda v. Arizona. Sup. Ct. Ariz. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket. John P. Frank for petitioner. Darrell F. Smith, Attorney General of Arizona, and William E. Eubank and Gary K. Nelson, Assistant Attorneys General, for respondent. Reported below: 98 Ariz. 18, 401 P. 2d 721.
No. 205, Mise. Johnson et al. v. New Jersey. Sup. Ct. N. J. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket and set for oral argument immediately following No. 80, Mise. M. Gerbe Haeberle, Stanford Shmukler and Curtis R. Reitz for petitioners. Norman Heine for respondent. Reported below: 43 N. J. 572, 206 A. 2d 737.
926	OCTOBER TERM, 1965.
November 22, 1965.	382 U. S.
Certiorari Denied. (See also No. 672, Mise., ante, p.
161.)
No. 518. Oling et al. v. Air Line Pilots Association et al. C. A. 7th Cir. Certiorari denied. I. J. Gromfine and Herman Stemstein for petitioners. Samuel J. Cohen and Herbert A. Levy for Air Line Pilots Association, and Stuart Bernstein for United Air Lines, Inc., respondents. Reported below: 346 F. 2d 270.
No. 525. Camco, Inc. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. L. G. Clinton, Jr., for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Leonard M. Wagman for respondent. Reported below: 340 F. 2d 803.
No. 526. Wheeler v. Jones. Sup. Ct. Ark. Certiorari denied. G. Thomas Eisele for petitioner. Leon B. Catlett for respondent. Reported below: 239 Ark. 455, 390 S. W. 2d 129.
No. 527. Conte v. United States. C. A. 6th Cir. Certiorari denied. Marvin A. Koblentz for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 349 F. 2d 304.
No. 529. King v. United States. C. A. 9th Cir. Certiorari denied. Peter J. Hughes for petitioner. Soliciter General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 348 F. 2d 814.
No. 533. A and B v. C and D. Sup. Ct. Ark. Certiorari denied. James L. Sloan for petitioners. Robert V. Light for respondents. Reported below: 239 Ark. 406, 390 S. W. 2d 116.
ORDERS.
927
382 U. S.	November 22, 1965.
No. 530. Gardens of Faith, Inc., et al. v. Commis-sioner of Internal Revenue. C. A. 4th Cir. Certiorari denied. John Y. Merrell for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Melva M. Graney for respondent. Reported below: 345 F. 2d 180.
No. 536. Chicago, Rock Island & Pacific Railroad Co. v. McConnell Heavy Hauling, Inc. Sup. Ct. Ark. Certiorari denied. Edward L. Wright for petitioner. Jack Holt, Jr., for respondent. Reported below: 239 Ark. 373, 390 S. W. 2d 111.
No. 538. My Store, Inc. v. National Labor Relations Board. C. A. 7th Cir. Certiorari denied. Henry E. Seyfarth for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 345 F. 2d 494.
No. 539. Bank of America National Trust & Sav-ings Association v. United States. C. A. 9th Cir. Certiorari denied. Samuel B. Stewart and William D. Donnelly for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph Kovner and Frederick E. Youngman for the United States. John P. Austin for California Bankers Association, as amicus curiae, in support of the pétition. Reported below: 345 F. 2d 624.
No. 227. Bullock v. Virginia. Sup. Ct. App. Va. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Calvin H. Childress for petitioner. Robert Y. Button, Attorney-General of Virginia, and D. Gardiner Tyler, Assistant Attorney General, for respondent. Reported below: 205 Va. 867, 140 S. E. 2d 821.
928
OCTOBER TERM, 1965.
November 22, 1965.
382 U. S.
No. 149. Martin v. Texas;
Nos. 345 and 508. McClelland v. Texas. Ct. Crim. App. Tex. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Clyde W. Woody and Marian S. Rosen for petitioner in No. 149. J. Edwin Smith and Byron Skelton for petitioner in Nos. 345 and 508. Samuel H. Robertson, Jr., and Cari E. F. Daily for respondent. Reported below: No. 345, 389 S. W. 2d 678; No. 508, 390 S. W. 2d 777.
Mémorandum of Mr. Chief Justice Warren.
Each of these three cases stems from the following factual setting:
The Grand Jury of Harris County, Texas, was impan-eled on May 7, 1962, to investigate irregularities in the administration of the Probate Court. While Grand Jury sessions were proceeding, the District Attorney of the County, in coopération with the Justice of the Peace, took the virtually unprecedented step of obtaining an order to institute a “Court of Inquiry.”
This body, formerly sanctioned by Vernon’s Texas Code of Criminal Procedure, Arts. 886, 887, permits a justice of the peace to summon and examine witnesses and take sworn testimony. Those who fail to comply with his summons or refuse to make statements under oath may be fined and imprisoned. From the year of its enactment—1876—to this date, it appears that the procedure had been seldom invoked.
The secret Grand Jury deliberations were postponed while the District Attorney pursued the Court of Inquiry publicly, in front of the press, radio recorders and télévision caméras. In this inflamed atmosphère, the petitioners were questioned for some four days, although they objected to testifying. They were not permitted to con-sult with their attorneys during the proceedings, to de-
ORDERS.
929
928	Mémorandum of Warren, C. J.
fend themselves, to cross-examine or confront the wit-nesses against them, to call witnesses on their behalf, to rebut or to contradict the evidence produced by the prosecution. Two days later, the Grand Jury was recon-vened and brought in indictments against the petitioners.
Due to a change of venue and continuances secured by the petitioners, their trials did not take place until more than two years later in a neighboring county. Their pretrial motions to quash the indictments were denied, in two cases without hearings, and they were found guilty of the offenses charged.
The Texas Législature has since repealed the “Court of Inquiry” proceeding through the adoption of a new Code of Criminal Procedure, Laws 1965, 59th Leg., Reg. Sess., c. 722, to become effective January 1, 1966. Under the new Code, no justice of the peace may convene a Court of Inquiry. Rather, such a court may be conducted only by district judges, and ail witnesses are entitled to the same protections as in felony prosecutions. Arts. 52.01-52.06.
It is clear that grave constitutional questions are raised by conducting such a proceeding. See, e. g., Estes v. Texas, 381 U. S. 532; Moore v. Dempsey, 261 U. S. 86, 90-91. Against the background of the factors mentioned above, the Court has declined review. Our déniai of the pétitions for certiorari in these cases should not be taken in any way as sanctioning the proceedings or of approv-ing of the judgments below. It means only that for one reason or another these cases did not commend themselves “to at least four members of the Court as falling within those considérations which should lead this Court to exercise its discrétion in reviewing a lower court’s decision.” Mémorandum of Mr. Justice Frankfurter, Shep-pard n. Ohio, 352 U. S. 910, 911; see also, Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912.
930
OCTOBER TERM, 1965.
November 22, 1965.
382 U. S.
No. 257, Mise. Montoya v. California. Sup. Ct. Cal. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Robert R. Granucci and John F. Kraetzer, Deputy Attorneys General, for respondent.
No. 320, Mise. Brye v. Wainwright, Corrections Director. Sup. Ct. Fia. Certiorari denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and John S. Burton, Assistant Attorney General, for respondent.
No. 337, Mise. Boles v. Texas. Ct. Crim. App. Tex. Certiorari denied. Petitioner pro se. Waggoner Carr, Attorney General of Texas, and Allô B. Crow, Jr., Hawthorne Phillips, T. B. Wright and Howard M. Fonder, Assistant Attorneys General, for respondent.
No. 451, Mise. Ortega v. Thornton, U. S. District Judge. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for respondent.
No. 471, Mise. Hawkes v. Warden, Missouri Peni-tentiary. Sup. Ct. Mo. Certiorari denied. Petitioner pro se. Norman H. Anderson, Attorney General of Missouri, and Howard L. McFadden, Assistant Attorney General, for respondent.
No. 517, Mise. Green v. United States. C. A. D. C. Cir. Certiorari denied. James J. Laughlin for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Mervyn Ham-burg for the United States. Reported below: 121 U. S. App. D. C. 111, 348 F. 2d 340.
No. 611, Mise. Stevenson v. Altman, Clerk of Cook County Circuit Court. C. A. 7th Cir. Certiorari denied.
ORDERS.
931
382 U. S.	November 22, 1965.
No. 591, Mise. Yates v. Mississippi. Sup. Ct. Miss. Certiorari denied. Lawrence Speiser and Bernard Roa-zen for petitioner. Reported below: 253 Miss. 424, 175 So. 2d 617.
No. 592, Mise. Massari v. United States. C. A. 2d Cir. Certiorari denied. Francis Kahn for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 347 F. 2d 725.
No. 602, Mise. Edell v. Di Piazza et al. C. A. 5th Cir. Certiorari denied. Reported below: 345 F. 2d 336.
No. 625, Mise. Chaparro et al. v. Jackson & Per-kins Co. et al. C. A. 2d Cir. Certiorari denied. Dora Aberlin for petitioners. William C. Combs for respondents. Reported below: 346 F. 2d 677.
No. 636, Mise. Harris v. Commissioner of Inter-nal Revenue. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Robert N. Anderson for respondent.
No. 640, Mise. Eaton v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 348 F. 2d 919.
No. 644, Mise. Bookwalter v. California Adult Authority. Dist. Ct. App. Cal., 3d App. Dist. Certiorari denied.
No. 664, Mise. Romano v. Fay, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 344 F. 2d 702.
932
OCTOBER TERM, 1965.
November 22, 1965.
382 U. S.
No. 646, Mise. Burton v. United States. C. A. 2d Cir. Certiorari denied. Frances Kahn for petitioner. Solicitor General Marshall for the United States.
No. 649, Mise. Stephens v. United States. C. A. 5th Cir. Certiorari denied. Thomas Gilbert Sharpe, Jr., for petitioner. Solicitor General Marshall for the United States. Reported below: 347 F. 2d 722.
No. 659, Mise. Bratt v. Crouse, Warden. C. A. lOth Cir. Certiorari denied. Reported below: 346 F. 2d 146.
No. 665, Mise. Neal v. Myers, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 680, Mise. Ritter v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Petitioner pro se. Ben]. J. Jacobson for respondent.
No. 682, Mise. Kelly v. Immigration and Natural-ization Service. C. A. 9th Cir. Certiorari denied. Lloyd Tasoff for petitioner. Solicitor General Marshall for respondent. Reported below: 349 F. 2d 473.
No. 707, Mise. Simon v. Castille et al. Sup. Ct. La. Certiorari denied. J. Minos Simon for petitioner.
No. 710, Mise. Beazley v. Orsinger. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Joseph G. Dooley for respondent.
No. 272, Mise. Lambert v. Kentucky. Ct. App. Ky. Motion to strike brief of respondent denied. Certiorari denied. Petitioner pro se. Robert Matthews, Attorney General of Kentucky, and David Murrell and Holland N. McTyeire, Assistant Attorneys General, for respondent.
ORDERS.
933
382 U. S.	November 22, 1965.
Rehearing Denied.
No. 66. List v. Lerner, dba Lerner & Co., et al., ante, p. 811;
No. 80. Ring v. New Jersey, ante, p. 812;
No. 83. Crombie v. Crombie, ante, p. 812;
No. 105. Williams v. Howard Johnson’s, Inc., of Washington, ante, p. 814;
No. 119. United States v. New Orléans Chapter, Associated General Contractors of America, Inc., et al., ante, p. 17;
No. 142. Flying Tiger Line, Inc. v. Mertens, Ad-ministrator, et al., ante, p. 816;
No. 152. Demers v. Brown et al., ante, p. 818 ;
No. 173. Pinciotti v. United States, ante, p. 819;
No. 189. Lichtenstein, aka Wells v. United States, ante, p. 821;
No. 199. Diaz et al. v. United States, ante, p. 822;
No. 210. Stevens v. Marks, New York Suprême Court Justice, ante, p. 809;
No. 290. Stevens v. McCloskey, Sheriff, ante, p. 809;
No. 278. Stupak v. United States, ante, p. 829;
No. 330. Wade v. United States, ante, p. 834;
No. 334. National Maritime Union of America, AFL-CIO v. National Labor Relations Board, ante, p. 835;
No. 403. National Maritime Union of America, AFL-CIO v. National Labor Relations Board, ante, p. 840;
No. 405. Semel v. United States, ante, p. 840;
No. 45, Mise. DeGregory v. United States, ante, p. 850;
No. 186, Mise. Budner v. New York, ante, p. 860; and
No. 192, Mise. Byers v. Crouse, Warden, ante, p. 860. Pétitions for rehearing denied.
934
382 U. S.
OCTOBER TERM, 1965.
November 22, December 1, 6, 1965.
No. 253, Mise. Wilson v. United States, ante, p. 864;
No. 298, Mise. Thacker v. Ward Markham Co., ante, p. 865; and
No. 511, Mise. In re Duarte, ante, p. 883. Pétitions for rehearing denied.
No. 98. Walker v. Foster et al., ante, p. 812. Motion to dispense with printing pétition granted. Pétition for rehearing denied.
No. 260. Nyyssonen, Administratrix v. Bendix Corp., ante, p. 847; and
No. 319. Rockefeller, Governor of New York, et al. v. Orans et al., ante, p. 10. Pétitions for rehearing denied. Mr. Justice Fortas took no part in the considération or decision of these pétitions.
December 1, 1965.
Dismissal Under Rule 60.
No. 734. McGraw et al. v. City of Englewood et al. Sup. Ct. Colo. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. John R. Barry for petitioners. Charles S. Rhyne, Brice W. Rhyne and Alfred J. Tighe, Jr., for respondents. Reported below: — Colo. —, 404 P. 2d 525.
December 6, 1965.
Miscellaneous Orders.
No. 368. A Book Named “John Cleland’s Memoirs OF A WoMAN OF PLEASURE” V. ATTORNEY GENERAL OF Massachusetts. Appeal from Sup. Jud. Ct. Mass. (Probable jurisdiction noted, ante, p. 900.) Motion of the Citizens for Decent Literature, Inc., for leave to file brief, as amicus curiae, granted. Motion for leave to participate in oral argument, as amicus curiae, denied. Charles H. Keating, Jr., on the motions.
ORDERS.
935
382 U. S.	December 6, 1965.
No. 21, Original. Wisconsin v. Minnesota et al. Motion for leave to file bill of complaint denied. The Chief Justice, Mr. Justice Stewart and Mr. Justice Portas are of the opinion that the motion for leave to file the bill of complaint should be set for oral argument. Mr. Justice Douglas took no part in the considération or decision of this motion. Bronson C. La Follette, Attorney General of Wisconsin, John H. Bowers, Deputy Attorney General, and A. J. Feijarek and Roy G. Tulane, Assistant Attorneys General, for plaintiff. Robert W. Mattson, Attorney General of Minnesota, and Perry Voldness, Deputy Attorney General, for défendant State of Minnesota. Randall J. LeBoeuf, Jr., and Arthur R. Renquist for défendant Northern States Power Co.
No. 784. Watkins et al. v. Superior Court, Los Angeles County, et al. Dist. Ct. App. Cal., 2d App. Dist. Motion for stay of injunction or expedited disposition of the pétition for writ of certiorari presented to Mr. Justice Douglas, and by him referred to the Court, is denied. Jack Greenberg, Raymond L. Johnson and Anthony G. Amsterdam on the motion.
No. 390, Mise. Whitlow v. Wainwright, Corrections Director. Motion for leave to file pétition for writ of habeas corpus denied. Treating the papers sub-mitted as a pétition for writ of certiorari, certiorari is denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and James G. Mahomer, Assistant Attorney General, for respondent.
No. 185, Mise. Herring v. District Court of Appeal of California, Second Appellate District. Motion for leave to file pétition for writ of mandamus denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and George J. Roth, Deputy Attorney General, for respondent.
786-211 0-66—47
936
OCTOBER TERM, 1965.
December 6, 1965.
382 U. S.
No. 46. United States v. General Motors Corp. et al. Appeal from D. C. S. D. Cal. (Probable jurisdiction noted, 380 U. S. 940.) Motion of O. M. Scott & Sons Co. et al. for leave to file brief, as amici curiae, granted. Thomas A. Rothwell and William C. Hillman on the motion.
No. 695. Collier v. United States. C. A. 6th Cir. (Certiorari granted, ante, p. 890.) Motion for the appointment of counsel granted, and it is ordered that Dean E. Denlinger, Esquire, of Dayton, Ohio, be, and he is hereby, appointed to serve as counsel for the petitioner in this case.
Probable Jurisdiction Noted or Postponed.
No. 562. Time, Inc. v. Hill. Appeal from Ct. App. N. Y. Probable jurisdiction noted. Harold R. Médina, Jr., and Victor M. Earle III for appellant. Milton Black for appellee. Reported below: 15 N. Y. 2d 986, 207 N. E. 2d 604.
No. 597. Mills v. Alabama. Appeal from Sup. Ct. Ala. Further considération of the question of jurisdiction in this case is postponed to the hearing of the case on the merits. Kenneth Perrine for appellant. Richmond M. Flowers, Attorney General of Alabama, and Leslie Hall, Assistant Attorney General, for appellee. James C. Barton for Alabama Press Association et al., as amici curiae, in support of appellant. Reported below: 278 Ala. 188, 176 So. 2d 884.
No. 611. United States v. Arnold, Schwinn & Co. et al. Appeal from D. C. N. D. 111. Probable jurisdiction noted. The case is set for oral argument immediately following No. 238. Solicitor General Marshall, Assistant Attorney General Turner and Lionel Kestenbaum for the United States. Harold D. Burgess, Robert C. Keck and EarlE. Pollock for appellees. Reported below: 237 F. Supp. 323.
ORDERS.
937
382 U. S.	December 6, 1965.
Certiorari Granted. (See also No. 532, ante, p. 198.)
No. 505. National Association for the AdvaNce-MENT OF COLORED PEOPLE ET AL. V. OVERSTREET. Sup. Ct. Ga. Certiorari granted limited to Question 2 pre-sented by the pétition which reads as follows:
“2. Has petitioner National Association for the Ad-vancement of Colored People, a New York corporation, been deprived of its property without due process of law under the Fourteenth Amendment by being held liable in damages for acts performed without its knowledge and by persons beyond its control?”
Donald L. Hollowell, Robert L. Carter and Maria L. Marcus for petitioners. Hugh P. Futrell, Jr., for respondent. Reported below: 221 Ga. 16, 142 S. E. 2d 816.
No. 584. California v. Stewart. Sup. Ct. Cal. Certiorari granted. The case is set for oral argument immediately foliowing No. 762. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Gordon Ringer, Deputy Attorney General, for petitioner. Reported below: 62 Cal. 2d 571, 400 P. 2d 97.
No. 594. Gojack v. United States. C. A. D. C. Cir. Certiorari granted. Edward J. Ennis, Osmond K. Fraenkel, Melvin L. Wulf, Frank J. Donner and David Rein for petitioner. Solicitor General Marshall, Assistant Attorney General Yeagley, Kevin T. Maroney and Robert L. Keuch for the United States. Reported below: 121 U. S. App. D. C. 126, 348 F. 2d 355.
Certiorari Denied. (See also No. 595, ante, p. 203;
No. 614, ante, p. 202; and No. 390, Mise., supra.)
No. 554. Martens v. Winder. C. A. 9th Cir. Certiorari denied. Reported below: 341 F. 2d 197.
938
OCTOBER TERM, 1965.
December 6, 1965.
382 U. S.
No. 352. Lauritzen v. Spann. C. A. 3d Cir. Certiorari denied. J. Ward O’Neill and Francis X. Byrn for petitioner. Philip Dorfman and John Dorjman for respondent. Cornélius P. Coughlan, J. Steward Har-rison and Scott H. Elder for American Merchant Marine Institute, Inc., et al., as amici curiae, in support of the pétition. Reported below: 344 F. 2d 204.
No. 528. Bumb, Trustée in Bankruptcy v. Suhl et al. C. A. 9th Cir. Certiorari denied. Joseph A. Bail for petitioner. Martin Gendel for respondents. Reported below: 348 F. 2d 869.
No. 542. Pisano v. The Benny Skou et al. C. A. 2d Cir. Certiorari denied. Harvey Goldstein for petitioner. J. Ward O’Neill for The Benny Skou et al., and Sidney A. Schwartz and Joseph Arthur Cohen for John T. Clark & Son, respondents. Reported below: 346 F. 2d 993.
No. 547. Willow Terrace Development Co., Inc., et al. v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. W. Carloss Morris, Jr., and Robert H. McCanne for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Melva M. Graney and Robert A. Bernstein for respondent. Richard A. Mullens for the National Association of Home Builders, as amicus curiae, in support of the pétition. Reported below: 345 F. 2d 933.
No. 552. Chatsworth Cooperative Marketing Association et al. v. Interstate Commerce Commission. C. A. 7th Cir. Certiorari denied. Norman Miller, Earl G. Schneider and Michael R. Gdlasso for petitioners. Solicitor General Marshall, Robert W. Ginnane and Bernard A. Gould for respondent. Reported below: 347 F. 2d 821.
ORDERS.
939
382 U. S.	December 6, 1965.
No. 546. Chance v. Atchison, Topeka & Santa Fe Railway Co. Sup. Ct. Mo. Certiorari denied. Anthony P. Nugent, Sr., for petitioner. George L. Gordon, Jr., for respondent. Reported below: 389 S. W. 2d 774.
No. 549. Keeling v. Ohio. Ct. App. Ohio, Cuya-hoga County. Certiorari denied. James R. Willis for petitioner. John T. Corrigan for respondent.
No. 550. Prezioso v. United States. C. A. 2d Cir. Certiorari denied. Maurice Edelbaum for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 348 F. 2d 217.
No. 553. Pugliano et al. v. United States. C. A. lst Cir. Certiorari denied. F. Lee Bailey for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 348 F. 2d 902.
No. 558. Atlantic Refinïng Co. v. Fédéral Trade Commission. C. A. 6th Cir. Certiorari denied. Edward F. Howrey, Roy W. Johns and Edward J. Kremer, Jr., for petitioner. Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, James Mcl. Henderson and Alvin L. Berman for respondent. Reported below: 344 F. 2d 599.
No. 568. Riesling et al. v. United States et al. C. A. 3d Cir. Certiorari denied. George D. Rothermel and Samuel Kalikman for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Meyer Rothwacks for the United States et al. Reported below: 349 F. 2d 110.
940
OCTOBER TERM, 1965.
December 6, 1965.
382 U. S.
No. 559. Thomson et al. v. Carman et al. Sup. Ct. Cal. Certiorari denied. Alexander H. Schullman for petitioners. Michael G. Luddy for Carman et al., Charles G. Bakaly, Jr., for Association of Motion Pic-ture Producers, Inc., et al., respondents.
No. 560. Laverick v. United States; and
No. 563. Schaeffer v. United States. C. A. 3d Cir. Certiorari denied. George Elias, Jr., for petitioner in No. 560. Frédéric C. Ritger, Jr., for petitioner in No. 563. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. May-sack for the United States. Reported below: 348 F. 2d 708.
No. 561. Brown v. Thompson, Judge, et al. Sup. Ct. App. W. Va. Certiorari denied. Stanley E. Preiser and Arthur T. Ciccarello for petitioner. Reported below: 149 W. Va. 649, 142 S. E. 2d 711.
No. 570. Victoria Mutual Water Co. v. Public Utilities Commission of California. Sup. Ct. Cal. Certiorari denied. Murray M. Chotiner for petitioner. Mary Moran Pajalich for respondent.
No. 575. Keeble v. United States. C. A. 8th Cir. Certiorari denied. Harold Gruenberg for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Mervyn Hamburg for the United States. Reported below: 347 F. 2d 951.
No. 577. Métal Products Workers Union Local 1645, UAW-AFL-CIO, et al. v. Torrington Co. C. A. 2d Cir. Certiorari denied. Jerome S. Rubenstein for petitioners. William J. Larkin II, Jay S. Siegel and C. E. Harwood for respondent. Reported below: 347 F. 2d 93.
ORDERS.
941
382 U. S.	December 6, 1965.
No. 578. Pittman v. United States. C. A. 9th Cir. Certiorari denied. Fred Okrand for petitioner. Solicitor General Marshall, Assistant Attorney General Douglas and David L. Rose for the United States. Reported below: 341 F. 2d 739.
No. 580. California v. Fédéral Power Commission; and
No. 591. Turlock Irrigation District et al. v. Fédéral Power Commission. C. A. 9th Cir. Certiorari denied. Thomas C. Lynch, Attorney General of California, and J. M. Sanderson, Deputy Attorney General, for petitioner in No. 580. Robert L. McCarty and Charles F. Wheatley, Jr., for petitioners in No. 591. Solicitor General Marshall, Richard A. Solomon, John C. Mason, Howard E. Wahrenbrock, Joseph B. Hobbs and Daniel Goldstein for respondent. Robert Matthews, Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of Nebraska, Louis J. Lejkowitz, Attorney General of New York, Helgi Johanneson, Attorney General of North Dakota, Frank L. Farrar, Attorney General of South Dakota, and John F. Râper, Attorney General of Wyoming, filed a brief for their respective States, as amici curiae, in support of the pétition in No. 591. Reported below: 345 F. 2d 917.
No. 581. Wolf v. Blair et al. C. A. 2d Cir. Certiorari denied. Paul L. Ross for petitioner. Edward N. Sherry for respondent Curtis Publishing Co. Reported below: 348 F. 2d 994.
No. 587. Billy Mitchell Village, Inc. v. New York Life Insurance Co. Ct. Civ. App. Tex., llth Sup. Jud. Dist. Certiorari denied. Al M. Heck for petitioner. Edward R. Finck, Jr., for respondent. Reported below: 388 S. W. 2d 243.
942
OCTOBER TERM, 1965.
December 6, 1965.
382 U.S.
No. 585. Hagel v. Illinois. Sup. Ct. 111. Certiorari denied. Albert E. Jenner, Jr., for petitioner. Reported below: 32 111. 2d 413, 206 N. E. 2d 699.
No. 586. Hensel v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 233 Cal. App. 2d 834, 43 Cal. Rptr. 865.
No. 589. Shapiro & Son Curtain Corp. v. Glass. C. A. 2d Cir. Certiorari denied. Maximilian Bader and I. Walton Bader for petitioner. Leon Silverman for respondent. Reported below : 348 F. 2d 460.
No. 592. Merner Lumber & Hardware Co. v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Westerdahl W. Gudmundson for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 345 F. 2d 770.
No. 598. Brasch v. State Compensation Insurance Fund et al. Sup. Ct. Cal. Certiorari denied. Petitioner pro se. T. Groezinger and Loton Wells for respondent State Compensation Insurance Fund.
No. 599. Ciofalo v. Board of Regents of the Uni-VERSITY OF THE STATE OF NEW YORK. Ct. App. N. Y. Certiorari denied. Maurice Edelbaum for petitioner. Louis J. Lejkowitz, Attorney General of New York, Robert L. Harrison, Assistant Attorney General, and Ruth Kessler Toch, Assistant Solicitor General, for respondent.
No. 604. Tyson v. Louisiana. Sup. Ct. La. Certiorari denied. Petitioner pro se. Jack P. F. Gremil-lion, Attorney General of Louisiana, and Ralph L. Roy for respondent.
ORDERS.
943
382 U. S.	December 6, 1965.
No. 602. Rhodes v. Edwards et al. Sup. Ct. Neb. Certiorari denied. Reported below: 178 Neb. 757, 135 N. W. 2d 453.
No. 606. Snyder, Executor, et al. v. Cottonwood Creek Conservancy District No. 11. Sup. Ct. Okla. Certiorari denied. Leslie L. Conner and James M. Lit-tle for petitioners. Reported below: 405 P. 2d 17.
No. 608. Moran v. Penan et al. C. A. Ist Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for Duff et al., and Matthew J. Ryan, Jr., for Bulkley et al., respondents.
No. 609. Siebring v. Hansen et al. C. A. 8th Cir. Certiorari denied. Robert R. Eidsmoe, Donald H. Zar-ley and Bruce W. McKee for petitioner. Phillip H. Smith and Ralph F. Merchant for respondents. Reported below: 346 F. 2d 474.
No. 407. Phelper v. Texas. Ct. Crim. App. Tex. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Charles W. Tessmer and Emmett Colvin, Jr., for petitioner. Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, Howard M. Fender and Charles B. Swanner, Assistant Attorneys General, and Henry Wade for respondent. Reported below: 396 S. W. 2d 396.
No. 551. Tracy, Warden v. Manduchi. C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Wilson Bûcher for petitioner. Respondent pro se. Reported below: 350 F. 2d 658.
944
OCTOBER TERM, 1965.
December 6, 1965.
382 U. S.
No. 429. Maxwell v. Stephens, Penitentiary Su-perintendent. C. A. 8th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Jack Greenberg, James M. Nabrit III, Michael Meltsner, Anthony G. Amsterdam, George Howard, Jr., and Harold B. Anderson for petitioner. Bruce Bennett, Attorney General of Arkansas, and Jack L. Lessenberry for respondent. Reported below: 348 F. 2d 325.
No. 600. Swain v. Alabama. Sup. Ct. Ala. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Jack Greenberg, James M. Nabrit III, Michael Meltsner, Orzell Billings-ley, Jr., Peter A. Hall and Anthony G. Amsterdam for petitioner. Richmond M. Flowers, Attorney General of Alabama, and Leslie Hall, Assistant Attorney General, for respondent.
No. 521. Pardo-Bolland v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Jonathan L. Rosner for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States. Reported below: 348 F. 2d 316.
No. 574. Panhandle Eastern Pipe Line Co. v. Fédéral Power Commission et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice White took no part in the considération or decision of this pétition. Harry S. Littman and Melvin Richter for petitioner. Solicitor General Marshall and Howard E. Wahrenbrock for respondent Fédéral Power Commission. Reported below: 121 U. S. App. D. C. 111, 348 F. 2d 340.
ORDERS.
945
382 U. S.	December 6, 1965.
No. 582. Rance et al. v. Sperry & Hutchinson Co. Sup. Ct. Okla. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. John H. Cantrell for petitioners. Samuel M. Lane, Claus Motulsky and G. M. Fuller for respondent. Reported below: 410 P. 2d 859.
No. 116, Mise. Brooks v. Illinois. Sup. Ct. Ill. Certiorari denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, and Richard A. Michael, Assistant Attorney General, for respondent. Reported below: 32 Ill. 2d 81, 203 N. E. 2d 882.
No. 125, Mise. Calhoun v. Pâte, Warden. C. A. 7th Cir. Certiorari denied. Robert Jay Nye for petitioner. William G. Clark, Attorney General of Illinois, Daniel P. Ward and Elmer C. Kissane for respondent. Reported below : 341 F. 2d 885.
No. 155, Mise. Davis v. Maryland. Ct. App. Md. Certiorari denied. Raymond S. Smethurst for petitioner. Thomas B. Finan, Attorney General of Maryland, for respondent. Reported below: 237 Md. 97, 205 A. 2d 254.
No. 252, Mise. Brown v. West Virginia. Sup. Ct. App. W. Va. Certiorari denied. Petitioner pro se. C. Donald Robertson, Attorney General of West Virginia, Léo Catsonis, Assistant Attorney General, and Charles M. Walker for respondent.
No. 427, Mise. Sibley v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 344 F. 2d 103.
946
OCTOBER TERM, 1965.
December 6, 1965.
382 U. S.
No. 480, Mise. Palomera v. Willingham, Warden. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar, David Rubin and Gerald P. Choppin for respondent. Reported below : 344 F. 2d 937.
No. 516, Mise. Giuliano v. United States. C. A. 2d Cir. Certiorari denied. Frances Kahn for petitioner. Solicitor General Marshall for the United States. Reported below: 348 F. 2d 217.
No. 519, Mise. Kapsalis v. United States. C. A. 7th Cir. Certiorari denied. Robert L. Day for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 345 F. 2d 392.
No. 559, Mise. Friedman v. United States. C. A. 8th Cir. Certiorari denied. Morton N. Wekstein for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States. Reported below: 347 F. 2d 697.
No. 601, Mise. Bruchon v. United States. C. A. 2d Cir. Certiorari denied. Albert J. Krieger for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States. Reported below: 348 F. 2d 316.
No. 669, Mise. Collins v. Markley, Warden. C. A. 7th Cir. Certiorari denied. Sigmund J. Beck for petitioner. Solicitor General Marshall for respondent. Reported below: 346 F. 2d 230.
ORDERS.
947
382 U. S.	December 6, 1965.
No. 627, Mise. Lamma v. United States. C. A. 2d Cir. Certiorari denied. J. Robert Lunney for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. Reported below: 349 F. 2d 338.
No. 647, Mise. Tyson v. New York. Ct. App. N. Y. Certiorari denied. Robert M. Hitchcock for petitioner. Michael F. Dillon for respondent.
No. 667, Mise. Hall v. United States. C. A. 2d Cir. Certiorari denied. Leon B. Polsky for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 348 F. 2d 837.
No. 674, Mise. Becker v. Matteawan State Hospital Superintendent et al. C. A. 2d Cir. Certiorari denied.
No. 699, Mise. McKinney v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Reported below: 23 App. Div. 2d 812, 258 N. Y. S. 2d 316.
No. 712, Mise. Sims v. California. App. Dept., Super. Ct. Cal., County of S. F. Certiorari denied. Norman Leonard, Benjamin Dreyjus and George Martinez for petitioner.
No. 721, Mise. Curtis v. Cobey et al. C. A. D. C. Cir. Certiorari denied. Arthur S. Curtis, pro se. J. Joseph Barse for Cobey, Frederick A. Ballard for Western Electric Co., and Ross O’Donoghue for Great American Insurance Co., Inc., respondents.
948	OCTOBER TERM, 1965.
December 6, 1965.	382 U. S.
No. 725, Mise. Kemp v. Florida. Dist. Ct. App. Fia., 3d Dist. Certiorari denied. Marco Loffredo for petitioner. Reported below: 177 So. 2d 58.
No. 726, Mise. Carpenter v. Kansas. Sup. Ct. Kan. Certiorari denied.
No. 728, Mise. Bohanon v. New York Central Railroad Co. C. A. 7th Cir. Certiorari denied.
No. 768, Mise. LeVar v. Arizona. Sup. Ct. Ariz. Certiorari denied. Harold R. Scoville for petitioner. Darrell F. Smith, Attorney General of Arizona, William E. Eubank, Chief Assistant Attorney General, and Gary K. Nelson, Assistant Attorney General, for respondent. Reported below: 98 Ariz. 217, 403 P. 2d 532.
No. 812, Mise. McNally et al. v. Connecticut. Sup. Ct. Err. Conn. Certiorari denied. Harry H. Hef-feran, Jr., and Irwin Friedman for petitioners. John F. McGowan for respondent. Reported below: 152 Conn. 598, 211 A. 2d 162.
No. 310, Mise. Barnard v. United States;
No. 345, Mise. Lassiter v. United States; and
No. 346, Mise. Knippel v. United States. C. A. 9th Cir. Certiorari denied. The Chief Justice and Mr. Justice Fortas are of the opinion that certiorari should be granted. Peter A. Schwabe, Jr., for petitioners. Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 342 F. 2d 309.
No. 739, Mise. Robinson v. Minnesota. Sup. Ct. Minn. Certiorari denied. Reported below: 271 Minn. 477, 136 N. W. 2d 401.
ORDERS.
949
382 U. S.	December 6, 1965.
No. 733, Mise. Millwood v. California et al. C. A. 9th Cir. Certiorari denied.
No. 412, Mise. Price et al. v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Leon B. Polsky for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 345 F. 2d 256.
Rehearing Denied.
No. 384. Stebbins v. Macy, Chairman, U. S. Civil Service Commission, et al., ante, p. 41 ;
No. 488. Hullum, Administratrix v. St. Louis Southwestern Railway Co., ante, p. 906;
No. 94, Mise. Sten v. United States, ante, p. 854;
No. 366, Mise. Starnes v. Markley, Warden, ante, p. 908;
No. 439, Mise. Grimes v. Crouse, Warden, ante, p. 882;
No. 485, Mise. Finfer v. Cohen, Commissioner of Internal Revenue, ante, p. 883;
No. 508, Mise. Groza v. Lemmon et al., ante, p. 895; and
No. 520, Mise. Carter et al. v. United States, ante, p. 888. Pétitions for rehearing denied.
No. 163. Lynch v. Industrial Indemnity Co. et al., ante, p. 844. Motion to dispense with printing the pétition for rehearing granted. Pétition for rehearing denied.
No. 413. POLLACK ET AL. V. COMMISSIONER OF PATENTS, ante, p. 893. Pétition for rehearing denied. Mr. Justice Fortas took no part in the considération or decision of this pétition.
950
382 U. S.
OCTOBER TERM, 1965.
December 6, 13, 1965.
Assignment Order.
An order of The Chief Justice designating and assigning Mr. Justice Reed (retired) to perform judicial duties in the United States Court of Appeals for the District of Columbia Circuit beginning December 1, 1965, and ending January 31, 1966, and for such further time as may be required to complété unfinished business, pur-suant to 28 U. S. C. § 294 (a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295.
December 13, 1965.
Dismissed Under Rule 60.
No. 569. Bâche et al. v. Engelmohr. Sup. Ct. Wash. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Lucien-F. Marion for petitioners. Edward J. Ennis and Jerome Shulkin for respondent. Reported below: 66 Wash. 2d 103, 401 P. 2d 346.
Miscellaneous Orders.
No. 26, Original. Louisiana v. Katzenbach, Attorney General. Motions for extension of time for argument in No. 22, Original, South Carolina v. Katzenbach, Attorney General, and for leave to file a bill of complaint are denied. Jack P. F. Gremillion, Attorney General of Louisiana, Harry J. Kron, Jr., Assistant Attorney General, and Sidney W. Provensal, Jr., on the motion. Solicitor General Marshall for défendant in opposition.
No. 5, Mise. Edmonson v. Nash, Warden. Motion for leave to file pétition for writ of habeas corpus denied. Petitioner pro se. Norman H. Anderson, Attorney General of Missouri, and William A. Peterson and Howard L. McFadden, Assistant Attorneys General, for respondent.
ORDERS.
951
382 U. S.	December 13, 1965.
No. 42. Ginzburg et al. v. United States. C. A. 3d Cir. (Certiorari granted, ante, p. 803) ;
No. 49. Mishkin v. New York. Appeal from Ct. App. N. Y. (Probable jurisdiction noted, 380 U. S. 960) ; and
No. 368. A Book Named “John Cleland’s Memoirs OF A WOMAN OF PLEASURE” V. ATTORNEY GENERAL OF Massachusetts. Appeal from Sup. Jud. Ct. Mass. (Probable jurisdiction noted, ante, p. 900.) Motions of the American Parents Committee, Inc., and the Committee of Religious Leaders of the City of New York for leave to appear, as amici curiae, and to adopt as their briefs the briefs amicus curiae filed by the Citizens for Decent Literature, Inc., are granted. Charles H. Keating, Jr., and James J. Clancy on the motions.
No. 48. Harper et al. v. Virginia Board of Elections et al. Appeal from D. C. E. D. Va. (Probable jurisdiction noted, 380 U. S. 930.) Motion of the Solicitor General for leave to participate in oral argument, as amicus curiae, granted and thirty minutes are allotted for that purpose. Counsel for appellees are allotted an additional thirty minutes for oral argument. Solicitor General Marshall on the motion.
No. 490. Sheppard v. Maxwell, Warden. C. A. 6th Cir. (Certiorari granted, ante, p. 916.) Motion to dispense with the printing of the record granted. F. Lee Bailey on the motion.
No. 54, Mise. Rubio v. Wilson, Warden, et al. Motion for leave to file pétition for writ of habeas corpus denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Clifton R. Jefiers, Deputy Attorney General, for respondents.
786-211 0-66—48
952
OCTOBER TERM, 1965.
December 13, 1965.
382 U. S.
No. 584. California v. Stewart. Sup. Ct. Cal. (Certiorari granted, ante, p. 937.) Motion of respondent for the appointment of counsel granted, and it is ordered that William A. Norris, Esquire, of Los Angeles, California, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for the respondent in this case.
No. 183, Mise. Aranda v. California;
No. 618, Mise. Santos v. Wilson;
No. 661, Mise. Cole v. Russell, Correctional Su-perintendent; and
No. 684, Mise. Thompson v. Macieiski, Warden. Motions for leave to file pétitions for writs of habeas corpus denied.
No. 93, Mise. Stanley v. Florida. Motion for leave to file pétition for writ of habeas corpus denied. Treat-ing the papers submitted as a pétition for writ of certiorari, certiorari is denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and William D. Roth, Assistant Attorney General, for respondent.
No. 100, Mise. Boan v. Idaho. Motion for leave to file pétition for writ of habeas corpus denied. Treat-ing the papers submitted as a pétition for writ of certiorari, certiorari is denied. Petitioner pro se. Allan G. Shepard, Attorney General of Idaho, and Thomas G. Nelson, Deputy Attorney General, for respondent.
No. 174, Mise. Maisonave v. Florida;
No. 207, Mise. Westmore v. Florida; and
No. 825, Mise. Smith v. Florida. Motions for leave to file pétitions for writs of habeas corpus denied. Treating the papers submitted as pétitions for writs of certiorari, certiorari is denied.
ORDERS.
953
382 U. S.	December 13, 1965.
No. 384, Mise. Cooper v. Florida. Motion for leave to file pétition for writ of habeas corpus denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and William D. Roth, Assistant Attorney General, for respondent.
No. 613, Mise. Richardson v. Missouri;
No. 673, Mise. Hurley v. United States; and
No. 703, Mise. Barnes v. Missouri. Motions for leave to file pétitions for writs of mandamus denied.
Probable Jurisdiction Noted.
No. 256. United States v. Cook. Appeal from D. C. M. D. Tenn. Motion to dispense with printing the motion to dismiss or affirm granted. Probable jurisdiction noted. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States.
Certiorari Granted. (See also No. 523, ante, p. 283; No.
610,	ante, p. 285; No. 11, Mise., ante, p. 286; and No. 281, Mise., ante, p. 286.)
No. 636. Securities and Exchange Commission v. New England Electric System et al. C. A. Ist Cir. Certiorari granted. Solicitor General Marshall, Philip A. Loomis, Jr., David Ferber and Aaron Levy for petitioner. John R. Quarles for respondents. Reported below: 346 F. 2d 399.
No. 37, Mise. Davis v. North Carolina. C. A. 4th Cir. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is trans-ferred to the appellate docket. Conrad O. Pearson for petitioner. T. W. Bruton, Attorney General of North Carolina, and James F. Bullock, Assistant Attorney General, for respondent. Reported below: 339 F. 2d 770.
954
OCTOBER TERM, 1965.
December 13, 1965.
382 U. S.
Certiorari Denied. (See also Nos. 557 and 654, ante, p. 283; and Mise. Nos. 93, 100, 174, 207 and 825, supra.)
No. 90. Jordan v. Louisiana. Sup. Ct. La. Certiorari denied. Sam J. D’Amico for petitioner. Jack P. F. Gremillion, Attorney General of Louisiana, and Ralph L. Roy for respondent. Reported below: 247 La. 367, 171 So. 2d 650.
No. 92. Gharibians v. California. App. Dept., Super. Ct. Cal., County of L. A. Certiorari denied. David Arthur Binder for petitioner.
No. 111. Accardi v. United States. C. A. 2d Cir. Certiorari denied. Jerome Lewis for petitioner. Solicitor General Cox, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 342 F. 2d 697.
No. 121. Bracer v. United States. C. A. 2d Cir. Certiorari denied. Abraham Glasser for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 342 F. 2d 522.
No. 312. Husk v. Buchanan, Sheriff. Dist. Ct. App. Fia., 3d Dist. Certiorari denied. Milton M. Fer-rell for petitioner. Earl Faircloth, Attorney General of Florida, Herbert P. Benn, Assistant Attorney General, and Ellen J. Morphonios for respondent. Reported below: 167 So. 2d 38.
No. 436. Tiesi v. New Jersey. Sup. Ct. N. J. Certiorari denied. David Perskie for petitioner. Arthur J. Sills, Attorney General of New Jersey, and John W. Hayden, Jr., Deputy Attorney General, for respondent.
ORDERS.
955
382 U. S.	December 13, 1965.
No. 305. Derfus v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied. Hyman Gold for petitioner.
No. 343. Cudia et al. v. United States. C. A. 7th Cir. Certiorari denied. John R. Snively for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 346 F. 2d 227.
No. 496. Heaps v. California. App. Dept., Super. Ct. Cal., County of L. A. Certiorari denied. Stephen A. Pace, Jr., and Thomas TF. Cochran for petitioner.
No. 503. Winter v. United States. C. A. 2d Cir. Certiorari denied. Jerome Lewis and Thomas R. Newman for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Philip R. Monahan for the United States. Reported below: 348 F. 2d 204.
No. 534. Battaglia v. United States. C. A. 9th Cir. Certiorari denied. Russell E. Parsons for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit, for the United States. Reported below: 349 F. 2d 556.
No. 540. Wiesner v. Maryland. Cir. Ct. for Baltimore County, Md. Certiorari denied. L. Robert Evans for petitioner.
No. 613/ Danforth Foundation v. United States. C. A. 8th Cir. Certiorari denied. Albert E. Jenner, Jr., for petitioner. Solicitor General Marshall, Acting As-sistant Attorney General Roberts, Morton K. Rothschild and Robert A. Bernstein for the United States. Reported below: 347 F. 2d 673.
956	OCTOBER TERM, 1965.
382 U. S.
December 13, 1965.
No. 564. Duriron Co., Inc. v. Stephenson et al. Sup. Ct. Alaska. Certiorari denied. P. Eugene Smith, Laidler B. Mackall and John E. Nolan, Jr., for petitioner. Théodore Stevens for respondent Stephenson. Reported below: 401 P. 2d 423.
No. 607. Andrews v. United States;
No. 703. Postell et al. v. United States;
No. 706. Andrews et al. v. United States; and
No. 707. Owens et al. v. United States. C. A. 6th Cir. Certiorari denied. Jacob Kossman for petitioner in No. 607. Thomas D. Hirschjeld for petitioners in No. 703. Walter S. Houston and Eugene Smith for petitioners in No. 706. Petitioners pro se in No. 707. Solicitor General Marshall, Assistant Attorney General Vin-son, Béatrice Rosenberg and Daniel H. Benson for the United States. Reported below: 347 F. 2d 207.
No. 615. Dietz v. City of Toledo. Sup. Ct. Ohio. Certiorari denied. Merritt W. Green II for petitioner. John A. DeVictor, Jr., and John J. Burkhart for respondent. Reported below: 3 Ohio St. 2d 30, 209 N. E. 2d 127.
No. 620. Luros et al. v. Hanson, U. S. District Judge, et al. C. A. 8th Cir. Certiorari denied. Stanley Fleishman and Sam Rosenwein for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for respondents.
No. 621. Hill v. United States et al. C. A. 9th Cir. Certiorari denied. James O. Hewitt for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Joseph M. Howard for the United States et al. Reported below: 346 F. 2d 175.
ORDERS.
957
382 U. S.	December 13, 1965.
No. 616. Easter v. Ziff et al. Ct. App. Md. Certiorari denied.
No. 624. Creamer Industries, Inc. v. United States et al. C. A. 5th Cir. Certiorari denied. R. B. Cannon for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Joseph Kovner for the United States et al. Reported below : 349 F. 2d 625.
No. 627. Phipps v. Ohio. Sup. Ct. Ohio. Certiorari denied. Earl W. Allison for petitioner. Everett Burton for respondent.
No. 628. Moorman, Administrator, et al. v. Aus-tin Presbyterian Theological Seminary et al. Sup. Ct. Tex. Certiorari denied. Hume Cojer and John D. Cojer for petitioners. William B. Carssow for respondents. Reported below: 391 S. W. 2d 717.
No. 629. Stein et al. v. Oshinsky, Principal, Public School 184, Whitestone, New York, et al. C. A. 2d Cir. Certiorari denied. Edward J. Bazarian and Thomas J. Ford for petitioners. Léo A. Larkin, Seymour B. Quel, Benjamin Ojjner and Sidney P. Nadel for Oshinsky et al., and Charles A. Brind for Board of Regents, respondents. Reported below: 348 F. 2d 999.
No. 630. Idaho Power Co. v. Fédéral Power Commission. C. A. 9th Cir. Certiorari denied. R. P. Parry and A. C. Inman for petitioner. Solicitor General Marshall, Richard A. Solomon and Howard E. Wahren-brock for respondent. Reported below: 346 F. 2d 956.
No. 631. Merrick v. Allstate Insurance Co. C. A. 8th Cir. Certiorari denied. Jerome J. Duff for petitioner. John S. Marsalek for respondent. Reported below: 349 F. 2d 279.
958
OCTOBER TERM, 1965.
December 13, 1965.
382 U. S.
No. 727. Ivy v. Katzenbach, Attorney General, et al. C. A. 7th Cir. Certiorari denied. Leonard R. Hartenjeld for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Donald I. Bierman for respondents. Reported below: 351 F. 2d 32.
No. 618. Winckler & Smith Citrus Products Co. et al. v. Sunkist Growers, Inc., et al. C. A. 9th Cir. Motion to dispense with printing the pétition for writ of certiorari granted. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this motion and pétition. Bernard Reich for petitioners. Ross C. Fisher and Herman F. Selvin for respondents. Reported below: 346 F. 2d 1012.
No. 622. Pacific Coast European Conférence et al. v. United States et al. C. A. 9th Cir. Motion of Dow Chemical Co. et al. to be added as parties respondent granted. Certiorari denied. Robert L. Har-mon for petitioners. Solicitor General Marshall, Assistant Attorney General Turner, Irwin A. Seibel, Milan C. Miskovsky and Walter H. Mayo III for the United States et al. Reported below: 350 F. 2d 197.
No. 625. Auerbach et al. v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Joseph J. Lyman for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 347 F. 2d 742.
No. 38, Mise. Conway v. Virginia. Cir. Ct. Arling-ton County, Va. Certiorari denied. Francis G. Moli-naro for petitioner.
ORDERS.
959
382 U. S.	December 13, 1965.
No. 634. Foremost Dairies, Inc. v. Fédéral Trade Commission. C. A. 5th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Edgar E. Barton, George W. Milam and Macdonald Flinn for petitioner. Solicitor General Marshall, Assistant Attorney General Turner, Lionel Kestenbaum, Jerry Z. Pruzansky and James Mcl. Henderson for respondent. Reported below: 348 F. 2d 674.
No. 726. Giancana v. United States. C. A. 7th Cir. Motion to stay execution of commitment for con-tempt and pétition for writ of certiorari denied. Edward Bennett Williams and Richard E. Gorman for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Glazer for the United States. Reported below: 352 F. 2d 921.
No. 10, Mise. Law v. Texas. Ct. Crim. App. Tex. Certiorari denied. Weldon Funderburk for petitioner. Waggoner Carr, Attorney General of Texas, and Haw-thorne Phillips, Stanton Stone, Howard M. Fender and Allô B. Crow, Jr., Assistant Attorneys General, for respondent.
No. 14, Mise. Perry v. United States. C. A. D. C. Cir. Certiorari denied. Richard T. Conway for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Théodore George Gilinsky for the United States. Reported below: 121 U. S. App. D. C. 29, 347 F. 2d 813.
No. 30, Mise. Miller v. New Mexico. Sup. Ct. N. M. Certiorari denied. Petitioner pro se. Boston E. Witt, Attorney General of New Mexico, and Thomas O. Oison, Spécial Assistant Attorney General, for respondent.
960
OCTOBER TERM, 1965.
December 13, 1965.
382 U. S.
No. 25, Mise. Love v. New Jersey. Sup. Ct. N. J. Certiorari denied.
No. 35, Mise. Menacho v. California et al. Sup. Ct. Cal. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, John T. Murphy, Deputy Attorney General, Arlo E. Smith, Chief Assistant Attorney General, and Albert W. Harris, Jr., Assistant Attorney General, for respondents.
No. 40, Mise. Burns v. Harris, Warden. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Doar and Harold H. Greene for respondent. Reported below: 340 F. 2d 383.
No. 65, Mise. McDonald v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied. Petitioner pro se. John J. O’Connell, Attorney General of Washington, and Stephen C. Way, Assistant Attorney General, for respondent.
No. 69, Mise. ■ Snipe v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Théodore Wieseman for the United States. Reported below: 343 F. 2d 25.
No. 72, Mise. Segars v. Bomar, Warden. C. A. 6th Cir. Certiorari denied. Petitioner pro se. George F. McCanless, Attorney General of Tennessee, and Henry C. Foutch, Assistant Attorney General, for respondent.
No. 105, Mise. Bertrand v. Louisiana. Sup. Ct. La. Certiorari denied. Petitioner pro se. Jack P. F. Gre-million, Attorney General of Louisiana, for respondent.
ORDERS.
961
382 U. S.	December 13, 1965.
No. 52, Mise. Tillett v. Missouri. Sup. Ct. Mo. Certiorari denied.
No. 75, Mise. Smith v. Illinois. Sup. Ct. 111. Certiorari denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, and Richard A. Michael, Assistant Attorney General, for respondent.
No. 107, Mise. Draper et al. v. Washington et al. Sup. Ct. Wash. Certiorari denied. Petitioners pro se. George A. Kain for respondents. Reported below: 65 Wash. 2d 303, 396 P. 2d 990.
No. 124, Mise. Davis v. Wilson, Warden, et al. Sup. Ct. Cal. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Robert R. Granucci and Charles W. Rumph, Deputy Attorneys General, for respondents.
No. 211, Mise. Syverson v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 342 F. 2d 780.
No. 233, Mise. Robins v. Texas. Ct. Crim. App. Tex. Certiorari denied. William E. Gray for petitioner. Waggoner Carr, Attorney General of Texas, Hawthome Phillips, T. B. Wright, Howard M. Fonder and Gilbert J. Pena, Assistant Attorneys General, for respondent.
No. 255, Mise. Williams v. Tennessee. Sup. Ct. Tenn. Certiorari denied. Petitioner pro se. George F. McCanless, Attorney General of Tennessee, and Edgar P. Calhoun, Assistant Attorney General, for respondent. Reported below: -----Tenn.------, 390 S. W. 2d 234.
962
OCTOBER TERM, 1965.
December 13, 1965.
382 U. S.
No. 234, Mise. Reynolds v. Langlois, Warden. Sup. Ct. R. I. Certiorari denied. Reported below: ------- R. I.----------------------------------------------------, 209 A. 2d 237.
No. 269, Mise. Brown v. Brough, Warden. Ct. App. Md. Certiorari denied.
No. 299, Mise. Williams v. United States. C. A. D. C. Cir. Certiorari denied. Bruce E. Clubb for petitioner. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 120 U. S. App. D. C. 244, 345 F. 2d 733.
No. 315, Mise. Meyes v. California. Sup. Ct. Cal. Certiorari denied.
No. 323, Mise. Green v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. David J. Mountan, Jr., for petitioner. Aaron E. Koota and Frank Di Lalla for respondent.
No. 324, Mise. Woodson v. Iowa. C. A. 8th Cir. Certiorari denied.
No. 353, Mise. Rhodes v. Tinsley, Warden. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John E. Bush, Assistant Attorney General, for respondent. Reported below: 343 F. 2d 135.
No. 359, Mise. Irving v. California. Sup. Ct. Cal. Certiorari denied.
No. 363, Mise. Tillman v. California. Sup. Ct. Cal. Certiorari denied.
ORDERS.
963
382 U. S.	December 13, 1965.
No. 350, Mise. Young v. Washington. Sup. Ct. Wash. Certiorari denied. Reported below: 65 Wash. 2d 938, 400 P. 2d 374.
No. 403, Mise. Postell v. California. Sup. Ct. Cal. Certiorari denied.
No. 435, Mise. Bailey v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
No. 456, Mise. Wright v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
No. 491, Mise. Barnosky v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 496, Mise. White v. Grant, U. S. District Judge. C. A. 7th Cir. Certiorari denied.
No. 497, Mise. Williams v. Florida. Dist. Ct. App. Fia., 2d Dist. Certiorari denied. Reported below: 174 So. 2d 97.
No. 506, Mise. Brooks v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
No. 518, Mise. Birdsell v. United States. C. A. 5th Cir. Certiorari denied. O. Don Chapoton for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States. Reported below: 346 F. 2d 775.
No. 534, Mise. Stahlman v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
964
OCTOBER TERM, 1965.
December 13, 1965.
382 U. S.
No. 548, Mise. Williams v. New Jersey. Sup. Ct. N. J. Certiorari denied. Jacob Wysoker for petitioner.
No. 571, Mise. Young v. West Virginia. Sup. Ct. App. W. Va. Certiorari denied.
No. 600, Mise. Noonkester v. Washington et al. Sup. Ct. Wash. Certiorari denied.
No. 607, Mise. Williams v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 342 F. 2d 425.
No. 614, Mise. Fenton v. Heinze, Warden. Sup. Ct. Cal. Certiorari denied.
No. 616, Mise. White v. United States District Court for the Southern District of California. C. A. 9th Cir. Certiorari denied.
No. 637, Mise. Atkins v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 195 Kan. 182, 403 P. 2d 962.
No. 638, Mise. Nelson v. California et al. C. A. 9th Cir. Certiorari denied. Reported below: 346 F. 2d 73.
No. 654, Mise. Glover v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied.
No. 656, Mise. Salazar v. Cox, Warden; and
No. 657, Mise. Lucero v. Cox, Warden. Sup. Ct. N. M. Certiorari denied.
No. 658, Mise. Bâtes v. Wilson, Warden. Sup. Ct. Cal. Certiorari denied.
ORDERS.
965
382 U. S.	December 13, 1965.
No. 691, Mise. Armenta v. Dunbar, Corrections Director. Sup. Ct. Cal. Certiorari denied.
No. 692, Mise. Magette v. New York. App. Div., Sup. Ct. N. Y., Ist Jud. Dept. Certiorari denied. Petitioner pro se. Frank S. Hogan and H. Richard Uviller for respondent.
No. 693, Mise. Hurley v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States.
No. 695, Mise. Lyons et al. v. Bailey, Director, Juvénile Court Facilities. Sup. Ct. Cal. Certiorari denied.
No. 697, Mise. Bowden v. California Adult Au-thority et al. Sup. Ct. Cal. Certiorari denied.
No. 698, Mise. Sanchez v. Cox, Warden. Sup. Ct. N. M. Certiorari denied.
No. 702, Mise. Cagle v. Harris, Warden. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar and David L. Norman for respondent. Reported below: 349 F. 2d 404.
No. 704, Mise. Litterio v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 708, Mise. Vanhook v. Eklund, Prison Superintendent. C. A. 9th Cir. Certiorari denied. Reported below : 348 F. 2d 920.
966
OCTOBER TERM, 1965.
December 13, 1965.
382 U.S.
No. 729, Mise. Peguese v. Fay, Warden. C. A. 2d Cir. Certiorari denied.
No. 734, Mise. Ross v. Delta Drilling Co. C. A. 5th Cir. Certiorari denied.
No. 737, Mise. De Lucia v. Yeager, Warden. C. A. 3d Cir. Certiorari denied. Reported below: 346 F. 2d 569.
No. 763, Mise. Shields v. Missouri. Sup. Ct. Mo. Certiorari denied. Julian C. Jaeckel for petitioner. Reported below: 391 S. W. 2d 909.
No. 780, Mise. Puckett v. Tennessee. Sup. Ct. Tenn. Certiorari denied. Petitioner pro se. George F. McCanless, Attorney General of Tennessee, and Edgar P. Calhoun, Assistant Attorney General, for respondent.
No. 786, Mise. Matlock v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 350 F. 2d 261.
No. 801, Mise. Corcoran v. Yorty et al. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Roger Arne-bergh and Bourke Jones for respondents. Reported below: 347 F. 2d 222.
Rehearing Denied.
No. 533, Mise. Clark v. Illinois, ante, p. 910. Pétition for rehearing denied.
No. 281. Shakespeare et al. v. City of Pasadena, ante, p. 39. Motion to dispense with printing pétition for rehearing granted. Pétition for rehearing denied.
ORDERS.
967
382 U. S.	January 5, 17, 1966.
January 5, 1966.
Dismissal Under Rule 60.
No. 637. Jahncke Service, Inc., et al. v. Greater New Orléans Expressway Commission et al. C. A. 5th Cir. Pétition for writ of certiorari as to petitioner Home Insurance Co. dismissed pursuant to Rule 60 of the Rules of this Court. Eberhard P. Deutsch and René H. Himel, Jr., for petitioners. George B. Matthews for respondent Greater New Orléans Expressway Commission. Reported below: 341 F. 2d 956.
January 17, 1966.
Dismissal Under Rule 60.
No. 1039, Mise. Wells v. Washington. Sup. Ct. Wash. Pétition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court.
Miscellaneous Orders.
No. 22, Original. South Carolina v. Katzenbach, Attorney General. (Motion for leave to file bill of complaint granted, ante, p. 898.) Motion by the State of Alabama for leave to intervene denied. Francis J. Mizell, Jr., and Reid B. Barnes on the motion.
No. 210. Stevens v. Marks, New York Suprême Court Justice. App. Div., Sup. Ct. N. Y., Ist Jud. Dept.; and
No. 290. Stevens v. McCloskey, Sheriff. C. A. 2d Cir. (Certiorari granted, ante, p. 809.) Motion of Superior Officers Council of City of New York Police Department for leave to file brief, as amicus curiae, granted. Abraham Glasser on the motion. Frank S. Hogan and H. Richard Uviller for respondents in both cases in opposition.
786-211 0-66—49
968
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 219. Baxstrom v. Herold, State Hospital Director. Ct. App. N. Y. (Certiorari granted, 381 U. S. 949.) Motion of respondent for leave to file brief after argument granted. Louis J. Lefkowitz, Attorney General of New York, Ruth Kessler Toch, Acting Solicitor General, and Anthony J. Lokot, Assistant Attorney General, on the motion.
No. 368. A Book Named “John Cleland’s Memoirs OF A WOMAN OF PLEASURE” V. ATTORNEY GENERAL OF Massachusetts. Appeal from Sup. Jud. Ct. Mass. (Probable jurisdiction noted, ante, p. 900.) Motion for leave to file supplémentai brief by Citizens for Decent Literature, Inc., as amicus curiae, denied. Charles J. Keating, Jr., and James J. Clancy on the motion. Charles Rembar for appellant in opposition.
No. 535. United States v. Catto et al. C. A. 5th Cir. (Certiorari granted, ante, p. 925.) Motions of respondents to remove case from summary calendar granted and a total of one and one-half hours is allotted for oral argument. Ben F. Foster for Catto et al., and Claïbome B. Gregory for Wardlaw et al., respondents, on the motions.
No. 657. Brookhart v. Ohio. Sup. Ct. Ohio. (Certiorari granted, ante, p. 810.) Motion of petitioner to substitute Martin A. Janis, Director of the Ohio Department of Mental Hygiene and Correction, as party respondent in place of the State of Ohio granted. Lawrence Herman on the motion.
No. 711. United States v. Kalishman, Trustée in Bankruptcy. C. A. 8th Cir. The respondent is in-vited to file a brief expressing his views, as amicus curiae, in No. 650.
ORDERS.
969
382 U. S.	January 17, 1966.
No. 584. California v. Stewart. Sup. Ct. Cal. (Certiorari granted, ante, p. 937.) Motion of petitioner to dispense with printing the record granted. Motion of respondent for leave to proceed in forma pauperis granted. Motion of petitioner to remove case from summary calendar granted and a total of one and one-half hours is allotted for oral argument. Thomas C. Lynch, Attorney General of California, and Gordon Ringer, Deputy Attorney General, for petitioner. William A. Norris for respondent.
No. 722. Barrios et al. v. Florida. Appeal from Sup. Ct. Fia. The Solicitor General is invited to file a brief expressing the views of the United States.
No. 761. Westover v. United States. C. A. 9th Cir. (Certiorari granted, ante, p. 924.) Motion for leave to amend the pétition denied.
No. 813, Mise. Evans v. Kennedy, Attorney General, et al. Motion for leave to file pétition for writ of certiorari denied. Petitioner pro se. Solicitor General Marshall for respondents. Reported below: 343 F. 2d 913.
No. 805, Mise. Cephas v. Boles, Warden;
No. 831, Mise. Whittington v. Weakley, Reform-atory Superintendent;
No. 876, Mise. Williams v. Follette, Warden;
No. 891, Mise. Madden v. California;
No. 897, Mise. Tynan v. Eyman, Warden, et al.;
No. 911, Mise. Earnshaw v. Katzenbach, Attorney General, et al.; and
No. 925, Mise. Ortega v. Warden, Michigan State Prison. Motions for leave to file pétitions for writs of habeas corpus denied.
970	OCTOBER TERM, 1965.
January 17, 1966.	382 U. S.
No. 593, Mise. Murray v. Florida. Motion for leave to file pétition for writ of habeas corpus denied. Treat-ing the papers submitted as a pétition for writ of certiorari, certiorari is denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and George R. Georgieff, Assistant Attorney General, for respondent.
No. 778, Mise. Truslow v. Boles, Warden; and
No. 895, Mise. Sheftic v. Boles, Warden. Motions for leave to file pétitions for writs of habeas corpus denied. Treating the papers submitted as pétitions for writs of certiorari, certiorari is denied.
Probable Jurisdiction Noted or Postponed.
No. 79. Cascade Natural Gas Corp. v. El Paso Natural Gas Co. et al.;
No. 82. California v. El Paso Natural Gas Co. et al.; and
No. 596. Southern California Edison Co. v. El Paso Natural Gas Co. et al. Appeals from D. G. Utah. Probable jurisdiction noted. The cases are Consolidated and a total of two hours is allotted for oral argument. Mr. Justice White and Mr. Justice Fortas took no part in the considération or decision of these cases. H. B. Jones, Jr., for appellant in No. 79. William M. Bennett for appellant in No. 82. Rollin E. Woodbury, Harry W. Sturges, Jr., William E. Marx and Raymond T. Senior for appellant in No. 596. Gregory A. Harrison, Ather-ton Phleger and Leon M. Payne for El Paso Natural Gas Co., appellee in ail cases. Former Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kesten-baum and Donald L. Hardison for the United States, appellee in Nos. 79 and 82; and Solicitor General Marshall, Assistant Attorney General Turner and Lionel Kestenbaum for the United States, appellee in No. 596.
ORDERS.
971
382 U. S.	January 17, 1966.
No. 531. United States v. Blue. Appeal from D. C. S. D. Cal. Further considération of the question of jurisdiction in this case postponed to the hearing of the case on the merits. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Joseph M. Howard for the United States. Ernest R. Mortenson for appellee.
Certiorari Granted. (See also No. 87, ante, p. 366; No. 100, ante, p. 367; No. 593, ante, p. 362; and No. 663, ante, p. 374.)
No. 471. City of Greenwood v. Peacock et al. ; and No. 649. Peacock et al. v. City of Greenwood.
C. A. 5th Cir. Certiorari granted. The cases are Consolidated and a total of two hours is allotted for oral argument. The cases are set for oral argument imme-diately following No. 147. Aubrey H. Bell for petitioner in No. 471 and for respondent in No. 649. Benjamin E. Smith and Claudia Shropshire for petitioners in No. 649 and for respondents in No. 471. Reported below: 347 F. 2d 679, 986.
No. 619. Ashton v. Kentucky. Ct. App. Ky. Certiorari granted. Ephraim London and Dan Jack Combs for petitioner. Robert Matthews, Attorney General of Kentucky, and John B. Browning, Assistant Attorney General, for respondent.
No. 650. Nicholas, Trustée v. United States. C. A. 5th Cir. Certiorari granted. John H. Gunn for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts and I. Henry Kutz for the United States. Reported below : 346 F. 2d 32.
No. 658. Schmerber v. California. App. Dept., Super. Ct. Cal., County of L. A. Certiorari granted. Thomas M. McGurrin for petitioner. Roger Arnebergh, Philip E. Grey and Wm. E. Doran for respondent.
972
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 645. United States v. Equitable Life Assurance Society of the United States. Sup. Ct. N. J. Certiorari granted. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph Kovner and George F. Lynch for the United States. Reported below: 45 N. J. 206, 212 A. 2d 25.
No. 692. Pure Oïl Co. v. Suarez. C. A. 5th Cir. Certiorari granted. Eberhard P. Deutsch, René H. Himel, Jr., and Joaquin Campoy for petitioner. Arthur Roth, S. Eldridge Sampliner and Charlotte J. Roth for respondent. Reported below: 346 F. 2d 890.
Certiorari Denied. (See also No. 679, ante, p. 366;
No. 690, ante, p. 367 ; No. 699, ante, p. 371 ; No. 732, ante, p. 370; and Mise. Nos. 593, 778 and 895, supra.)
No. 70. Aircraft & Engine Maintenance & Over-haul, Building, Construction, Manufacturing, Processing & Distribution & Allied Industries Employées, Local 290, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. I. E. Schilling Co., Inc. C. A. 5th Cir. Certiorari denied. David Previant, L. N. D. Wells, Jr., and Charles J. Morris for petitioner. John Bachelier, Jr., for respondent. Reported below: 340 F. 2d 286.
No. 86. Aircraft & Engine Maintenance & Over-haul, Building, Construction, Manufacturing, Processing & Distribution & Allied Industries Employées, Local 290, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Oolite Concrète Co. C. A. 5th Cir. Certiorari denied. David Previant, L. N. D. Wells, Jr., and Charles J. Morris for petitioner. John Bachelier, Jr., for respondent. Reported belowT: 341 F. 2d 210.
ORDERS.
973
382 U. S.	January 17, 1966.
No. 245. Bloombaum v. Maryland. Ct. App. Md. Certiorari denied. Joseph S. Kaufman for petitioner. Thomas B. F inan, Attorney General of Maryland, and Robert F. Sweeney, Assistant Attorney General, for respondent. Reported below: 237 Md. 663, 207 A. 2d 651.
No. 601. Goodyear Tire & Rubber Co. et al. v. Commissioner of Patents. C. A. D. C. Cir. Certiorari denied. Francis C. Browne for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, David L. Rose and Frederick B. Abramson for respondent. Reported below: 121 U. S. App. D. C. 275, 349 F. 2d 710.
No. 617. Borst v. Brenner, Commissioner of Patents. C. C. P. A. Certiorari denied. Richard Whit-ing for petitioner. Solicitor General Marshall, Assistant Attorney General Douglas, Morton Hollander and Edward Berlin for respondent. Reported below: 52 C. C. P. A. (Pat.) 554, 345 F. 2d 851.
No. 623. Georgia Railroad & Banking Co. v. United States. C. A. 5th Cir. Certiorari denied. Paul R. Russell and William J. Cooney for petitioner. Solicitor General Marshall and Acting Assistant Attorney General Roberts for the United States. Reported below: 348 F. 2d 278.
No. 632. Scalza v. United States; and
No. 701. Hyman v. United States. C. A. 2d Cir.. Certiorari denied. Richard Lipsitz and Eugene Gress-man for petitioner in No. 632. Sidney O. Raphaël for petitioner in No. 701. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg, Kirby W. Patterson and Mervyn Hamburg for the United States. Reported below: 350 F. 2d 171.
974
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 637. Jahncke Service, Inc. v. Greater New Orléans Expressway Commission et al. C. A. 5th Cir. Certiorari denied. Eberhard P. Deutsch and René H. Himel, Jr., for petitioner. George B. Matthews for respondent Greater New Orléans Expressway Commission. Reported below: 341 F. 2d 956.
No. 638. Standard-Triumph Motor Co., Inc. v. City of Houston et al. C. A. 5th Cir. Certiorari denied. Joyce Cox for petitioner. John Wildenthal, Jr., and H orner T. Bouldin for respondents. Reported below: 347 F. 2d 194.
No. 639. Broadnax v. United States. C. A. 6th Cir. Certiorari denied. James A. Jameson for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 346 F. 2d 119.
No. 640. Midwest Laundry Equipment Corp. v. Berg et ux. Sup. Ct. Neb. Certiorari denied. Joseph E. Dean, Jr., for petitioner. Reported below: 178 Neb. 770, 135 N. W. 2d 457.
No. 641. Automation Devices, Inc. v. Smalen-berger, dba Automatic Feeder Co. C. A. 7th Cir. Certiorari denied. Jack E. Dominik for petitioner. Warren C. Horton for respondent. Reported below: 346 F. 2d 288.
No. 644. Heider et al. v. United States. C. A. 9th Cir. Certiorari denied. William E. Dougherty for petitioners. Solicitor General Marshall, Acting Assistant Àttorney General Roberts, Joseph M. Howard and John P. Burke for the United States. Reported below: 347 F. 2d 695.
ORDERS.
975
382 U. S.	January 17, 1966.
No. 646. Adams et al. v. United States. C. A. 5th Cir. Certiorari denied. Chris Dixie, David E. Feller and Jerry D. Anker for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Mervyn Hamburg for the United States. Reported below: 347 F. 2d 665.
No. 648. Grant v. New York. Ct. App. N. Y. Certiorari denied. Max J. Rubin for petitioner. Frank S. Hogan and H. Richard Uviller for respondent.
No. 651. Montana Eastern Pipe Line Co. v. Shell Oil Co. et al. C. A. 9th Cir. Certiorari denied. Daryl E. Engebregson for petitioner. J. T. Lamb for respondents.
No. 653. Rahmoeller v. California. App. Dept., Super. Ct. Cal., County of L. A. Certiorari denied. Ernest George Williams for petitioner.
No. 660. Jones, Administrator v. United States. Ct. Cl. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 664. Lillo et al. v. United States. C. A. 3d Cir. Certiorari denied. Frédéric C. Ritger, Jr., for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States.
No. 666. J. C. Martin Corp. v. Fédéral Trade Commission. C. A. 3d Cir. Certiorari denied. Miles Warner and Walter D. Hansen for petitioner. Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel and James Mcl. Henderson for respondent. Reported below: 346 F. 2d 147.
976
OCTOBER TERM, 1965.
January’ 17, 1966.
382 U. S.
No. 665. Rudick v. Superior Court of California FOR THE CoUNTY OF LOS ANGELES ET AL. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied. PhiU Silver for petitioner.
No. 667. Katschke et al. v. United States. C. A. 7th Cir. Certiorari denied. Maurice J. Walsh and Edward J. Calihan, Jr., for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Donald I. Bierman for the United States. Reported below: 350 F. 2d 587.
No. 668. Watson v. United States. C. A. 5th Cir. Certiorari denied. Jacob Rassner for petitioner. Solicitor General Marshall for the United States. Reported below: 346 F. 2d 52.
No. 669. Ritacco et al. v. United States. C. A. 8th Cir. Certiorari denied. Paul A. Skjervold for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Glazer for the United States. Reported below: 349 F. 2d 907.
No. 670. Tecon Engineers, Inc., et al. v. United States. Ct. Cl. Certiorari denied. William C. Battle and James E. Fahey for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Philip R. Miller for the United States. Reported below: 170 Ct. Cl. 389, 343 F. 2d 943.
No. 685. Pinedo v. United States. C. A. 9th Cir. Certiorari denied. Morris Lavine for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph M. Howard and John M. Brant for the United States. Reported below: 347 F. 2d 142.
ORDERS.
977
382 U. S.	January 17, 1966.
No. 671. North Texas Producers Association v. Metzger Dairies, Inc. C. A. 5th Cir. Certiorari denied. Ashton Phelps for petitioner. Charles P. Storey for respondent. Reported below: 348 F. 2d 189.
No. 672. Fieldsmith v. Texas State Board of Dental Examiners. Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Certiorari denied. Curtis E. Hill for petitioner. Reported below: 386 S. W. 2d 305.
No. 674. Hulsenbusch v. Davidson Rubber Co. C. A. 8th Cir. Certiorari denied. Victor W. Klein for petitioner. Robert B. Russell for respondent. Reported below: 344 F. 2d 730.
No. 683. Texas Liquor Control Board et al. v. Ammex Warehouse Co., Inc., et al. Ct. Civ. App. Tex., 3d Sup. Jud. Dist. Certiorari denied. Waggoner Carr, Attorney General of Texas, Howard M. Fonder, Assistant Attorney General, and J. Sam Winter s for petitioners. Dean Moorhead for respondents. Reported below: 384 S. W. 2d 768.
No. 687. Chandler et al. v. David et al. C. A. 5th Cir. Certiorari denied. Ashley Sellers, John D. Conner and George C. Davis for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, Alan S. Rosenthal and Edward Berlin for respondents. Reported below: 350 F. 2d 669.
No. 686. Melcher et al. v. Riddell, District Di-rector of Internal Revenue. C. A. 9th Cir. Certiorari denied. Jerome B. Rosenthal and Harland N. Green for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Harold C. Wilkenfeld for respondent. Reported below: 350 F. 2d 291.
978
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 680. Andrews v. City of San Bernardino et al. Dist Ct. App. Cal., 4th App. Dist. Certiorari denied. Manuel Ruiz for petitioner. Waldo Willhoft for respondents.
No. 675. Stevens, Executrix, et al. v. Humble Oïl & Refining Co. C. A. 5th Cir. Certiorari denied. Arthur C. Reuter and Herbert J. Garon for petitioners. Reported below : 346 F. 2d 43.
No. 689. Manhattan-Bronx Postal Union et al. v. O’Brien, Postmaster General. C. A. D. C. Cir. Certiorari denied. Roy C. Frank for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, Morton Hollander and Robert V. Zener for respondent. Reported below: 121 U. S. App. D. C. 321, 350 F. 2d 451.
No. 693. Moore v. P. W. Publishing Co., Inc. Sup. Ct. Ohio. Certiorari denied. James R. Hinton for petitioner. W. Howard Fort for respondent. Reported below: 3 Ohio St. 2d 183, 209 N. E. 2d 412.
No. 696. Dillon v. United States. C. A. 9th Cir. Certiorari denied. Robert S. Miller for petitioner. Solicitor General Marshall, Assistant Attorney General Douglas, Morton Hollander and Robert V. Zener for the United States. Reported below: 346 F. 2d 633.
No. 710. Continental Grain Co. v. Washington. Sup. Ct. Wash. Certiorari denied. Arthur A. Gold-smith and Dwight L. Schwab for petitioner. John J. O’Connell, Attorney General of Washington, and James A. Fur ber and Henry W. Wager, Assistant Attorneys General, for respondent. Reported below: 66 Wash. 2d 194, 401 P. 2d 870.
ORDERS.
979
382 U. S.	January 17, 1966.
No. 697. Carpenter Body Works, Inc. v. McCulley et al. Ct. Civ. App. Tex., Ist Sup. Jud. Dist. Certiorari denied. Wiley B. Thomas, Jr., for petitioner. Le-land B. Kee for respondents. Reported below: 389 S. W. 2d 331.
No. 708. Aetna Insurance Co. v. United States. C. A. 3d Cir. Certiorari denied. James M. Marsh and J. Harry LaBrum for petitioner. Solicitor General Marshall and Acting Assistant Attorney General Roberts for the United States. Reported below: 346 F. 2d 985.
No. 713. Windham Creamery, Inc., et al. v. Freeman, Secretary of Agriculture. C. A. 3d Cir. Certiorari denied. Edward W. Currie for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, Alan S. Rosenthal and Frederick B. Abramson for respondent. Reported below: 350 F. 2d 978.
No. 714. Page, Guardian v. United States. C. A. lOth Cir. Certiorari denied. Paul N. Cotro-Manes for petitioner. Solicitor General Marshall, Assistant Attorney Douglas and Alan S. Rosenthal for the United States. Reported below: 350 F. 2d 28.
No. 715. St. Louis Mailers’ Union Local No. 3 v. Globe-Democrat Publishing Co. C. A. 8th Cir. Certiorari denied. Jerome J. Duff for petitioner. Lon Hocker for respondent. Reported below : 350 F. 2d 879.
No. 728. Henninger v. United States. C. A. lOth Cir. Certiorari denied. Edward S. Barlock and Walter L. Gerash for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 350 F. 2d 849.
980
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 716. Schatten-Cypress Co. v. Lee Shops, Inc. C. A. 6th Cir. Certiorari denied. Thomas Wardlaw Steele and Cecil Sims for petitioner. Maclin P. Davis, Jr., for respondent. Reported below: 350 F. 2d 12.
No. 717. Walston v. Lambertsen. C. A. 9th Cir. Certiorari denied. John W. Riley for petitioner. Robert V. Holland for respondent. Reported below: 349 F. 2d 660.
No. 720. Rollins v. Pennsylvania Railroad Co. Super. Ct. N. J. Certiorari denied. Francis Sorin for petitioner. Francis X. Kennelly for respondent.
No. 721. DeRosa v. Aetna Insurance Co. C. A. 7th Cir. Certiorari denied. John G. Phillips for petitioner. Peter Fitzpatrick for respondent. Reported below: 346 F. 2d 245.
No. 723. Kountis v. United States. C. A. 7th Cir. Certiorari denied. Daniel C. Ahern for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States. Reported below: 350 F. 2d 869.
No. 725. Schwartz v. New York. App. Div., Sup. Ct. N. Y., Ist Jud. Dept. Certiorari denied. Edward Brodsky for petitioner. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, David Clurman and Alan L. Kazlow, Spécial Assistant Attorneys General, and Barry Mahoney, Assistant Attorney General, for respondent.
No. 729. Coe v. Helmerich & Payne, Inc. C. A. lOth Cir. Certiorari denied. Joseph P. Jenkins for petitioner. J. D. Lysaught for respondent. Reported below: 348 F. 2d 1.
ORDERS.
981
382 U. S.	January 17, 1966.
No. 730. Smayda et al. v. United States. C. A. 9th Cir. Certiorari denied. Evander C. Smith for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Robert S. Erdahl and Daniel H. Benson for the United States. Reported below: 352 F. 2d 251.
No. 731. Harrigan et al. v. Hamm, Commissioner of Revenue of Alabama. Sup. Ct. Ala. Certiorari denied. Charles B. Arendall, Jr., and M. Roland Nachman, Jr., for petitioners. Richmond Flowers, Attorney General of Alabama, and Willard W. Livingston and Herbert I. Burson, Jr., Assistant Attorneys General, for respondent. Reported below: 278 Ala. 521, 179 So. 2d 154.
No. 737. Carroll et al. v. United States District Court for the Northern District of California et al. C. A. 9th Cir. Certiorari denied. Sidney Gordon for petitioners. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for the National Labor Relations Board. Francis Heisler for certain real parties in interest. Richard Ernst for Pacific Maritime Association.
No. 738. Cherrin Corp. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Marvin W. Cherrin for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 349 F. 2d 1001.
No. 739. Gibraltor Amusements, Ltd. v. Wur-litzer Co. et al. C. A. 2d Cir. Certiorari denied. Frances Mechta for petitioner. Edward R. Neaher for Wurlitzer Co. et al., and Joseph Jaspan for Christ, Trustée, respondents.
982
OCTOBER TERM, 1965.
January7 17, 1966.
382 U. S.
No. 736. Republic of Iraq v. First National Bank of Chicago. C. A. 7th Cir. Certiorari denied. Cari L. Shipley for petitioner. Reported below: 350 F. 2d 645.
No. 740. Abbamonte v. United States. C. A. 2d Cir. Certiorari denied. Irwin Klein for petitioner. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. May-sack for the United States. Reported below: 348 F. 2d 700.
No. 742. City of Cleveland v. Public Utilities Commission of Ohio et al. Sup. Ct. Ohio. Certiorari denied. William T. McKnight and James L. Harkens, Jr., for petitioner. William Saxbe, Attorney General of Ohio, and Théodore K. High, Assistant Attorney General, for Public Utilities Commission of Ohio, and John Lansdale for Cleveland Electric Uluminating Co., respondents. Reported below: 3 Ohio St. 2d 82, 209 N. E. 2d 424.
No. 744. American Compress Warehouse, Division of Frost-Whited Co., Inc. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. Thomas E. Shroyer for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Herman M. Levy for respondent. Reported below: 350 F. 2d 365.
No. 749. Sun Oïl Co. v. Fédéral Trade Commission. C. A. 7th Cir. Certiorari denied. Leonard J. Emmerglick, Henry A. Frye and Richard L. Freeman for petitioner. Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, James Mcl. Henderson and Alvin L. Berman for respondent. Reported below: 350 F. 2d 624.
ORDERS.
983
382 U. S.	January 17, 1966.
No. 745. Moskow et al. v. Boston Redevelopment Authority et al. Sup. Jud. Ct. Mass. Certiorari denied. James W. Kelleher and Edgar L. Kelley for petitioners. Lewis H. Weinstein and Loyd M. Starrett for Boston Redevelopment Authority; William H. Kerr for the City of Boston et al.; Edward W. Brooke, Attorney General of Massachusetts, and David Berman, Assistant Attorney General, for the Director of the Division of Urban Renewal; and Richard Wait for New England Merchants National Bank of Boston et al., respondents. Reported below: 349 Mass. 553, 210 N. E. 2d 699.
No. 746. Rainey et al. v. George A. Fuller Co. et al. Sup. Ct. Cal. Certiorari denied. Phill Silver for petitioners.
No. 747. Mack v. Brenner, Commissioner of Patents. C. C. P. A. Certiorari denied. Henry Gifiord Hardy for petitioner. Solicitor General Marshall, Assistant Attorney General Douglas, Alan S. Rosenthal and Harvey L. Zuckman for. respondent. Reported below: 52 C. C. P. A. (Pat.) 394, 344 F. 2d 719.
No. 748. Berner et al., Executors v. British Com-MONWEALTH PACIFIC AIRLINES, LTD., ET AL. C. A. 2d Cir. Certiorari denied. T. Roland Berner, M. Victor Leventritt and Aaron Lewittes for petitioners. Austin P. Magner and George N. Tompkins, Jr., for respondents. Reported below: 346 F. 2d 532.
No. 756. David et ux. v. Phinney, District Director of Internal Revenue. C. A. 5th Cir. Certiorari denied. Fentress Bracewell and John M. Robinson for petitioners. Solicitor General Marshall and Acting Assistant Attorney General Roberts for respondent. Reported below: 350 F. 2d 371.
786-211 0-66—50
984
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 753. 93 Court Corp. et al. v. United States. C. A. 2d Cir. Certiorari denied. Albert Foreman for petitioners. Acting Solicitor General Spritzer, Assistant Attorney General Douglas and David L. Rose for the United States. Reported below: 350 F. 2d 386.
No. 757. Goranson, Administrator v. Capital Airlines, Inc., et al. C. A. 6th Cir. Certiorari denied. Fred A. Smith for petitioner. Wayne E. Stichter for respondents. Reported below: 345 F. 2d 750.
No. 771. Bâtes v. United States. C. A. 9th Cir. Certiorari denied. Raymond E. Sutton for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Mervyn Hamburg for the United States. Reported below: 352 F. 2d 399.
No. 774. World Airways, Inc. v. Northeast Airlines, Inc. C. A. lst Cir. Certiorari denied. Jerrold Scoutt, Jr., and Raymond J. Rasenberger for petitioner. Laurence S. Fordham for respondent. Reported below: 349 F. 2d 1007.
No. 780. Releford v. United States. C. A. 6th Cir. Certiorari denied. John F. Dugger for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 352 F. 2d 36.
No. 787. Bank of America National Trust & Sav-ings Association v. Fédéral Reserve Bank of San Francisco. C. A. 9th Cir. Certiorari denied. Robert H. Fabian and Harris B. Taylor for petitioner. Solicitor General Marshall, Assistant Attorney General Douglas, Morton Hollander and Richard S. Salzman for respondent. Reported below: 349 F. 2d 565.
ORDERS.
985
382 U. S.	January 17, 1966.
No. 769. California Co. v. Kuchenig. C. A. 5th Cir. Certiorari denied. Lawrence K. Benson for petitioner. Reported below: 350 F. 2d 551.
No. 790. Signal Manufacturing Co. v. National Labor Relations Board. C. A. Ist Cir. Certiorari denied. Maurice Epstein for petitioner. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli, Norton J. Corne and Warren M. Davison for respondent. Reported below: 351 F. 2d 471.
No. 798. King v. United States. C. A. D. C. Cir. Certiorari denied. Orie Seltzer for .petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Mervyn Hamburg for the United States.
No. 34. Frankel et al. v. Fédéral Power Commission et al.;
No. 35. J. Ray McDermott & Co., Inc. v. Fédéral Power Commission et al.; and
No. 36. Superior Oïl Co. v. Fédéral Power Commission et al. C. A. 5th Cir. Motion of United Gas Pipe Line Co. to be added as a party respondent in No. 36 granted. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this motion and these pétitions. H. H. Hillyer, Jr., for petitioners in Nos. 34 and 35. Murray Christian, Herbert W. Varner and R. B. Voight for petitioner in No. 36. Solicitor General Cox, Richard A. Solomon, Howard A. Wahrenbrock and Joséphine H. Klein for the Fédéral Power Commission, respondent in ail cases. Kent H. Brown and Morton L. Simons for Public Service Commission of New York, respondent in Nos. 34 and 35. Vernon W. Woods and Saunders Gregg for United Gas Pipe Line Co., respondent in No. 36. Reported below: 335 F. 2d 1004.
986
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 800. Mobil Oil Co. v. Local 7-644, Oil, Chemical & Atomic Workers International Union, AFL-CIO. C. A. 7th Cir. Certiorari denied. William H. Armstrong and Robert L. Broderick for petitioner. Harold Gruenberg for respondent. Reported below : 350 F. 2d 708.
No. 355. Littell v. Nakai. C. A. 9th Cir. Motion to dispense with printing respondent’s brief granted. Certiorari denied. Frederick Bemays Wiener and John F. Doyle for petitioner. Harold E. Mott for respondent. Solicitor General Marshall for the United States, as amicus curiae, in opposition. Reported below: 344 F. 2d 486.
No. 566. Hooper v. United States. C. A. 6th Cir. Motion for leave to file a supplément to the pétition granted. Motion to dispense with printing pétition granted. Certiorari denied. Charles Orlando Pratt and Hamilton W. Kenner for petitioner. Solicitor General Marshall and Charles J. McCarthy for the United States.
No. 603. England et ux. v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Ernest Rubenstein for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts and I. Henry Kutz for the United States. Briefs of amici curiae, in support of the pétition, were filed by Graham W. McGowan for the Electronic Industries Association; by John R. Tumey, Jr., for the Manufacturing Chemists’ Association, Inc.; by George R. Fearon and Richard B. Barker for the Associated Industries of New York State, Inc.; and by Lambert H. Miller for the National Association of Manufacturers of the United States. Reported below: 345 F. 2d 414.
ORDERS.
987
382 U. S.	January 17, 1966.
No. 643. Thompson v. Kawasaki Kisen, K. K., et al. C. A. Ist Cir. Motion of the American Trial Lawyers Association for leave to file brief, as amicus curiae, granted. Certiorari denied. Eugene X. Giroux for petitioner. Seymour P. Edgerton for Kawasaki Kisen, K. K., and C. Keefe Hurley for Bay State Steve-doring Co., respondents. Harvey Goldstein for American Trial Lawyers Association, as amicus curiae, in support of the pétition. Reported below: 348 F. 2d 879.
No. 647. South Florida Télévision Corp. v. Fédéral Communications Commission et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Scott W. Lucas and Joseph B. Friedman for petitioner. Solicitor General Marshall, Assistant Attorney General Turner, Lionel Kestenbaum and Henry Geller for Fédéral Communications Commission, and Robert A. Mar-met, Edwin R. Schneider, Jr., Paul A. Porter and Reed Miller for L. B. Wilson, Inc., respondents. Reported below: 121 U. S. App. D. C. 293, 349 F. 2d 971.
No. 691. Liggett & Myers Tobacco Co. v. Pritch-ard, Administratrix. C. A. 3d Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Bethuel M. Webster, Donald J. Cohn, William H. Eckert and Francis K. Decker, Jr., for petitioner. James E. McLaughlin and Charles Alan Wright for respondent. Reported below: 350 F. 2d 479.
No. 735. Gamble-Skogmo, Inc. v. Western Auto Supply Co. et al. C. A. 8th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. Edward J. Callahan for petitioner. Hayner N. Larson for respondents. Reported below: 348 F. 2d 736.
988
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 682. ÛVERLAKES CORP. V. COMMISSIONER OF In-ternal Revenue. C. A. 2d Cir. Certiorari denied. Mr. Justice Brennan took no part in the considération or decision of this pétition. William L. Hanaway and Thomas R. Moore for petitioner. Acting Solicitor General Spritzer, Acting Assistant Attorney General Roberts, Harry Baum and Loring W. Post for respondent. Reported below: 348 F. 2d 462.
No. 688. Griffith et al. v. Board of Commissioners of the Alabama State Bar. Sup. Ct. Ala. Certiorari denied. Mr. Justice Black is of the opinion that certiorari should be granted. Fred Blanton, Jr., for petitioners. M. Ronald Nachman, Jr., for respondent. Reported below: 278 Ala. 330, 178 So. 2d 156; 278 Ala. 344, 178 So. 2d 169.
No. 755. Frazier v. California. Dist. Ct. App. Cal., 4th App. Dist. Certiorari denied. Mr. Justice Black is of the opinion that certiorari should be granted. George Kaufmann for petitioner.
No. 709. Muth, Administratrix v. Atlass et al., Executors; and
No. 733. Darr, Administratrix v. Atlass et al., Executors. C. A. 7th Cir. Certiorari denied. Mr. Justice Black is of the opinion that certiorari should be granted, the Court of Appeals’ judgment reversed, and the District Court’s judgment affirmed. G. Kent Y owell for petitioner in No. 709. Harold A. Liebenson and Edward G. Raszus for petitioner in No. 733. Edward B. Hayes for respondents in both cases. Reported below: 350 F. 2d 592.
No. 1, Mise. Stello v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 415 Pa. 572, 202 A. 2d 71.
ORDERS.
989
382 U. S.	January 17, 1966.
No. 741. Gray et al. v. California. App. Dept., Super. Ct. Cal., County of L. A. Motion to dispense with printing pétition granted. Certiorari denied. David Arthur Binder for petitioners. Roger Arnebergh and Philip E. Grey for respondent.
No. 803. Colorado Milling & Elevator Co. v. Terminal Railroad Association of St. Louis. C. A. 8th Cir. Certiorari denied. Mr. Justice White took no part in the considération or decision of this pétition. George E. Heneghan for petitioner. Lyman J. Bishop for respondent. Reported below: 350 F. 2d 273.
No. 140, Mise. Clark v. Wainwright, Corrections Director. Sup. Ct. Fia. Certiorari denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and John S. Burton, Assistant Attorney General, for respondent.
No. 148, Mise. Kirk v. California. Sup. Ct. Cal. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Raymond M. Mom-boisse and Richard K. Turner, Deputy Attorneys General, for respondent.
No. 221, Mise. Newman v. New York. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Louis J. Lejkowitz, Attorney General of New York, Rut h Kessler Toch, Assistant Solicitor General, and Winifred C. Stanley, Assistant Attorney General, for respondent.
No. 249, Mise. DeGroat v. New York State Suprême Court et al. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Louis J. Lejkowitz, Attorney General of New York, and Lester Esterman, Assistant Attorney General, for respondents.
990
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 212, Mise. Sullivan v. New Jersey. Sup. Ct. N. J. Certiorari denied. Petitioner pro se. Léo Kap-lowitz and Ralph de Vita for respondent.
No. 278, Mise. Bryant v. Fay, Warden. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Louis J. Lejkowitz, Attorney General of New York, and Frederick E. Weeks, Jr., Assistant Attorney General, for respondent.
No. 279, Mise. Amaral v. Florida. Sup. Ct. Fia. Certiorari denied. Petitioner pro se. Earl Fair cio th, Attorney General of Florida, and George R. Georgieff, Assistant Attorney General, for respondent.
No. 287, Mise. Miller v. California et al. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for respondents. Reported below: 230 Cal. App. 2d 876, 41 Cal. Rptr. 431.
No. 293, Mise. Beasley v. Texas. Ct. Crim. App. Tex. Certiorari denied. William E. Gray for petitioner. Waggoner Carr, Attorney General of Texas, and Haw-thorne Phillips, T. B. Wright, Howard M. Fonder and Allô B. Crow, Jr., Assistant Attorneys General, for respondent. Reported below: 389 S. W. 2d 299.
No. 297, Mise. Conover v. Herold, State Hospital Director. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Louis J. Lejkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Frank J. Pannizzo, Assistant Attorney General, for respondent.
ORDERS.
991
382 U. S.	January 17, 1966.
No. 295, Mise. Armstrong v. Alabama. Sup. Ct. Ala. Certiorari denied. Petitioner pro se. Richmond M. Flowers, Attorney General of Alabama, and Leslie Hall and W. Mark Anderson III, Assistant Attorneys General, for respondent.
No. 367, Mise. Savino v. New York. Ct. App. N. Y. Certiorari denied. Petitioner pro se. Aaron E. Koota and Frank Di Lalla for respondent.
No. 373, Mise. Anderson et al. v. United States. C. A. 6th Cir. Certiorari denied. Petitioners pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 345 F. 2d 28.
No. 428, Mise. Knight v. Florida. Sup. Ct. Fia. Certiorari denied. Petitioner pro se. Earl Faircloth, Attorney General of Florida, and John S. Burton, Assistant Attorney General, for respondent.
No. 442, Mise. Walker v. Indiana. Sup. Ct. Ind. Certiorari denied. Petitioner pro se. John J. Dillon, Attorney General of Indiana, and Douglas B. McFadden, Deputy Attorney General, for respondent. Reported below:-----Ind.-----, 204 N. E. 2d 850.
No. 460, Mise. Rice v. Lane, Warden. Sup. Ct. Ind. Certiorari denied. Petitioner pro se. John J. Dillon, Attorney General of Indiana, and Douglas B. McFadden, Deputy Attorney General, for respondent.
No. 495, Mise. Rogers v. Lane, Warden. C. A. 7th Cir. Certiorari denied. Petitioner pro se. John J. Dillon, Attorney General of Indiana, and Kenneth M. Waterman, Deputy Attorney General, for respondent. Reported below: 345 F. 2d 357.
992
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 478, Mise. Wilson v. Maroney, Correctional Superinte ndent. C. A. 3d Cir. Certiorari denied. Petitioner pro se. William A. Peiffer for respondent.
No. 500, Mise. Gonzales v. Texas. Ct. Crim. App. Tex. Certiorari denied. Warren P. McKenney for petitioner. Waggoner Carr, Attorney General of Texas, and Hawthome Phillips, T. B. Wright and Howard M. Fender, Assistant Attorneys General, for respondent. Reported below: 389 S. W. 2d 306.
No. 521, Mise. De Monge et al. v. United States. C. A. D. C. Cir. Certiorari denied. Henry F. Lerch for petitioners. Solicitor General Marshall for the United States.
No. 552, Mise. Cunningham v. United States et al. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar and David L. Norman for the United States et al.
No. 573, Mise. Quilès v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 344 F. 2d 490.
No. 662, Mise. Close v. United States. C. A. 4th Cir. Certiorari denied. Lewis T. Booker for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Donald I. Bierman for the United States. Reported below: 349 F. 2d 841.
No. 679, Mise. Di Piero v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Petitioner pro se. A. Alfred Delduco and John S. Halsted for respondent.
ORDERS.
993
382 U. S.	January 17, 1966.
No. 509, Mise. Reed v. United States et al. Sup. Ct. Mo. Certiorari denied.
No. 666, Mise. Lipscomb v. Stevens, Warden. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar, David L. Norman and Gerald P. Choppin for respondent. Reported below: 349 F. 2d 997.
No. 668, Mise. Trantino v. New Jersey. Sup. Ct. N. J. Certiorari denied. Frances Kahn for petitioner. Guy W. Calissi for respondent. Reported below: 44 N. J. 358, 209 A. 2d 117.
No. 681, Mise. Davis v. Dunbar, Corrections Di-rector, et al. Sup. Ct. Cal. Certiorari denied.
No. 683, Mise. Wright v. New Jersey. Sup. Ct. N. J. Certiorari denied.
No. 686, Mise. Alexander v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson and Philip R. Monahan for the United States. Reported below: 346 F. 2d 561.
No. 687, Mise. Wilson v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 713, Mise. Macias v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 740, Mise. Green et al. v. California. App. Dept., Super. Ct. Cal., County of L. A. Certiorari denied. Laurence R. Sperber, A. L. Wirin and Fred Okrand for petitioners. Reported below: 234 Cal. App. 2d 871, 44 Cal. Rptr. 438.
994
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 694, Mise. Butler v. Weakley et al. C. A. 4th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar and David L. Norman for respondents.
No. 711, Mise. Beasley v. Texas Casualty Insurance Co. Sup. Ct. Tex. Certiorari denied. Thomas C. Ferguson for petitioner. Coleman Gay for respondent. Reported below: 391 S. W. 2d 33.
No. 727, Mise. Gallagher v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 746, Mise. Eldridge v. United States. C. A. D. C. Cir. Certiorari denied. Jean F. Dwyer for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Ronald L. Gainer for the United States.
No. 750, Mise. Hunt et al. v. Nebraska. Sup. Ct. Neb. Certiorari denied. Vincent J. Kirby for petitioners. Reported below: 178 Neb. 783, 135 N. W. 2d 475.
No. 751, Mise. White v. California. Sup. Ct. Cal. Certiorari denied.
No. 754, Mise. White v. Clemmons, Sheriff, et al. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Jack P. F. Gremillion, Attorney General of Louisiana, and Ralph L. Roy for respondents.
No. 760, Mise. Flowers v. United States. C. A. lOth Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Douglas and David L. Rose for the United States. Reported below: 348 F. 2d 910.
ORDERS.
995
382 U. S.
January 17, 1966.
No. 755, Mise. Ward v. Peyton, Penitentiary Superintendent. C. A. 4th Cir. Certiorari denied. Reported below: 349 F. 2d 359.
No. 758, Mise. Curley v. McMann, Warden. C. A. 2d Cir. Certiorari denied.
No. 759, Mise. Timmons v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Glazer for the United States. Reported below: 120 U. S. App. D. C. 28, 343 F. 2d 310.
No. 761, Mise. Lyons v. California. Sup. Ct. Cal. Certiorari denied.
No. 762, Mise. Reid v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 233 Cal. App. 2d 163, 43 Cal. Rptr. 379.
No. 764, Mise. Orlando v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 769, Mise. Bush v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 347 F. 2d 231.
No. 770, Mise. Traganza v. California. Dist. Ct.
App. Cal., 3d App. Dist. Certiorari denied.
No. 771, Mise. Bentley v. Kentucky. Ct. App. Ky. Certiorari denied.
No. 774, Mise. Carreon v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied.
996
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 772, Mise. Vida v. Roth, U. S. District Judge. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for respondent.
No. 773, Mise. Skolnick v. Hallett et al. C. A. 7th Cir. Certiorari denied. Reported below: 350 F. 2d 861.
No. 777, Mise. Williams v. Duncanson. C. A. 9th Cir. Certiorari denied.
No. 783, Mise. Johnson v. Russell, Correctional Superintendent. Super. Ct. Pa. Certiorari denied.
No. 784, Mise. Moots v. Secretary of Health, Education and Welfare. C. A. 4th Cir. Certiorari denied. Samuel Goldblatt for petitioner. Solicitor General Marshall for respondent. Reported below: 349 F. 2d 518.
No. 787, Mise. Draper v. Rhay, Penitentiary Superintendent. C. A. 9th Cir. Certiorari denied.
No. 788, Mise. Loux v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
No. 794, Mise. Eskridge v. Rhay, Penitentiary Superintendent. C. A. 9th Cir. Certiorari denied. Reported below: 345 F. 2d 778.
No. 795, Mise. Fair v. Burns, Governor of Florida. Sup. Ct. Fia. Certiorari denied.
No. 796, Mise. Campbell v. Kerner, Governor of Illinois, et al. Sup. Ct. 111. Certiorari denied.
ORDERS.
997
382 U. S.
January 17, 1966.
No. 797, Mise. Rector v. Heinze, Warden. Sup. Ct. Cal. Certiorari denied.
No. 798, Mise. Robinson v. Fay, Warden. C. A. 2d Cir. Certiorari denied. Leon B. Polsky for petitioner. Louis J. Lejkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Deputy Assistant Attorney General, for respondent. Reported below: 348 F. 2d 705.
No. 799, Mise. Rivera v. Reeves et al. C. A. 2d Cir. Certiorari denied. Leon B. Polsky for petitioner.
No. 800, Mise. Byrnes v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 348 F. 2d 918.
No. 802, Mise. Branch, dba Dream Shell Homes v. Mills & Lupton Supply Co., Inc. C. A. 6th Cir. Certiorari denied. John S. Wrinkle for petitioner. Reported below: 348 F. 2d 991.
No. 803, Mise. Stiltner v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
No. 807, Mise. Furtak v. New York. Ct. App. N. Y. Certiorari denied.
No. 809, Mise. Collins v. Klinger, Mens Colony Superintendent. C. A. 9th Cir. Certiorari denied.
No. 810, Mise. Brabson v. Wilkins, Warden. C. A. 2d Cir. Certiorari denied.
No. 816, Mise. Ortega v. Mississippi. Sup. Ct. Miss. Certiorari denied.
998
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 808, Mise. Russell v. Maxwell, Warden.
C. A. 6th Cir. Certiorari denied. Reported below: 348 F. 2d 908.
No. 822, Mise. Hobbs v. Maryland. C. A. 4th Cir. Certiorari denied.
No. 826, Mise. Hensley v. Kansas. Sup. Ct. Kan. Certiorari denied.
No. 827, Mise. Meyes v. California. Sup. Ct. Cal. Certiorari denied.
No. 828, Mise. Robinson v. New York. C. A. 2d
Cir. Certiorari denied.
No. 830, Mise. Brown v. Zuckert, Secretary of the Air Force, et al. C. A. 7th Cir. Certiorari denied. Fleetwood M. McCoy, William R. Ming, Jr., and Ellis E. Reid for petitioner. Solicitor General Marshall for respondents. Reported below: 349 F. 2d 461.
No. 832, Mise. Jefferson v. McGee et al. C. A. 9th Cir. Certiorari denied.
No. 835, Mise. Ross v. California et al. Sup. Ct. Cal. Certiorari denied.
No. 839, Mise. Grenfell v. Gladden, Warden. Sup. Ct. Ore. Certiorari denied. Reported below: 241 Ore. 190, 405 P. 2d 532.
No. 843, Mise. Smith v. Ellington et al. C. A. 6th Cir. Certiorari denied. John S. Wrinkle for petitioner. W. D. Spears for Ellington, and Richmond M. Flowers, Attorney General of Alabama, and Robert P. Bradley, Assistant Attorney General, for Patterson et al., respondents. Reported below: 348 F. 2d 1021.
ORDERS.
999
382 U. S.	January 17, 1966.
No. 845, Mise. Chapman v. Russell, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 847, Mise. Andrews v. Murphy. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Robert E. Sullivan for respondent. Reported below: 349 F. 2d 114.
No. 853, Mise. Lee v. Wilson, Warden. C. A. 9th Cir. Certiorari denied.
No. 855, Mise. Johnson v. California. Sup. Ct. Cal. Certiorari denied.
No. 857, Mise. Fierro v. California. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 862, Mise. Wynder v. United States. C. A. D. C. Cir. Certiorari denied. Roland S. Homet, Jr., for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Sid-ney M. Glazer for the United States. Reported below: 122 U. S. App. D. C. 186, 352 F. 2d 662.
No. 868, Mise. Becker et al. v. California. App. Dept., Super. Ct. Cal., County of L. A. Certiorari denied. David Arthur Binder for petitioners. Roger Arnebergh and Philip E. Grey for respondent.
No. 15, Mise. Herr et al. v. United States. C. A. 7th Cir. Motion for leave to amend pétition for writ of certiorari granted. Certiorari denied. Daniel W. Gray for petitioners. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Marshall Tamor Golding for the United States. Reported below: 338 F. 2d 607.
786-211 0-66—51
1000
OCTOBER TERM, 1965.
January 17, 1966.
382 U. S.
No. 926, Mise. Losinger v. Michigan. Sup. Ct. Mich. Certiorari denied.
No. 815, Mise. Crider v. Zurich Insurance Co. C. A. 5th Cir. Motion for leave to use the record in No. 116, October Term, 1964, granted. Certiorari denied. Robert S. Vance for petitioner. Foster Etheredge for respondent. Reported below: 348 F. 2d 211.
Rehearing Denied.
No. 57. Hazeltine Research, Inc., et al. v. Brenner, Commissioner of Patents, ante, p. 252;
No. 165. McMaster v. United States, ante, p. 818;
No. 166. Wolff v. United States, ante, p. 818;
No. 227. Bullock v. Virginia, ante, p. 927;
No. 352. Lauritzen v. Spann, ante, p. 938;
No. 359. Johnson v. United States, ante, pp. 836, 923;
No. 429. Maxwell v. Stephens, Penitentiary Superintendent, ante, p. 944;
No. 519. Gish v. Missouri, ante, p. 919;
No. 523. Albanese v. N. V. Nederl. Amerik Stoomv. Maats. et al., ante, p. 283;
No. 539. Bank of America National Trust & Savings Association v. United States, ante, p. 927;
No. 550. Prezioso v. United States, ante, p. 939;
No. 552. Chatsworth Cooperative Marketing Association et al. v. Interstate Commerce Ccfmmission, ante, p. 938;
No. 558. Atlantic Refining Co. v. Fédéral Trade Commission, ante, p. 939;
No. 598. Brasch v. State Compensation Insurance Fund et al., ante, p. 942 ; and
No. 608. Moran v. Penan et al., ante, p. 943. Pétitions for rehearing denied.
ORDERS.
1001
382 U. S.	January 17, 1966.
No. 481, October Term, 1963. Viking Theatre Corp. v. Paramount Film Distributing Corp. et al., 378 U. S. 123; 379 U. S. 872. Motion for leave to file second pétition for rehearing denied. Mr. Justice Douglas and Mr. Justice Fortas took no part in the considération or decision of this motion.
No. 543, October Term, 1963. United States v. Maryland for the use of Meyer et al., ante, p. 158. Pétition for rehearing denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. [For earlier orders herein, see 375 U. S. 954; 379 U. S. 925.]
No. 4. Leh et al. v. General Petroleum Corp. et al., ante, p. 54. Pétition for rehearing denied. Mr. Justice Harlan and Mr. Justice Fortas took no part in the considération or decision of this pétition.
No. 21. United Gas Improvement Co. et al. v. Cal-LERY PROPERTIES, INC., ET AL.;
No. 22. Public Service Commission of New York v. Callery Properties, Inc., et al.; and
No. 32. Fédéral Power Commission v. Callery Properties, Inc., et al., ante, p. 223. Pétition for rehearing of Superior Oil Co. et al. denied. Mr. Justice Fortas took no part in the considération or decision of this pétition.
No. 676, Mise. Walker v. Superior Court of California IN AND FOR THE ClTY AND COUNTY OF S.AN FRANCISCO, ante, p. 923. Pétition for rehearing denied. The Chief Justice took no part in the considération or decision of this pétition.
1002	OCTOBER TERM, 1965.
January 17, 1966.	382 U. S.
No. 501. Rosenblatt v. American Cyanamid Co., ante, p. 110. Pétition for rehearing denied. Mr. Justice Harlan took no part in the considération or decision of this pétition.
No. 125, Mise. Calhoun v. Pâte, Warden, ante, p. 945;
No. 219, Mise. Hughes et al. v. Kropp, Warden, ante, p. 872;
No. 310, Mise. Barnard v. United States, ante, p. 948;
No. 320, Mise. Brye v. Wainwright, Corrections Director, ante, p. 930;
No. 345, Mise. Lassiter v. United States, ante, p. 948;
No. 346, Mise. Knippel v. United States, ante, p. 948;
No. 592, Mise. Massari v. United States, ante, p. 931;
No. 602, Mise. Edell v. Di Piazza et al., ante, p. 931;
No. 617, Mise. Gadsden et al. v. Fripp et al., ante, p. 921 ;
No. 637, Mise. Atkins v. Kansas, ante, p. 964;
No. 674, Mise. Becker v. Matteawan State Hospital Superintendent et al., ante, p. 947;
No. 801, Mise. Corcoran v. Yorty et al., ante, p. 966; and
No. 852, Mise. Moody v. United Mine Workers Local for the United States et al., ante, p. 285. Pétitions for rehearing denied.
No. 477. Hainsworth v. Martin, Secretary of State of Texas, et al., ante, p. 109. Pétition for rehearing denied. Mr. Justice Portas took no part in the considération or decision of this pétition.
ORDERS.
1003
382 U. S.	January 17, 21, 1966.
No. 513. Harvey v. Lyons et al., ante, p. 918. Pétition for rehearing and for other relief denied.
No. 477, Mise. Goldstein v. Washington, ante, p. 895;
No. 501, Mise. Acuff v. Cook Machinery Co., Inc., ante, p. 805; and
No. 532, Mise. Cline v. Dunbar, ante, p. 804. Motions for leave to file pétitions for rehearing denied.
January 21, 1966.
Miscellaneous Order.
No. 1111, Mise. Chandler, U. S. District Judge v. Judicial Council of the Tenth Circuit of the United States. Application for stay of order. Thomas J. Kenan for petitioner. Solicitor General Marshall for respondent.
Petitioner applied to Mr. Justice White, Circuit Justice for the Tenth Circuit, for “Stay of Order of Judicial Council of the Tenth Circuit of the United States” in the above matter, and the application was by him referred to the Court for its considération and action.
It appearing to the Court from the response of the Solicitor General to the application that the order from which relief is sought is entirely interlocutory in char-acter pending prompt further proceedings inquiring into the administration of Judge Chandler of judicial business in the Western District of Oklahoma, and that at such proceedings Judge Chandler will be permitted to appear before the Council, with counsel, and that after such proceedings the Council will, as soon as possible, undertake to décidé what use, if any, should be made of such powers as it may hâve in the promises, it is hereby ordered that the application for stay be denied pending
1004
382 U. S.
OCTOBER TERM, 1965.
Black, J., dissenting.
this contemplated prompt action of the Judicial Council. The Court expresses no opinion concerning the propriety of the interlocutory action taken.
Mr. Justice Black, with whom Mr. Justice Douglas joins, dissenting.
United States District Judge Stephen S. Chandler here asks for a stay of an “Order” of the Judicial Council of the Tenth Circuit directing that until further order of the Council, Judge Chandler “take no action whatsoever in any case or proceeding now or hereafter pending” in his court, that cases now assigned to him be assigned to other judges, and that no new actions filed be assigned to him. If this order is not stayed and if the Judicial Council has some way to enforce it, the order means that Judge Chandler is completely barred from performing any of his official duties and in effect is removed or ousted from office pending further orders of the Council. The reason given by the Council for this drastic action is that it “finds that Judge Chandler is presently unable, or unwilling, to discharge efficiently the duties of his office . . . .” By refusing to stay the Council’s order, the Court necessarily acts on the premise that the Council has a legal right to remove Judge Chandler from office at least temporarily. Though the Court tries to soft-pedal its refusai to stay the order by referring to it as “interlocutory in character,” the stark fact which cannot be disguised is that a United States District Judge, duly appointed by the President and approved by the Senate, is with this Court’s imprimatur locked out of his office pending “further proceedings” by the Judicial Council. I think the Council is completely without legal authority to issue any such order, either temporary or permanent, with or without a hearing, that no statute purports to authorize it, and that the Constitution forbids it. Nor
ORDERS.
1005
1003	Black, J., dissenting.
can the effect of the order be softened by asserting that Judge Chandler will be permitted to hâve a lawyer rep-resent him before his fellow judges. Assuming that wè hâve jurisdiction to stay an order from a governmental agency that has no power at ail to do what this Council has done, I would stay this “Order” instanter.
The Council States that its order was made “pursuant to the power and authority vested in the Judicial Council by the Act of June 25, 1948, c. 646, § 332, 62 Stat. 902, 28 U. S. C. § 332.” That section so far as relevant reads:
“Each judicial council shall make ail necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district judges shall promptly carry into effect ail orders of the judicial council.”
There is no language whatever in this or any other Act which can by any reasonable interprétation be read as giving the Council a power to pass upon the work of district judges, déclaré them inefficient and strip them of their power to act as judges. The language of Congress indicates a purpose to vest the Judicial Council with limited administrative powers; nothing in this language, or the history behind it, indicates that a Council of Circuit Court Judges was to be vested with power to discipline district judges, and in effect remove them from office. This is clearly and simply a proceeding by circuit judges to inquire into the fitness of a district judge to hold his office and to remove him if they so desire. I do not believe Congress could, even if it wished, vest any such power in the circuit judges.
One of the great advances made in the structure of government by our Constitution was its provision for an independent judiciary—for judges who could do their duty as they saw it without having to account to superior
1006
OCTOBER TERM, 1965.
January 21, 24, 1966.	382 U. S.
court judges or to anyone else except the Senate sit-ting as a court of impeachment. Article II, § 4, of the Constitution provides that “Officers of the United States,” which includes judges, “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” and Art. I, §§ 2 and 3, state that impeachment can be instituted only on recommendation of the House of Représentatives and that trial can be held only by the Senate. To hold that judges can do what this Judicial Council has tried to do to Judge Chandler here would in my judgment violate the plan of our Constitution to preserve, as far as possible, the liberty of the people by guaranteeing that they hâve judges wholly independent of the Government or any of its agents with the exception of the United States Congress acting under its limited power of impeachment. We should stop in its infancy, before it has any growth at ail, this idea that the United States district judges can be made accountable for their efficiency or lack of it to the judges just over them in the fédéral judicial System. The only way to do that is to grant this stay and I am in favor of granting it.
January 24, 1966.
Miscellaneous Orders.
No. 945, Mise. Green, dba Jim Green’s Trucking Co. v. Public Utilities Commission of California. Motion for leave to file pétition for writ of certiorari denied. Thomas S. Tobin for petitioner. Mary Moran Pajalich for respondent.
No. 990, Mise. In re Tucker. Motion for leave to file pétition for writ of mandamus denied.
ORDERS.
1007
382 U. S.
January 24, 1966.
No. 77, Mise. Garvey v. Eyman, Warden. Motion for leave to file pétition for writ of habeas corpus denied. Petitioner pro se. Darrell F. Smith, Attorney General of Arizona, for respondent.
No. 804, Mise. O’Brien v. United States; and
No. 838, Mise. McGann v. Richardson, Warden, et al. Motions for leave to file pétitions for writs of habeas corpus denied.
No. 870, Mise. Williams v. California. Motion for leave to file pétition for writ of habeas corpus denied. Treating the papers submitted as a pétition for writ of certiorari, certiorari is denied.
Probable Jurisdiction Noted.
No. 847. Katzenbach, Attorney General, et al. v. Morgan et ux.; and
No. 877. New York City Board of Elections v. Morgan et ux. Appeals from D. C. D. C. Probable jurisdiction noted. The cases are Consolidated and a total of two hours is allotted for oral argument. Solicitor General Marshall for appellants in No. 847. Léo A. Larkin for appellant in No. 877. Reported below: 247 F. Supp. 196.
No. 537, Mise. Rinaldi v. Yeager, Warden, et al. Appeal from D. C. N. J. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted. The case is transferred to the appellate docket. Donald A. Robinson for appellant. Arthur J. Sills, Attorney General of New Jersey, and Eugene T. Urbaniak, Deputy Attorney General, for appellees. Reported below: 238 F. Supp. 960.
1008
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
No. 673. Cardona v. Power et al. Appeal from Ct. App. N. Y. Probable jurisdiction noted. The case is set for oral argument immediately foliowing Nos. 847 and 877. Paul O’Dwyer and W. Bernard Richland for appellant. Louis J. Lejkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, George C. Mantzoros and Barry J. Lipson, Assistant Attorneys General, and Brenda Soloff, Deputy Assistant Attorney General, for appellees. Reported below: 16 N. Y. 2d 639, 708, 827, 209 N. E. 2d 119, 556, 210 N. E. 2d 458.
Certiorari Granted. (See also No. 87, Mise., ante, p. 420.)
No. 750. Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employées, AFL-CIO, et al. v. Florida East Coast Railway Co. ;
No. 782. United States v. Florida East Coast Railway Co.; and
No. 783. Florida East Coast Railway Co. v. United States. C. A. 5th Cir. Certiorari granted. The cases are Consolidated and a total of two hours is allotted for oral argument. The United States is to open the argument and direct itself first to issues raised in No. 782. Mr. Justice Fortas took no part in the considération or decision of these pétitions. Lester P. Schoene, Neal Rut-ledge and Allan Milledge for petitioners in No. 750. Solicitor General Marshall, Assistant Attorney General Douglas and David L. Rose for the United States in No. 782. William B. Devaney and George B. Mickum III for petitioner in No. 783. Solicitor General Marshall for the United States in No. 783. Reported below 348 F. 2d 682.
ORDERS.
1009
382 U. S.	January 24, 196(5.
Certiorari Denied. (See also No. 824, Mise., ante, p.
421; No. 849, Mise., ante, p. 421; and No. 870, Mise., supra.)
No. 269. Portelli v. New York; and
No. 270. Rosenberg v. New York. Ct. App. N. Y. Certiorari denied. William Sonenshine for petitioner in No. 269. Maurice Edelbaum for petitioner in No. 270. Aaron E. Koota and Aaron Nussbaum for respondent in both cases. Reported below: 15 N. Y. 2d 235, 205 N. E. 2d 857.
No. 565. Monroe Auto Equipment Co. v. Fédéral Trade Commission. C. A. 7th Cir. Certiorari denied. Harold T. Haljpenny and Mary M. Shaw for petitioner. James Mcl. Henderson and Thomas F. Howder for respondent. Solicitor General Marshall and Assistant Attorney General Turner for the United States, as amicus curiae. Reported below: 347 F. 2d 401.
No. 661. Field Enterprises, Inc. v. United States. Ct. Cl. Certiorari denied. James B. Lewis and Alan N. Cohen for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, I. Henry Kutz and David D. Rosenstein for the United States. Reported below: 172 Ct. Cl. 77, 348 F. 2d 485.
No. 766. Parada-Gonzalez v. United States. C. A. 2d Cir. Certiorari denied. Allen S. Stim and Albert Félix for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
No. 775. Green, dba Jim Green’s Trucking Co. v. Public Utilities Commission of California. Sup. Ct. Cal. Certiorari denied. Thomas S. Tobin for petitioner. Mary Moran Pajalich for respondent.
1010
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
No. 778. Natural Resources, Inc., et al. v. Wine-berg. C. A. 9th Cir. Certiorari denied. James C. Dezendorj for petitioners. Reported below: 349 F. 2d 685.
No. 779. George et ux. v. United States. C. A. 2d Cir. Certiorari denied. Charles Koozman and Bur-ton M. Weinstein for petitioners. Solicitor General Marshall, Assistant Attorney General Douglas, Alan S. Rosenthal and Richard S. Salzman for the United States.
No. 784. Watkins et al. v. Superior Court, Los Angeles County, et al. Dist. Ct. App. Cal., 2d App. Dist. Certiorari denied. Jack Greenberg, Raymond L. Johnson and Anthony G. Amsterdam for petitioners. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, Harold W. Kennedy, George W. Wakefield and Evelle J. Younger for respondents.
No. 799. Marshall v. United States. C. A. 9th Cir. Certiorari denied. Raymond E. Sutton for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Théodore George Gilinsky for the United States. Reported below: 352 F. 2d 1013.
No. 801. Atomic Oil Co. of Oklahoma, Inc. v. Bardahl Oil Co. et al. C. A. lOth Cir. Certiorari denied. Lawrence A. G. Johnson and Robert J. Woolsey for petitioner. Reported below: 351 F. 2d 148.
No. 802. Bettilyon’s, Inc., et al. v. Utah, by and through ITS Road Commission. Sup. Ct. Utah. Certiorari denied. F. Burton Howard for petitioners. Reported below: 17 Utah 2d 135, 405 P. 2d 420.
ORDERS.
1011
382 U. S.	January 24, 1966.
No. 785. Halko v. Anderson. C. A. 3d Cir. Certiorari denied. Joseph Nissley for petitioner.
No. 804. National Labor Relations Board v. Adams Dairy, Inc. C. A. 8th Cir. Certiorari denied. Solicitor General Marshall, Dominick L. Manoli and Norton J. Corne for petitioner. J. Leonard Schermer for respondent. Reported below: 350 F. 2d 108.
No. 805. Sylvester et al. v. Messler, Administra-trix. C. A. 6th Cir. Certiorari denied. Paul B. May-rand for petitioners. William J. Eggenberger for respondent. Reported below: 351 F. 2d 472.
No. 806. Clark Marine Corp. v. Cargill, Inc., et al. C. A. 5th Cir. Certiorari denied. Edward Donald Moseley for petitioner. Robert L. Stem, Erwin C. Heininger and Laurance W. Brooks for respondents. Reported below: 345 F. 2d 79.
No. 807. Interstate Commerce Commission v. Northwest Agricultural Cooperative Association, Inc. C. A. 9th Cir. Certiorari denied. Solicitor General Marshall, Robert W. Ginnane and Bernard A. Gould for petitioner. Frank E. Nash for respondent. Reported below: 350 F. 2d 252.
No. 809. Winchester Drive-In Theatre, Inc., et al. v. Twentieth Century-Fox Film Corp. et al. C. A. 9th Cir. Certiorari denied. Joseph L. Alioto for petitioners. Thomas E. Haven and Robert D. Raven for respondents. Reported below: 351 F. 2d 925.
No. 817. Tansel v. Photon, Inc. C. A. Ist Cir. Certiorari denied. Earl Babcock and Elliott I. Pollock for petitioner. Melvin R. Jenney for respondent. Reported below: 349 F. 2d 856.
1012
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
No. 813. Estate of Geiger et al. v. Commissioner of Internal Revenue. C. A. 8th Cir. Certiorari denied. Phillip Steve Dandos and James M. McNally for petitioners. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Harold C. Wilkenfeld for respondent. Reported below: 352 F. 2d 221.
No. 819. Reoux v. First National Bank of Glens Falls, Executor. Ct. App. N. Y. Certiorari denied. Peyton Ford for petitioner. Cari O. Oison for respondent. Reported below: 16 N. Y. 2d 685, 209 N. E. 2d 546.
No. 767. Smaldone v. Colorado. Sup. Ct. Colo. Certiorari denied. The Chief Justice and Mr. Justice Black are of the opinion that certiorari should be granted. Edward S. Barlock for petitioner. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John E. Bush, Assistant Attorney General, for respondent. Reported below:------ Colo.--------------------------------------------------, 405 P. 2d 208.
No. 768. Salardino v. Colorado. Sup. Ct. Colo. Certiorari denied. The Chief Justice and Mr. Justice Black are of the opinion that certiorari should be granted. Edward S. Barlock for petitioner. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John E. Bush, Assistant Attorney General, for respondent. Reported below :----- Colo.--------------------------------------------------, 405 P. 2d 211.
No. 102, Mise. Shipp v. Wilson, Warden. Sup. Ct. Cal. Certiorari denied. Reported below: 62 Cal. 2d 547, 399 P. 2d 571.
No. 169, Mise. Stiltner v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
ORDERS.
1013
382 U. S.	January 24, 1966.
No. 788. Quintana v. Colorado. Sup. Ct. Colo. Certiorari denied. The Chief Justice and Mr. Justice Black are of the opinion that certiorari should be granted. Edward S. Barlock for petitioner. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John E. Bush, Assistant Attorney General, for respondent. Reported below: — Colo.-------. 405 P. 2d 212.
No. 70, Mise. Coor v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Cox, Assistant Attorney General Vinson, Béatrice Rosenberg and Jerome M. Feit for the United States. Reported below: 119 U. S. App. D. C. 259, 340 F. 2d 784.
No. 85, Mise. Selz v. California. Sup. Ct. Cal. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Edsel W. Haws and Raymond M. Momboisse, Deputy Attorneys General, for respondent.
No. 274, Mise. Johnson v. Maryland. Ct. App. Md. Certiorari denied. Charles P. Howard, Jr., for petitioner. Reported below: 238 Md. 140, 207 A. 2d 643.
No. 311, Mise. Grossi v. Heinze, Warden, et al. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, and Doris H. Maier, Assistant Attorney General, for respondents.
No. 348, Mise. Nuole v. California. Sup. Ct. Cal. Certiorari denied. Petitioner pro se. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for respondent.
1014
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
No. 396, Mise. Melton v. Colorado. Sup. Ct. Colo. Certiorari denied. Petitioner pro se. Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John P. Moore, Assistant Attorney General, for respondent. Reported below :-----Colo.----, 401 P. 2d 605.
No. 429, Mise. Ruud v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Béatrice Rosenberg and Daniel H. Benson for the United States. Reported below: 347 F. 2d 321.
No. 448, Mise. Cuevas v. Sdrales, dba Seventy-Three Inn, et al. C. A. lOth Cir. Certiorari denied. George H. Searle for petitioner. Gerald R. Miller and Shirley P. Jones for respondents. Reported below: 344 F. 2d 1019.
No. 454, Mise. Watts v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 476, Mise. White v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Mervyn Hamburg for the United States. Reported below: 120 U. S. App. D. C. 319, 346 F. 2d 800.
No. 494, Mise. Certiorari denied. 2d 507.
Unsworth v. Oregon. Sup. Ct. Ore.
Reported below: 240 Ore. 453, 402 P.
No. 512, Mise. Ponton v. Oregon. Sup. Ct. Ore. Certiorari denied. Howard R. Lonergan for petitioner. George Van Hoomissen for respondent. Reported below : 240 Ore. 30, 399 P. 2d 30.
ORDERS.
1015
382 U. S.
January 24, 1966.
No. 514, Mise. Gardner v. United States. C. A. 7th Cir. Certiorari denied. Charles L. Decker for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Sidney M. Gla-zer for the United States. Reported below: 347 F. 2d 405.
No. 525, Mise. Wright v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 536, Mise. Aubel v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 589, Mise. Giraud v. United States. C. A. 9th Cir. Certiorari denied. Charles P. Scully for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 348 F. 2d 820.
No. 632, Mise. Brooks v. Florida. Sup. Ct. Fia. Certiorari denied.
No. 650, Mise. Lesco v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 194 Kan. 555, 400 P. 2d 695.
No. 663, Mise. Schantz v. Arizona. Sup. Ct. Ariz. Certiorari denied. John P. Frank for petitioner. Dar-rell F. Smith, Attorney General of Arizona, and Paul G. Rosenblatt, Assistant Attorney General, for respondent. Reported below: 98 Ariz. 200, 403 P. 2d 521.
No. 716, Mise. Cimino v. United States. C. A. 2d Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
786-211 0-66—52
1016
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
No. 688, Mise. Nichols v. Randolph, Warden. C. A. 7th Cir. Certiorari denied. Petitioner pro se. William G. Clark, Attorney General of Illinois, and Richard A. Michael and Philip J. Rock, Assistant Attorneys General, for respondent.
No. 696, Mise. Bradley v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 347 F. 2d 121.
No. 749, Mise. Grant v. Florida. Sup. Ct. Fia. Certiorari denied.
No. 775, Mise. Copestick v. Washington. Sup. Ct. Wash. Certiorari denied.
No. 776, Mise. Schack v. Florida. C. A. 5th Cir. Certiorari denied.
No. 781, Mise. Johnson v. Tinsley, Warden. C. A. lOth Cir. Certiorari denied. Isaac Mellman and Gerald N. Mellman for petitioner.
No. 806, Mise. Davis v. Peyton, Penitentiary Superintendent. C. A. 4th Cir. Certiorari denied.
No. 811, Mise. Marcella v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 344 F. 2d 876.
No. 814, Mise. Lehman v. Illinois. Sup. Ct. 111. Certiorari denied.
ORDERS.
1017
382 U. S.	January 24, 1966.
No. 819, Mise. Robbins v. California. Sup. Ct. Cal. Certiorari denied.
No. 820, Mise. Stewart v. Smith, U. S. District Judge. C. A. 6th Cir. Certiorari denied.
No. 823, Mise. Scott v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
No. 840, Mise. O’Callahan v. Attorney General of the United States. C. A. Ist Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Doar and David L. Norman for respondent. Reported below: 351 F. 2d 43.
No. 866, Mise. Coggins v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Mervyn Hamburg for the United States.
No. 871, Mise. Cardarella v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 351 F. 2d 272.
No. 880, Mise. Gilmore v. California. Dist. Ct. App. Cal., Ist App. Dist. Certiorari denied.
No. 881, Mise. Finley v. California. Sup. Ct. Cal. Certiorari denied.
No. 888, Mise. Freeman v. Maxwell, Warden. Sup. Ct. Ohio. Certiorari denied.
1018
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
No. 885, Mise. Trest v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 122 U. S. App. D. C. 11, 350 F. 2d 794.
No. 893, Mise. Moss v. California et al. Sup. Ct. Cal. Certiorari denied.
No. 899, Mise. Hafiz v. Maxwell, Warden. Sup. Ct. Ohio. Certiorari denied.
No. 900, Mise. Deckert v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 905, Mise. Kousick v. Klinger et al. Sup. Ct. Cal. Certiorari denied.
No. 906, Mise. Twyman v. Myers, Correctional Superintendent. Sup. Ct. Pa. Certiorari denied.
No. 914, Mise. Austin v. Maine et al. Sup. Jud. Ct. Me. Certiorari denied. Petitioner pro se. John W. Benoit, Assistant Attorney General of Maine, for respondents.
No. 920, Mise. Croom v. Follette, Warden. C. A. 2d Cir. Certiorari denied.
No. 927, Mise. Jodon v. Russell, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 946, Mise. Conerly v. United States. C. A. 9th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 350 F. 2d 679.
ORDERS.
1019
382 U. S.	January' 24, 1966.
No. 944, Mise. Mundt et al. v. Home Fédéral Sav-ings & Loan Association et al. C. A. 9th Cir. Certiorari denied. Reported below: 349 F. 2d 938.
No. 930, Mise. Wilson v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied.
No. 934, Mise. Castillo v. Fay, Warden. C. A. 2d Cir. Certiorari denied. Leon B. Polsky for petitioner. Frank S. Hogan, H. Richard Uviller and Malvina H. Guggenheim for respondent. Reported below: 350 F. 2d 400.
No. 941, Mise. Corcoran v. California. C. A. 9th Cir. Certiorari denied.
No. 943, Mise. Finley v. California. C. A. 9th Cir. Certiorari denied.
No. 948, Mise. Chance v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 195 Kan. 430, 407 P. 2d 236.
No. 949, Mise. Powell v. Maxwell, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 350 F. 2d 353.
No. 952, Mise. Cervantes v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
No. 953, Mise. Mickels v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
No. 955, Mise. Gorman v. Kings Mercantile Co., Inc., et al. Ct. App. N. Y. Certiorari denied. Jacob Rassner for petitioner. John J. Boyle for respondent Title Guarantee Co.
1020
OCTOBER TERM, 1965.
January 24, 1966.
382 U. S.
No. 954, Mise. Hollis v. Beto, Corrections Direc-tor. C. A. 5th Cir. Certiorari denied. Reported below: 352 F. 2d 550.
No. 959, Mise. Cardarella v. United States. C. A. 8th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States. Reported below: 351 F. 2d 443.
No. 960, Mise. Merrill v. Alaska. Sup. Ct. Alaska. Certiorari denied.
No. 965, Mise. Bell v. Kentucky. Ct. App. Ky. Certiorari denied. Reported below: 395 S. W. 2d 784.
No. 972, Mise. Milligan v. Wilson, Warden. C. A. 9th Cir. Certiorari denied.
No. 978, Mise. Zanca v. Maimonides Hospital. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 79, Mise. Warner v. Kentucky. Ct. App. Ky. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Petitioner pro se. Robert Matthews, Attorney General of Kentucky, and Joseph H. Eckert, Assistant Attorney General, for respondent. Reported below: 386 S. W. 2d 455.
No. 481, Mise. Alford v. Arizona. Sup. Ct. Ariz. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Petitioner pro se. Darrell F. Smith, Attorney General of Arizona, and Paul G. Rosenblatt, Assistant Attorney General, for respondent. Reported below: 98 Ariz. 124, 402 P. 2d 551.
No. 981, Mise. Copestick v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied.
ORDERS.
1021
382 U. S.
January 24, 26, 1966.
No. 988, Mise. Taylor v. Walker, Warden. C. A. lOth Cir. Certiorari denied.
No. 1110, Mise. Hutchins v. Dunbar, Corrections Director. C. A. 9th Cir. Certiorari denied.
Rehearing Denied.
No. 305. Derfus v. California, ante, p. 955;
No. 343. Cudia et al. v. United States, ante, p. 955;
No. 520. Wilson v. Commissioner of Internal Revenue, ante, p. 108;
No. 534. Battaglia v. United States, ante, p. 955;
No. 607. Andrews v. United States, ante, p. 956;
No. 703. Postell et al. v. United States, ante, p. 956;
No. 706. Andrews et al. v. United States, ante, p. 956 ;
No. 707. Owens et al. v. United States, ante, p. 956;
No. 621. Hill v. United States et al., ante, p. 956; and
No. 211, Mise. Syverson v. United States, ante, p. 961. Pétitions for rehearing denied.
January 26, 1966.
Dismissal Under Rule 60.
No. 411. Marsh, Secretary of State of Nebraska, et al. v. Dworak et al. Appeal from D. C. Neb. Appeal dismissed pursuant to Rule 60 of the Rules of this Court. Clarence A. H. Meyer, Attorney General of Nebraska, Richard H. Williams, Assistant Attorney General, and Robert A. Nelson, Spécial Assistant Attorney General, for appellants. August Ross and Robert E. O’Connor for appellees. Reported below: 242 F. Supp. 357.
1022
OCTOBER TERM, 1965.
382 U. S.
January 31, 1966.
Miscellaneous Orders.
No. 18, Original. Illinois v. Missouri. The amended complaint is filed and the State of Missouri is allotted 60 days to answer the complaint, as amended. William G. Clark, Attorney General of Illinois, Richard A. Michael, Assistant Attorney General, and Terence F. MacCarthy, Spécial Assistant Attorney General, for plaintiff. [For earlier orders herein, see 379 U. S. 952; 380 U. S. 901, 969; ante, p. 803.]
No. 1023, Mise. James v. California; and
No. 1040, Mise. Lishey v. Wilson, Warden. Motions for leave to file pétitions for writs of habeas corpus denied.
No. 1050, Mise. Gorham v. Fitzharris, Correc-tional Superintendent. Motion for leave to file pétition for writ of habeas corpus and for other relief denied.
No. 984, Mise. Herb v. Florida. Motion for leave to file pétition for writ of habeas corpus denied. Treat-ing the papers submitted as a pétition for writ of certiorari, certiorari is denied.
No. 1044, Mise. Morrison v. Davis, Clerk of the United States Suprême Court. Motion for leave to file pétition for writ of mandamus denied.
Probable Jurisdiction Postponed.
No. 273, Mise. Spencer v. Texas. Appeal from Ct. Crim. App. Tex. Motion for leave to proceed in forma pauperis granted and further considération of the question of jurisdiction in this case postponed to the hearing
ORDERS.
1023
382 U. S.	January 31, 1966.
of the case on the merits. The case is transferred to the appellate docket and set for oral argument immediately following No. 128, Mise. Louis V. Nelson for appellant. Waggoner Carr, Attorney General of Texas, Hawthome Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, and Howard M. Fonder, Charles B. Swanner and Gilbert J. Pena, Assistant Attorneys General, for appellee. Reported below: 389 S. W. 2d 304.
Certiorari Granted. (See also No. 274, ante, p. 456.)
No. 506. Adderley et al. v. Florida. Dist Ct. App. Fia., lst Dist. Certiorari granted. Richard Yale Feder and Tobias Simon for petitioners. Earl Faircloth, Attorney General of Florida, and William D. Roth, Assistant Attorney General, for respondent.
No. 128, Mise. Bell v. Texas. Ct. Crim. App. Tex. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket. Petitioner pro se. Waggoner Carr, Attorney General of Texas, Hawthome Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, and Howard M. Fonder, Gilbert J. Pena and Charles B. Swanner, Assistant Attorneys General, for respondent. Reported below: 387 S. W. 2d 411.
No. 724. Osborn v. United States. C. A. 6th Cir. Certiorari granted. Mr. Justice White and Mr. Justice Fortas took no part in the considération or decision of this pétition. Jacob Kossman for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 350 F. 2d 497.
1024
OCTOBER TERM, 1965.
January 31, 1966.
382 U. S.
No. 794. Hoffa v. United States;
No. 795. Parks v. United States;
No. 796. Campbell v. United States; and
No. 797. King v. United States. C. A. 6th Cir. Motion of the Criminal Courts Bar Association of Los Angeles for leave to file a brief, as amicus curiae in No. 794, granted. The pétitions for writs of certiorari are also granted limited to the foliowing question:
“Whether evidence obtained by the Government by means of deceptively placing a secret informer in the quarters and councils of a défendant during one criminal trial so violâtes the defendant’s Fourth, Fifth and Sixth Amendment rights that suppression of such evidence is required in a subséquent trial of the same défendant on a different charge.”
The cases are Consolidated and a total of three hours is allotted for oral argument. Mr. Justice White and Mr. Justice Fortas took no part in the considération or decision of this motion or these pétitions.
Morris A. Shenker and Joseph A. Fanelli for petitioner in No. 794. Jacques M. Schiffer for petitioner in No. 795. Cecil D. Branstetter for petitioner in No. 796. P. D. Maktos, John Maktos, Moses Krislov and Harold E. Brown for petitioner in No. 797. Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin and Robert S. Erdahl for the United States. Morris Levine for Criminal Courts Bar Association of Los Angeles, as amicus curiae, in support of the pétition in No. 794. Reported below: 349 F. 2d 20.
No. 811. Lewis v. United States. C. A. Ist Cir. Certiorari granted. S. Myron Klarfeld for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 352 F. 2d 799.
ORDERS.
1025
382 U. S.	January 31, 1966.
No. 831. SwiTZERLAND CHEESE ASSOCIATION, INC., et al. v. E. Horne’s Market, Inc. C. A. Ist Cir. Certiorari granted. John J. McGlew and Alfred E. Page for petitioners. Reported below: 351 F. 2d 552.
No. 268, Mise. Reed v. Beto, Corrections Director. C. A. 5th Cir. Motion for leave to proceed in forma pauperis and pétition for writ of certiorari granted. The case is transferred to the appellate docket and set for oral argument immediately following No. 273, Mise. Charles W. Tessmer, Clyde W. Woody and Emmett Colvin, Jr., for petitioner. Waggoner Carr, Attorney General of Texas, Hawthome Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, and Gilbert J. Pena, Charles B. Swanner and Howard M. Fonder, Assistant Attorneys General, for respondent. Reported below: 343 F. 2d 723.
Certiorari Denied. (See also No. 966, Mise., ante, p. 455; and No. 984, Mise., supra.)
No. 712. Velsicol Chemical Corp. v. Golden Gâte Hop Ranch, Inc. Sup. Ct. Wash. Certiorari denied. William A. Helsell for petitioner. C. W. Hdlverson for respondent. Reported below: 66 Wash. 2d 469, 403 P. 2d 351.
No. 773. Sociedad Maritima San Nicholas, S. A., et al. v. Bouas. C. A. 2d Cir. Certiorari denied. Melvin J. Tublin for petitioners. Isaac Salem for respondent.
No. 810. Simpson et al. v. United States. C. A. D. C. Cir. Certiorari denied. Edward L. Carey and Walter E. Gillcrist for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States.
1026
OCTOBER TERM, 1965.
January 31, 1966.
382 U. S.
No. 492. McFaddin Express, Inc., et al. v. Adley Corp. et al. C. A. 2d Cir. Certiorari denied. Tobias Weiss for petitioners. Joseph P. Cooney for Adley Corp. et al., and Solicitor General Marshall for the United States, respondents. Reported below: 346 F. 2d 424.
No. 659. Ross v. Stanley et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Fortas took no part in the considération or decision of this pétition. William E. Haudek for petitioner. M. W. Wells for Stanley et al.; David W. Hedrick for Midwestern Constructors, Inc., et al.; John Bingham for Harbert Construction Corp. ; and Robert F. Campbell and R. Y. Patterson, Jr., for Florida Gas Co. et al., respondents. Reported below: 346 F. 2d 645.
No. 816. Government Employées Insurance Co. v. United States. C. A. lOth Cir. Certiorari denied. Lowell White for petitioner. Solicitor General Marshall, Assistant Attorney General Douglas and Alan S. Rosenthal for the United States. Reported below: 349 F. 2d 83.
No. 827. United States Fidelity & Guaranty Co. v. Winkler ET al. C. A. 8th Cir. Certiorari denied. Roy F. Carter for petitioner. Charles L. Bacon and Vincent E. Baker for respondents. Reported below: 351 F. 2d 685.
No. 833. Houston Chapter, Associated General CONTRACTORS OF AMERICA, InC., ET AL. V. NATIONAL Labor Relations Board. C. A. 5th Cir. Certiorari denied. L. G. Clinton, Jr., and Tom M. Davis for petitioners. Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli and Norton J. Corne for respondent. Reported below: 349 F. 2d 449.
ORDERS.
1027
382 U. S.	January 31, 1966.
No. 743. Indiana Broadcasting Corp. v. Commis-sioner of Internal Revenue. C. A. 7th Cir. Certiorari denied. Whitman Knapp and Martin F. Richman for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts and Robert A. Bernstein for respondent. Douglas A. Anello for National Association of Broadcasters, as amicus curiae, in support of the pétition. Reported below: 350 F. 2d 580.
No. 828. Lichota et ux. v. United States. C. A. 6th Cir. Certiorari denied. Sumner Canary for petitioners. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Julia P. Cooper for the United States. Reported below: 351 F. 2d 81.
No. 835. Republic of Iraq v. First National City Bank, Administrator. C. A. 2d Cir. Certiorari denied. Léo C. Fennelly for petitioner. Herbert Brownell and Woodson D. Scott for respondent. Reported below: 353 F. 2d 47.
No. 844. Miller v. United States. C. A. 9th Cir. Certiorari denied. Burton Marks for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Béatrice Rosenberg for the United States. Reported below: 351 F. 2d 598.
No. 732, Mise. Vasquez-Ochoa v. United States et al. C. A. 9th Cir. Certiorari denied. Petitioner prô se. Solicitor General Marshall for the United States et al.
No. 872. Dexter et al. v. United States. C. A. 5th Cir. Motion to dispense with printing the pétition granted. Certiorari denied. David Goldman for petitioners. Solicitor General Marshall for the United States. Reported below: 351 F. 2d 461.
1028
OCTOBER TERM, 1965.
January 31, 1966.
382 U.S.
No. 883, Mise. Streeter v. Alabama. Sup. Ct. Ala. Certiorari denied. Crampton Harris for petitioner. Reported below: 278 Ala. 272, 177 So. 2d 826.
No. 865. Frank v. Tomlinson, District Director of Internal Revenue. C. A. 5th Cir. Certiorari denied. Arthur B. Cunningham and Philip T. Weinstein for petitioner. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph M. Howard and John M. Brant for respondent. Reported below: 351 F. 2d 384.
No. 820. United States v. International Business Machines Corp. Ct. Cl. Motion of counsel in No. 922 to defer considération of the pétition in No. 820 denied. Certiorari denied. Solicitor General Marshall, Acting Assistant Attorney General Roberts, Jack S. Levin, Harry Baum and Robert A. Bernstein for the United States. Daniel M. Gribbon, William H. Allen and Brice M. Clagett for respondent. William Lee McLane on the motion. William H. Allen in opposition to the motion. Reported below: 170 Ct. Cl. 357, 343 F. 2d 914.
No. 848, Mise. Beatty v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 350 F. 2d 287.
No. 873, Mise. Brown v. United States. C. A. 7th Cir. Certiorari denied. Thomas B. McNeill for petitioner. Solicitor General Marshall, Assistant Attorney General Doar and David L. Norman for the United States. Reported below: 351 F. 2d 564.
No. 834, Mise. Williams v. California. Sup. Ct. Cal. Certiorari denied.
ORDERS.
1029
382 U. S.	January 31, 1966.
No. 886, Mise. Chase v. Robbins, Warden. C. A. Ist Cir. Certiorari denied.
No. 887, Mise. Hackett v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 348 F. 2d 883.
No. 890, Mise. Castro v. United States. Sup. Ct. Cal. Certiorari denied.
No. 898, Mise. McIntosh v. United States. C. A. 6th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 971, Mise. Baker v. Illinois. Cir. Ct. 111., Marion County. Certiorari denied.
No. 910, Mise. Shores v. United States. C. A. 5th Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Kirby W. Patterson for the United States. Reported below: 352 F. 2d 485.
No. 940, Mise. Lewis v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied.
No. 977, Mise. Andrews v. Smith et al. App. Ct. 111., 2d Dist. Certiorari denied. John R. Snively for petitioner. William W. Peterson and Russell E. Smith for respondents. Reported below: 54 111. App. 2d 51, 203 N. E. 2d 160.
No. 958, Mise. Cooper v. United States. C. A. D. C. Cir. Certiorari denied.
No. 997, Mise. Wellman v. California. Sup. Ct. Cal. Certiorari denied.
1030
OCTOBER TERM, 1965.
January 31, 1966.
382 U. S.
No. 968, Mise. Hatcher v. United States. C. A. D. C. Cir. Certiorari denied. Robert Reed Gray for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Béatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 122 U. S. App. D. C. 148, 352 F. 2d 364.
No. 907, Mise. Kenney et al. v. Trinidad Corp. C. A. 5th Cir. Certiorari denied. Benjamin E. Smith and Arthur Mandell for petitioners. Benjamin W. Yancey for respondent. Reported below: 349 F. 2d 832.
No. 976, Mise. Feist v. California. Sup. Ct. Cal. Certiorari denied.
No. 1000, Mise. McFarland v. United States. C. A. D. C. Cir. Certiorari denied. Petitioner pro se. Solicitor General Marshall for the United States.
No. 1026, Mise. Johnson et al. v. Lloyd. C. A. D. C. Cir. Certiorari denied. Thurman L. Dodson for petitioners. James F. Temple for respondent.
No. 931, Mise. Parker v. Board of Education, Prince George’s County, Maryland. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Robert H. Reiter for petitioner. Reported below: 348 F. 2d 464.
Rehearing Denied.
No. 557. International Terminal Operating Co., Inc. v. N. V. Nederl. Amerik Stoomv. Maats., ante, p. 283. Pétition for rehearing denied.
No. 718, Mise. Williamson et al. v. Blankenship, Judge, et al., ante, p. 923. Motion for leave to file pétition for rehearing denied.
INDEX
ACTIONS. See Procedure.
ADMINISTRATIVE PROCEDURE. See Fédéral Power Commission; Fédéral Trade Commission; Intervention; Judicial Review; Jurisdiction, 2; Labor.
AD VALOREM TAXES. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 2.
ADVERTISING. See Fédéral Trade Commission.
ALABAMA. See Constitutional Law, I, 2-3.
AMICUS CURIAE. See Intervention; Jurisdiction, 2.
ANTITRUST ACTS. See also Contempt, 3; Interstate Commerce Commission; Patents.
Clayton Act—Private antitrust suits—Statute of limitations.— Section 5 (b) of the Clayton Act, which provides for tolling the statute of limitations for a private antitrust suit during the pend-ency of a government antitrust action where the private suit is “based in whole or in part on any matter complained of” in the government suit, applies even though there is not complété identity of parties, not complété overlap of time periods for the alleged conspiracies, and not coterminous géographie areas set forth in the complaints. Leh v. General Petroleum Corp., p. 54.
APPEALS. See Fédéral Rules of Civil Procedure; Intervention; Jurisdiction, 1-2, 6.
APPELLATE COURTS. See Procedure.
APPLICATIONS FOR PATENTS. See Patent Applications.
ARKANSAS. See Constitutional Law, II, 4; Jurisdiction, 4; Pre-emption; Standing to Sue.
ASSIGNMENT OF CLAIMS ACT. See Bankruptcy Act, 2.
ASSOCIATIONS. See Jurisdiction, 3.
ATTORNEY GENERAL. See Constitutional Law, III; Subversive Activities Control Act.
AUTOMOBILE REGISTRATION. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 1.
786-211 0-66—53
1031
1032
INDEX.
BACK PAY. See Judicial Review; Labor.
BANK MERGERS. See Contempt, 3.
BANKRUPTCY ACT. See also Bankruptcy Trustée.
1.	Claim by creditor—Surrender of preferences—Summary jurisdiction—Jury trial.—A bankruptcy court has summary jurisdiction to order the surrender of voidable preferences asserted and proved by the trustée in response to a claim filed by the creditor who received the preferences. Katchen v. Landy, p..323.
2.	Loss-carryback tax refunds—“Property” and “transférable”— Claims passed to trustée.—Potential claims for loss-carryback fédéral income tax refunds constituted “property” which could hâve been “transferred” at the time of bankruptcy within the meaning of § 70a (5) of the Act and thus had passed to the trustée in bankruptcy. Segal v. Rochelle, p. 375.
BANKRUPTCY TRUSTEE. See also Bankruptcy Act.
Internai Revenue Code—Trustée as “judgment creditor”—Unre-corded tax lien.—Bankruptcy trustée has the status of a statutory “judgment creditor” ând as such prevails over an unrecorded fédéral tax lien. United States v. Speers, p. 266.
CALIFORNIA. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 1.
CARRIERS. See Interstate Commerce Act; Interstate Commerce Commission; Judicial Review; Labor.
CHARITABLE TRUSTS. See Constitutional Law, II, 1-2.
CHATTEL MORTGAGE. See Coverture.
CITY ORDINANCES. See Constitutional Law, I, 2-3.
CIVIL ACTIONS. See Procedure.
CLAYTON ACT. See Antitrust Acts; Interstate Commerce Commission; Patents.
COLLECTIVE BARGAINING AGREEMENTS. See Judicial Review; Labor.
COMMERCE CLAUSE. See Jurisdiction, 4; Pre-emption.
COMMUNIST PARTY. See Constitutional Law, III; Subversive Activities Control Act.
COMPETITION. See Interstate Commerce Commission; Patents.
CONNECTING LINES. See Interstate Commerce Act.
INDEX.
1033
CONSTITUTIONAL LAW. See also Evidence; Jurisdiction, 4-5; Pre-emption; Standing to Sue; Statutory Presumptions; Subversive Activities Control Act.
I.	Due Process.
1.	Acquitted défendant—Costs of prosecution.—State statute pro-viding that jury may détermine that acquitted défendant is liable for costs of prosecution violâtes the Due Process Clause for vagueness and absence of standards against arbitrary imposition of costs. Giaccio v. Pennsylvania, p. 399.
2.	Ordinance too broad on its face—Conviction set aside.—Conviction under city ordinance too broad on its face, though more narrowly construed in later state court decisions, must be set aside in view of possibility of unconstitutional construction thereof. Shut-tlesworth v. Birmingham, p. 87.
3.	Traffic ordinance—Lock of evidence to convict.—Conviction of pedestrian not around vehicle arrested by policeman, not directing traffic, under city ordinance interpreted to apply only to enforce-ment of orders of traffic officer while directing traffic must fall for lack of evidence to support alleged violation. Shuttlesworth v. Birmingham, p. 87.
II.	Equal Protection of the Laws.
1.	Land left to city in trust as park for white people—Résignation of city as trustée.—Where tradition of municipal control and maintenance had been long perpetuated, proof of substitution of trustées is insufficient per se to divest park of its public character. Evans v. Newton, p. 296.
2.	Management of park left to city in trust—Racial discrimination.—Where private individuals or groups exercise powers or carry on functions govemmental in nature, such as operating a park, they become agencies or instrumentalities of the State and subject to the Fourteenth Amendment. Evans v. Newton, p. 296.
3.	School desegregation—Faculty allocation on racial basis.—Petitioners were entitled to full evidentiary hearings without delay on their contention that faculty allocation on racial basis invali-dated school desegregation plans approved by lower courts. Bradley v. School Board, p. 103.
4.	School desegregation—Immédiate transfer pending plan for immédiate desegregation.—Assignment of petitioners to Negro high school on basis of race is constitutionally prohibited and, pending plan for immédiate desegregation of high schools, petitioners shall be allowed immédiate transfer to white high school with more
1034
INDEX.
CONSTITUTIONAL LAW—Continued.
extensive curriculum from which they were excluded because of race. Rogers v. Paul, p. 198.
III.	Fifth Amendment.
Self-Incrimination Clause—Registration of Communist Party members.—Filing the registration form or registration statement pursuant to the Subversive Activities Control Act by Communist Party members would be incriminatory because the admission of membership or other information might be used as evidence in or supply leads to criminal prosecution. Albertson v. SACB, p. 70.
IV.	Search and Seizure.
Incident to arrest—Unreasonable search—Admission of evidence.—Search without a warrant of petitioner’s home, more than two blocks away from place of arrest was not incident to arrest and it was constitutional error to admit fruits of the illégal search into evidence. James v. Louisiana, p. 36.
V.	Self-Incrimination Clause.
Comment on defendant’s failure to testify in state criminal trial— Rétroactive application of holding.—The holding of Griffin v. California that comment on defendant’s failure to testify in state criminal trial violâtes the privilège against self-incrimination will not be applied retroactively. Tehan v. Shott, p. 406.
CONTEMPT.
1.	Criminal contempt—Rule of Criminal Procedure 1$ (a)—Summary punishment.—Summary punishment of criminal contempt under Rule 42 (a) is for such acts of misconduct in the court’s presence as require prompt vindication of the court’s dignity and authority. Harris v. United States, p. 162.
2.	Grand jury witness—Refusai to testify on self-incrimination grounds—Immunity.—Refusai to testify before a grand jury, re-peated before the court, not involving a serious threat to orderly procedure is punishable as contempt only after notice and hearing as provided by Rule of Criminal Procedure 42 (b). Harris v. United States, p. 162.
3.	Mandate of Suprême Court—Divestiture in antitrust action— Compliance.—Since Suprême Court’s order did not require divestiture in bank merger case within any spécifie period, présentation by the parties following several postponements of a proposed inter-locutory decree to the District Court did not violate this Court’s judgment and appellants should not hâve been held in contempt. First Security Nat. Bank v. U. S., p. 34.
INDEX.
1035
CONTRACTS. See Coverture.
CO-PENDING APPLICATIONS. See Patent Applications.
CORPORATIONS. See Jurisdiçtion, 3.
COSTS. See Constitutional Law, I, 1.
COUNTERCLAIMS. See Patents.
COURT OF APPEALS. See Fédéral Rules of Civil Procedure;
Intervention; Jurisdiçtion, 1-2.
COURTS. See Bankruptcy Act, 1; Constitutional Law, II, 3; Contempt, 1-2; Intervention; Jurisdiçtion, 1-2, 4; Préemption; Procedure.
COVERTURE.
Separate property of married women—Loan by Small Business Administration to husband and wife.—There is no fédéral interest which requires that the local law be overridden in this case in order that the Fédéral Government be enabled to collect from the wife’s separate property in supervention of the Texas law of coverture. United States v. Yazell, p. 341.
CREDITORS. See Bankruptcy Act, 1-2; Bankruptcy Trustée; Coverture.
CRIMINAL LAW. See Constitutional Law, I, 1-3; III-V; Contempt, 1-2; Evidence; Statutory Presumptions; Subversive Activities Control Act.
DEATH. See Judgments; Rules.
DEBTOR AND CREDITOR. See Bankruptcy Act, 1-2 ; Coverture.
DECEPTION. See Fédéral Trade Commission.
DEFENDANTS. See Constitutional Law, I, 1.
DEFICIENCY JUDGMENT. See Coverture.
DESEGREGATION. See Constitutional Law, II, 1-4; Standing to Sue.
DISCRIMINATION. See Constitutional Law, II, 1-4; Interstate Commerce Act; Standing to Sue.
DISTRICT COURTS. See Jurisdiçtion, 3-6; Pre-emption.
DIVERSITY JURISDIÇTION. See Jurisdiçtion, 3.
DIVESTITURE. See Contempt, 3.
DUE PROCESS. See Constitutional Law, I, 1-3; Statutory Presumptions.
1036
INDEX.
EMPLOYER AND EMPLOYEE. See Intervention; Judgments;
Judicial Review; Jurisdiction, 2, 4; Labor; National Labor Relations Act, 1-2; Pre-emption; Rules.
EQUAL PROTECTION OF THE LAWS. See Constitutional Law, II, 1-4; Standing to Sue.
EQUITY. See Bankruptcy Act, 1.
EVIDENCE. See also Constitutional Law, I, 2-3; III-IV; Statu-tory Presumptions ; Subversive Activities Control Act.
Illégal search—Admission of fruits of search into evidence.—It was constitutional error to admit into evidence fruits of an illégal search, made without a warrant and not incident to an arrest. James v. Louisiana, p. 36.
FACULTY ALLOCATION. See Constitutional Law, II, 3-4;
Standing to Sue.
FAILURE TO TESTIFY. See Constitutional Law, III; V.
FEDERAL POWER COMMISSION.
1.	Natural Gas Act—Prices of Interstate gas—“In-line” priées.— The Commission had power under § 7 of the Natural Gas Act to protect the public interest by requiring as an intérim measure that interstate gas prices be no higher than existing levels under other contemporaneous certificates, i. e., “in-line” prices, without consid-ering evidence under which just and reasonable rates are fixed under § 5. United Gas v. Callery Properties, p. 223.
2.	Rates for natural gas—Refunds—Interest.—In the exercise of its power to order prompt refunds, the Commission could properly measure the refunds due by the différence between the original contract rates which it had erroneously sanctioned and the “in-line” rates, and it was justified in imposing interest to prevent unjust enrichment. United Gas v. Callery Properties, p. 223.
FEDERAL RULES OF CIVIL PROCEDURE.
Rule 6 (a)—Time for taking appeal—Expiration on Saturday.— Rule 6 (a) extending time limit that would otherwise expire on Saturday, Sunday or holiday is not inapplicable on ground that Court of Appeals had directed District Court Clerk’s office to remain open Saturday mornings. Jones & Laughlin v. Gridiron Steel, p. 32.
FEDERAL RULES OF CRIMINAL PROCEDURE. See Con-tempt, 1-2.
INDEX.
1037
FEDERAL-STATE RELATIONS. See Coverture; Jurisdiction, 3-6; National Labor Relations Act, 1-2; Pre-emption; Sol-diers’ and Sailors’ Civil Relief Act of 1940, 1-2.
FEDERAL TAX LIENS. See Bankruptcy Trustée.
FEDERAL TRADE COMMISSION.
Deceptive pricing—“Free” can of paint—Judicial review.—Since there was substantial evidence in the record to support the finding of deceptive pricing by the FTC, its conclusion that the practice was deceptive was not arbitrary and must be sustained by the courts. FTC v. Mary Carter Paint Co., p. 46.
FIFTH AMENDMENT. See Constitutional Law, III; Statutory Presumptions; Subversive Activities Control Act.
FINAL JUDGMENTS. See Constitutional Law, V; Judgments.
FLORIDA. See Interstate Commerce Commission.
FOURTEENTH AMENDMENT. See Constitutional Law, I-II;
V; Standing to Sue.
FOURTH AMENDMENT. See Constitutional Law, IV ; Evidence.
FRAUD. See Patents.
FULL-CREW LAWS. See Jurisdiction, 4; Pre-emption.
GAS. See Fédéral Power Commission, 1-2.
GASOLINE PRODUCERS. See Antitrust Acts.
GEORGIA. See Constitutional Law, II, 1-2.
GRAND JURY. See Contempt, 1-2.
HEARINGS. See Constitutional Law, II, 3; Contempt, 1-2.
HOUSE TRAILERS. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 2.
ILLICIT LIQUORS. See Statutory Presumptions.
IMMUNITY. See Constitutional Law, III; Contempt, 1-2; Subversive Activities Control Act.
INCOME TAXES. See Bankruptcy Act, 2.
INFRINGEMENT. See Patents.
INJUNCTIONS. See Jurisdiction, 5-6; National Labor Relations Act, 1-2.
“IN-LINE” PRICES. See Fédéral Power Commission, 1-2.
INTEREST. See Fédéral Power Commission, 1-2.
1038
INDEX.
INTERNAL REVENUE CODE. See Bankruptcy Trustée; Statutory Presumptions.
INTERSTATE COMMERCE. See Jurisdiction, 4; Pre-emption.
INTERSTATE COMMERCE ACT.
Connecting rail Unes—Through routes—Rate discrimination.—The term “connecting lines” does not require direct physical connection but refers to all lines making up a through route, and to qualify as a “connecting line” in the absence of physical connection a carrier need only show that it participâtes in an established through route, making connection at the point of common interchange, all of whose participants stand ready to cooperate in the arrangements needed to remove the alleged rate discrimination. Western Pac. R. Co. v. United States, p. 237.
INTERSTATE COMMERCE COMMISSION.
Railroad mergers—Antitrust laws—Elimination of compétition.— The Commission can approve rail mergers notwithstanding the antitrust laws if it makes adéquate findings after weighing the effects of curtailment of compétition against advantages of improved service that merger would be “consistent with the public interest” under § 5 (2) (b) of the Interstate Commerce Act and would further the overall transportation policy. Seaboard Air Line R. Co. v. U. S., p. 154.
INTERVENTION. See also Jurisdiction, 2.
Appeals from NLRB proceedings—Rights of successful charged party and successful charging party to intervene in appellate review.—The successful charged party or the successful charging party in an NLRB proceeding has the right to intervene in an appellate proceeding brought by the unsuccessful party. Auto Workers v. Scofield, p. 205.
INVENTIONS. See Patent Applications.
JUDGMENT CREDITORS. See Bankruptcy Trustée.
JUDGMENTS. See also Rules.
Judgments of this Court—Finality—Rules.—Interest in finahty of litigation must yield where the interests of justice would make unfair the strict application of the rules of this Court. Gondeck v. Pan American Airways, p. 25.
JUDICIAL REVIEW. See also Fédéral Trade Commission; Intervention; Jurisdiction, 2; Labor.
Railway Labor Act—Finality of Railroad Adjustment Board awards—Money awards.—Fédéral district court under § 3 First (m) of the Act, which provides for finality of Adjustment Board
INDEX.
1039
JUDICIAL REVIEW—Continued.
awards “except insofâr as they shall contain a money award,” can-not open up the Board’s finding on the merits merely because money award was included; the court has power to détermine the amount of the money award for lost time, and in so doing it can evahiate changes in petitioner’s health in the 11 years since his removal from service. Gunther v. San Diego & A. E. R. Co., p. 257.
JURIDICAL PERSONS. See Jurisdiction, 3.
JURIES. See Constitutional Law, I, 1.
JURISDICTION. See also Bankruptcy Act, 1; Intervention; Judicial Review; Labor; Pre-emption; Procedure.
1.	Suprême Court—Direct appeal from three-judge court—Re-mand to permit timely appeal to Court of Appeals.—Since the direct appeal from three-judge court to this Court, which is without jurisdiction, was taken prior to Swift & Co. v. Wickham, ante, p. 111, judgment is vacated and case remanded to District Court to enter fresh decree from which timely appeal may be taken to Court of Appeals. Utility Comm’n v. Pennsylvania R. Co., p. 281.
2.	Suprême Court—“Party” to case below—Right to intervene.— Although under 28 U. S. C. §1254 (1) only a “party” to a case (which does not include an amicus curiae) in the Court of Appeals may seek review in the Suprême Court, the Court’s decision that petitioners had the right to intervene permits review of the orders denying intervention. Auto Workers v. Scofield, p. 205.
3.	District Courts—Diversity jurisdiction—Unincorporated labor unions.—An unincorporated labor union is not a “citizen” for purposes of the statute conferring diversity jurisdiction on fédéral courts, its citizenship being deemed that of each of its members. Steelworkers v. Bouligny, Inc., p. 145.
4.	District Courts—Three-judge courts—Federal-state statutory conflicts.—Since there were substantial constitutional challenges in addition to the issue of whether the fédéral statute pre-empted the field of regulating train crews, it was proper to convene a three-judge district court. Engineers v. Chicago, R. I. & P. R. Co., p. 423.
5.	District Courts—Three-judge courts—Federal-state statutory conflicts.—Three-judge court requirement applies to injunction suits depending directly on a substantive provision of the Constitution and does not apply to Supremacy Clause cases involving only federal-state statutory conflicts. Swift & Co. v. Wickham, p. 111.
6.	District Courts—Three-judge courts—Fédéral statute-state order conflict—Unconstitutionality of statute.—Three-judge court was not
1040
INDEX.
JURISDICTION—Continuée!.
required under 28 U. S. C. § 2281 for conflict between state order and fédéral statute, nor does the defense of unconstitutionality of the statute require three-judge court under § 2282, which applies only where injunction is sought to restrain enforcement of an Act of Congress. Utility Comm’n v. Pennsylvania R. Co., p. 281.
JURY TRIAL. See Bankruptcy Act, 1.
LABOR. See also Intervention; Judgments; Judicial Review;
Jurisdiction, 2, 4; National Labor Relations Act, 1-2; Préemption; Rules.
Railway Labor Act—Railroad Adjustment Board—Physical qualification of railroad engineer.—The Adjustment Board, an experienced body created by the Act to settle railroad industry disputes, did not abuse its discrétion by its interprétation of collective bargaining agreement or its appointment of medical board to détermine petitioner’s physical fitness or ifs reliance on medical board’s findings. Gunther v. San Diego & A. E. R. Co., p. 257.
LABOR UNIONS. See Jurisdiction, 3.
LICENSE FEES. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 1-2.
LIENS. See Bankruptcy Trustée.
LONGSHOREMEN’S AND HARBOR WORKERS’ COMPENSATION ACT. See Judgments; Rules.
LOSS-CARRYBACK REFUNDS. See Bankruptcy Act, 2.
LOUISIANA. See Fédéral Power Commission, 1-2.
MARINE ENGINEERS. See National Labor Relations Act, 1-2.
MARRIED WOMEN. See Coverture.
MEDICAL DISABILITY. See Judicial Review; Labor.
MERGERS. See Contempt, 3; Interstate Commerce Commission.
MILITARY SERVICE. See Soldiers’ and Sailors’ Civil Relief
Act of 1940, 1-2.
MISREPRESENTATION. See Fédéral Trade Commission.
MISSISSIPPI. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 2.
MONOPOLY. See Patents.
MOTOR VEHICLES. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 1-2.
MUNICIPAL FUNCTIONS. See Constitutional Law, II, 1-2.
INDEX.
1041
MUNICIPAL ORDINANCES. See Constitutional Law, I, 2-3.
NARCOTICS. See Constitutional Law, IV; Evidence.
NATIONAL LABOR RELATIONS ACT. See also Intervention;
Jurisdiction, 2.
1.	Pre-emption and state régulation—Supervisors—Picketing.— Section 8 (b) (4) (B) does not provide ground for pre-emption in this case, where Board’s General Counsel declined to issue complaint thereunder for similar picketing, and even if there were a § 8 (b) (4) (B) violation there would be no danger to the Act’s policy since the supervisors sought to be organized are outside the scope of the Act. Hanna Mining v. Marine Engineers, p. 181.
2.	Pre-emption and state régulation—Supervisors—Recognitional activity.—Decision of the NLRB that marine engineers are supervisors and not “employées” éliminâtes most opportunities for pre-emption, as organizational or recognitional activity aimed at supervisors is not protected by § 7 of the Act, nor can there be a breach of any other section directed only to “employées.” Hanna Mining v. Marine Engineers, p. 181.
NATURAL GAS ACT. See Fédéral Power Commission, 1-2.
NEGROES. See Constitutional Law, II, 1-4.
NONRESIDENTS. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 1-2.
NOTES. See Bankruptcy Act, 1; Coverture.
OHIO. See Constitutional Law, V.
PAINTS. See Fédéral Trade Commission.
PARKS. See Constitutional Law, II, 1-2.
PARTIES. See Constitutional Law, II, 4; Intervention; Jurisdiction, 2; Standing to Sue.
PATENT APPLICATIONS.
Application pending in Patent Office—Part of “prior art.”— Patent application pending in Patent Office at time second application is filed constitutes part of “prior art” within meaning of 35 U. S. C. § 103. Hazeltine Research v. Brenner, p. 252.
PATENTS.
Infringement suit—Counterclaim of fraud in procurement and antitrust violations.—Enforcement of patent procured by fraud on the Patent Office may violate § 2 of the Sherman Act, provided ail other éléments to establish a § 2 monopolization charge are proved, in which event treble-damage provisions of Clayton Act would be available. Walker, Inc. v. Food Machinery, p. 172.
1042
INDEX.
PEDESTRIANS. Sec Constitutional Law, I, 2-3.
PENNSYLVANIA. See Constitutional Law, I, 1.
PHYSICAL QUALIFICATIONS. See Judicial Review; Labor.
PICKETING. See National Labor Relations Act, 1.
POLICEMEN. See Constitutional Law, I, 2-3.
PRE-EMPTION. See also Jurisdiction, 4; National Labor Relations Act, 1-2.
Interstate railroads—State full-crew laws and Public Law 88-108.—It was not the legislative purpose of Public Law 88-108 to pre-empt the field of manning-level régulation and supersede States’ full-crew laws, nor was that the effect of the statute or the arbitration awards made thereunder. Engineers v. Chicago, R. I. & P. R. Co., p. 423.
PREFERENCES. See Bankruptcy Act, 1.
PRESUMPTIONS. See Statutory Presumptions.
PRICES. See Fédéral Power Commission, 1-2; Fédéral Trade Commission.
PRIORITIES. See Bankruptcy Trustée.
PRIVATE ANTITRUST SUITS. See Antitrust Acts.
PRIVILEGE. See Constitutional Law, III; V; Subversive Ac-tivities Control Act.
PROCEDURE. See also Bankruptcy Act, 1; Constitutional Law, V; Contempt, 1-3; Fédéral Rules of Civil Procedure; Intervention; Judgments; Judicial Review; Jurisdiction, 1-2, 6; Labor; Rules.
Transfers of action—Transfer by fédéral appellate court.—Provision in 28 U. S. C. § 1404 (a) that “a district court may transfer any civil action” does not preclude transfer by direct order of an appellate court in unusual circumstances. Koehring Co. v. Hyde Constr. Co., p. 362.
PROMISSORY NOTE. See Bankruptcy Act, 1; Coverture.
PROPERTY. See Bankruptcy Act, 2.
PROSECUTION COSTS. See Constitutional Law, I, 1.
PUBLIC SCHOOLS. See Constitutional Law, II, 3-4; Standing to Sue.
PUNISHMENT. See Contempt, 1-2.
RACIAL DISCRIMINATION. See Constitutional Law, II, 1-4;
Standing to Sue.
INDEX.
1043
RAILROAD ADJUSTMENT BOARD. See Judicial Review; Labor.
RAILROAD EMPLOYEES. See Jurisdiction, 4; Pre-emption.
RAILROAD MERGERS. See Interstate Commerce Commission.
RAILROADS. See Interstate Commerce Act; Jurisdiction, 4;
Pre-emption.
RAILWAY LABOR ACT. See Judicial Review; Labor.
RATES. See Fédéral Power Commission, 1-2.
RECREATIONAL FACILITIES. See Constitutional Law, II, 1-2.
REFUNDS. See Fédéral Power Commission, 2.
REGISTRATION. See Constitutional Law, III; Subversive Ac-tivities Control Act.
REGISTRATION FEES. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 1.
REINSTATEMENT. See Judicial Review; Labor.
RESIDENCE. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 1-2.
RETROACTIVITY. See Constitutional Law, V.
RULES. See also Contempt, 1-2; Fédéral Rules of Civil Procedure; Judgments.
Rules of this Court—Finality of litigation—Interests of justice.— Interest in finality of litigation must yield where the interests of justice would make unfair the strict application of the rules of this Court. Gondeck v. Pan American Airways, p. 25.
SATURDAYS. See Fédéral Rules of Civil Procedure.
SCHOOL DESEGREGATION. See Constitutional Law, II, 3-4;
Standing to Sue.
SEARCH AND SEIZURE. See Constitutional Law, IV; Evidence.
SECONDARY PICKETING. See National Labor Relations Act, 1-2.
SEGREGATION. See Constitutional Law, II, 1-4; Standing to Sue.
SELF-INCRIMINATION. See Constitutional Law, III; V; Contempt, 1-2; Subversive Activities Control Act.
SHERMAN ACT. See Contempt, 3; Patents.
SHIPS. See National Labor Relations Act, 1-2.
1044
INDEX.
SIDEWALKS. See Constitutional Law, I, 2-3.
SMALL BUSINESS ADMINISTRATION. See Coverture.
SOLDIERS’ AND SAILORS’ CIVIL RELIEF ACT OF 1940.
1.	Automobile registration—Taxes—Nonresident military personnel.—Servicemen may be required under the Act to register their cars and obtain license plates in host States, if they do not do so in their home States, and may be required to pay ail taxes essential thereto, but not taxes imposed for other purposes. California v. Buzard, p. 386.
2.	Nonresident military personnel—Ad valorem tax on house traiter.—Imposition of an ad valorem tax on nonresident service-man’s house trader, where serviceman had paid no “license, fee, or excise” to his home State was invalid under § 514 of the Act since an ad valorem tax is not within category of motor vehicle “license, fee, or excise” under §514 (2)(b). Snapp v. Neal, p. 397.
STANDING TO SUE. See also Constitutional Law, II, 4.
School desegregation—Suit by students challenging racial jaculty allocation.—Students not yet in desegregated grades hâve standing to challenge racial faculty allocation. Rogers v. Paul, p. 198.
STATUTE OF LIMITATIONS. See Antitrust Acts.
STATUTES. See Jurisdiction, 1, 5-6.
STATUTORY PRESOMPTIONS.
Criminal law—Presence at illégal still.—Statutory inference in 26 U. S. C. §5601 (b)(l) that presence at illégal still is sufficient evidence for conviction under §5601 (a)(l) unless such presence is explained to jury’s satisfaction is invalid since presence carries no reasonable inference of possession, custody, or control of the still proscribed by §5601 (a)(l). United States v. Romano, p. 136.
STILLS. See Statutory Presumptions.
SUBVERSIVE ACTIVITIES CONTROL ACT. See also Constitutional Law, III.
Immunity provision—Communist Party members—Fijth Amendment challenge.—Since the immunity provision of the Act does not preclude the use as evidence or investigatory leads of the admission of membership or other information called for by registration forms or statements to be filed by Communist Party members pursuant to the Act, it does not supply complété protection and is subject to Fifth Amendment challenge. Albertson v. SACB, p. 70.
SUMMARY JURISDICTION. See Bankruptcy Act, 1.
SUPERVISORS. See National Labor Relations Act, 1-2.
INDEX.
1045
SUPREMACY CLAUSE. See Jurisdiction, 5.
SUPREME COURT. See Contempt, 3; Intervention; Judgments;
Jurisdiction, 1-2; Rules.
1.	Résignation of Mr. Justice Goldberg, p. vu.
2.	Appointment of Mr. Justice Fortas, p. xi.
3.	Présentation of the Solicitor General, p. xv.
4.	Résignation of Mr. Justice Whittaker (retired), p. xvu.
5.	Proceedings in memory of Mr. Justice Frankfurter, p. xix.
6.	Death of Librarian and appointment of successor, pp. xlvii, 898.
7.	Assignment of Mr. Justice Reed (retired) to United States Court of Appeals for the District of Columbia Circuit, p. 950.
TAXES. See Bankruptcy Trustée; Soldiers’ and Sailors’ Civil
Relief Act of 1940, 1-2.
TAX REFUNDS. See Bankruptcy Act, 2.
TEACHER ASSIGNMENTS. See Constitutional Law, H, 3-4;
Standing to Sue.
TEXAS. See Coverture.
THREE-JUDGE COURTS. See Jurisdiction, 1, 4-6; Pre-emption.
THROUGH ROUTES. See Interstate Commerce Act.
TIMELINESS OF APPEALS. See Fédéral Rules of Civil Procedure.
TRAFFIC CONTROL. See Constitutional Law, I, 2-3.
TRAILERS. See Soldiers’ and Sailors’ Civil Relief Act of 1940, 2.
TRAIN CREWS. See Jurisdiction, 4; Pre-emption.
TRANSFER. See Bankruptcy Act, 2.
TRANSFERS OF ACTION. See Procedure.
TRANSPORTATION. See Interstate Commerce Act; Interstate Commerce Commission; Judicial Review; Labor.
TRIAL. See Bankruptcy Act, 1; Constitutional Law, V; Statutory Presumptions.
TRUSTEE. See Bankruptcy Act, 1; Bankruptcy Trustée; Constitutional Law, II, 1-2.
UNFAIR COMPETITION. See Fédéral Trade Commission.
UNINCORPORATED ASSOCIATIONS. See Jurisdiction, 3.
UNIONS. See Intervention; Jurisdiction, 2-3; National Labor
Relations Act, 1-2.
1046
INDEX.
UNPATENTABILITY. See Patent Applications. UNRECORDED LIENS. See Bankruptcy Trustée. VAGUENESS. See Constitutional Law, I, 1. VIRGINIA. See Constitutional Law, II, 3. WARRANTS. See Constitutional Law, IV; Evidence. WILLS. See Constitutional Law, II, 1-2. WISCONSIN. See National Labor Relations Act, 1-2. WITNESSES. See Contempt, 1-2. WORDS.
1.	“Based in whole or in part on any matter complained of.”— Clayton Act, §5 (b), 15 U. S. C. § 16 (b). Leh v. General Petroleum Corp., p. 54.
2.	“Connecting lines.”—Interstate Commerce Act §3(4), 49 U. S. C. § 3 (4). Western Pac. R. Co. v. United States, p. 237.
3.	“Consistent with the public interest.”—Interstate Commerce Act § 5 (2) (b), 49 U. S. C. § 5 (2) (b). Seaboard Air Line R. Co. v. U. S., p. 154.
4.	“Judgment creditor.”—Internai Revenue Code § 6323, 26 U. S. C. § 6323. United States v. Speers, p. 266.
5.	“Prior art.”—35 U. S. C. § 103. Hazeltine Research v. Brenner, p. 252.
6.	“Property.”—§ 70a (5), Bankruptcy Act, 11 U.S.C. § 110 (a) (5). Segal v. Rochelle, p. 375.
7.	“Transferred.”—§70a(5), Bankruptcy Act, 11 U. S. C. § 110 (a) (5). Segal v. Rochelle, p. 375.
WORKMEN’S COMPENSATION. See Judgments; Rules.
U. S. GOVERNMENT PRINTING OFFICE : 1966 O - 786-211