UNITED STATES REPORTS VOLUME 383 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1965 February 14 Through April 4,1966 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 $6 (Bruckram) JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. 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 FORTAS, Associate Justice. RETIRED. STANLEY REED, Associate Justice. NICHOLAS deB. KATZENBACH, Attorney General. THURGOOD MARSHALL, Solicitor General. JOHN F. DAVIS, Clerk. HENRY PUTZEL, jr., Reporter of Decisions. T. PERRY LIPPITT, Marshal. HENRY CHARLES HALLAM, Jr., Librarian. SUPREME COURT OF THE UNITED STATES. Allotment of Justices. It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, viz.: For the District of Columbia Circuit, Earl Warren, Chief Justice. For the First Circuit, 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 0. 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.) IV TABLE OF CASES REPORTED Note: Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. Page Abbott Laboratories v. Gardner............................. 924 Abe v. Richardson.......................................... 902 Accardi v. Pennsylvania R. Co.............................. 225 Acme Industrial Co., Labor Board v.........i............. 905 Adams, Swann v............................................... 210 Adams, United States v.................i................. 39 Aetna Casualty & Surety Co. v. Third Nat. Bank............. 944 Alabama v. Bland............................................. 947 Alabama, Chavers v........................................... 960 Alabama, Mills v............................................. 904 Alabama, Saylor v............................................ 917 Alabama Electric Coop. v. Securities & Exch. Comm’n...... 968 Alaska Airlines, Northwest Airlines v........... i.......... 936 Albers v. State Bd. of Equalization........................ 960 Alexander v. Faubus.......................................... 271 Allbright-Nell Co. v. Schnell................................ 934 Allen v. Wilson.............................................. 964 American Air Filter Co. v. Continental Air Filters......... 934 American Broad.-Paramount Theatres, United States v.... 906 American Dist. Telegraph Co. v. United States.............. 933 American Surety Co. of N. Y., Coral Gables Bank v........ 912 Anders v. California....................................... 966 Anderson v. Shuford........................................ 935 Andrews v. Smith........................................... 954 Ansourian v. United States................................. 949 Arizona v. California...................................... 268 Arizona, Cota v............................................ 929 Arizona, Miranda v......................................... 903 Arkansas Governor, Alexander v............................. 271 Arkansas Governor, Crawford County Bar Assn, v........... 271 Aro Mfg. Co. v. Automobile Research Corp................. 947 Arrington v. Ohio.......................................... 906 v VI TABLE OF CASES REPORTED. Page Association. For labor union, see name of trade. Association of the Bar of New York, Samuels v.............. 954 Atchison, T. & S. F. R. Co., Baltimore & 0. R. Co. v.... 832 Atchison, T. & S. F. R. Co., Canada Packers v............ 906 Atchison, T. & S. F. R. Co., Chicago & N. W. R. Co. v.... 940,964 Atchison, T. & S. F. R. Co., United States v............. 964 Atlantic C. L. R. Co., Interstate Com. Comm’n v............ 576 Atlass, Darr v............................................. 923 Atlass, Muth v............................................. 923 Attorney General v. Morgan......................... 903,955,964 Attorney General, Oliver v................................. 915 Attorney General, South Carolina v......................... 301 Attorney General of Illinois, Thomas v.................... 952 Attorney General of Mass., “John Cleland’s Memoirs” v..... 413 Attorney General of New Hampshire, DeGregory v............ 825 Aurillo v. Fogliani........................................ 952 Automatic Canteen Co., England v........................ 925 Automatic Fire Alarm Co. v. United States.................. 933 Automobile Research Corp., Aro Mfg. Co. v.................. 947 Automobile Workers v. Hoosier Cardinal Corp................ 696 Baer, Rosenblatt v.......................................... 75 Bagley v. Rhay............................................. 953 Bailey v. United States.................................... 959 Bailey v. Van Buskirk...................................... 948 Bakes v. United States..................................... 968 Balkcom, Cade v............................................ 961 Balkcom, Fortner v......................................... 912 Baltimore & 0. R. Co. v. Atchison, T. & S. F. R. Co....... 832 Bank of Marin v. England................................... 906 Bar Assn, of New York City, Samuels v...................... 954 Barnes v. Beto............................................. 920 Barnes v. Rederi A/B Fredrika............................. 910 Baxstrom v. Herold......................................... 107 Beaver v. United States.................................... 937 Bell v. Florida............................................ 954 Bell v. Texas.............................................. 923 Bell v. United States...............................'...... 947 Bennett, Carey v........................................... 951 Bennett v. Wilkins......................................... 913 Benton v. California....................................... 938 Beto, Barnes v............................................. 920 Beto, Guidry v............................................. 950 Biloche v. Washington...................................... 949 TABLE OF CASES REPORTED. vn Page Biloxi, Bridges v......................................... 574 Birdsell v. United States............................... 923 Black v. United States.................................... 973 Black Diamond S. S. Corp., United States v................ 910 Blackwell, McCaffrey v.................................... 929 Blanchard Importing Co. v. Charles Gilman & Son......... 968 Bland, Alabama v............................. t......... 947 Board of Education, Parker v.............................. 939 Board of Election of Monroe County v. United States.... 575 Bogan v. Wilkins.......................................... 919 Boles, Greathouse v....................................... 904 Boles, Long v............................................. 904 Boles, Wood v............................................. 904 Bond v. Floyd............................................. 956 Booker v. United States................................... 961 Book “John Cleland’s Memoirs” v. Atty. Gen. of Mass..... 413 Borax, Commissioner v..................................... 935 Borden Co., Federal Trade Comm’n v..................... 637 Boulad v. California...................................... 915 Bove, Glazer v.......................................... 910 Bowden v. California Adult Auth........................... 922 Bowling v. United States.............................. 908,973 Bowman v. United States................................... 950 Boys Town, U. S. A., Inc. v. World Church................. 910 Braun v. Wilson........................................... 920 Breaks Park Comm’n, Kiser v............................... 945 Brennan v. Grover......................................... 926 Brenner v. Manson......................................... 519 Brewer v. Pennsylvania Bd. of Parole.................... 920 Bridges v. Biloxi......................................... 574 Brinkley v. Cox........................................... 918 Broderick & Bascom Rope Co. v. Mangan.................... 926 Brooklyn Bar Assn., Fried v............................... 945 Brooks v. United States............................... 916,969 Bros Inc. v. Browning Mfg. Co............................ 940 Bros Inc., W. E. Grace Mfg. Co. v......................... 936 Brotherhood. For labor union, see name of trade. Brown v. Cavell........................................... 937 Brown v. Giffin Industries................................ 952 Brown v. Louisiana........................................ 131 Brown v. New York...............;....................... 939 Browning Mfg. Co., Bros Inc. v............................ 940 Bruner v. Texas........................................... 945 VIII TABLE OF CASES REPORTED. Page Bryant, Knight & Wall Co. v....................................... 958 Bryant v. Wilkins................................................. 972 Burde v. Commissioner........................;.................... 966 Burgdorf v. California............................................ 908 Burke, Farrell v.................................................. 970 Burke, Welsher v.................................................. 954 Bums v. Richardson................................................ 902 Burr v. Immigration and Naturalization Service.................... 915 Butler v. United States........................................... 909 Butts v. Harrison................................................. 663 Byrne v. Kysar.................................................... 913 Cade v. Balkcom................................................... 961 California, Anders v.............................................. 966 California, Arizona v............................................. 268 California, Benton v.............................................. 938 California, Boulad v.............................................. 915 California, Burgdorf v............................................ 908 California, Chapman v............................................. 956 California, Churchill v........................................... 961 California, Coleman v............................................. 917 California, Cross v............................................... 573 California, Dedmon v.............................................. 920 California, Demes v............................................... 914 California, Dixon v.............................................. 962 California v. El Paso Gas Co...................................... 955 California, Emory v............................................... 912 California, Flanagan v............................................ 931 California, Frazier v............................................. 931 California, Gohlke v.............................................. 962 California, Hernandez v........................................... 923 California, Hochberg v............................................ 904 California, Humphrey v............................................ 971 California, Kingston v............................................ 920 California, McMorris v............................................ 102 California, Nafe v............................................... 962 California, Neal v................................................ 953 California, Oppenheimer v.............................. 930,973 California, Pratt v............................................... 920 California v. Stewart............................................. 903 California, Thomson v............................................. 963 California, Weller v. 953 California, Williams v............................................ 916 California, Woodley v........................................... 948 TABLE OF CASES REPORTED. IX Page California Adult Auth., Bowden v......................... 922 California Adult Auth., Cantrell v......................... 930 California Adult Auth., Conway v............................ 971 California Adult Auth., Hays v........................... 920 California Adult Auth., Johnson v........................ 964 California Adult Auth., Williams v......................... 901 California Bd. of Equalization, Albers v.................... 960 California District Court of Appeal, Scott v................ 920 California Legislature, Jupiter v.......................... 972 Calissi, Grasberger v....................................... 947 Callender v. Florida........................................ 270 Calmar, Inc. v. Cook Chemical Co.............................. 1 Campbell v. United States................................... 907 Canada Packers v. Atchison, T. & S. F. R. Co................ 906 Cantrell v. California Adult Auth........................... 930 Capitol Skateland v. Washington Tax Comm’n.................. 103 Caraballo v. La Vallee...................................... 950 Carden v. Tennessee......................................... 959 Carey v. Bennett............................................ 951 Carnation Co. v. Pacific Westbound Conf..................213,932 Carr v. United States....................................... 968 Carter v. Wisconsin......................................... 948 Caruso v. Fay............................................... 939 Cascade Nat. Gas Corp. v. El Paso Gas Co.................... 955 Cason v. Florida............................................ 918 Castellana v. United States................................. 928 Castellano v. United States................................. 949 Cavell, Brown v............................................. 937 Cervantes v. United States.................................. 904 Chairman of N. C. State Bd. of Elections, Drum v............ 831 Chambers v. Florida......................................... 948 Chandler v. Texaco, Inc.................................... 936 Chapman v. California....................................... 956 Charles Gilman & Son, Blanchard Importing Co. v............. 968 Charleston Memorial Hospital v. Darling..................... 946 Chavers v. Alabama.......................................... 960 Chemstrand Corp. v. Perfect Fit Products.................... 942 Chemstrand Corp., Perfect Fit Products v.............. i.. 942 Chesapeake & Ohio R. Co. v. Ludwig.......................... 946 Chicago, B. & Q. R. Co. v. Ill. Commerce Comm’n........... 912 Chicago & N. W. R. Co. v. Atchison, T. & S. F. R. Co...... 940,964 Chrysler Corp., Hanover Ins. Co. v...................... 906 Churchill v. California..................................... 961 Ciampini v. Maroney......................................... 918 X TABLE OF CASES REPORTED. Page Cichos v. Indiana.......................................... 966 Ciesielski v. Ohio......................................... 411 City. See name of city. Clark, Thomas ............................................. 952 Clayton Chemical & Packaging Co. v. United Statés........ 821 “Cleland’s, John, Memoirs” v. Atty. Gen. of Mass........... 413 Clerk of House of Representatives, Schack v................ 904 Cohen v. Joseph............................................ 909 Cohen, Shotkin v........................................... 953 Coleman v. California...................................... 917 Coleman v. New Jersey...................................... 950 Colgate-Palmolive Co. v. Cook Chemical Co.................. 1 Collier v. United States................................... 933 Collins v. United States................................... 960 Collins v. Yeager.......................................... 953 Colorado, Cruz v.......................................... 915 Colorado, Gallegos v....................................... 971 Colorado, Washington v..................................... 953 Columbus v. Royal........................................ 925 Commerce Loan Co., Perry v................................. 392 Commissioner v. Borax..................................... 935 Commissioner, Burde v...................................... 966 Commissioner, Fribourg Navigation Co. v.................... 272 Commissioner, Hollywood Baseball Assn, v................ 824 Commissioner, Leyman Estate v¿832 Commissioner, Mayer v...................................... 935 Commissioner, R. C. Owen Co. v............................. 967 Commissioner v. Tellier.................................... 687 Commissioner of Internal Revenue. See Commissioner. Commissioner of Patents v. Manson.......................... 519 Commodity Credit Corp., Tenn. Tobacco Growers v.......... 907 Commonwealth. See also name of Commonwealth. Commonwealth Oil Ref. Co. v. Martinez...................... 936 Communications Commission. See Federal Com. Comm’n. Connecticut, Robinson v.................................... 960 Conner, Simler v........................................... 928 Consolo v. Federal Maritime Comm’n......................... 607 Conti v. Patterson......................................... 961 Continental Air Filters, American Air Filter Co. v......... 934 Continental Industries, M. B. Skinner Co. v................ 934 Conway v. California Adult Auth............................ 971 Conway, Watkins v.......................................... 941 Cook Chemical Co., Calmar, Inc. v¿. 1 Cook Chemical Co., Colgate-Palmolive Co. v................... 1 TABLE OF CASES REPORTED. XI Page Cook County Mental Health Clinic, Kandl v........... 901,940 Coral Gables First Nat. Bk. v. American Surety Co...... 912 Cordova v. Wilson....................................... 920 Coronado v. United States............................... 921 Costello v. United States............................... 942 Cota v. Arizona......................................... 929 Cottage v. United States................................ 969 County. See name of county. County Bd. of Election of Monroe County v. United States.. 575 Cox, Brinkley v........................................ 918 Cox, Pearce v.......................................... 918 Cox, Silva v............................................ 919 Cozzi v. United States.................................. 911 Craig v. Florida....................................... 959 Cravälho v. Richardson.................................. 902 Crawford v. Davis....................................... 921 Crawford County Bar Assn. v. Faubus................... 271 Cross v. California................................... 573 Cross v. Kenton....................................... 921 Crouch v. Stanley....................................... 945 Crow v. Missouri..................................... 914 Cruz v. Colorado..................................... 915 Cummings v. Florida..................................... 931 Cunningham, Heinze v.................................... 968 Currie v. Florida....................................... 918 Dagampat v. United States............................... 950 Darling, Charleston Memorial Hospital v............... 946 Darr v. Atlass.......................................... 923 Darrah v. Illinois.................................. 919,963 Darst v. Washington Bd. of Prison Terms and Paroles.961 Daup, In re............................................. 904 Davenport v. Kentucky................................... 970 Davis, Crawford v....................................... 921 Deacon, Operating Engineers v........................... 103 Dean Foods Co., Federal Trade Comm’n v.................. 901 Dedmon v. California.................................... 920 Deere Co., Graham v....................................... 1 DeGregory v. Attorney General of New Hampshire......... 825 De Lago v. New York..................................... 963 DeMary v. Pate......................................... 920 Demes v. California..................................... 914 Demko, United States v.................................. 966 Department of Pub. Works of Ill., Drobnick v............ 959 De Pinto, Gorsuch v..................................... 973 XII TABLE OF CASES REPORTED. Page Devlin v. Florida........................................... 919 Dicker v. United States..................................... 936 Diner’s Club, Evans v....................................... 952 Di Palermo v. United States................................. 930 Di Paolo v. New Jersey...................................... 949 Director of Internal Revenue. See Commissioner; District Director of Internal Revenue. District Court. See U. S. District Court. District Court of Iowa, Long v........................... 925,956 District Director of Internal Revenue, Malat v.............. 569 District Director of Internal Revenue, Pizitz, Inc. v.... 910 District Judge. See U. S. District Judge. District of Columbia, Hicks v............................ 252 Dixon v. California......................................... 962 Doft, Goldstein v........................................... 960 Dorchester Gas Producing Co. v. Federal Power Comm’n... 969 Douglas v. Wirtz............................................ 909 Dowd v. Maxwell............................................. 960 Drobnick v. Dept, of Pub. Works of Ill...................... 959 Drum v. Sea well............................................ 831 Duesing v. Udall............................................ 912 Duffy Constr. Corp., Salemi v........................... 927,973 Du Pont de Nemours & Co. v. Maloney......................... 948 Du Pont de Nemours & Co., Maloney v......................... 948 Duval v. United States...................................... 932 Dyson v. Maryland........................................... 106 Easter v. Ziff.............................................. 922 Eddy, Holmes v.............................................. 922 Edgerton v. North Carolina.................................. 929 Edwards v. United States.................................... 929 E. I. Du Pont de Nemours & Co. v. Maloney................ 948 E. I. Du Pont de Nemours & Co., Maloney v.................. 948 Eldridge v. United States................................... 931 Election Bd. of Monroe Co. v. United States................. 575 Electrical Workers, Hearst Corp, v.......................... 937 Electrical Workers v. Labor Board........................... 943 Elfe v. LaVallee.......................................... 949 Ellington, Smith v.......................................... 954 Ellis v. Stonewall Properties, Inc.......................... 962 El Paso Nat. Gas Co., California v.......................... 955 El Paso Nat. Gas Co., Cascade Gas Corp, v................. 955 El Paso Nat. Gas Co., Southern Cal. Edison Co. v............ 955 Emory v. California......................................... 912 Empresa Lineas Maritimas Argentinas, Logan v................ 970 TABLE OF CASES REPORTED. XIII Page Engberg v. Kansas............................................ 921 England v. Automatic Canteen Co.............................. 925 England, Bank of Marin v..................................... 906 Errico, Immigration and Naturalization Service v............. 941 Ertel Mfg. Corp. v. Labor Board.............................. 945 Eskridge v. Rhay............................................. 922 Estate. See name of estate. Evans v. Diner’s Club........................................ 952 Ewell, United States v....................................... 116 Fabrizio, United States v.................................... 904 “Fanny Hill” (“John Cleland’s Memoirs”) v. Atty. Gen. of Massachusetts ............................................. 413 Farnsworth v. Turner......................................... 932 Faroni, Jones v.............................................. 909 Farrell v. Burke............................................. 970 Faubus, Alexander v.......................................... 271 Faubus, Crawford County Bar Assn, v.......................... 271 Fay, Caruso v................................................ 939 Fay, Fazio v................................................. 938 Fazio v. Fay................................................. 938 Federal Com. Comm’n, W. W. I. Z., Inc. v............. 4. 967 Federal Maritime Comm’n, Consolo v....................... 607 Federal Power Comm’n, Dorchester Gas Producing Co. v.... 969 Federal Power Comm’n, United Gas Pipe Line Co. v........ 924 Federal Trade Comm’n v. Borden Co............................ 637 Federal Trade Comm’n v. Dean Foods Co........................ 901 Federal Trade Comm’n, United Biscuit Co. v................... 926 Felbum v. New York Central R. Co............................. 935 Fjellhammer v. United States.............................. 923 Flanagan v. California....................................... 931 Fleming v. Illinois.......................................... 967 Flick-Reedy Corp. v. Hydro-Line Mfg. Co...................... 958 Flick-Reedy Corp., Hydro-Line Mfg. Co. v..................... 958 Florida, Bell v....................................i...... 954 Florida, Callender v................................ 270 Florida, Cason v........................... 4 4... 4 .... 918 Florida, Chambers v................................. 948 Florida, Craig v.................................... 959 Florida, Cummings v................................. 931 Florida, Currie v............................. i t. 44 . .. . 918 Florida, Devlin v................................... 919 Florida, Garrison v................................. 919 Florida, Grizzell v................................. 937 Florida, Gurganious v............................... 917 XIV TABLE OF CASES REPORTED. Page Florida, Hardin v............................................ 971 Florida, Johnson v........................................... 956 Florida, Mott v.............................................. 919 Florida, Schack v............................................ 964 Florida, Thomas v............................................ 938 Florida Governor, Knight & Wall Co. v...................... 958 Florida Secretary of State, Swann v........................ 210 Floyd, Bond v................................................ 956 Fogliani, Aurillo v.......................................... 952 Fojon v. United States....................................... 919 Ford v. Traynor.............................................. 915 Forgett v. United States..................................... 926 Forrest Village Apts. v. United States....................... 943 Forsberg v. United States.................................... 950 Fortner v. Balkcom........................................... 912 Foster, In re................................................ 966 Foulkes v. United States..................................... 944 Fowler v. United States...................................... 907 Franzblau v. Soles........................................... 911 Frazier v. California........................................ 931 Fredrika, Rederi A/B, Barnes v............................... 910 Freedman v. National Maritime Union.......................... 917 Fribourg Navigation Co. v. Commissioner...................... 272 Fried v. Brooklyn Bar Assn................................... 945 Furtak v. New York........;............................... 922,952 Furtak v. Wilkins............................................ 932 Futrovsky, Goodman v......................................... 946 Gallegos v. Colorado......................................... 971 Gardner, Abbott Laboratories v............................... 924 Garrison v. Florida.......................................... 919 Garrity v. New Jersey........................................ 941 Garvin v. United States...................................... 914 Gatling v. New York.......................................... 971 Gauthier v. Wisconsin........................................ 916 General Electric Co., Servo Corp, v.......................... 934 General Sani-Can Mfg. Corp. v. U. S. District Court....... 924 Gerrity, Nehring v........................................... 922 Gibbs, Mine Workers v........................................ 715 Giffin Industries, Brown v................................... 952 Giles v. Maryland............................................ 941 Gillentine v. United States.................................. 922 Gilman & Son, Blanchard Importing Co. v...................... 968 Ginsburg v. Ginsburg..................................... 907,963 Ginzburg v. United States.................................... 463 TABLE OF CASES REPORTED. xv Page Glazer v. Bove............................................. 910 Glenn v. McMann.......................................... 915 Globe-Democrat Pub. Co., St. Louis Mailers’ Union v...... 931 Gohlke v. California...................................... 962 Gojack v. United States................................... 964 Goldman v. Virginia........................................ 969 Goldstein v. Doft......................................... 960 Goodman v. Futrovsky.................................... 946 Goodwin v. Kansas.......................................... 914 Gorsuch v. De Pinto........................................ 973 Gorsuch v. Landoe.......................................... 973 Government Employees Ins. Co. v. United States............. 939 Governor. See name of State. Grace Mfg. Co. v. Bros Inc................................. 936 Gradsky v. United States................................... 265 Graham v. John Deere Co...................................... 1 Grand River Dam Auth. v. National Gypsum Co................ 907 Grasberger v. Calissi...................................... 947 Gray v. Henderson.......................................... 961 Greathouse v. Boles........................................ 904 Green v. Osgood-Lewis-Perkins, Inc......................... 946 Green v. Rhay.............................................. 918 Grene v. United States..................................... 265 Grinnell Corp. v. United States............................ 933 Grinnell Corp., United States v............................ 933 Grizzell v. Florida........................................ 937 Grover, Brennan v.......................................... 926 Guest, United States v..................................... 745 Guidry v. Beto............................................. 950 Gunby, Yost v.............................................. 959 Gurganious v. Florida...................................... 917 Hackett v. United States................................... 973 Hallett, Skolnick v........................................ 922 Hanover Ins. Co. v. Chrysler Corp.......................... 906 Hardin v. Florida.......................................... 971 Harper v. United States................................... 951 Harper v. Virginia Bd. of Elections........................ 663 Harris v. Illinois......................................... 971 Harris v. Wilson........................................... 951 Harrison, Butts v.......................................... 663 Harrison v. Schaefer....................................... 269 Hawaii Governor v. Richardson.............................. 902 Hawley v. Virginia......................................... 910 Hayes v. New York.......................................... 918 XVI TABLE OF CASES REPORTED. Page Hays v. California Adult Auth.............................. 920 Hazel v. United States..................................... 914 HC&D Moving & Storage Co. v. Yamane........................ 104 Hearst Corp. v. Electrical Workers......................... 937 Heider v. Michigan Sugar Co................................ 905 Heinze v. Cunningham....................................... 968 Heinze, Owens v............................................ 938 Heinze, Sierra v........................................... 914 Heinze, Toth v............................................. 916 Helmandollar, Lord v....................................... 928 Hemphill v. Washington Tax Comm’n.......................... 103 Henderson, Gray v.......................................... 961 Hernandez v. California.................................... 923 Herold, Baxstrom v......................................... 107 Herr v. United States...................................... 922 Hetenyi, Mancusi v......................................... 913 Hicks v. District of Columbia.............................. 252 Hill v. New York.......................................... 960 Hillegas v. Sams........................................... 928 “Hill, Fanny” (“John Cleland’s Memoirs”) v. Atty. Gen. of Massachusetts ........................................... 413 Hilton Hotels Corp., Surowitz v........................... 363 Ho v. Kam.................................................. 936 Hobbs v. Lane.............................................. 967 Hochberg v. California..................................... 904 Holland v. United States................................... 928 Holley, Outboard Marine Corp, v............................ 934 Hollywood Baseball Assn. v. Commissioner................... 824 Holmes v. Eddy............................................. 922 Holmes Electric Protective Co. v. United States............ 933 Holt v. Kirby............................................ 902 Home Fed. Sav. & Loan Assn., Mundt v....................... 931 Hoosier Cardinal Corp., Automobile Workers v............... 696 Hopson v. Texaco, Inc...................................... 262 Hostetter, Joseph E. Seagram & Sons v%. 902 House of Representatives Clerk, Schack v................... 904 Houston, Rhodes v.......................................... 971 Howard v. Kentucky......................................... 924 Howell v. Oregon........................................... 922 Hudson, Tabas v............................................ 969 Humble Oil & Ref. Co., Robinson v.......................... 911 Humphrey v. California..................................... 971 Hyde Constr. Co., Koehring Co. v........................... 939 Hydro-Line Mfg. Co. v. Flick-Reedy Corp.................... 958 TABLE OF CASES REPORTED. XVII Page Hydro-Line Mfg. Co., Flick-Reedy Corp, v........................ 958 Idaho, Smith v.................................................. 916 Idaho Sheet Metal Works v. Wirtz............................ 190,963 Illinois, Darrah v.......................................... 919,963 Illinois, Fleming v............................................. 967 Illinois, Harris v.............................................. 971 Illinois, Nelson v.............................................. 918 Illinois, Smith v........................................... 910,953 Illinois, Varnadoe v............................................ 929 Illinois Attorney General, Thomas v............................. 952 Illinois Commerce Comm’n, Chicago, B. & Q. R. Co. v............. 912 Illinois Dept, of Public Works, Drobnick v................... 959 Immigration and Naturalization Service, Burr v.................. 915 Immigration and Naturalization Service v. Errico................ 941 Immigration and Naturalization Service, Plummer v........... 941 Immigration and Naturalization Service, Rocha v................. 927 Immigration and Naturalization Service, Scott v................. 941 Indiana, Cichos v............................................... 966 Indian Lake Estates, Ten Individual Defendants v................ 947 Indiviglio v. United States..................................... 907 In re. See name of party. Internal Revenue Service. See Commissioner; District Director of Internal Revenue. International. For labor union, see name of trade. Interstate Com. Comm’n v. Atlantic C. L. R. Co.................. 576 Iowa District Court, Long v................................. 925,956 Irwin v. United States.......................................... 967 James v. Wainwright............................................. 937 Janes, Stewart v................................................ 962 Jeffrey Galion Mfg. Co., Machinists v........................... 927 Jenkins v. Maryland............................................. 834 Jervis Corp. v. Nelmor Corp..................................... 970 Jett v. United States........................................... 935 Jiggs, Inc. v. Slumbertogs, Inc................................. 969 “John Cleland’s Memoirs” v. Atty. Gen. of Mass.................. 413 John Deere Co., Graham v.......................................... 1 Johnson v. California Adult Auth................................ 964 Johnson v. Florida............................................. 956 Johnson v. Kentucky............................................. 913 Johnson v. New Jersey........................................... 903 Johnson, United States v........................................ 169 Jones v. Faroni................................................. 909 Jones v. Murphy................................................. 913 Jones v. Ohio................................................... 951 XVIII TABLE OF CASES REPORTED. Page Jones, Rhodes v....................................... 919,963 Jones v. United States.................................... 922 Joseph, Cohen v........................................... 909 Joseph E. Seagram & Sons v. Hostetter..................... 902 Jupiter v. California Legislature......................... 972 Kaiser Jeep Corp., Siwecki v.............................. 962 Kam, Ho ................................................ 936 Kam Hon Ho v. Kam Moon Kam................................ 936 Kam Moon Kam, Kam Hon Ho v........................ 936 Kandl v. Urse......................................... 901,940 Kansas, Engberg .......................................... 921 Kansas, Goodwin .......................................... 914 Kansas, Morton ........................................... 904 Kansas, Sanders v......................................... 961 Katzenbach v. Morgan.............................. 903,955,964 Katzenbach, South Carolina v.............................. 301 Kaufman v. United States.................................. 951 Kenner v. United States.................................. 958 Kent v. United States..................................... 541 Kenton, Cross ............................................ 921 Kentucky, Davenport v..................................... 970 Kentucky, Howard v..................................... 924 Kentucky, Johnson v..................................... 913 Kentucky, Kinrnon v..................................... 930 Kentucky, Lynn v........................................ 938 Khabiri v. Virginia Elec. & Power Co...................... 971 Kindelan v. United States................................. 944 Kingston v. California.................................... 920 Kinrnon v. Kentucky....................................... 930 Kirby, Holt v............................................. 902 Kirschner v. West Co...................................... 945 Kiser v. Breaks Park Comm’n............................... 945 Klein, Spevack v.......................................... 942 Klinger, Reyes v.......................................... 932 K-N Enterprises v. West Co................................ 945 Knetsch v. United States.................................. 957 Knight & Wall Co. v. Bryant............................... 958 Knoll v. Knoll........................................ 909,973 Knowles, Tibbetts v...................................... 927 Koehring Co. v. Hyde Constr. Co........................... 939 Kroah v. Russell......................................... 914 Kropp, Ortega v........................................... 930 Kukich v. Serbian Eastern Orthodox Church................. 574 Kysar, Byrne v............................................ 913 TABLE OF CASES REPORTED. XIX Page Labor Board v. Acme Industrial Co.......................... 905 Labor Board, Electrical Workers v.......................... 943 Labor Board, Ertel Mfg. Co. v.............................. 945 Labor Board, S. D. Warren Co. v. 958 Labor Union. See name of trade. Landoe, Gorsuch v.......................................... 973 Lane, Hobbs v.............................................. 967 La Placa v. United States.................................. 927 Larro v. United States..................................... 944 La Vallee, Caraballo v..................................... 950 La Vallee, Elfe v.......................................... 949 LaVallee, Rodriguez v...................................... 951 La Vina, Scott v........................................... 917 Leach v. United States..................................... 917 Lease Management, Worthington Corp, v...................... 937 Lee v. United States....................................... 908 Lester v. Tennessee........................................ 952 Levin, Minchella v......................................... 904 Levine v. United States.................................... 265 Ley de v. Rhay............................................. 973 Leyman Estate v. Commissioner.............................. 832 Lichota v. United States................................... 954 Link v. United States...................................... 915 Linn v. Plant Guard Workers................................. 53 Local. For labor union, see name of trade. Locke v. River Lines...................................... 946 Logan v. Empresa Lineas Maritimas Argentinas............... 970 Logan v. New York.......................................... 970 Long v. Boles.............................................. 904 Long v. District Court of Iowa......................... 925,956 Lord v. Helmandollar....................................... 928 Louisiana, Brown v......................................... 131 Louisiana, Mcllvaine v........................i........ 921,954 Louis Pizitz Dry Goods Co. v. Patterson.................... 910 Louisville & N. R. Co., Railroad Trainmen v................ 923 Louisville & N. R. Co. v. United States.................... 102 Ludwig, Chesapeake & Ohio R. Co. v................ i.... 946 Lusk v. United States...................................... 967 Lynch v. United States..................................... 904 Lynn v. Kentucky........................................... 938 Mac. See also Me. Machado v. New York........................................ 921 Machado v. Wilkins..................................... 916,963 Machinists v. Jeffrey Galion Mfg. Co....................... 927 XX TABLE OF CASES REPORTED. Page Mailers’ Union v. Globe-Democrat Pub. Co................ 931 Maimonides Hospital, Zanca v............................ 922 Malat v. Riddell........................................ 569 Maloney v. E. I. Du Pont de Nemours & Co................ 948 Maloney, E. I. Du Pont de Nemours & Co. v............... 948 Mancusi v. Hetenyi...................................... 913 Mancusi, Stevenson v.................................... 951 Mangan, Broderick & Bascom Rope Co. v................... 926 Manson, Brenner v....................................... 519 Marin Bank v. England................................... 906 Maritime Union, Freedman v.............................. 917 Marks, Stevens v........................................ 234 Maroney, Ciampini v..................................... 918 Martinez, Commonwealth Oil Ref. Co. v................... 936 Maryland, Dyson v....................................... 106 Maryland, Giles v....................................... 941 Maryland, Jenkins v..................................... 834 Massachusetts, McGruder v............................... 972 Massachusetts Atty. Gen., “John Cleland’s Memoirs” v.. 413 Maxwell, Dowd v......................................... 960 Maxwell, Pinch v........................................ 938 Maxwell, Sheppard v..................................... 902 Maxwell, Smith v........................................ 931 Maxwell, Turpin v....................................... 917 Maxwell, Vitoratos v.................................... 105 Mayer v. Commissioner................................... 935 M. B. Skinner Co. v. Continental Industries............. 934 Me. See also Mac. McCaffrey v. Blackwell................................. 929 McCloskey, Stevens v.................................... 234 McCullough Tool Co. v. Well Surveys, Inc................ 933 McDonald v. Rhay........................................ 931 McGann v. Richardson.................................... 922 McGann v. United States................................. 916 McGettrick, Velotta v................................... 944 McGrath v. McMann....................................... 952 McGruder v. Massachusetts............................... 972 Mcllvaine v. Louisiana.............................. 921,954 McIntosh v. Stephenson.................................. 930 McIntosh v: United States............................... 922 McLamb v. Wilson........................................ 955 McMann, Glenn v......................................... 915 McMann, McGrath v....................................... 952 McMorris v. California.................................. 102 TABLE OF CASES REPORTED. XXI Page Mercer v. Russell......................................... 954 Messina, Mutual Health & Accident Assn. v................. 908 Meyer, Rhodes v........................................... 939 Michaels v. United States................................. 918 Michigan, Robinson v...................................... 920 Michigan Sugar Co., Heider v.............................. 905 Miller v. Rhay............................................ 965 Miller v. Virginia........................................ 831 Mills v. Alabama.......................................... 904 Minchella v. Levin........................................ 904 Mine Workers v. Gibbs..................................... 715 Miranda v. Arizona........................................ 903 Mishkin v. New York....................................... 502 Missouri, Crow v.......................................... 914 Missouri, Spica v......................................... 972 Mohler v. U. S. Bd. of Parole............................. 916 Monroe County Election Board v. United States............. 575 Monsanto Chemical Co. v. Perfect Fit Products............. 942 Monsanto Chemical Co., Perfect Fit Products v............. 942 Moon v. United States..................................... 929 Moore Co., Sid Richardson Carbon & Gas Co. v.............. 925 Morgan, Katzenbach v............................... 903,955,964 Morgan, New York Bd. of Elections v............... 903,955,964 Morton v. Kansas.......................................... 904 Motorlease Corp. v. United States......................... 573 Mott v. Florida........................................... 919 Mozingo v. York County Nat. Gas Auth...................... 970 Mundt v. Home Fed. Sav. & Loan Assn....................... 931 Murchison, Riess v........................................ 946 Murphy, Jones v........................................... 913 Murray v. United States................................... 949 Muth v. Atlass.......................................... 923 Mutual Health & Accident Assn. v. Messina................. 908 Myers, Smith v............................................ 931 Myers, Walls v............................................ 952 Nafe v. California........................................ 962 National Gypsum Co., Grand River Dam Auth. v.............. 907 National Labor Relations Board. See Labor Board. National Maritime Union, Freedman v....................... 917 National Mediation Board, World Airways v................. 926 National Steel Corp., United States v..................... 905 Neal v. California........................................ 953 Nebraska, Sheldon v....................................... 930 Nebraska Bar Assn., Nielsen v........................ 105,954 XXII TABLE OF CASES REPORTED. Page Necchi Sewing Mach. Corp. v. Necchi S. p. A............... 909 Necchi S. p. A., Necchi Sewing Mach. Corp, v.............. 909 Nehring v. Gerrity........................................ 922 Nello L. Teer Co. v. United States........................ 934 Nelmor Corp., Jervis Corp, v.............................. 970 Nelson v. Illinois........................................ 918 Nesbitt v. United States.................................. 926 Nevada, Rainsberger v..................................... 954 New Hampshire Attorney General, DeGregory v............... 825 New Jersey, Coleman v..................................... 950 New Jersey, Di Paolo v.................................... 949 New Jersey, Garrity v..................................... 941 New Jersey, Johnson v......................4........... 903 New Jersey, Trantino v.................................... 922 New York, Brown v . 939 New York, De Lago v....................................... 963 New York, Furtak v..................................... 922 952 New York, Gatling v..................................... 971 New York, Hayes v....................................... 918 New York, Hill v........................................ 960 New York, Logan v................;........................ 970 New York, Machado v....................................... 921 New York, Mishkin v....................................... 502 New York, Overby v........................................ 939 New York, Penn v....................................... 969 New York, Pugach v........................................ 575 New York, Rodriguez v..................................... 939 New York, Tometto v....................................... 952 New York, Van Slyke v..................................... 953 New York, Vignerà v....................................... 993 New York, Wager v...................................... 920 954 New York, Wilson v........................................ 939 New York, Young v......................................... 921 New York Bd. of Elections v. Morgan............... 903,955,964 New York Central R. Co., Felbum v......................... 935 New York City Bar Assn., Samuels v........................ 954 New York Liquor Auth., Seagram & Sons v.............. 902 New York Supreme Court Justice, Stevens v................. 234 New York Tax Comm’n, Powless v............................ 911 Nielsen v. Nebraska Bar Assn........................... 105 954 Nolan v. Rhodes.......................................... ’ 194 North Carolina, Edgerton v¿i......... 929 North Carolina, Perry v................................... 951 North Carolina State Bd. of Elections Chairman, Drum v... 831 TABLE OF CASES REPORTED. XXIII Page Northwest Airlines v. Alaska Airlines..................... 936 Oberhauser, Spry v........................................ 919 Odell v. State Dept, of Pub. Welfare of Wis............... 939 Ohio, Arrington v......................................... 906 Ohio, Ciesielski v........................................ 411 Ohio, Jones v............................................. 951 Ohio, Spink v............................................. 927 Ohio, Stevens v...................................... 939,963 Ohio, Taylor v........................................ 918,951 Ohio Governor, Nolan v.................................. 104 Oliver v. Attorney General................................ 915 O’Malley, United States v................................. 627 Operating Engineers v. Deacon............................. 103 Oppenheimer v. California............................. 930,973 Oregon, Howell v.......................................... 922 Ortega v. Kropp........................................... 930 Osgood-Lewis-Perkins, Inc., Green v....................... 946 Outboard Marine Corp. v. Holley........................... 934 Overby v. New York........................................ 939 Owen Co. v. Commissioner.................................. 967 Owens v. Heinze........................................... 938 Owensby v. United States.................................. 962 Pacific Westbound Conf., Carnation Co. v...............213,932 Pagano v. United States................................... 928 Panczko v. United States.................................. 935 Parker v. Board of Education, Prince George’s County.... 939 Pate, DeMary v............................................ 920 Pate v. Robinson.......................................... 375 Pate, Thomas v............................................ 962 Patents Commissioner v. Manson............................ 519 Patterson, Conti v........................................ 961 Patterson, Pizitz, Inc. v............................ 910 Payson v. United States................................. 957 Pearce v. Cox............................................. 918 Penn v. New York.......................................... 969 Pennsylvania, Stello v.................................... 922 Pennsylvania, Wallis v.................................... 970 Pennsylvania Bd. of Parole, Brewer v..................... 920 Pennsylvania R. Co., Accardi v........................... 225 Perati v. United States................................... 957 Perez v. Wainwright....................................... 938 Perfect Fit Products v. Monsanto Chemical Co.............. 942 Perfect Fit Products, Monsanto Chemical Co. v............. 942 Pern’ v. Commerce Loan Co................................. 392 XXIV TABLE OF CASES REPORTED. Page Perry v. North Carolina..................................... 951 Perryton Wholesale, Inc. v. Pioneer Distributing Co....... 945 Pert v. Wainwright.......................................... 972 Peyton, Reickauer v......................................... 918 Peyton, Vess v.............................................. 953 Philipp v. Washington....................................... 927 Pinch v. Maxwell..................................;......... 938 Pioneer Distributing Co., Perryton Wholesale v.............. 945 Pizitz Dry Goods Co. v. Patterson........................... 910 Pizitz, Inc. v. Patterson................................... 910 Plant Guard Workers, Linn v.................................. 53 Plummer v. Immigration and Naturalization Service......... 941 Postell v. Wilson....................................... 931,955 Power Commission. See Federal Power Comm’n. Powless v. New York Tax Comm’n.............................. 911 Pratt v. California......................................... 920 Price, United States v...................................... 787 Prince George’s County Bd. of Education, Parker v......... 939 Probate Judge v. Stanley.................................... 945 Puerto Rico, Sociedad de Mario Mercado e Hijos v.......... 412 Pugach v. New York.......................................... 575 Railroad Trainmen v. Louisville & N. R. Co................. 923 Rainsberger v. Nevada....................................... 954 Rangen, Inc. v. Sterling Nelson & Sons, Inc................. 936 R. C. Owen Co. v. Commissioner.............................. 967 Recorder’s Court Judge, Washington v...................... 962 Rederi A/B Fredrika, Barnes v............................... 910 Reeves v. United States..................................... 929 Reickauer v. Peyton......................................... 918 Reyes v. Klinger............................................ 932 Rhay, Bagley v.............................................. 953 Rhay, Eskridge v............................................ 922 Rhay, Green v............................................... 918 Rhay, Leyde v......................................... 973 Rhay, McDonald v................................ i f .. 931 Rhay, Miller v.............................................. 965 Rhay, Stiltner v............................................ 931 Rhodes v. Houston........................................... 971 Rhodes v. Jones........................................... 919,963 Rhodes v. Meyer............................................. 939 Rhodes, Nolan v............................................. 104 Richardson, Abe v........................................... 902 Richardson, Bums v.......................................... 902 Richardson, Cravalho v...................................... 902 TABLE OF CASES REPORTED. XXV Richardson, Hawaii Governor v............................... 902 Richardson, McGann v........................................ 922 Richardson Carbon & Gas Co. v. Moore Co..................... 925 Riddell, Malat v............................................ 569 Riess v. Murchison.......................................... 946 River Lines, Locke v........................................ 946 Roberts, Schack v........................................... 904 Roberts v. United States.................................. 265 Robinson v. Connecticut................................... 960 Robinson v. Humble Oil & Ref. Co............................ 911 Robinson v. Michigan...................................... 920 Robinson, Pate v.......................................... 375 Robinson v. State Hospital Director......................... 931 Robinson v. United States................................. 911 Rocha v. Immigration and Naturalization Service............. 927 Rodriguez v. La Vallee.................................... 951 Rodriguez v. New York..................................... 939 Rosen v. United States...................................... 908 Rosenblatt v. Baer........................................ 75 Rosenstiel v. Rosenstiel.................................... 940 Roth, Vida v.............................................. 922 Rough Diamond Co. v. United States.......................... 957 Royal, Columbus v........................................... 925 Royal Court Apts. v. United States.......................... 968 Russell, Kroah v.......................................... 914 Russell, Mercer v........................................... 954 Ryan v. Vickers............................................. 944 S & A Co., United States v.................................. 942 St. Louis Mailers’ Union v. Globe-Democrat Pub. Co........ 931 Salazar v. Wilson........................................... 954 Salemi v. Duffy Constr. Corp............................. 927 973 Salter v. United States.................................... ’943 Sams, Hillegas v............................................ 928 Samuels v. Bar Assn, of New York City....................... 954 Sanders v. Kansas.......................................... 991 Santana, In re.......................................... 939,963 Saylor v. Alabama........................................... 917 Scalza v. United States..................................... 922 Schack v. Florida......................................... 964 Schack v. Roberts......................................... 904 Schack v. Simpson......................................... 904 Schaefer, Harrison v........................................ 269 Schnell, Allbright-Nell Co. v............................... 934 Schulenburg, Signatrol, Inc. v... 4......................... 959 XXVI TABLE OF CASES REPORTED. Page Scott v. Calif. District Court of Appeal.................... 920 Scott v. Immigration and Naturalization Service............. 941 Scott v. La Vina............................................ 917 S. D. Warren Co. v. Labor Board............................. 958 Seagram & Sons v. Hostetter................................. 902 Seawell, Drum v............................................. 831 Secretary of HEW, Abbott Laboratories v..................... 924 Secretary of Interior, Duesing v............................ 912 Secretary of Labor, Douglas v............................... 909 Secretary of Labor, Idaho Metal Works v................... 190,963 Secretary of Labor v. Steepleton Tire Co................... 190 Secretary of State of Fla., Swann v......................... 210 Securities & Exch. Comm’n, Alabama Elec. Coop, v.......... 968 Serbian Eastern Orthodox Church, Kukich v................... 574 Servo Corp. v. General Electric Co.......................... 934 Sheldon v. Nebraska....................................... 930 Sheppard v. Maxwell....................................... 902 Shotkin v. Cohen.......................................... 953 Shott, Tehan v.............................................. 931 Shuford, Anderson v......................................... 935 Sid Richardson Carbon & Gas Co. v. Moore Co................. 925 Sierra v. Heinze............................................ 914 Signatrol, Inc. v. Schulenburg.............................. 959 Silva v. Cox................................................ 919 Simari v. Wilkins........................................... 930 Simler v. Conner............................................ 928 Simpson, Schack v........................................... 904 Simpson v. United States.................................... 971 Siwecki v. Kaiser Jeep Corp................................. 962 Skinner Co. v. Continental Industries....................... 934 Skolnick v. Hallett......................................... 922 Slumbertogs, Inc., Jiggs, Inc. v..................... 969 Smith, Andrews v............................................ 954 Smith v. Ellington.......................................... 954 Smith v. Idaho.............................................. 916 Smith v. Illinois........................................ 910 953 Smith v. Maxwell.......................................... 931 Smith v. Myers............................................ 931 Smith v. Toledo............................................. 949 Sociedad de Mario Mercado e Hijos v. Puerto Rico.......... 412 Soles, Franzblau v.......................................... 911 South Carolina v. Katzenbach................................ 301 Southern Cal. Edison Co. v. El Paso Gas Co.................. 955 Southwest Potash Corp. v. United States..................... 911 TABLE OF CASES REPORTED. XXVII Page Spevack v. Klein........................................... 942 Spica v. Missouri.......................................... 972 Spink v. Ohio............................................ 927 Spry v. Oberhauser......................................... 919 Stanley, Crouch v.................................... s .* 945 State. See also name of State. State Bd. of Equalization, Albers v........................ 960 State Dept, of Pub. Welfare of Wis., Odell v............... 939 State Hospital Director, Robinson v........................ 931 Steepleton Tire Co., Wirtz v............................... 190 Stello v. Pennsylvania..................................... 922 Stephenson, McIntosh v..................................... 930 Sterling Nelson & Sons, Inc., Rangen, Inc. v............... 936 Stevens v. Marks........................................... 234 Stevens v. McCloskey....................................... 234 Stevens v. Ohio........................................ 939,963 Stevenson v. Mancusi....................................... 951 Stewart, California v...................................... 903 Stewart v. Janes........................................... 962 Stiltner v. Rhay........................................... 931 Stiltner v. Washington................................... 919,963 Stonewall Properties, Inc., Ellis v........................ 962 Straub v. United States.................................... 908 Surowitz v. Hilton Hotels Corp............................. 363 Swann v. Adams............................................. 210 Tabas v. Hudson............................................ 969 Tandler v. United States................................... 961 Tarin v. United States..................................... 938 Tax Comm’n of N. Y., Powless v......................... 911 Taylor v. Ohio......................................... 918,951 Teer Co. v. United States.................................. 934 Tehan v. Shott............................................. 931 Tellier, Commissioner v.................................... 687 Ten Individual Defendants v. Indian Lake Estates........... 947 Tennessee, Carden v..................................... 959 Tennessee, Lester v........................................ 952 Tennessee, Williams v...................................... 963 Tennessee Gas Co. v. United States......................... 943 Tennessee Tobacco Growers v. Commodity Credit Corp....... 907 Texaco, Inc., Chandler v................................... 936 Texaco, Inc., Hopson v..................................... 262 Texas, Bell v.............................................. 923 Texas, Bruner v............................................ 945 Texas, Wells v............................................. 930 XXVIII TABLE OF CASES REPORTED. Page Thaggard v. United States................................. 958 Third Nat. Bk. & Tr. Co., Aetna Casualty Co. v............ 944 Thomas v. Clark......................................... 952 Thomas v. Florida......................................... 938 Thomas v. Pate............................................ 962 Thomas v. Ward............................................ 916 Thomson v. California..................................... 963 Tibbetts v. Knowles....................................... 927 Time-O-Matic Co., Signatrol, Inc. v....................... 959 Tippett v. United States.................................. 908 Toledo, Smith ............................................ 949 Tometto v. New York...................................... 952 Toth v. Heinze............................................ 916 Trade Commission. See Federal Trade Comm’n. Tramontana v. Varig Airlines.............................. 943 Transportation-Communication Union v. Union Pac. R. Co.. 905 Trantino v. New Jersey.................................... 922 Traynor, Ford v........................................... 915 Tremont v. United States.................................. 944 Turner, Farnsworth v...................................... 932 Turpin v. Maxwell......................................... 917 2000 Plastic Tubular Cases v. United States............... 913 Udall, Duesing v............................ .t .i........ 912 Union. For labor union, see name of trade. Union Pac. R. Co., Transportation-Com. Union v............ 905 United. For labor union, see name of trade. United Biscuit Co. v. Federal Trade Comm’n................ 926 United Gas Pipe Line Co. v. Federal Power Comm’n........ 924 United States v. Adams..................................... 39 United States v. American Broad-Paramount Theatres .... 906 United States, American Dist. Telegraph Co. v............. 933 United States, Ansourian v................................ 949 United States v. Atchison, T. & S. F. R. Co............... 964 United States, Automatic Fire Alarm Co. v................. 933 United States, Bailey v................................... 959 United States, Bakes v.................................... 968 United States, Beaver v................................... 937 United States, Bell v................................... 947 United States, Birdsell v................................. 923 United States, Black v.................................... 973 United States v. Black Diamond S. S. Corp................. 910 United States, Booker v................................... 961 United States, Bowling v.............................. 908,973 United States, Bowman v................................... 950 TABLE OF CASES REPORTED. XXIX Page United States, Brooks v.................................... 916,969 United States, Butler v....................................... 909 United States, Campbell v..................................... 907 United States, Carr v......................................... 968 United States, Castellana v.................................. 928 United States, Castellano v................................... 949 United States, Cervantes v................................... 904 United States, Clayton Chemical & Packaging Co. v........... 821 United States, Collier v...................................... 933 United States, Collins v..................................... 960 United States, Coronado v................................... 921 United States, Costello v.................................... 942 United States, Cottage v..................................... 969 United States, County Bd. of Election of Monroe County v.. 575 United States, Cozzi v....................................... 911 United States, Dagampat v.................................... 950 United States v. Demko....................................... 966 United States, Dicker v...................................... 936 United States, Di Palermo v.................................. 930 United States, Duval v........................................ 932 United States, Edwards v..................................... 929 United States, Eldridge v.................................... 931 United States v. Ewell....................................... 116 United States v. Fabrizio.................................... 904 United States, Fjellhammer v................................... 923 United States, Fojon v......................................... 919 United States, Forgett v....................................... 926 United States, Forrest Village Apts, v....................... 943 United States, Forsberg v...................................... 950 United States, Foulkes v....................................... 944 United States, Fowler v...................................... 907 United States, Garvin v...................................... 914 United States, Gillentine v.................................. 922 United States, Ginzburg v................................... 463 United States, Gojack v...................................... 964 United States, Government Employees Ins. Co. v................. 939 United States, Gradsky v. 265 United States, Grene v.................... i............. 265 United States v. Grinnell Corp................................. 933 United States, Grinnell Corp, v................................ 933 United States v. Guest......................................... 745 United States, Hackett v....................................... 973 United States, Harper v........................................ 951 United States, Hazel v......................................... 914 XXX TABLE OF CASES REPORTED. Page United States, Herr v............................................. 922 United States, Holland v.......................................... 928 United States, Holmes Electric Protective Co. v................... 933 United States, Indiviglio v.................................. 907 United States, Irwin v........................................... 967 United States, Jett v............................................. 935 United States v. Johnson.......................................... 169 United States, Jones v............................................ 922 United States, Kaufman v.......................................... 951 United States, Kenner v........................................... 958 United States, Kent v............................................. 541 United States, Kindelan v......................................... 944 United States, Knetsch v.......................................... 957 United States, La Placa v......................................... 927 United States, Larro v............................................ 944 United States, Leach v............................................ 917 United States, Lee v.............................................. 908 United States, Levine v........................................... 265 United States, Lichota v.......................................... 954 United States, Link v............................................. 915 United States, Louisville & N. R. Co. v........................... 102 United States, Lusk v............................................. 967 United States, Lynch v............................................ 904 United States, McGann v......................................... 916 United States, McIntosh v......................................... 922 United States, Michaels v........................................ 918 United States, Monroe County Bd. of Election v.................... 575 United States, Moon v............................................. 929 United States, Motorlease Corp, v............................ 573 United States, Murray v........................................... 949 United States v. National Steel Corp........................... 905 United States, Nello L. Teer Co. v........................... 934 United States, Nesbitt v.......................................... 926 United States v. O’Malley......................................... 627 United States, Owensby v.......................................... 962 United States, Pagano v........................................... 928 United States, Panczko v.......................................... 935 United States, Payson v........................................... 957 United States, Perati v........................................... 957 United States v. Price............................................ 787 United States, Reeves v........................................... 929 United States, Roberts v.......................................... 265 United States, Robinson v......................................... 911 United States, Rosen v.......................................... 908 TABLE OF CASES REPORTED. XXXI Page United States, Rough Diamond Co. v............................ 957 United States, Royal Court Apts, v............................ 968 United States v. S & A Co..................................... 942 United States, Salter v.................................... 943 United States, Scalza v..................................... 922 United States, Simpson v...................................... 971 United States, Southwest Potash Corp, v.................... 911 United States, Straub v..................................... 908 United States, Tandler v..................................... 961 United States, Tarin v....................................... 938 United States, Teer Co. v.................................... 934 United States, Tennessee Gas Co. v........................... 943 United States, Thaggard v.................................... 958 United States, Tippett v..................................... 908 United States, Tremont v..................................... 944 United States, 2000 Plastic Tubular Cases v...... i........ 913 United States, United Transports v........................ 411 United States, Vasquez-Ochoa v............................... 939 United States, Wabash Fire & Cas. Ins. Co. v................. 909 United States, Wapnick v..........i..................... 923 United States, Ware v....................................... 919 United States, Westover v.................................... 903 United States, Williams v.................................... 917 United States, Wilson v...................................... 944 United States, Wright v...................................... 973 U. S. Bd. of Parole, Mohler v................................ 916 U. S. District Court, General Sani-Can Mfg. Corp, v....... 924 U. S. District Court Chief Judge, Minchella v............... 904 U. S. District Court Chief Judge, Schack v................... 904 U. S. District Judge v. Texaco, Inc.......................... 936 U. S. District Judge, Vida v.................................. 922 U. S. ex rel. See name of real party in interest. United Transports v. United States............................ 411 Urse, Kandl v............................................. 901 940 Van Buskirk, Bailey v......................................... 948 Van Slyke v. New York......................................... 953 Varig Airlines, Tramontana v.................................. 943 Vamadoe v. Illinois........................................... 929 Vasquez-Ochoa v. United States................................ 939 Velotta v. McGettrick......................................... 944 Vess v. Peyton................................................ 953 Veterans Administration Hosp. Dir., White v................... 904 Vickers, Ryan v............................................... 944 Vida v. Roth.................................................. 922 XXXII TABLE OF CASES REPORTED. Page Vignera v. New York....................................... 903 Virginia, Goldman v....................................... 969 Virginia, Hawley v........................................ 910 Virginia, Miller v........................................ 831 Virginia, Wallace v....................................... 956 Virginia Bd. of Elections, Harper v....................... 663 Virginia Elec. & Power Co., Khabiri v..................... 971 Virginia Governor, Butts v............................... 663 Vitoratos v. Maxwell...................................... 10® Wabash Fire & Cas. Ins. Co. v. United States.............. 909 Wager v. New York..................................... 920,954 Wainwright, James v...................................... 937 Wainwright, Perez v....................................... 938 Wainwright, Pert v........................................ 972 Wallace v. Virginia....................................... 956 Wallis v. Pennsylvania.................................... 970 Walls v. Myers............................................ 952 Wapnick v. United States.................................. 923 Ward, Thomas v............................................ 916 Warden. See name of warden. Ware v. United States..................................... 919 Warren Co. v. Labor Board................................. 958 Washington, Biloche v..................................... 949 Washington v. Colorado.................................... 953 Washington, Philipp v..................................... 927 Washington v. Recorder’s Court Judge...................... 962 Washington, Stiltner v................................ 919,963 Washington Bd. of Prison Terms and Paroles, Darst v..... 961 Washington Tax Comm’n, Capitol Skateland v................ 103 Washington Tax Comm’n, Hemphill v......................... 103 Watkins v. Conway......................................... 941 W. E. Grace Mfg. Co. v. Bros Inc.......................... 936 Weller v. California...................................... 953 Wells v. Texas............................................ 930 Well Surveys, Inc., McCullough Tool Co. v................. 933 Welsher v. Burke.......................................... 954 West Co., Kirschner v..................................... 945 West Co., K-N Enterprises v............................... 945 Westover v. United States................................. 903 White v. Director, Veterans Adm. Hosp..................... 904 White v. Wilson........................................... 962 Wilkins, Bennett v........................................ 913 Wilkins, Bogan v.......................................... 919 Wilkins, Bryant v....................................i.. 972 TABLE OF CASES REPORTED. xxxin Page Wilkins, Furtak v......................................... 932 Wilkins, Machado v.................................... 916,963 Wilkins, Simari v......................................... 930 Williams v. California.................................... 916 Williams v. California Adult Auth......................... 901 Williams v. Tennessee..................................... 963 Williams v. United States................................. 917 Wilson, Allen v.......................................... 964 Wilson, Braun v.......................................... 920 Wilson, Cordova v....................................... 920 Wilson, Harris v........................................ 951 Wilson, McLamb v....................................... 955 Wilson v. New York........................................ 930 Wilson, Postell v..................................... 931,955 Wilson, Salazar v........................................ 954 Wilson v. United States................................... 944 Wilson, White v........................................... 962 Wirtz, Douglas v.......................................... 909 Wirtz, Idaho Sheet Metal Works v....................... 190,963 Wirtz v. Steepleton Tire Co............................... 190 Wisconsin, Carter v...................................... 948 Wisconsin, Gauthier v..................................... 916 Wisconsin Dept, of Pub. Welfare, Odell v.................. 939 Wood v. Boles............................................. 904 Wood v. Wood.............................................. 943 Woodley v. California..................................... 948 World Airways v. National Mediation Bd.................... 926 World Church, Boys Town, U. S. A., Inc. v................. 910 Worthington Corp. v. Lease Management..................... 937 Wright v. United States................................... 973 W. W. I. Z., Inc. v. Federal Com. Comm’n.................. 967 Yamane, HC&D Moving & Storage Co. v....................... 104 Yeager, Collins v......................................... 953 York County Nat. Gas Auth., Mozingo v.................. 970 Yost v. Gunby............................................. 959 Young v. New York......................................... 921 Zanca v. Maimonides Hospital.............................. 922 Ziff, Easter v............................................ 922 TABLE OF CASES CITED Page Abbate v. United States, 359 U. S. 187 124,126,127 Abernathy v. Alabama, 380 U. S. 447 270 Acker v. Comm’r, 258 F. 2d 568 690 Adams, Application of, 50 C. C. P. A. (Pat.) 1185 530,532,538 Adams v. Mills, 286 U. S. 397 595,600 Adamson v. California, 332 U. S. 46 675,676,678 Alabama v. United States, 371 U. S. 37 311, 325, 326, 334, 336 Alberts v.. California, 354 U. S. 476 509 Albertson v. Control Bd., 382 U. S. 70 245 Allen v. United States, 164 U. S. 492 552 Allen-Bradley Local v. Wisconsin Bd., 315 U. S. 740 59,729,730 Allied Stores v. Bowers, 358 U. S. 522 674 Amalgamated. For labor union, see name of trade. American Can Co. v. Comm’r, 317 F. 2d 604 571 American Com. Assn. v. Douds, 339 U. S. 382 507,785,795 American Fire & Cas. Co. v. Finn, 341 U. S. 6 723 American Propeller v. United States, 300 U. S. 475 823 Aptheker v. Secy, of State, 378 U. S. 500 760,770 Arizona Grocery v. Atchison, T. & S. F. R. Co., 284 U. S. 370 591,600,624 Armstrong Co. v. Nu-Enamel Corp., 305 U. S. 315 725 Page Arnold v. Ben Kanowsky, Inc., 361 U. S. 388 * 206 Assigned Car Cases, 274 U. S. 564 329 Association. For labor union, see name of trade. Atalanta Trading v. FTC, 258 F. 2d 365 656 Atlanta Motel v. United States, 379 U. S. 241 324,330,759,784 A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147 3,6,12,17 Attorney General v. “Tropic of Cancer,” 345 Mass. 11 418 Auto Club of Mich. v. Comm’r, 353 U. S. 180 297 Automatic Canteen v. FTC, 346 U. S. 61 662 Auto Workers v. Russell, 356 U. S. 634 62,64,66,729,730 Auto Workers v. Wisconsin Bd., 351 U. S. 266 729,730 Baker v. Carr, 369 U. S. 186 773 Baldwin v. Milling Co., 307 U. S. 478 580,601 Ballet Russe v. Ballet Theatre, 133 F. 2d 187 732 Baltimore Mayor v. Dawson, 350 U. S. 877 754 Baltimore & O. R. Co. v. Brady, 61 F. 2d 242, 288 U. S. 448 587,595 Baltimore & O. R. Co. v. Pitcairn Coal, 215 U. S. 481 592,593 Baltimore & O. R. Co. v. United States, 12 F. Supp. 261 604 Baltimore S. S. Co. v. Phillips, 274 U. S.316 704,723-725 Barenblatt v. United States, 360 U. S. 109 830 xxxv XXXVI TABLE OF CASES CITED. Page Barnard v. United States, 342 F. 2d 309 188 Barr v. Matteo, 360 U. S. 564 85 Barrett v. Indiana, 229 U. S. 26 681 Bates v. Little Rock, 361 U. S. 516 829 Baxstrom v. Herold, 383 U. S. 107 670,681 Bavless v. United States, ¿47 F. 2d 169 121 Beauharnais v. Illinois, 343 U. S. 250 90,457 Beavers v. Haubert, 198 U. S. 77 120 Beckridge Corp. v. Comm’r, 129 F. 2d 318 279,296 Bedford v. Hunt, 3 Fed. Cas. 37 533 Bell v. Comm’r, 320 F. 2d 953 690 Bell v. Maryland, 378 U. S. 226 355,756,780 Bergel, Application of, 48 C. C. P. A. (Pat.) 1102 531,535 Bernhardt v. Polygraphie Co., 350 U. S. 198 707 Bingham Trust v. Comm’r, 325 U. S. 365 690 Bishop v. United States, 350 U. S. 961 378,386 Black v. United States, 355 F. 2d 104 553,555,556, 558-562,564,565,568 Blockburger v. United States, 284 U. S. 299 124 Blum v. Machinists, 42 N. J. 389 57 Board of County Comm’rs v. United States, 308 U. S. 343 709 Board of Governors v. Agnew, 329 U. S. 441 572 Boman v. Birmingham Transit, 280 F. 2d 531 794 Borak v. J. I. Case Co., 317 F. 2d 838 725 Borden’s Farm Prods, v. Ten Eyck, 11 F. Supp. 599 652 Page Bose v. 39 Broadway, Inc., 80 F. Supp. 825 374 Boss Mfg. v. Payne Giove, 71 F. 2d 768 659 Bouteil v. Walling, 327 U. S. 463 197,205 Bowles v. Willingham, 321 U. S. 503 331 Boyce Motor Lines v. United States, 342 U. S. 337 507,785 Boynton v. Virginia, 364 U. S. 454 270,759,773 Branch, Ex parte, 234 Mo. 466 257 Brantley v. Devereaux, 237 F. Supp.156 57 Breard v. Alexandria, 341 U. S. 622 475,498 Breedlove v. Suttles, 302 U. S. 277 665,669-673,683 Bremner, Application of, 37 C. C. P. A. (Pat.) 1032 529,530,539,540 Brewer v. Hoxie School Dist., 238 F. 2d 91 780 Bridges v. California, 314 U. S. 252 429 Brotherhood. For labor union, see name of trade. Brown v. Bd. of Education, 347 U. S. 483 311, 670,677,678,682,754 Brown Lumber v. Louisville & N. R. Co., 299 U. S. 393 600 Brown & Sharpe v. Kar Eng. Co., 154 F. 2d 48 16 Bruce’s Juices v. American Can, 87 F. Supp. 985 656 Brumley v. Chattanooga Speedway, 138 Tenn. 534 720 Brunson v. Johnston, 15 N. Y. 2d 647 114 Buchanan v. Warley, 245 U. S. 60 148 Budlong Estate v. Comm’r, 7 T. C. 756 632 Burnet v. Northern Tr. Co., 283 U. S. 782 630 Burnett v. New York Central, 380 U. S. 424 703,708 TABLE OF CASES CITED. XXXVII Page Burns v. Comm’r, 177 F. 2d 739 633 Burns v. Meyer, 100 U. S. 671 49 Burns v. Ohio, 360 U. S. 252 128 Burroughs Co. v. Comm’r, 47 F. 2d 178 690 Burstyn, Inc. v. Wilson, 343 U. S. 495 144,431 Burton v. United States, 202 U. S. 344 188 Burton v. Wilmington Parking Auth., 365 U. S. 715 754,756,794 Butler v. Michigan, 352 Ü. S. 380 465,483 Butler v. Thompson, 341 U. S. 937 671,683 Butts v. Harrison, 383 U. S. 663 317 Bynum v. United States, 104 U. S. App. D. C. 368 551 Cafeteria Union v. Angelos, 320 U. S. 293 58 Caldwell v. Alabama Dry Dock, 161 F. 2d 83 707 Cammarano v. United States, 358 U. S. 498 283,693 Campbell v. Haverhill, 155 U. S. 610 704,707,709 Carlson v. Landon, 342 U. S. 524 337 Carpenters v. United States, 330 U. S. 395 736,743 Carrington v. Rash, 380 U. S. 89 325, 667, 670, 681, 683 Carroll v. McNeill, 294 F. 2d 117 113 Case Co. v. Labor Bd., 321 U. S. 332 700 Central R. Co. v. United States, 257 U. S. 247 593 Chandler v. Fretag, 348 U. S. 3 694 Chaplinsky v. New Hampshire, 315 U. S. 568 133,442,461 Chattanooga Foundry v. Atlanta, 203 U. S. 390 704,709 City. See name of city. Page Ciucci v. Illinois, 356 U. S. 571 125 Civil Rights Cases, 109 U. S. 3 755,782,783 Clancy v. Daily News, 202 Minn. 1 85 Clark Thread v. Comm’r, 100 F. 2d 257 279,280,296 Cohn v. United States, 259 F. 2d 371 282,283,293,297 Cole v. Arkansas, 333 U. S. 196 478,500 Cole v. Hall, 339 F. 2d 881 73 Coleman v. MacLennan, 78 Kan. 711 86 Collins v. Hardyman, 341 U. S. 651 779,805 Collins v. Markley, 346 F. 2d 230 118,128 Commercial Pictures v. Regents, 346 U. S. 587 144 Commissioner v. Bums, 9 T. C. 979 633,634 Commissioner v. Church Estate, 335 U. S. 632 631,632 Commissioner v. Cleveland Mayer Realty, 160 F. 2d 1012 294 Commissioner v. Gidwitz’ Estate, 196 F. 2d 813 633,634 Commissioner v. Gillette Motor Co., 364 U. S. 130 572 Commissioner v. Glenshaw Glass, 348 U. S. 426 298 Commissioner v. Hager’s Estate, 173 F. 2d 613 633 Commissioner v. Heininger, 320 U. S. 467 689,692,694 Commissioner v. Holmes Estate, 326 U. S. 480 631,633 Commissioner v. Korell, 339 U. S. 619 571 Commissioner v. McDermott’s Estate, 222 F. 2d 665 630,634,635 Commissioner v. Mutual Fertilizer, 159 F. 2d 470 294 Commissioner v. Schwartz, 232 F. 2d 94 690 Commissioner v. Sullivan, 356 U. S. 27 692-694 XXXVIII TABLE OF CASES CITED. Page Commissioner of Internal Revenue. See Commissioner. Commonwealth. See also name of Commonwealth. Commonwealth v. Gordon, 66 Pa. D. & C. 101 432 Commonwealth v. Holmes, 17 Mass. 336 425,430 Communications Commission. See FCC. Concrete Appliances v. Gom-ery, 269 U. S. 177 15 Conley v. Gibson, 355 U. S. 41 700 Consolidated Edison v. La- bor Bd., 305 U. S. 197 620 Consolo v. Fed. Maritime Comm’n, 383 U. S. 607 579,587 Constr. Laborers v. Curry, 371 U. S. 542 72 Constr. Workers v. Laburnum Corp., 347 U. S. 656 61,66,729,730 Cooper v. Aaron, 358 U. S. 1 148 Cope v. Anderson, 331 U. S. 461 704,708,711 Corfield v. Coryell, 4 Wash. C. C. 371 764,768 Corn Products v. Comm’r, 350 U. S. 46 572 Counselman v. Hitchcock, 142 U. S. 547 244,249,250 Covington & Cincinnati Bridge v. Kentucky, 154 U. S. 204 759 Cox v. Louisiana, 379 U. S. 536 133-135,138, 140, 143, 144, 148, 149, 157-159, 163, 475, 670 Cox v. Louisiana, 379 U. S. 559 157,158,166 Coyle v. Smith, 221 U. S. 559 329 Crandall v. Nevada, 6 Wall. 35 757 764, 767, 768, 770, 772 Crane v. Comm’r, 331 U. S. 1 571 Page Crawford v. Hevsinger, 123 U. S. 589 ‘ 33 Cuno Corp, v. Automatic Devices, 314 U. S. 84 15 Dale v. Temple Co., 186 Tenn. 69 720 Dalton v. Marzall, 342 U. S. 818 523 Dann v. Studebaker-Packard, 288 F. 2d 201 725 Danville v. Chesapeake & O. R. Co., 34 F. Supp. 620 595 Debs, In re, 158 U. S. 564 768,769 DeGregory v. Attorney General, 368 U. S. 19 826 DeGregory v. Wyman, 360 U. S. 717 826 Del Vecchio v. Bowers, 296 U. S. 280 557 Densmore v. Scofield, 102 U. S. 375 15 Dept, of Banking v. Pink, 317 U. S. 264 41 Deputy v. du Pont, 308 U. S. 488 689 De Sylva v. Ballentine, 351 U. S. 570 705,706 Detroit Edison v. Comm’r, 319 U. S. 98 277,288^289 Director of Internal Revenue. See Commissioner. District of Columbia v. Hunt, 82 U. S. App. D. C. 159 257 District of Columbia v. Little, 339 U. S. 1 557 Dixon v. United States, 381 U. S. 68 297 D. L. Piazza Co. v. West Coast Line, 210 F. 2d 947 587,614 Dodson, Application of, 48 C. C. P. A. (Pat.) 1125 531 D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447 705 Dombrowski v. Pfister, 380 U. S. 479 144,148,475,483 Dominus Rex v. Curl, 2 Strange 789 (K. B.) 428 TABLE OF CASES CITED. XXXIX Page Douglas v. California, 372 U. S. 353 128,668,682 Dowd Box v. Courtney, 368 U. S. 502 700 Draper v. Washington, 372 U. S. 487 128 Drivers v. Meadowmoor Co., 312 U. S. 287 166 Dukes v. Painters, 191 Tenn. 495 720 Durham v. United States, 94 U. S. App. D. C. 228 550 Dusky v. United States, 362 U. S. 402 387,388 Edelman v. California, 344 U. S. 357 257 Edins v. Helzberg’s Diamond Shops, 315 F. 2d 223 394 Edwards v. California, 314 U. S. 160 668,682, 758-760, 767, 768, 770 Edwards v. South Carolina, 372 U. S. 229 135, 142, 155, 159, 163 Edwards v. United States, 117 U. S. App. D. C. 383 545 Eldorado Coal v. Mager, 255 U. S. 522 279,295 Engineers Ltd. Pipeline, 44 T. C. 226 287 Englander Motors v. Ford Motor, 293 F. 2d 802 704 Erie R. Co. v. Tompkins, 304 U. S. 64 726,769 Estate. See name of estate. Evans v. Newton, 382 U. S. 296 682,755,756,795 Everard’s Breweries v. Day, 265 U. S. 545 327 Ex parte. See name of party. “Fanny Hill” v. Massachusetts, 383 U. S. 413 476, 478, 486, 491, 493, 494, 496, 501, 515 Far East Conf. v. United States, 342 U. S. 570 220-222,620 Farmers Union v. WDAY, 360 U. S. 525 88 Fay v. Noia, 372 U. S. 391 128 | Page FCC v. Pottsville Broad. Co., 309 U. S. 134 525 FTC v. Anheuser-Busch, 363 U. S. 536 639,659 FTC v. Mandel Bros., 359 U. S. 385 640 FTC v. Mary Carter Paint, 382 U. S. 46 620 FTC v. Minneapolis-Honey-well, 344 U. S. 206 41 FTC v. Morton Salt, 334 U. S. 37 660 Feiner v. New York, 340 U. S. 315 133,149 Ferguson v. District of Columbia, 270 U. S. 633 253 Ferguson v. Skrupa, 372 U. S. 726 674 Fishgold v. Sullivan Corp., 328 U. S. 275 228,229 Fiske v. Kansas, 274 U. S. 380 456 Fitzgerald v. Pan American Airways, 229 F. 2d 499 773 Florida v. Mellon, 273 U. S. 12 324 Flournoy v. Weiner, 321 U. S. 253 512 Folkers, Application of, 52 C. C. P. A. (Pat.) 1269 535 Ford Motor v. Labor Bd., 305 U. S. 364 823 Forman v. United States, 361 U. S. 416 41 Freedman v. Maryland, 380 U. S. 51 483 Fribourg Nav. Co. v. Comm’r, 335 F. 2d 15 297 Fribourg Nav. Co. v. Comm’r, 383 U. S. 272 573 Frost Trucking v. Railroad Comm’n, 271 U. S. 583 243 Gaines v. Miller, 111 U. S. 395 713 Garland, Ex parte, 4 Wall. 333 324 Garment Workers v. Labor Bd., 237 F. 2d 545 739 Garner v. Louisiana, 368 U. S. 157 133,134,138-141, 146, 155, 156, 163, 164 XL TABLE OF CASES CITED. Page Garner v. Teamsters, 346 U. S. 485 59,71 Garrison v. Louisiana, 379 U. S. 64 64,67,68, 77, 84, 91, 92, 94 Gayle v. Browder, 352 U. S. 903 670 General Motors v. District of Columbia, 380U.S. 553 568 Georgia v. Pennsylvania R. Co., 324 U. S. 439 307 Gerber Prods, v. Beech-Nut, 160 F. Supp. 916 647,658 Gibbons v. Ogden, 9 Wheat. 1 6,327 Giboney v. Empire Storage, 336 U. S. 490 475 Gibson v. Florida Leg. Comm’n, 372 U. S. 539 829 Gideon v. Wainwright, 372 U. S. 335 694 Gilberg v. Goffi, 21 App. Div. 2d 517 83 Ginzburg v. United States, 383 U. S. 463 417, 42 0, 421, 454, 456, 457, 459,503,510, 516, 518 Gitlow v. New York, 268 U. S. 652 456 Glass v. De Roo, 44 C. C. P. A. (Pat.) 723 528 Glidden Co. v. Zdanok, 370 U. S. 530 523,525,526 Gloucester Ferry v. Pennsylvania, 114 U. S. 196 759 Goesaert v. Cleary, 335 U. S. 464 674 Goldberg, In re, 53 F. 2d 454 403 Gomillion v. Lightfoot, 364 U. S. 339 311,325,672 Gore v. United States, 357 U. S. 386 125,127 Gorin v. United States, 312 U. S. 19 507,785 Graham v. John Deere Co., 383 U. S. 1 48,526,529 Gray v. Sanders, 372 U. S. 368 667 Green v. United States, 113 U. S. App. D. C. 348 553 Page Green v. United States, 355 U. S. 184 125-128 Griffin v. Illinois, 351 U. S. 12 128,668,682 Griffin v. Maryland, 378 U. S. 130 756,795 Griswold v. Connecticut, 381 U.S. 479 358,498,676 Grosjean v. American Press Co., 297 U. S. 233 430 Gross v. Cantor, 270 N. Y. 93 99 Grove Press v. Christenberry, 175 F. Supp. 488 472 Grove Press v. Christen- berry, 276 F. 2d 433 472,496 Grove Press v. Gerstein, 378 U. S. 577 491 Gruschwitz, In re, 375 U. S. 967 523 Guaranty Tr. Co. v. York, 326 U. S. 99 703 Guinn v. United States, 238 U.S. 347 311,325 Gulf, M. & N. R. Co. v. Merchants’ Specialty, 50 F. 2d 21 601 Gully v. First Nat. Bk., 299 U. S. 109 725 Guss v. Utah Labor Bd., 353 U. S. 1 71,72 Haas v. Henkel, 216 U. S. 462 172 Hague v. CIO, 307 U. S. 496 779,805 Hall v. United States, 95 Ct. Cl. 539 279,281,296 Hampton v. Jacksonville, 304 F. 2d 320 794 Handler v. Denver, 102 Colo. 53 257 Hannah v. Lärche, 363 U. S. 420 326 Hanover Bank v. Comm’r, 369 U. S. 672 571 Harling v. United States, 111 U. S. App. D. C. 174 544, 545, 551, 555, 561 Harman v. Forssenius, 380 U. S. 528 666 Harper v. Virginia Bd. of Elections, 240 F. Supp. 270 686 TABLE OF CASES CITED. XLI Page Harper v. Virginia Bd. of Elections, 383 U. S. 663 317 Hass, In re, 31 C. C. P. A. (Pat.) 895 522 Heart of Atlanta Motel v. United States, 379 U. S. 241 324,330,759,784 Heflin v. United States, 358 U. S. 415 253 Helvering v. Hallock, 309 U. S. 106 631 Helvering v. Reynolds, 313 U. S. 428 298 Helvering v. Winmill, 305 U. S. 79 283 Henderson v. United States, 339 U. S. 816 759,773 Henze, Application of, 37 C. C. P. A. (Pat.) 1009 522 Herget v. Central Bank, 324 U. S. 4 704 Hernandez, Inc. v. Arnold Bernstein, M.B.H., 116 F. 2d 849 626 Hertz Corp. v. United States, 364 U. S. 122 277,282,290-292 Higgins v. Comm’r, 312 U. S. 212 298 Hillsdale Coal & Coke v. Pennsylvania R. Co., 237 F. 272 595 Hirabayashi v. United States, 320 U. S. 81 356 Hitchings, Application of, 342 F. 2d 80 531 Hoag v. New Jersey, 356 U. S. 464 125 Hodges v. United States, 203 U. S. 1 755 Hogg v. Emerson, 11 How. 587 33 Hoke v. United States, 227 U. S. 308 759 Holmberg v. Armbrecht, 327 U. S. 392 704,705,709,711,713 Holmes v. Atlanta, 350 U. S. 879 754 Home Bldg. & Loan v. Blaisdell, 290 U. S. 398 334 Hoover Co. v. Coe, 325 U. S. 79 527 Page Hoover Exp. Co. v. United States, 356 U. S. 38 694 Hotchkiss v. Greenwood, 11 How. 248 4,11,12,14-17 House v. Mayo, 324 U. S. 42 253 Hurn v. Oursler, 289 U. S. 238 722-724 Hygrade Provision Co. v. Sherman, 266 U. S. 497 507 785 Illinois Central v. ICC, 206 U. S. 441 599 Industrial Tr. Co. v. Comm’r, 165 F. 2d 142 631,632 In re. See name of party. Internal Revenue Service. See Commissioner. International. For labor union, see name of trade. ILGWU v. Labor Bd., 237 F. 2d 545 739 Int’l Shoe Co. v. Cocreham, 246 La. 244 324 ICC v. Atlantic C. L. R. Co., 383 U. S. 576 612,614,615,617 ICC v. Delaware, L. & W. R. Co., 220 U. S. 235 586 ICC v. Illinois Central, 215 U. S. 452 592-594 ICC v. Union P. R. Co., 222 U. S. 541 593 Jackson v. Denno, 378 U. S. 368 96,387 Jacobellis v. Ohio, 378 U. S. 184 420, 421, 442, 443, 457, 460, 462, 479, 484, 499 James v. Boles, 339 F. 2d 431 389 James v. Bowman, 190 U. S. 127 326 James v. United States, 366 U. S. 213 691,786 James Everard’s Breweries v. Day, 265 U. S. 545 327 Jamison v. Texas, 318 U. S. 413 474 Jensen, In re, 200 F. 2d 58 403,407 Jeoffroy Mfg. v. Graham, 219 F. 2d 511 4,25 XLII TABLE OF CASES CITED. Page J. I. Case Co. v. Labor BcL, 321 U. S. 332 700 Johnson v. Hoosier Cardinal Corp., 134 Ind. 477 699 Johnson v. Virginia, 373 U. S. 61 138,139,147,754 Johnston Seed v. United States, 90 F. Supp. 358 621 Joint Council. For labor union, see name of trade. Jones, Application of, 32 C. C. P. A. (Pat.) 1020 522 Joseph, Thomas A., 26 T. C. 562 690 Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 144,431 Kamisaroff v. Johnston, 13 N. Y. 2d 66 114 Katz v. Horni Signal Mfg., 145 F. 2d 961 536 Katzenbach v. McClung, 379 U. S. 294 324,328,330,759 Keele Hair Specialists v. FTC, 275 F. 2d 18 620 Kent v. Dulles, 357 U. S. 116 760,770 Kent v. Reid, 114 U. S. App. D. C. 330 548,552 Kerr v. Enoch Pratt Library, 149 F. 2d 212 794 Kilboum v. Thompson, 103 U. S. 168 179-181 Killebrew v. United States, 234 F. Supp. 481 287,297 King, The, v. Boston, 33 Commw. L. R. 386 180 Kingsley Pictures v. Regents, 360 U. S. 684 144,164,431 Kittredge v. Comm’r, 88 F. 2d 632 279,280,296 Klaxon Co. v. Stentor Mfg., 313 U. S. 487 705 Korematsu v. United States, 323 U. S. 214 668,682 Komhauser v. United States, 276 U. S. 145 689,690 Kotch v. River Pilot Comm’rs, 330 U. S. 552 673,674,682 Kovacs v. Cooper, 336 U. S. 77 457,475 Page Krimmel, Application of, 48 C. C. P. A. (Pat.) 1116 531 Labor Bd. v. Columbian Enameling, 306 U. S. 292 620 Labor Bd. v. Electric Cleaner, 315 U. S. 685 625 Labor Bd. v. Nevada Copper, 316 U. S. 105 620 Labor Bd. v. Seven-Up Co., 344 U. S. 344 621 Labor Bd. v. Southland Mfg., 201 F. 2d 244 620 Labor Bd. v. Tennessee Coal, 307 F. 2d 374 719 Labor Bd. v. Walton Mfg., 369 U. S. 404 621 Labor Union. See name of trade. Lane, Edward V., 37 T. C. 188 293 Lane v. Brown, 372 U. S. 477 128 Lane v. Wilson, 307 U. S. 268 311,325 Lanzetta v. New Jersev, 306 U. S. 451 ' 254 Larkin v. Putnam’s Sons, 14 N. Y. 2d 399 427 Lassiter v. Northampton Bd., 360 U. S. 45 333, 665, 666, 673, 685 Lauer v. United States, 320 F. 2d 187 118,121,128 Le Roy v. Sidney, 1 Sid. 168 (K. B.) 428 Levering & Garrigues v. Morrin, 289 U. S. 103 725 Lewis-Simas-Jones Co. v. Southern Pac. Co., 283 U. S. 654 580 Lilly v. Comm’r, 343 U. S. 90 689,692,694 Lincoln Eng. Co. v. Stewart- Warner, 303 U. S. 545 25 Liner v. Jafco, Inc., 375 U. S. 301 72 Linn v. Plant Guard Workers, 383 U. S. 53 89,93 Local. For labor union, see name of trade. Lochner v. New York, 198 U. S. 45 669,686 TABLE OF CASES CITED. XLIII Page Lockerty v. Phillips, 319 U. S. 182 331 Logan v. United States, 144 U.S. 263 771,779,805 Lombard v. Louisiana, 373 U. S. 267 756,795 Longhorn Portland Cement Co., 3 T. C. 310 691 Louisiana v. United States, 380 U. S. 145 312, 325, 326, 334, 666, 667, 672 Louisville & N. R. Co. v. Behlmer, 175 U. S. 648 601 Louisville & N. R. Co. v. Mottley, 211 U. S. 149 727 Louisville & N. R. Co. v. Sloss-Sheffield Co., 269 U. S. 217 594,595,625 Lowell v. Lewis, 15 Fed. Cas. 1018 533 Lucas v. 44th General As- sembly, 377 U. S. 713 683 Lyles v. United States, 103 U. S. App. D. C. 22 389 Maass v. Higgins, 312 U. S. 443 634 Mac. See also Me. Macabe Co., 42 T. C. 1105 277,287,293 Mahaley, In re, 187 F. Supp. 229 394 Malat v. Riddell, 383 U. S. 569 824 Mallory v. United States, 354 U. S. 449 545 Malloy v. Hogan, 378 U. S. 1 238-240, 250, 669, 678 Manual Enterprises v. Day, 370 U. S. 478 442,460, 474,483,493,499,508 Marconi Wireless v. United States, 320 U. S. 1 36 Marcus v. Search Warrant, 367 U. S. 717 483,512,513 Martin v. Mott, 12 Wheat. 19 356 Martin v. Struthers, 319 U. S. 141 475 Martino v. Mich. Window Cleaning, 327 U. S. 173 197 Maryland Drydock v. Labor Bd., 183 F. 2d 538 61 Page Massachusetts v. Mellon, 262 U. S. 447 324 Massachusetts Universalist Conv. v. Hildreth & Rogers Co., 183 F. 2d 497 726 Massey Motors v. United States, 364 U. S. 92 277, 282,288-290,293,294 Mast, Foos & Co. v. Stover Mfg., 177 U. S. 485 36 May v. Heiner, 281 U. S. 238 630 May v. United States, 84 U. S. App. D. C. 233 188 Mayorga, In re, 355 F. 2d 89 394 Mayor of Baltimore v. Dawson, 350 U. S. 877 754 Me. See also Mac. McAllister v. Magnolia Petroleum, 357 U. S. 221 704 McBride v. Teeple, 311 U. S. 649 525 McCarty v. Lehigh Valley R. Co., 160 U. S. 110 49 McClain v. Ortmayer, 141 U. S. 419 12 McClaine v. Rankin, 197 U. S. 154 704,706 McCluny v. Silliman, 3 Pet. 270 704,709 McClurg v. Kingsland, 1 How. 202 6 McComb v. Factory Stores, 81 F. Supp.403 197 McCormick v. Burnet, 283 U. S. 784 630 McCulloch v. Maryland, 4 Wheat. 316 326,358,689,783,784 McDaniel v. Shea, 108 U. S. App. D. C. 15 558 McÊlmoyle v. Cohen, 13 Pet. 312 713 McGowan v. Maryland, 366 U. S. 420 328 McKenzie v. Irving Tr. Co., 323 U. S. 365 705 McLean v. Denver & Rio Grande, 203 U. S. 38 626 Meeker v. Lehigh Valley R. Co., 236 U. S. 434 594 XLIV TABLE OF CASES CITED. Page Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412 580,590,591,594,595 Memoirs v. Massachusetts, 383 U. S. 413 476, 478, 486, 491, 493, 494, 496, 501, 515 Mercantile Nat. Bk. v. Langdeau, 371 U. S. 555 598 Metropolitan Co. v. Brownell, 294 U. S. 580 674 Meyer v. Teamsters, 416 Pa. 401 57 Michigan Tr. Co. v. Kavanagh, 284 F. 2d 502 636 Midland Valley R. Co. v. Excelsior Coal, 86 F. 2d 177 595 Milk Wagon Drivers v. Meadowmoor Dairies, 312 U. S. 287 731 Miller v. Brass Co., 104 U. S. 350 31 Minnesota v. Probate Court, 309 U. S. 270 674 Mishkin v. New York, 383 U.S. 502 417,421, 454,456,466,475,476 Mitchell v. Kentucky Fi- nance Co., 359 U. S. 290 196,201 Mitchell v. United States, 313 U. S. 80 759 Mitchell Coal & Coke v. Pennsylvania R. Co., 230 U. S. 247 590-592,594 Monroe v. Pape, 365 U. S. 167 784,794 Monroe Auto Equip, y. Heckethom Mfg., 332 F. 2d 406 36 Monrosa, The, v. Carbon Black, 359 U. S. 180 514 Monsanto Chemical Co. v. Coe, 79 U. S. App. D. C. 155 521,534 Moore v. New York Cotton Exch., 270 U. S. 593 617 Morgan v. Katzenbach, 247 F. Supp. 196 317 Morrisdale Coal v. Pennsylvania R. Co., 230 U. S. 304 590 Page Morrison-Knudsen Co. v. O’Leary, 288 F. 2d 542 619 Morsman v. Burnet, 283 U. S. 783 630 Motorlease Corp. v. United States, 215 F. Supp. 356 283,287 Mounce v. United States, 355 U. S. 180 491 Mountain States Feed v. United States, 245 F. Supp. 369 287 Moviecolor Ltd. v. Eastman Kodak, 288 F. 2d 80 705,708,711 Moynahan v. Pari-Mutuel Guild, 317 F. 2d 209 726 Muir v. Louisville Park Assn., 347 U. S. 971 754 Mulford v. Smith, 307 U. S. 38 337 Municipal Bond Corp. v. Commissioner, 341 F. 2d 683 571 Murdock v. Pennsylvania, 319 U. S. 105 474,665,675 Murphy v. Waterfront Comm’n, 378 U. S. 52 250 Musher Foundation v. Alba Trading, 127 F. 2d 9 723,724 Myers v. Anderson, 238 U. S. 368 311,325 NAACP v. Alabama, 357 U. S. 449 141,829 NAACP v. Button, 371 U. S. 415 141,146,147 National Labor Relations Board. See Labor Board. Neal v. Delaware, 103 U. S. 370 325 Nelson, Application of, 47 C. C. P. A. (Pat.) 1031 530,535,538 New Orleans v. Barthe, 376 U. S. 189 754 New Orleans Park Assn. v. Detiege, 358 U. S. 54 754 New Process Gear v. New York Central, 250 F. 2d 569 595 News Syndicate v. New York Central, 275 U. S. 179 595 TABLE OF CASES CITED. XLV Page New York v. O’Neill, 359 U. S. 1 758,760 New York Times v. Sullivan, 376 U. S. 254 62,65,68, 77, 80, 81, 83-92, 94, 95, 100, 182, 430, 474 Niemotko v. Maryland, 340 U. S. 268 133 Nixon v. Herndon, 273 U. S. 536 678,679 Norris, Application of, 37 C. C. P. A. (Pat.) 876 522 North American Co. v. SEC, 327 U. S. 686 329 Oakley v. Louisville & N. R. Co., 338 U. S. 278 232 Occidental Loan v. United States, 235 F. Supp. 519 287 O’Leary v. Brown-Pacific- Maxon, 340 U. S. 504 621 Omaechevarria v. Idaho, 246 U. S. 343 507,785 One, Inc. v. Olesen, 355 U. S. 371 490 Original Ballet Russe v. Ballet Theatre, 133 F. 2d 187 732 O’Sullivan v. Felix, 233 U. S. 318 704 Pacific Contact Lab. v. Solex Lab., 209 F. 2d 529 16 Palko v. Connecticut, 302 U. S. 319 678 Passenger Cases, 7 How. 283 758 Patsone v. Pennsylvania, 232 U. S. 138 682 Paul v. Virginia, 8 Wall. 168 766 Pauling v. News Syndicate, 335 F. 2d 659 86 Peck v. Coos Bay Times, 122 Ore. 408 86 Peckham v. Comm’r, 327 F. 2d 855 690 Pee v. United States, 107 U. S. App. D. C. 47 555,562 Pennekamp v. Florida, 328 U. S. 331 84 Pennsylvania v. Bd. of Trusts, 353 U. S. 230 756,795 Pennsylvania v. Nelson, 350 U. 8. 497 827,830 Page Pennsylvania P. U. C. v. Pennsylvania R. Co., 382 U. S. 281 575 Pennsylvania R. Co. v. Jacobv & Co., 242 U. S. 89 594 Pennsylvania R. Co. v. United States, 363 U. S. 202 587, 588, 590, 597, 599, 602 Pennsylvania R. Co. v. Weber, 257 U. S. 85 594 People v. Baker, 26 Ill. 2d 484 385 People v. Bruce, 31 Ill. 2d 459 420 People v. Finkelstein, 9 N. Y. 2d 342 507,510,511 People v. Finkelstein, 11 N. Y. 2d 300 510 People v. Fritch, 13 N. Y. 2d 119 507,510 People v. Henderson, 60 Cal. 2d 482 128 People v. Laino, 10 N. Y. 2d 161 242,244-246,249 People v. Richmond County News, 9 N. Y. 2d 578 506,508 People v. Ryan, 11 App. Div. 2d 155 244 People v. Shrake, 25 Ill. 2d 141 385 People v. Steuding, 6 N. Y. 2d 214 244-246 People ex rel. See name of real party in interest. Perry v. Commerce Loan Co., 340 F. 2d 588 394,399 Peterson v. Greenville, 373 U. S. 244 756,794,795 Petrocarbon Ltd. v. Watson, 101 U. S. App. D. C. 214 523 Phelps Dodge Corp. v. Labor Bd., 313 U. S. 177 621 Phillips Co. v. Grand Trunk W. R. Co., 236 U. S. 662 599,600 Piazza Co. v. West Coast Line, 210 F. 2d 947 587,614 Pittsburgh & W. V. R. Co. v. United States, 6 F. 2d 646 604 XLVI TABLE OF CASES CITED. Page Plessy v. Ferguson, 163 U. S. 537 669,670,677 Plumbers v. Borden, 373 U. S. 690 59,72 Poleski v. Polish Am. Pub. Co., 254 Mich. 15 86 Pollard v. United States, 352 U. S. 354 120 Pope v. Williams, 193 U. S. 621 666 Port v. United States, 143 Ct. Cl. 334 690 Porter Co. v. Central Vermont R. Co., 366 U. S. 272 600 Porto Rican Tobacco v. American Tobacco, 30 F. 2d 234 658 Postum Cereal v. Calif. Fig Nut Co., 272 U. S. 693 524-527 Potts v. Creager, 155 U. S. 597 15 Powell v. Pennsylvania, 127 U. S. 678 681 Powers-Kennedy Co. v. Concrete Co., 282 U. S. 175 33 Procter & Gamble v. United States, 225 U. S. 282 593 Prudential Ins. v. Cheek, 259 U. S. 530 512 Public Util. Comm’n v. Pollak, 343 U. S. 451 498,795 Public Util. Comm’n v. United States, 355 U. S. 534 335 Quantity of Books v. Kansas, 378 U. S. 205 483,512,513 Quarles, In re, 158 U. S. 532 771,780,805 Queen, The, v. Read, 11 Mod. 142 (Q. B.) 428 Queen, The, v. White, 13 Sup. Ct. R. 322 180 Railway Express Agcy. v. New York, 336 U. S. 106 331 Raley v. Ohio, 360 U. S. 423 245, 246, 248, 250, 251 Rawlings v. Ray, 312 U. S. 96 708,711 Reckendorfer v. Faber, 92 U. S. 347 15 Page RFC v. Beaver County, 328 U. S. 204 706 Recordak Corp. v. United States, 163 Ct. Cl. 294 571 Regan v. New York, 349 U. S. 58 239-244,248,251 Regina v. Bunting, 7 Ont. 524 180 Regina v. Hicklin, [1868] L. R. 3 Q. B. 360 509 Reiner v. I. Leon Co., 285 F. 2d 501 36 Retail Clerks v. Lion Dry Goods, 369 U. S. 17 697 Rex v. Curl, 2 Strange 789 (K. B.) 428 Rex v. Wilkes, 4 Burr. 2527 (K. B.) 429 Reynolds v. Sims, 377 U. S. 533 210,667,670,681-683 Richards v. United States, 369 U. S. 1 705 Riley v. Dun & Bradstreet, 195 F. 2d 812 732 Roberto Hernandez, Inc. v. Arnold Bernstein, M.B.H., 116 F. 2d 849 626 Robinson v. California, 370 U. S. 660 257 Robinson v. Florida, 378 U. S. 153 756,795 Rochester Tel. Corp. v. United States, 307 U. S. 125 593,602,603,614 Rogers v. Richmond, 365 U. S. 534 386 Rogoff, Application of, 46 C. C. P. A. (Pat.) 733 528 Roland Co. v. Walling, 326 U. S. 657 197,200,203 Rollingwood Corp. v. Commissioner, 190 F. 2d 263 571 Rosenblatt v. Baer, 383 U. S. 75 68 Roth v. United States, 354 U. S. 476 90,418,421,426, 428, 430, 433, 441-443, 451, 455, 456, 460-462, 465, 467, 471, 474, 475, 483, 484, 493, 494, 496, 498-500, 506-509, 511 TABLE OF CASES CITED. XLVII Page Round v. Commissioner, 332 F. 2d 590 630,633 Ruschig, Application of, 52 C. C. P. A. (Pat.) 1238 536 St. Louis CUfed °f or 8tiU afflicted with “^ch insanity” and d in the latter instance. Ill. Rev. Stat., c. 38, § 592 (1959). 392 OCTOBER TERM, 1965. Syllabus. 383 U.S. PERRY v. COMMERCE LOAN CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 694. Argued January 26, 1966.—Decided March 7, 1966. Petitioner sought confirmation of his plan for an extension of time to pay his debts out of future wages, pursuant to Chapter XIII of the Bankruptcy Act. On motion of respondent, a creditor, the referee dismissed the plan on the ground that petitioner’s discharge in a straight bankruptcy proceeding within six years of this proceeding barred confirmation under § 14 (c) (5) of the Act. That section provides for discharge unless the bankrupt has “within six years prior to bankruptcy been granted a discharge, or had a composition or an arrangement by way of composition or a wage earner’s plan by way of composition confirmed under this Act . . . .” Section 656 (a) (3) requires confirmation of a wage-earner’s extension plan if “the debtor has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to the discharge of the bankrupt . . . .” The District Court upheld the referee’s dismissal and the Court of Appeals affirmed. Held: 1. Confirmation of a wage-earner extension plan is not barred under § 14 (c) (5) of the Bankruptcy Act by a discharge in bankruptcy within the previous six years. Pp. 394r-402. (a) Congress has clearly intended by Chapter XIII to encourage the use of wage-earner extension plans by which debtors arrange to pay their debts in full rather than go into straight bankruptcy or composition. Pp. 394-397. (b) The purpose of the six-year bar, which was enacted long before the adoption of Chapter XIII, was to prevent the creation of habitual bankrupts (i. e., debtors who escape their obligations by repeated bankruptcy) and is completely opposed to the purpose of the wage-earner extension plan whereby the debtor meets the claims of his creditors. Pp. 399-400. (c) The ambiguous language used in § 656 (a) (3) concerning “guilty” acts and unfulfilled duties impels recourse to the legislative purposes of the Act. Pp. 400-401. (d) The absence of legislative history bearing on the adoption in Chapter XIII of §656 (a)(3) indicates that its inclusion was PERRY v. COMMERCE LOAN CO. 393 392 Opinion of the Court. a legislative oversight, at least insofar as it bears on wage-earners’ extension plans. P. 401. 2. This Court’s construction that the six-year bar is inapplicable to wage-earner extension plans does not preclude application of § 14 (c)(5) to confirmations of general arrangements under Chapter XI, real property arrangements under Chapter XII, and to wage-earner compositions under Chapter XIII. Pp. 402-403. 3. If a wage earner is unable to comply with his extension plan and seeks discharge under § 661, thus transposing the extension plan into a composition, the six-year bar would apply. P. 404. 340 F. 2d 588, reversed and remanded. Robert J. Harris argued the cause and filed a brief for petitioner. R. Howard Smith argued the cause and filed a brief for respondent. Mr. Justice Clark delivered the opinion of the Court. Perry, a furnace operator employed by Moore Lead Company, filed a petition in the District Court under Chapter XIII of the Bankruptcy Act, 52 Stat. 930 (1938), as amended, 11 U. S. C. §§ 1001-1086,1 requesting confirmation of his plan for an extension of time within which to pay his debts out of his future wages. In his plan he proposed to pay his debts of $1,412 in 28 equal monthly installments of $60 from his wages of $265 a month. On the hearing for confirmation of the plan, however, it appeared that Perry had previously filed a petition in straight bankruptcy and obtained a discharge therein in 1959, within six years of the filing of this proceeding. On motion of the respondent, Commerce Loan Company, the referee dismissed the plan on the ground that the previous bankruptcy was a bar thereto under All United States Code citations herein refer to the 1964 edition. 394 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. the provisions of § 14 (c)(5) of the Act.2 On review the District Court upheld the dismissal. The Court of Appeals affirmed. 340 F. 2d 588. We granted certiorari, 382 U. S. 889, in view of a conflict on the point among the courts of appeals.3 We conclude that confirmations of wage-earner plans by way of extensions are not affected by §14 (c)(5), and, therefore, reverse the judgment below. I. Although statutory relief for the financially distressed wage earner had been available to some extent as early as the Bankruptcy Act of 1867, 14 Stat. 517, Congress found in its study prior to the 1938 revision of the bankruptcy laws that there were no effective provisions for the complete repayment of the wage earner’s debts suited to his problems. H. R. Rep. No. 1409, 75th Cong., 1st Sess., 53 (1937). For example, compositions under § 12 of the 1898 Act, 30 Stat. 549, were available to the wage earner, but the relief afforded was unsatisfactory. Section 12 proceedings, which were primarily adaptable for use by business entities, were disproportionately expensive in view of the small sums ordinarily involved in wage-earner cases; they lacked flexibility; 2 52 Stat. 850 (1938), as amended, 11 U. S. C. §32 (c)(5): “(c) The court shall grant the discharge [in bankruptcy] unless satisfied that the bankrupt has . . . (5) in a proceeding under this title commenced within six years prior to the date of the filing of the petition in bankruptcy . . . been granted a discharge, or had a composition or an arrangement by way of composition or a wage earner’s plan by way of composition confirmed under this title .. . • 11 U. S. C. §32 (c)(5). 3 Compare In re Schlageter, 319 F. 2d 821 (C. A. 3d Cir. 1963), and Perry v. Commerce Loan Co., 340 F. 2d 588, with Edins v. Helzberg’s Diamond Shops, Inc., 315 F. 2d 223 (C. A. 10th Cir. 1963), and In re Mahaley, 187 F. Supp. 229 (D. C. S. D. Cal. 1960). See also In re Mayorga, 355 F. 2d 89 (C. A. 9th Cir. 1966). PERRY v. COMMERCE LOAN CO. 395 392 Opinion of the Court. and they did not provide for jurisdiction of the court subsequent to confirmation. Other provisions of the Act had similar disadvantages. Faced with inadequate relief under the federal bankruptcy laws and often with little protection from creditors under state law, the only course usually open to the wage-earning debtor was straight bankruptcy. In such proceedings, everyone lost—the creditors by receiving a mere fraction of their claims, the debtor by bearing thereafter the stigma of having been adjudged a bankrupt. In designing a remedy for the dilemma facing a debtor seeking to repay, rather than avoid, his obligations, the Congress settled upon the wage-earner extension-of-time procedures of Chapter XIII. The chapter gave—and was intended to give— to the wage earner a reasonable opportunity to arrange installment payments to be made out of his future earnings. Congress clearly intended to encourage wage earners to pay their debts in full, rather than to go into straight bankruptcy or composition, by offering two inducements: (1) avoidance of an adjudication of bankruptcy with its attendant stigma; and, at the same time, (2) temporary freedom during the extension from garnishments, attachments and other harassment by creditors. H. R. Rep. No. 1409, 75th Cong., 1st Sess., at 52—55. History demonstrates that extension plans under Chapter XIII are fulfilling the purposes intended. The records of the Administrative Office of the United States Courts show that over the past 20 years more than 20% of all proceedings filed under the Bankruptcy Act by wage earners have been for plans under Chapter XIII, the overwhelming majority of these being for extension plans.4 Since many wage earners who go into bank- 4 Chapter XIII also provides for wage-earner plans by way of composition. Compositions under that chapter, however, are almost insignificant in the operation of wage-earner plans because most 396 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. ruptcy do not proceed under Chapter XIII because they are unemployed (and consequently have no earnings to use for extension arrangements), have an inextricably large indebtedness, or are simply unaware of the existence of an alternative to straight bankruptcy, the 20% figure is even more significant. Moreover, large sums of money are annually returned to creditors under extension plans, the current rate being well over $26,000,000. As wage earners ordinarily have little or no assets available for distribution in straight bankruptcy, these sums represent settlements which the debtors would otherwise be unable to effect and the creditors unable to obtain. See Note, The Wage Earner Plan—A Superior Alternative to Straight Bankruptcy, 9 Utah L. Rev. 730 (1965); Allgood, Operation of the Wage Earners’ Plan in the Northern District of Alabama, 14 Rutgers L. Rev. 578 (1960). In light of the proven advantages of extension plans, the Congress has re-expressed its legislative purpose in amendments to Chapter XIII adopted since the original enactment. A report to the House of Representatives expresses it in these words: “[C]hapter XIII provides a highly desirable method for dealing with the financial difficulties of individuals. It creates an equitable and feasible way for the honest and conscientious debtor to pay off his debts rather than having them discharged in bankruptcy. The power of the court to change the amount and maturity of installment payments without affecting the aggregate amount of such pay- creditors will not give the necessary approval. The latest published statistics show that 95% of the funds paid to creditors under Chapter XIII proceedings derive from extensions rather than compositions. Administrative Office of the United States Courts, Tables of Bankruptcy Statistics, Table F 11 (1964) (by computation). PERRY v. COMMERCE LOAN CO. 397 392 Opinion of the Court. ments makes chapter XIII particularly applicable to the present-day financial problems generated by heavy installment buying.” H. R. Rep. No. 193, 86th Cong., 1st Sess., 2 (1959). And similarly, the Senate report states: “We think there can be no doubt . . . that a procedure by which a debtor who is financially involved and unable to meet his debts as they mature, over a period of time, works out of his involvement and pays his debts in full is good for his creditors and good for him.” S. Rep. No. 179, 86th Cong., 1st Sess., 2 (1959). It is with this underlying policy in mind that we turn to a consideration of the problem posed here, i. e., whether confirmation of an extension plan is barred by a discharge in bankruptcy obtained within the previous six years. II. Chapter XIII requires the confirmation of a wageearner extension plan if “the debtor has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to the discharge of the bankrupt . . . .” § 656 (a)(3). And Chapter III commands that a discharge of a bankrupt shall be granted unless the court is satisfied that the bankrupt has “within six years prior to the date of the filing of the petition in bankruptcy . . . been granted a discharge, or had a composition or an arrangement by way of composition or a wage earner’s plan by way of composition confirmed under this Act . . . .” §14 (c)(5). The “discharge” 0 a debtor under a wage-earner plan shall issue after compliance with the provisions of the confirmed plan, C 11 U. S. C. § 1060. If at the expiration ° three years from the date of confirmation of the plan 398 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. the debtor has not completed his payments in accordance with his plan the court may, after notice and hearing, discharge the debts and liabilities dischargeable under the plan, provided the court is satisfied that the debtor’s failure to make all of his payments “was due to circumstances for which he could not be justly held accountable.” § 661, c. XIII, 11 U. S. C. § 1061. And finally, § 602, of Chapter XIII5 declares that the provisions of Chapters I through VII of the Bankruptcy Act, insofar as they are not inconsistent or in conflict with the provisions of Chapter XIII, apply in proceedings thereunder. We should note at the outset that in his present application for relief Perry did not file a straight, voluntary bankruptcy action in the District Court, nor “a composition or an arrangement by way of composition or a wage earner’s plan by way of composition.” He proposed to pay all his debts, secured and unsecured, and sought only an extension of time—28 months—in which to pay them in equal installments from his future wages. Ordinarily, a wage earner seeking to obtain the benefits of extension proceedings under Chapter XIII need only file a plan that meets the approval of the majority of his creditors, § 652, 11 U. S. C. § 1052, and is confirmed by the court; whereupon the plan becomes binding, § 657, 11 U. S. C. § 1057, and the appointed trustee commences collecting and disbursing to the creditors the periodic payments provided under the plan. Extension plans, therefore, differ materially from straight bankruptcy, arrangements under Chapters XI and XII, and wage-earner plans by way of composition, all of which contemplate only a partial payment of the wage earner’s debts. Indeed, under an extension plan, the wage earner who makes the required payments will 511 U. S. C. § 1002: “The provisions of chapters 1-7 of this title shall, insofar as they are not inconsistent or in conflict with the provisions of this chapter, apply in proceedings under this chapter . . ■ ■” PERRY v. COMMERCE LOAN CO. 399 392 Opinion of the Court. have paid his debts in full and will not need a discharge, even though the Act provides for a formal one. § 660. In view of these considerations and the purposes of Chapter XIII as outlined above, we do not believe that the Congress intended to apply the six-year bar of § 14 (c)(5) to the confirmation of wage-earner extension plans. The six-year bar was enacted 35 years prior to the adoption of Chapter XIII, 32 Stat. 797 (1903), at a time when no relief corresponding to extension plans existed under the Bankruptcy Act. The unmistakable purpose of the six-year provision was to prevent the creation of a class of habitual bankrupts—debtors who might repeatedly escape their obligations as frequently as they chose by going through repeated bankruptcy. See H. R. Rep. No. 1698, 57th Cong., 1st Sess., 2 (1902); In re Thompson, 51 F. Supp. 12, 13 (1943). But an extension plan has no escape hatch for debtors, it is “a method by which, without resorting to bankruptcy proceedings in the usual sense, a wage earner may meet the claims of creditors.” S. Rep. No. 179, 86th Cong., 1st Sess., 2 (1959). To apply the six-year bar at the time of ruling on the confirmation of an extension plan would be both illogical and in head-on collision with the congressional purpose as announced in the adoption and design of extension plans under Chapter XIII.6 Even if a literal reading of these provisions suggested the application of s 14 (c)(5) to extension plans, we would have little hesitation in construing the Act to give effect to the clear Such a collision undoubtedly affects the functioning of the Act. ß Administrative Office of the United States Courts reports that a pronounced drop in Chapter XIII filings” has been noted in e districts in the Sixth Circuit as a result of the holding in erry. Administrative Office of the United States Courts, Memo-ran urn for the Committee on Bankruptcy Administration of the udicial Conference of the United States, Report on the Use of Chapter XIII, p. 2 (June 22, 1965). 400 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. policy underlying Chapter XIII. As was said in United States v. American Trucking Assns., 310 U. S. 534, 543 (1940): “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words.” But such a literal reading is not apparent in this case. Section 656. (a) (3) does not, on its face, state that a court may confirm an extension plan only if the debtor is eligible for a discharge in bankruptcy. Rather, the language of the section speaks, ambiguously, of “guilty” acts and unfulfilled duties. There is, of course, no unfulfilled duty involved in § 14 (c)(5). Moreover, a prior bankruptcy is hardly a “guilty” act within the usual meaning of that word, and its use as a reference to §14 (c)(5) is strained indeed. In fact, the legislative history of § 14 (c) lends some support to a view that a prior discharge is not a “guilty” act. In 1903, when the forerunners of subdivisions (3) through (6) were originally added to § 14 (c), the House report stated: “This amendment also provides four additional grounds for refusing a discharge in bankruptcy: (1) Obtaining property on credit on materially false statements; (2) making a fraudulent transfer of PERRY v. COMMERCE LOAN CO. 401 392 Opinion of the Court. property; (3) having been granted or denied a discharge in bankruptcy within six years, and (4) having refused to obey the lawful orders of the court or having refused to answer material questions approved by the court. No person who has been guilty of any of these fraudulent acts should be discharged, and a person who has refused to obey the order of the court ought not to be discharged, and it is quite clear that no person should have the benefit of the act as a voluntary bankrupt oftener than once in six years.” H. R. Rep. No. 1698, 57th Cong., 1st Sess., 2 (1902). (Italics added.) This language might be construed to set apart acts which are criminal or reprehensible in nature and to consider a prior bankruptcy to be something other than a “guilty” act. But we need not, and do not, go so far as to place this interpretation on the words “guilty acts.” It suffices that we find in them sufficient ambiguity to impel recourse to the legislative purposes, outlined above, underlying §14 (c)(5). And while the identical language of § 656 (a) (3) has been a part of the Bankruptcy Act since 1898, as a restriction to confirmation of compositions under what is now § 366 (3), 52 Stat. 911, as amended, 11 U. S. C. § 766 (3) and §472 (3), 52 Stat. 923, as amended, 11 U. S. C. § 872 (3), there is no indication that its enactment in Chapter XIII was intended to bar confirmation of wage-earner extensions. Indeed, it would seem that the absence of any legislative history bearing on the adoption of this provision in Chapter XIII indicates that its inclusion was a legislative oversight,7 at least insofar as it bears on wage-earners’ extension plans. This is not the only example of drafting oversights in the Act. Although § 14 (c) (5) was amended in 1938 to include a reference to wage-earner compositions, the provision in that section relating 402 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. This oversight is, of course, cured by the provisions of § 602, which further buttress our conclusion. That section directs that the provisions of Chapters I through VII, which include §14 (c)(5), are incorporated into Chapter XIII only “insofar as they are not inconsistent or in conflict with the provisions of this chapter.” The rationale of §14 (c)(5)—the prevention of recurrent avoidance of debts—is so inconsistent with the aims of extension plans as to fall squarely within the exception of § 602. It is claimed, however, that § 686 (5) of Chapter XIII, 11 U. S. C. § 1086 (5), indicates a contrary result. We think not. This provision, in setting the effective date of the chapter, provides that confirmations thereunder “shall not be refused because of a discharge granted or a composition confirmed prior to the effective date of this amendatory Act.” It must be remembered that extension-plan relief of Chapter XIII was novel to the law of bankruptcy. However, both compositions and straight bankruptcies were old on the books. The Congress, we believe, was only making certain, insofar as extensions were concerned, that the old procedures would not affect the new. This would be consistent with the purpose of the Congress not to make § 14 (c)(5) applicable to confirmations in extension-plan cases. Rather than making an illogical exemption from the six-year bar, given in cases where a discharge had been received before—but not after—the new Act, § 686 (5) merely gave expansive effect to the congressional purpose by making it clear that the remedy afforded be available retroactively as well as prospectively. We emphasize that our construction of the Act does not preclude application of § 14 (c)(5) to confirmations to confirmation of a composition was not deleted even though § 12 of the 1898 Act, 30 Stat. 549, under which such a composition might have been confirmed, was repealed in the same enactment. PERRY v. COMMERCE LOAN CO. 403 392 Opinion of the Court. ” of general arrangements under Chapter XI or to real property arrangements under Chapter XII. It is true that restrictions identical in phrasing to § 656 (a)(3) appear both in Chapter XI, § 366 (3), and in Chapter XII, §472 (3). The relief afforded in those chapters, however, represents a wholly different statutory scheme from wage-earners’ extensions, and the restrictive provisions are not, therefore, in pari materia. Sections 366 (3) and 472 (3) neither impart to nor receive from § 656 (a)(3) a meaningful effect. Nor does our construction imply an immunity from the six-year bar to those seeking confirmation of wage-earner compositions. A composition under Chapter XIII, unlike an extension, is closely akin to straight bankruptcy and to proceedings under Chapters XI and XII, for under such a plan the debtor is discharged from his debts and claims of the creditors are only partially paid. In re Jensen, 200 F. 2d 58 (1952), cert, denied, 345 U. S. 926 (1953), but see In re Goldberg, 53 F. 2d 454 (1931). It is both logical and consistent with the underlying purposes of § 14(c)(5) that confirmation of wage-earner compositions be barred by prior bankruptcy, since repeated use of such plans would, in effect, provide an opportunity for abuse of the Act. It has been argued that extension plans do not completely avoid the possibility of adjusting the wage earner’s debts. It is true that § 660 provides for discharge after compliance with the provisions of a Chapter XIII plan. While this section applies to wage-earner compositions as well as to extensions, a “discharge” thereunder has a wholly different impact where an extension is involved. In the latter case a discharge is little more than a mere formality. It is also claimed that § 661 presents a somewhat more troublesome objection. That section as we have noted may allow a wage earner to o tain a release from all dischargeable debts if, after notice and hearing, the court is satisfied that the failure 404 OCTOBER TERM, 1965. Harlan, J., dissenting. 383U.S. of the debtor to comply with the plan was due to circumstances for which he could not be held justly accountable. However, we see no serious problems in this section. First, experience has shown that almost all plans approved under the Act envision repayment within three years. The problem, therefore, is not likely to arise. Second, there are adequate provisions for notice and hearing prior to a discharge under § 661. Objecting creditors may raise §14 (c)(5) as a bar to relief if and when the debtor seeks such relief. A request for relief under § 661 would, in effect, constitute an attempt to transpose an extension plan into a composition, and a grant of relief thereunder would, at that time, be tantamount to a confirmation of a composition. The six-year bar would, therefore, be operative in such a situation. In view of this, as well as the power of the court to make certain that the provisions of the chapter are not abused, we see no reason to allow this section alone to destroy the beneficial purposes of enactment.8 For the foregoing reasons, we conclude that petitioner’s plan should have been confirmed. Reversed and remanded. Mr. Justice Harlan, dissenting. The result reached by the Court may well be desirable, but in my opinion it is one that cannot be attained under 8 We note that the National Bankruptcy Conference has proposed amendments to the Act which are intended to clarify the interrelationship of §§14 (c)(5), 656 (a)(3), and 661. The proposed clarification is in accord with our construction of the Act. See H. R. 20, 89th Cong., 1st Sess. (1965). The Judicial Conference, upon request of the Congress, has submitted its views approving the bill. Letter from the Director of the Administrative Office of the United States Courts to the Chairman of the Committee on the Judiciary, House of Representatives (September 29, 1965). See also Report of the Proceedings of the Judicial Conference of the United States, at 68 (September 22-23, 1965). PERRY v. COMMERCE LOAN CO. 405 392 Harlan, J., dissenting. the present statute within the proper limits of the judicial function. Chapter XIII of the Bankruptcy Act establishes procedures for the relief of wage earners who are unable to meet their debts as they mature. Two types of procedures are made available: extension plans under which the wage earner’s debts are intended to be paid off in full over a period of time, and composition plans under which only a percentage of debts are recoverable. Referring to both types of plans, § 656 of the Bankruptcy Act, 11 U. S. C. § 1056 (1964 ed.), provides that “a plan” shall not be confirmed if the debtor has “been guilty of any of the acts or failed to perform any of the duties which would be a bar to the discharge of the bankrupt . . . .” To ascertain what would be a bar to the discharge of a bankrupt one must turn to § 14 (c), 11 U. S. C. § 32 (c) (1964 ed.), which provides, among other things, that no discharge may be granted if the bankrupt has been granted a previous discharge within six years. § 14 (c)(5). It is undisputed that petitioner here was so discharged, and there is no question but that he would have been refused another discharge in bankruptcy at the time he applied for this extension plan. The statutory scheme thus plainly seems to bar him from obtaining Chapter XIII relief as well. The process by which the Court has undertaken to release the debtor from the impact of these straightforward statutory provisions seems to me wholly unavailing. The Court’s major argument is built upon its reading of the word “guilty” in § 656 (a)(3). As already noted hat section denies confirmation to an extension plan if the debtor has been “guilty” of any act that would bar a discharge in bankruptcy. The argument is that since receiving a prior discharge is neither unlawful nor mor-ahy reprehensihie one cannot be «guilty» of it and hence a he six-year “discharge” provision cannot be a bar 0 a Chapter XIII extension plan. 406 OCTOBER TERM, 1965. Harlan, J., dissenting. 383U.S. This argument presupposes that the word “guilty” was intentionally used in § 656 in a discriminating sense, that is, to distinguish among those acts catalogued in § 14 (c) which under § 656 would bar confirmation of an extension plan. The fact of the matter is, however, that when Congress in .1938 enacted Chapter XIII, 52 Stat. 930-938, it took as its model the form and language of the prior bankruptcy act, more specifically § 12d, 30 Stat. 550, dealing with compositions.1 The “guilty” phrase was appropriate in that 1898 statute because at that time the only bars to a discharge in the predecessor of § 14 (c) were offenses punishable by imprisonment or fraudulent concealment. Section 14b, 30 Stat. 550. In 1903, Congress amended § 14b to include the six-year bar, 32 Stat. 797, and over the years other grounds for refusing confirmation have been added to that section. But the word “guilty” was never changed, and has obviously remained in several chapters of the Act merely as a shorthand way of referring back to those items that preclude the granting of a discharge. Thus, Chapter XI of the Bankruptcy Act, which deals with arrangements, has almost an exact duplicate of § 656 (a) (3) containing the same “guilty” phraseology. § 366 (3), 11 U. S. C. § 766 (3) (1964 ed.). Chapter XII, which deals with real property arrangements, contains a similar provision. §472 (3), 11 U. S. C. §872(3) (1964 ed.). And of course Chapter XIII, dealing with both compositions and extensions for wage earners, uses this language. These parallel provisions all derive from the same section framed in 1898. This history and this parallelism indubitably demonstrate two things: first, that the Congress did not devise 1 “The judge shall confirm a composition if satisfied that (1) it is for the best interests of the creditors; (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge . . . .” § 12d, 30 Stat. 550. PERRY v. COMMERCE LOAN CO. 407 392 Harlan, J., dissenting. the “guilty” terminology in 1938 as a means of making a subtle distinction between the morally reprehensible bars to bankruptcy contained in § 14 (c) and the other bars there enumerated; and second, that the word “guilty” means the same thing when applied to general arrangements in § 366, to real property arrangements in § 472, and to compositions and extensions in § 656. If the word “guilty” excludes the six-year bar for extension plans, it is impossible to see what sort of statutory interpretative sleight of hand would save it for general arrangements, real property arrangements, and wage-earner composition plans. Moreover, it seems already accepted that as applied to Chapter XI arrangements, the “guilty” provision does refer back to the six-year bar. See In re Jensen, 200 F. 2d 58; 9 Collier, Bankruptcy fl 9.19, at 310-311 (14th ed. 1964); Kennedy, Hospitality for Repeaters Under the Bankruptcy Act, 68 Com. L. J. 117, 119-120 (1963). The same would appear to be true of the meaning of “guilty” in Chapter XII. See 9 Collier, supra, fl 9.07, at 1146. And the Court in its present opinion appears to concede that when applied to compositions, § 656 is somehow transformed to include the six-year bar. In short, construing “guilty” to refer only to “reprehensible aspects of § 14 (c) has no basis in legislative history, and requires a strained attempt to distinguish other applications of the identical section and of parallel sections which concededly are applied more generally, ecause of its ramifications, this construction may do serious harm to the administration of Chapter XIII compositions, Chapter XII real property arrangements, and Chapter XI arrangements. The Court also advances another argument in support 0 its conclusion that confirmation of this extension plan was not barred by virtue of §§ 656 and 14 (c). This argument rests essentially on § 602 of the Bankruptcy 408 OCTOBER TERM, 1965. Harlan, J., dissenting. 383U.S. Act, 11 U. S. C. § 1002 (1964 ed.). Section 602 provides that the provisions of Chapters I through VII shall apply to Chapter XIII “insofar as they are not inconsistent or in conflict with the provisions of this chapter . . . .” It seems to be said that the six-year bar is inconsistent with the provisions of Chapter XIII because the extension plan is designed to give wage earners relief, and the six-year bar would preclude some such people from receiving that relief without good reason. This argument likewise does not withstand analysis. To be sure the six-year bar makes it impossible for certain wage earners to get relief by way of extension plans, but so do all the other restrictions on this form of relief. Nobody would suggest that it is “inconsistent” with Chapter XIII to withhold extension-plan relief from those who engage in fraud on the ground that such a restriction cuts down the number of people who can take advantage of Chapter XIII. Section 656 clearly does establish restrictions on the class of people to whom relief is available; the question before us is whether the six-year bar is such a limitation ; citation of § 602 is con-clusory only, and makes no positive contribution to a meaningful analysis. My conclusion that the statute should be read literally to preclude the confirmation of an extension plan if the applicant has been granted a discharge within the previous six years is reinforced by § 686 (5) of Chapter XIII, 11 U. S. C. § 1086 (5) (1964 ed.). Section 686 (5) in its entirety declares that “confirmation of a plan under this chapter shall not be refused because of a discharge granted or a composition confirmed prior to the effective date of this amendatory Act.” The inclusion of this provision indicates quite clearly that Congress did believe that a prior discharge would be a bar to a Chapter XIII plan, and that it decided to remove that restriction only for discharges granted before September 22, 1938, the PERRY v. COMMERCE LOAN CO. 409 392 Harlan, J., dissenting. effective date of the statute in question. See 10 Collier, supra, fl 33.05, at 477. Such a provision is perfectly understandable. Before the enactment of the extensionplan amendment, wage earners who sought a bankruptcy remedy could obtain only a discharge through straight bankruptcy or composition. There would be no reason to preclude wage earners who availed themselves of such relief prior to September 1938 from obtaining a more favorable extension plan subsequently. On the other hand, after enactment of Chapter XIII, wage earners would have the opportunity to apply for an extension plan. It is not difficult to understand why Congress should have refused to permit wage earners who chose a discharge in bankruptcy rather than an extension plan a second opportunity, within six years, to receive statutory relief. I am frank to say that I am unable to perceive the basis for the Court’s contrary explanation of this provision. The short of the matter is that the Court’s arguments do not support the conclusion it reaches. The conclusion is of course supportable as a legislative judgment, even though arguments can be made for both sides. Thus, it might be argued for the six-year bar in a Chapter XIII context somewhat as follows: the wage-earner extension plan is a new and very advantageous procedure for the debtor, but it is a burden on the courts. It is also a constraint on creditors who will be delayed in collecting, will be precluded from garnishing, and may not receive full repayment if the debtor obtains a discharge under § 661 of the Act, 11 U. S. C. § 1061 (1964 ed.). It is therefore reasonable to limit the availability of this kind of relief to those wage earners who have not had the advantage of a discharge in bankruptcy in the previous six years. Furthermore, it is certainly arguable that the six-year bar encourages wage earners to make use of the Chapter XIII procedure. With the prior-discharge bar eliminated, a 410 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. debtor might eschew an extension plan and decide instead to go through straight bankruptcy first, waiting a few months until the going once again “gets tough” to take advantage of the extension plan. I venture considerations such as these not as overcoming the countervailing ones relied on by the Court, and heretofore espoused by others,2 but simply to point up the fact that this is not one of those cases where seemingly straightforward statutory language must yield its literal meaning to a contrary congressional intent. What we have here are but two contrasting legislative policies, wherein the Court’s duty is to take the statute as it is presently plainly written. I would affirm the judgment of the Court of Appeals. 2 See the proposed amendments of the Bankruptcy Act by the National Bankruptcy Conference, note 8, ante, p. 404; Kennedy, Hospitality for Repeaters Under the Bankruptcy Act, 68 Com. L. J. 117 (1963). DECISIONS PER CURIAM. 411 383U.S. March 7, 1966. UNITED TRANSPORTS, INC., et al. v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. No. 868. Decided March 7, 1966. 245 F. Supp. 561, 570, affirmed. James W. Wrape, Robert E. Joyner and Reagan Sayers for appellants. Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Robert S. Burk for the United States et al.; Paul F. Sullivan for Kenosha Auto Transport Corp., and Donald W. Smith for Commercial Carriers, Inc., appellees. Per Curiam. The motions to affirm are granted and the judgments are affirmed. CIESIELSKI v. OHIO. appeal from the SUPREME COURT OF OHIO. No. 920. Decided March 7, 1966. Appeal dismissed and certiorari denied. Theodore R. Saker for appellant. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. 412 OCTOBER TERM, 1965. March 7, 1966. 383 U. S. SOCIEDAD de MARIO MERCADO e HUOS v. PUERTO RICO. APPEAL FROM THE SUPREME COURT OF PUERTO RICO. No. 786. Decided March 7, 1966. Appeal dismissed and certiorari denied. Pedro M. Porrata and Charles Cuprill Oppenheimer for appellant. J. B. Fernandez Badillo, Solicitor General of Puerto Rico, and Irene Curbelo, Assistant Solicitor 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 petition for a writ of certiorari, certiorari is denied. Mr. Justice Fortas took no part in the consideration or decision of this case. MEMOIRS v. MASSACHUSETTS. 413 Syllabus. A BOOK NAMED “JOHN CLELAND’S MEMOIRS OF A WOMAN OF PLEASURE” et al. v. ATTOR- NEY GENERAL OF MASSACHUSETTS. APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. No. 368. Argued December 7-8, 1965.—Decided March 21, 1966. Appellee, the Attorney General of Massachusetts, brought this civil equity action for an adjudication of obscenity of Cleland’s Memoirs of a Woman of Pleasure (Fanny Hill), and appellant publisher intervened. Following a hearing, including expert testimony and other evidence, assessing the book’s character but not the mode of distribution, the trial court decreed the book obscene and not entitled to the protection of the First and Fourteenth Amendments. The Massachusetts Supreme Judicial Court affirmed, holding that a patently offensive book which appeals to prurient interest need not be unqualifiedly worthless before it can be deemed obscene. Held: The judgment is reversed. Pp. 415-433. 349 Mass. 69, 206 N. E. 2d 403, reversed. Mr. Justice Brennan, joined by The Chief Justice and Mr. Justice Fortas, concluded that: 1. Under the test in Roth v. United States, 354 U. S. 476, as elaborated in subsequent cases, each of three elements must independently be satisfied before a book can be held obscene: (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. P. 418. 2. Since a book cannot be proscribed as obscene unless found to be utterly without redeeming social value, the Supreme Judicial Court erroneously interpreted the federal constitutional standard. Pp. 419-420. 3. On the premise, not assessed here, that it has the requisite prurient appeal, is patently offensive, and has only a modicum of social importance, evidence of commercial exploitation of the book or the sake of prurient appeal to the exclusion of all other values 414 383 U. S. OCTOBER TERM, 1965. Opinion of Brennan, J. might in a different proceeding justify the conclusion that the publication and distribution of Memoirs was not constitutionally protected. Ginzburg v. United States, post, p. 463. Pp. 420-421. Mr. Justice Black and Mr. Justice Stewart concur in the reversal for the reasons given in their respective dissenting opinions in Ginzburg v. United States, post, p. 476 and p. 497 and Mishkin v. Neto York, post, p. 515 and p. 518. P. 421. Mr. Justice Douglas concluded that: 1. Since the First Amendment forbids censorship of expression of ideas not linked with illegal action, Fanny Hill cannot be proscribed. Pp. 426; 427-433. 2. Even under the prevailing view of the Roth test the book cannot be held to be obscene in view of substantial evidence showing that it has literary, historical, and social importance. P. 426. 3. Since there is no power under the First Amendment to control mere expression, the manner in which a book that concededly has social worth is advertised and sold is irrelevant. P. 427. 4. There is no basis in history for the view expressed in Roth that “obscene” speech is “outside” the protection of the First Amendment. Pp. 428-431. 5. No interest of society justifies overriding the guarantees of free speech and press and establishing a regime of censorship. Pp. 431-433. Charles Rembar argued the cause and filed briefs for appellants. William I. Cowin, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Edward W. Brooke, Attorney General, and John E. Sullivan, Assistant Attorney General. Charles H. Keating, Jr., and James J. Clancy filed a brief for Citizens for Decent Literature, Inc., et al., as amici curiae, urging affirmance. Mr. Justice Brennan announced the judgment of the Court and delivered an opinion in which The Chief Justice and Mr. Justice Fortas join. MEMOIRS v. MASSACHUSETTS. 415 413 Opinion of Brennan, J. This is an obscenity case in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in about 1750, was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor. The proceeding was a civil equity suit brought by the Attorney General of Massachusetts, pursuant to General Laws of Massachusetts, Chapter 272, §§ 28C-28H, to have the book declared obscene.1 Section 28C requires that the petition commencing the suit be “directed against [the] book by name” and that an order to show cause “why said book should not be judicially determined to be obscene” be published in a daily newspaper and sent by registered mail “to all persons interested in the publication.” Publication of the order in this case occurred in a Boston daily newspaper, and a copy of the order was sent by registered mail to G. P. Putnam’s Sons, alleged to be the publisher and copyright holder of the book. As authorized by § 28D, G. P. Putnam’s Sons intervened in the proceedings in behalf of the book, but it did not claim the right provided by that section to have the issue of obscenity tried by a jury. At the hearing before a justice of the Superior Court, which was conducted, under § 28F, “in accordance with the usual course of proceedings in equity,” the court received the book in evidence and also, as allowed by the section, heard the testimony of experts2 and accepted other evidence, such The text of the statute appears in the Appendix. In dissenting from the Supreme Judicial Court’s disposition in this case, 349 Mass. 69, 74-75, 206 N. E. 2d 403, 406-407 (1965), ustice Whittemore summarized this testimony: In the view of one or another or all of the following viz., the chairman of the English department at Williams College, a pro-essor of English at Harvard College, an associate professor of nglish literature at Boston University, an associate professor of nglish at Massachusetts Institute of Technology, and an assistant 416 OCTOBER TERM, 1965. Opinion of Brennan, J. 383U.S. as book reviews, in order to assess the literary, cultural, or educational character of the book. This constituted the entire evidence, as neither side availed itself of the professor of English and American literature at Brandeis University, the book is a minor ‘work of art’ having ‘literary merit’ and ‘historical value’ and containing a good deal of ‘deliberate, calculated comedy.’ It is a piece of ‘social history of interest to anyone who is interested in fiction as a way of understanding society in the past.’1 A saving grace is that although many scenes, if translated “* One of the witnesses testified in part as follows: ‘Cleland is part of what I should call this cultural battle that is going on in the 18th century, a battle between a restricted Puritan, moralistic ethic that attempts to suppress freedom of the spirit, freedom of the flesh, and this element is competing with a freer attitude towards life, a more generous attitude towards life, a more wholesome attitude towards life, and this very attitude that is manifested in Fielding’s great novel “Tom Jones” is also evident in Cleland’s novel. . . . [Richardson’s] “Pamela” is the story of a young country girl; [his] “Clarissa” is the story of a woman trapped in a house of prostitution. Obviously, then Cleland takes both these themes, the country girl, her initiation into life and into experience, and the story of a woman in a house of prostitution, and what he simply does is to take the situation and reverse the moral standards. Richardson believed that chastity was the most important thing in the world; Cleland and Fielding obviously did not and thought there were more important significant moral values.’ ” into the present day language of ‘the realistic, naturalistic novel, could be quite offensive’ these scenes are not described in such language. The book contains no dirty words and its language ‘functions ... to create a distance, even when the sexual experiences are portrayed.’ The response, therefore, is a literary response. The descriptions of depravity are not obscene because ‘they are subordinate to an interest which is primarily literary; Fanny’s reaction to the scenes of depravity was ‘anger,’ ‘disgust, horror, [and] indignation.’ The book ‘belongs to the history of English literature rather than the history of smut.’2 ” “2 In the opinion of the other academic witness, the headmaster of a private school, whose field is English literature, the book is without literary merit and is obscene, impure, hard core pornography, and is patently offensive.” MEMOIRS v. MASSACHUSETTS. 417 413 Opinion of Brennan, J. opportunity provided by the section to introduce evidence “as to the manner and form of its publication, advertisement, and distribution.” 3 The trial justice entered a final decree, which adjudged Memoirs obscene and declared that the book “is not entitled to the protection of the First and Fourteenth Amendments to the Constitution of the United States against action by the Attorney General or other law enforcement officer pursuant to the provisions of ... § 28B, or otherwise.”4 The Massachusetts Supreme Judicial Court affirmed the decree. 349 Mass. 69, 206 N. E. 2d 403 (1965). We noted probable jurisdiction. 382 U. S. 900. We reverse.5 3 The record in this case is thus significantly different from the records in Ginzburg v. United States, post, p. 463, and Mishkin v. New York, post, p. 502. See pp. 420-421, infra. 4 Section 28B makes it a criminal offense, inter alia, to import, print, publish, sell, loan, distribute, buy, procure, receive, or possess for the purpose of sale, loan, or distribution, “a book, knowing it to be obscene.” Section 28H provides that in any prosecution under § 28B the decree obtained in a proceeding against the book shall be admissible in evidence” and further that “[i]f prior to the said offence a final decree had been entered against the book, the defendant, if the book be obscene . . . shall be conclusively presumed to have known said book to be obscene . . . .” Thus a declaration of obscenity such as that obtained in this proceeding is likely to result in the total suppression of the book in the Commonwealth. The constitutionality of § 28H has not been challenged in this appeal. Although the final decree provides no coercive relief but only a declaration of the book’s obscenity, our adjudication of the merits 0 the issue tendered, viz., whether the state courts erred in declaring t e book obscene, is not premature. There is no uncertainty as to e content of the material challenged, and the Attorney General’s Petition commencing this suit states that the book “is being imported, sold, loaned, or distributed in the Commonwealth.” The ee aration of obscenity is likely to have a serious inhibitory effect on e istribution of the book, and this probable impact is to no small measure derived from possible collateral uses of the declaration in su sequent prosecutions under the Massachusetts criminal obscenity statute. See n. 4, supra. 418 383 U. S. OCTOBER TERM, 1965. Opinion of Brennan, J. I. The term “obscene” appearing in the Massachusetts statute has been interpreted by the Supreme Judicial Court to be as expansive as the Constitution permits: the “statute covers all material that is obscene in the constitutional sense.” Attorney General v. The Book Named “Tropic of Cancer,” 345 Mass. 11, 13, 184 N. E. 2d 328, 330 (1962). Indeed, the final decree before us equates the finding that Memoirs is obscene within the meaning of the statute with the declaration that the book is not entitled to the protection of the First Amendment.6 Thus the sole question before the state courts was whether Memoirs satisfies the test of obscenity established in Roth v. United States, 354 U. S. 476. We defined obscenity in Roth in the following terms: “[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. The Supreme Judicial Court purported to apply the Roth definition of obscenity and held all three criteria satisfied. We need not consider the claim that the court erred in concluding that Memoirs satisfied the prurient 6 We infer from the opinions below that the other adjectives describing the proscribed books in §§ 28C-28H, “indecent” and “impure,” have either been read out of the statute or deemed synonymous with “obscene.” MEMOIRS v. MASSACHUSETTS. 419 413 Opinion of Brennan, J. appeal and patent offensiveness criteria; for reversal is required because the court misinterpreted the social value criterion. The court applied the criterion in this passage: “It remains to consider whether the book can be said to be ‘utterly without social importance.’ We are mindful that there was expert testimony, much of which was strained, to the effect that Memoirs is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; that it plays a part in the history of the development of the English novel; and that it contains a moral, namely, that sex with love is superior to sex in a brothel. But the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the ‘social importance’ test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.” 349 Mass., at 73, 206 N. E. 2d, at 406. The Supreme Judicial Court erred in holding that a book need not be “unqualifiedly worthless before it can be deemed obscene.” A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently o ensive. Each of the three federal constitutional criteria is to be applied independently; the social value of e book can neither be weighed against nor canceled by * s prurient appeal or patent offensiveness.7 Hence, idea dealing with sex in a manner that advocates ‘ ‘ or that has literary or scientific or artistic value or any and d soc^a^ importance, may not be branded as obscenity stat const/tutional protection. Nor may the constitutional imn^0 * 6 ma^er^a^ be made to turn on a ‘weighing’ of its social ance against its prurient appeal, for a work cannot be pro 420 383 U. S. OCTOBER TERM, 1965. Opinion of Brennan, J. even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard. II. It does not necessarily follow from this reversal that a determination that Memoirs is obscene in the constitutional sense would be improper under all circumstances. On the premise, which we have no occasion to assess, that Memoirs has the requisite prurient appeal and is patently offensive, but has only a minimum of social value, the circumstances of production, sale, and publicity are relevant in determining whether or not the publication or distribution of the book is constitutionally protected. Evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance. It is not that in such a setting the social value test is relaxed so as to dispense with the requirement that a book be utterly devoid of social value, but rather that, as we elaborate in Ginzburg n. United States, post, pp. 470-473, where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value. In this proceeding, however, the courts were asked to judge the obscenity of Memoirs in the abstract, and the declaration of obscenity was neither aided nor limited by a specific set of circumstances of production, sale, and pub- scribed unless it is ‘utterly’ without social importance. See Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920, 383 P. 2d 152, 165, 31 Cal. Rptr. 800, 813 (1963).” Jacobellis v. Ohio, 378 U. S. 184, 191 (opinion of Brennan, J.). Followed in, e. g., People v. Bruce, 31 Ill. 2d 459, 461, 202 N. E. 2d 497, 498 (1964); Trans-Lux Distributing Corp. v. Maryland Bd. of Censors, 240 Md. 98, 104-105, 213 A. 2d 235, 238-239 (1965). MEMOIRS v. MASSACHUSETTS. 421 413 Appendix to opinion of Brennan, J. licity.8 All possible uses of the book must therefore be considered, and the mere risk that the book might be exploited by panderers because it so pervasively treats sexual matters cannot alter the fact—given the view of the Massachusetts court attributing to Memoirs a modicum of literary and historical value—that the book will have redeeming social importance in the hands of those who publish or distribute it on the basis of that value. Reversed. Mr. Justice Black and Mr. Justice Stew7art concur in the reversal for the reasons stated in their respective dissenting opinions in Ginzburg v. United States, post, p. 476 and p. 497, and Mishkin v. New York, post, p. 515 and p. 518. APPENDIX TO OPINION OF MR. JUSTICE BRENNAN. State Statute. Massachusetts General Laws, Chapter 272. Section 28B. Whoever imports, prints, publishes, sells, loans or distributes, or buys, procures, receives, or 8 In his dissenting opinion, 349 Mass., at 76-78, 206 N. E. 2d, at 408-409, Justice Cutter stated that, although in his view the book was not “obscene” within the meaning of Roth, “it could reasonably e found that distribution of the book to persons under the age of eighteen would be a violation of G. L. c. 272, § 28, as tending to .corrupt the morals of youth.” (Section 28 makes it a crime to sell to a person under the age of eighteen years a book . . . which is ob scene ... or manifestly tends to corrupt the morals of youth.”) He concluded that the court should “limit the relief granted to a declaration that distribution of this book to persons under the age of eighteen may be found to constitute a violation of [G. L.] c. 272, 8, if that section is reasonably applied . . . .” However, the decree was not so limited and we intimate no view concerning the constitutionality of such a limited declaration regarding Memoirs. Jacobellis v. Ohio, 378 U. S., at 195. 422 OCTOBER TERM, 1965. Appendix to opinion of Brennan, J. 383 U. S. has in his possession for the purpose of sale, loan or distribution, a book, knowing it to be obscene, indecent or impure, or whoever, being a wholesale distributor, a jobber, or publisher sends or delivers to a retail storekeeper a book, pamphlet, magazine or other form of printed or written material, knowing it to be obscene, indecent or impure, which said storekeeper had not previously ordered in writing, specifying the title and quantity of such publication he desired, shall be punished by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, or by a fine of not less than one hundred dollars nor more than five thousand dollars, or by both such fine and imprisonment in jail or the house of correction. Section 28C. Whenever there is reasonable cause to believe that a book which is being imported, sold, loaned or distributed, or is in the possession of any person who intends to import, sell, loan or distribute the same, is obscene, indecent or impure, the attorney general, or any district attorney within his district, shall bring an information or petition in equity in the superior court directed against said book by name. Upon the filing of such information or petition in equity, a justice of the superior court shall, if, upon a summary examination of the book, he is of opinion that there is reasonable cause to believe that such book is obscene, indecent or impure, issue an order of notice, returnable in or within thirty days, directed against such book by name and addressed to all persons interested in the publication, sale, loan or distribution thereof, to show cause why said book should not be judicially determined to be obscene, indecent or impure. Notice of such order shall be given by publication once each week for two successive weeks in a daily newspaper published in the city of Boston and, if such information or petition be filed in any county other than MEMOIRS v. MASSACHUSETTS. 423 413 Appendix to opinion of Brennan, J. Suffolk county, then by publication also in a daily newspaper published in such other county. A copy of such order of notice shall be sent by registered mail to the publisher of said book, to the person holding the copyrights, and to the author, in case the names of any such persons appear upon said book, fourteen days at least before the return day of such order of notice. After the issuance of an order of notice under the provisions of this section, the court shall, on motion of the attorney general or district attorney, make an interlocutory finding and adjudication that said book is obscene, indecent or impure, which finding and adjudication shall be of the same force and effect as the final finding and adjudication provided in section twenty-eight E or section twenty-eight F, but only until such final finding and adjudication is made or until further order of the court. Section 28D. Any person interested in the sale, loan or distribution of said book may appear and file an answer on or before the return day named in said notice or within such further time as the court may allow, and may claim a right to trial by jury on the issue whether said book is obscene, indecent or impure. Section 28E. If no person appears and answers within the time allowed, the court may at once upon motion of the petitioner, or of its own motion, no reason to the contrary appearing, order a general default and if the court finds that the book is obscene, indecent or impure, may make an adjudication against the book that the same is obscene, indecent and impure. Section 28F. If an appearance is entered and answer filed, the case shall be set down for speedy hearing, but a default and order shall first be entered against all persons who have not appeared and answered, in the manner provided in section twenty-eight E. Such hearing shall be conducted in accordance with the usual course of proceedings in equity including all rights of exception and 424 OCTOBER TERM, 1965. Opinion of Douglas, J. 383 U. S. appeal. At such hearing the court may receive the testimony of experts and may receive evidence as to the literary, cultural or educational character of said book and as to the manner and form of its publication, advertisement, and distribution. Upon such hearing, the court may make an adjudication in the manner provided in said section twenty-eight E. Section 28G. An information or petition in equity under the provisions of section twenty-eight C shall not be open to objection on the ground that a mere judgment, order or decree is sought thereby and that no relief is or could be claimed thereunder on the issue of the defendant’s knowledge as to the obscenity, indecency or impurity of the book. Section 28H. In any trial under section twentyeight B on an indictment found or a complaint made for any offence committed after the filing of a proceeding under section twenty-eight C, the fact of such filing and the action of the court or jury thereon, if any, shall be admissible in evidence. If prior to the said offence a final decree had been entered against the book, the defendant, if the book be obscene, indecent or impure, shall be conclusively presumed to have known said book to be obscene, indecent or impure, or if said decree had been in favor of the book he shall be conclusively presumed not to have known said book to be obscene, indecent or impure, or if no final decree had been entered but a proceeding had been filed prior to said offence, the defendant shall be conclusively presumed to have had knowledge of the contents of said book. Mr. Justice Douglas, concurring in the judgment. Memoirs of a Woman of Pleasure, or, as it is often titled, Fanny Hill, concededly is an erotic novel. It was first published in about 1749 and has endured to this MEMOIRS v. MASSACHUSETTS. 425 413 Opinion of Douglas, J. date, despite periodic efforts to suppress it.1 The book relates the adventures of a young girl who becomes a prostitute in London. At the end, she abandons that life and marries her first lover, observing: “Thus, at length, I got snug into port, where, in the bosom of virtue, I gather’d the only uncorrupt sweets: where, looking back on the course of vice I had run, and comparing its infamous blandishments with the infinitely superior joys of innocence, I could not help pitying, even in point of taste, those who, immers’d in gross sensuality, are insensible to the so delicate charms of VIRTUE, than which even PLEASURE has not a greater friend, nor than VICE a greater enemy. Thus temperance makes men lords over those pleasures that intemperance enslaves them to: the one, parent of health, vigour, fertility, cheerfulness, and every other desirable good of life; the other, of diseases, debility, barrenness, self-loathing, with only every evil incident to human nature. . . The paths of Vice are sometimes strew’d with roses, but then they are for ever infamous for many a thorn, for many a cankerworm: those of Virtue are strew’d with roses purely, and those eternally unfading ones.” 2 In 1963, an American publishing house undertook the publication of Memoirs. The record indicates that an unusually large number of orders were placed by univer-sities and libraries; the Library of Congress requested the Memoirs was the subject of what is generally regarded as the rst recorded suppression of a literary work in this country on 33fiUndS ®ee Commonwealth v. Holmes, 17 Mass. (1821) . The edition there condemned differed from the pres-en volume in that it contained apparently erotic illustrations. Memoirs, at 213-214 (Putnam ed. 1963). 426 383 U.S. OCTOBER TERM, 1965. Opinion of Douglas, J. right to translate the book into Braille. But the Commonwealth of Massachusetts instituted the suit that ultimately found its way here, praying that the book be declared obscene so that the citizens of Massachusetts might be spared the necessity of determining for themselves whether or not to read it. The courts of Massachusetts found the book “obscene” and upheld its suppression. This Court reverses, the prevailing opinion having seized upon language in the opinion of the Massachusetts Supreme Judicial Court in which it is candidly admitted that Fanny Hill has at least “some minimal literary value.” I do not believe that the Court should decide this case on so disingenuous a basis as this. I base my vote to reverse on my view that the First Amendment does not permit the censorship of expression not brigaded with illegal action. But even applying the prevailing view of the Roth test, reversal is compelled by this record which makes clear that Fanny Hill is not “obscene.” The prosecution made virtually no effort to prove that this book is “utterly without redeeming social importance.” The defense, on the other hand, introduced considerable and impressive testimony to the effect that this was a work of literary, historical, and social importance.3 3 The defense drew its witnesses from the various colleges located within the Commonwealth of Massachusetts. These included: Fred Holly Stocking, Professor of English and Chairman of the English Department, Williams College; John M. Bullitt, Professor of English and Master of Quincy House, Harvard College; Robert H. Sproat, Associate Professor of English Literature, Boston University; Norman N. Holland, Associate Professor of English, Massachusetts Institute of Technology; and Ira Konigsberg, Assistant Professor of English and American Literature, Brandeis University. In addition, the defense introduced into evidence reviews of impartial literary critics. These are, in my opinion, of particular significance since their publication indicates that the book is o sufficient significance as to warrant serious critical comment. The MEMOIRS v. MASSACHUSETTS. 427 413 Opinion of Douglas, J. We are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book, except in our capacity as private citizens. I would pair my Brother Clark on Fanny Hill with the Universalist minister I quote in the Appendix. If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated. On this record, the Court has no choice but to reverse the judgment of the Massachusetts Supreme Judicial Court, irrespective of whether we would include Fanny Hill in our own libraries. Four of the seven Justices of the Massachusetts Supreme Judicial Court conclude that Fanny Hill is obscene. 349 Mass. 69, 206 N. E. 2d 403. Four of the seven judges of the New York Court of Appeals conclude that it is not obscene. Larkin v. Putnam’s Sons, 14 N. Y. 2d 399, 200 N. E. 2d 760. To outlaw the book on such a voting record would be to let majorities rule where minorities were thought to be supreme. The Constitution forbids abridgment of “freedom of speech, or of the press.” Censorship is the most notorious form of abridgment. It substitutes majority rule where minority tastes or viewpoints were to be tolerated. It is to me inexplicable how a book that concededly as social wrorth can nonetheless be banned because of t e manner in which it is advertised and sold. However orid its cover, whatever the pitch of its advertisements, the contents remain the same. Every time an obscenity case is to be argued here, my Q ce is flooded with letters and postal cards urging me V' Fitchett, New York Review of Books, p. 1 19634 • P63) ’ Brigid Brophy’ New Statesman, p. 710 (Nov. 15, (Jul J Donald Adams, New York Times Book Review, p. 2 cnn+a ’ And the Appendix to this opinion contains another contemporary view. 428 OCTOBER TERM, 1965. Opinion of Douglas, J. 383 U. S. to protect the community or the Nation by striking down the publication. The messages are often identical even down to commas and semicolons. The inference is irresistible that they were all copied from a school or church blackboard. Dozens of postal cards often are mailed from the same precinct. The drives are incessant and the pressures are great. Happily we do not bow to them. I mention them only to emphasize the lack of popular understanding of our constitutional system. Publications and utterances were made immune from majoritarian control by the First Amendment, applicable to the States by reason of the Fourteenth. No exceptions were made, not even for obscenity. The Court’s contrary conclusion in Roth, where obscenity was found to be “outside” the First Amendment, is without justification. The extent to which the publication of “obscenity” was a crime at common law is unclear. It is generally agreed that the first reported case involving obscene conduct is The King v. Sir Charles Sedley.4 Publication of obscene literature, at first thought to be the exclusive concern of the ecclesiastical courts,5 was not held to constitute an indictable offense until 1727.6 A later case involved the publication of an “obscene and 4 There are two reports of the case. The first is captioned Le Roy v. Sr. Charles Sidney, 1 Sid. 168, pl. 29 (K. B. 1663); the second is titled Sir Charles Sydlyes Case, 1 Keble 620 (K. B. 1663). Sir Charles had made a public appearance on a London balcony while nude, intoxicated, and talkative. He delivered a lengthy speech to the assembled crowd, uttered profanity, and hurled bottles containing what was later described as an “offensive liquor” upon the crowd. The proximate source of the “offensive liquor” appears to have been Sir Charles. Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40-43 (1938). 5 The Queen v. Read, 11 Mod. 142 (Q. B. 1707). e Dominus Rex v. Curl, 2 Strange 789 (K. B. 1727). See Straus, The Unspeakable Curll (1927). MEMOIRS v. MASSACHUSETTS. 429 413 Opinion of Douglas, J. impious libel” (a bawdy parody of Pope’s “Essay on Man”) by a member of the House of Commons.7 On the basis of these few cases, one cannot say that the common-law doctrines with regard to publication of obscenity were anything but uncertain. “There is no definition of the term. There is no basis of identification. There is no unity in describing what is obscene literature, or in prosecuting it. There is little more than the ability to smell it.” Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40, 47 (1938). But even if the common law had been more fully developed at the time of the adoption of the First Amendment, we would not be justified in assuming that the Amendment left the common law unscathed. In Bridges v. California, 314 U. S. 252, 264, we said: “[T]o assume that English common law in this field became ours is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.’ Schofield, Freedom of the Press in the United States, 9 Publications Amer. Sociol. Soc., 67, 76. “More specifically, it is to forget the environment in which the First Amendment was ratified. In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the leader in the preparation of the First Amendment, said: Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of con science, come in question in that body [Parliament], f V Milkes, 4 Burr. 2527 (K. B. 1770). The prosecution 0 i es was a highly political action, for Wilkes was an outspoken the government See R- W- Postgate, That Devil Wilkes )• It has been suggested that the prosecution in this case was a convenient substitute for the less attractive charge of seditious libel. See Alpert, supra, at 45. 430 383 U.S. OCTOBER TERM, 1965. Opinion of Douglas, J. the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.’ ” And see Grosjean v. American Press Co., 297 U. S. 233, 248-249. It is true, as the Court observed in Roth, that obscenity laws appeared on the books of a handful of States at the time the First Amendment was adopted.8 But the First Amendment was, until the adoption of the Fourteenth, a restraint only upon federal power. Moreover, there is an absence of any federal cases or laws relative to obscenity in the period immediately after the adoption of the First Amendment. Congress passed no legislation relating to obscenity until the middle of the nineteenth century.9 Neither reason nor history warrants exclusion of any particular class of expression from the protection of the First Amendment on nothing more than a judgment that it is utterly without merit. We faced the difficult questions the First Amendment poses with regard to libel in New York Times v. Sullivan, 8 See 354 U. S., at 483 and n. 13. For the most part, however, the early legislation was aimed at blasphemy and profanity. See 354 U. S., at 482-483 and n. 12. The first reported decision involving the publication of obscene literature does not come until 1821. See Commonwealth v. Holmes, 17 Mass. 336. It was not until after the Civil War that state prosecutions of this sort became commonplace. See Lockhart & McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn. L. Rev. 295, 324-325 (1954). 8 Tariff Act of 1842, c. 270, § 28, 5 Stat. 566 (prohibiting importation of obscene “prints”). Other federal legislation followed; the development of federal law is traced in Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009, 1010 n. 2 (1962). MEMOIRS v. MASSACHUSETTS. 431 413 Opinion of Douglas, J. 376 U. S. 254, 269, where we recognized that “libel can claim no talismanic immunity from constitutional limitations.” We ought not to permit fictionalized assertions of constitutional history to obscure those questions here. Were the Court to undertake that inquiry, it would be unable, in my opinion, to escape the conclusion that no interest of society with regard to suppression of “obscene” literature could override the First Amendment to justify censorship. The censor is always quick to justify his function in terms that are protective of society. But the First Amendment, written in terms that are absolute, deprives the States of any power to pass on the value, the propriety, or the morality of a particular expression. Cf. Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684, 688-689; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495. Perhaps the most frequently assigned justification for censorship is the belief that erotica produce antisocial sexual conduct. But that relationship has yet to be proven.10 Indeed, if one were to make judgments on the 10 See Cairns, Paul & Wishner, supra, 1034-1041; Lockhart & i cClure, supra, at 382-387. And see the summary of Dr. Jahoda’s studies prepared by her for Judge Frank, reprinted in United States v. oth, 237 F. 2d 796, 815-816 (concurring opinion). Those who are concerned about children and erotic literature would do well to consider the counsel of Judge Bok: ‘It will be asked whether one would care to have one’s young aughter read these books. I suppose that by the time she is old noug to wish to read them she will have learned the biologic acts of life and the words that go with them. There is something serious y wrong at home if those facts have not been met and faced . ^en’ n°t children so much as parents that J°U“ receive our concern about this. I should prefer that my wn M • daughters meet the facts of life and the literature of the th r my library than behind a neighbor’s barn, for I can face Jersary there directly. If the young ladies are appalled by if th fead’ $hey can close the book at the bottom of page one; ey read further, they will learn what is in the world and in its 432 383 U.S. OCTOBER TERM, 1965. Opinion of Douglas, J. basis of speculation, one might guess that literature of the most pornographic sort would, in many cases, provide a substitute—not a stimulus—for antisocial sexual conduct. See Murphy, The Value of Pornography, 10 Wayne L. Rev. 655, 661 and n. 19 (1964). As I read the First Amendment, judges cannot gear the literary diet of an entire nation to whatever tepid stuff is incapable of triggering the most demented mind. The First Amendment demands more than a horrible example or two of the perpetrator of a crime of sexual violence, in whose pocket is found a pornographic book, before it allows the Nation to be saddled with a regime of censorship.11 people, and no parents who have been discerning with their children need fear the outcome. Nor can they hold it back, for life is a series of little battles and minor issues, and the burden of choice is on us all, every day, young and old.” Commonwealth v. Gordon, 66 Pa. D. & C. 101, 110. 11 It would be a futile effort even for a censor to attempt to remove all that might possibly stimulate antisocial sexual conduct: “The majority [of individuals], needless to say, are somewhere between the over-scrupulous extremes of excitement and frigidity ... . Within this variety, it is impossible to define ‘hard-core’ pornography, as if there were some singly lewd concept from which all profane ideas passed by imperceptible degrees into that sexuality called holy. But there is no ‘hard-core.’ Everything, every idea, is capable of being obscene if the personality perceiving it so apprehends it. “It is for this reason that books, pictures, charades, ritual, the spoken word, can and do lead directly to conduct harmful to the self indulging in it and to others. Heinrich Pommerenke, who was a rapist, abuser, and mass slayer of women in Germany, was prompted to his series of ghastly deeds by Cecil B. DeMille’s The Ten Commandments. During the scene of the Jewish women dancing about the Golden Calf, all the doubts of his life came clear: Women were the source of the world’s trouble and it was his mission to both punish them for this and to execute them. Leaving the theater, he slew his first victim in a park nearby. John George Haigh, the British vampire who sucked his victims’ blood through soda straws and dissolved MEMOIRS v. MASSACHUSETTS. 433 413 Appendix to opinion of Douglas, J. Whatever may be the reach of the power to regulate conduct, I stand by my view in Roth v. United States, supra, that the First Amendment leaves no power in government over expression of ideas. APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING. Dr. Peale and Fanny Hill. An Address by Rev. John R. Graham, First Universalist Church of Denver. December 1965. At the present point in the twentieth century, it seems to me that there are two books which symbolize the human quest for what is moral. Sin, Sex and Self-Control by Dr. Norman Vincent Peale, the well-known clergyman of New York City, portrays the struggle of contemporary middle-class society to arrive at a means of stabilizing behavior patterns. At the same time, there is a disturbing book being sold in the same stores with Dr. Peale’s volume. It is a seventeenth century English novel by John Cleland and it is known as Fanny Hill: The Memoirs of a Woman of Pleasure. Quickly, it must be admitted that it appears that the two books have very little in common. One was written in a day of scientific and technological sophistication, while the other is over two hundred years old. One is acclaimed in the pulpit, while the other is protested before the United States Supreme Court. Sin, Sex and Self-Control is authored by a Christian pastor, while their drained bodies in acid baths, first had his murder-inciting dreams and vampire-longings from watching the ‘voluptuous’ procedure of—an Anglican High Church Service!” Murphy, supra, at 668. 434 383 U. S. OCTOBER TERM, 1965. Appendix to opinion of Douglas, J. Fanny Hill represents thoughts and experiences of a common prostitute. As far as the general public seems to be concerned, one is moral and the other is hopelessly immoral. While Dr. Peale is attempting to redeem the society, most people believe that Fanny Hill can only serve as another instance in an overall trend toward an immoral social order. Most parents would be pleased to find their children reading a book by Dr. Peale, but I am afraid that the same parents would be sorely distressed to discover a copy of Fanny Hill among the school books of their offspring. Although ope would not expect to find very many similarities between the thoughts of a pastor and those of a prostitute, the subject matter of the two books is, in many ways, strangely similar. While the contents are radically different, the concerns are the same. Both authors deal with human experience. They are concerned with people and what happens to them in the world in which they live each day. But most significantly of all, both books deal with the age-old question of “What is moral?” I readily admit that this concern with the moral is more obvious in Dr. Peale’s book than it is in the one by John Cleland. The search for the moral in Fanny Hill is clothed in erotic passages which seem to equate morality with debauchery as far as the general public is concerned. At the same time, Dr. Peale’s book is punctuated with such noble terms as “truth,” “love,” and “honesty.” These two books are not very important in themselves. They may or may not be great literature. Whether they will survive through the centuries to come is a question, although John Cleland has an historical edge on Norman Vincent Peale! However, in a symbolic way they do represent the struggle of the moral quest and for this reason they are important. MEMOIRS v. MASSACHUSETTS. 435 413 Appendix to opinion of Douglas, J. Dr. Peale begins his book with an analysis of contemporary society in terms of the moral disorder which is more than obvious today. He readily admits that the traditional Judeo-Christian standards of conduct and behavior no longer serve as strong and forceful guides. He writes: “For more than forty years, ever since my ordination, I had been preaching that if a person would surrender to Jesus Christ and adopt strong affirmative attitudes toward life he would be able to live abundantly and triumphantly. I was still absolutely convinced that this was true. But I was also bleakly aware that the whole trend in the seventh decade of the twentieth century seemed to be away from the principles and practices of religion—not toward them.” (Page 1.) Dr. Peale then reflects on the various changes that have taken place in our day and suggests that although he is less than enthusiastic about the loss of allegiance to religion, he is, nevertheless, willing to recognize that one cannot live by illusion. After much struggle, Dr. Peale then says that he was able to develop a new perspective on the current moral dilemma of our times. What first appeared to be disaster was really opportunity. Such an idea, coming from him, should not be very surprising, since he is more or less devoted to the concept of “positive thinking!” He concludes that our society should welcome the fact that the old external authorities have fallen. He does not believe that individuals should ever be coerced into certain patterns of behavior. According to Dr. Peale, we live in a day of challenge. Our society has longed for a time when individuals would be disciplined by self-control, rather than being m°tivated by external compunction. Bravely and forth- 436 .383 U. S. OCTOBER TERM, 1965. Appendix to opinion of Douglas, J. rightly, he announces that the time has now come when self-control can and must replace external authority. He is quick to add that the values contained in the Judeo-Christian tradition and “the American way of life” must never be abandoned for they emanate from the wellsprings of “Truth.” What has previously been only an external force must now be internalized by individuals. In many ways, Dr. Peale’s analysis of the social situation and the solution he offers for assisting the individual to stand against the pressures of the times, come very close to the views of Sigmund Freud. He felt that society could and would corrupt the individual and, as a result, the only sure defense was a strong super-ego or conscience. This is precisely what Dr. Peale recommends. Interestingly enough John Cleland, in Fanny Hill, is concerned with the same issues. Although the question of moral behavior is presented more subtly in his book, the problem with which he deals is identical. There are those who contend that the book is wholly without redeeming social importance. They feel that it appeals only to prurient interests. I firmly believe that Fanny Hill is a moral, rather than an immoral, piece of literature. In fact, I will go as far as to suggest that it represents a more significant view of morality than is represented by Dr. Peale’s book Sin, Sex and Self-Control. As is Dr. Peale, Cleland is concerned with the nature of the society and the relationship of the individual to it. Fanny Hill appears to me to be an allegory. In the story, the immoral becomes the moral and the unethical emerges as the ethical. Nothing is more distressing than to discover that what is commonly considered to be evil may, in reality, demonstrate characteristics of love and concern. There is real irony in the fact that Fanny Hill, a rather naive young girl who becomes a prostitute, finds warmth, MEMOIRS v. MASSACHUSETTS. 437 413 Appendix to opinion of Douglas, J. understanding and the meaning of love and faithfulness amid surroundings and situations which the society, as a whole, condemns as debased and depraved. The world outside the brothel affirms its faith in the dignity of man, but people are often treated as worthless and unimportant creatures. However, within the world of prostitution, Fanny Hill finds friendship, understanding, respect and is treated as a person of value. When her absent lover returns, she is not a lost girl of the gutter. One perceives that she is a whole and healthy person who has discovered the ability to love and be loved in a brothel. I think Cleland is suggesting that one must be cautious about what is condemned and what is held in honor. From Dr. Peale’s viewpoint, the story of Fanny Hill is a tragedy because she did not demonstrate self-control. She refused to internalize the values inherent in the Judeo-Christian tradition and the catalog of sexual scenes in the book, fifty-two in all, are a symbol of the debased individual and the society in which he lives. Dr. Peale and others, would be correct in saying that Fanny Hill did not demonstrate self-control. She did, however, come to appreciate the value of self-expression. At no time were her “clients” looked upon as a means to an end. She tried and did understand them and she was concerned about them as persons. When her lover, Charles, returned she was not filled with guilt and remorse. She accepted herself as she was and was able to offer him her love and devotion. I have a feeling that many people fear the book Fanny y , not because of its sexual scenes, but because the author raises serious question with the issue of what is moral and what is immoral. He takes exception to the idea that repression and restraint create moral indi-? uals. He develops the thought that self-expression is more human than self-control. And he dares to suggest that, in a situation which society calls immoral and 438 383 U.S. OCTOBER TERM, 1965. Appendix to opinion of Douglas, J. debased, a genuine love and respect for life and for people, as human beings, can develop. Far from glorifying vice, John Cleland points an accusing finger at the individual who is so certain as to what it means to be a moral man. There are those who will quickly say that this “message” will be missed by the average person who reads Fanny Hill. But this is precisely the point. We become so accustomed to pre-judging what is ethical and what is immoral that we are unable to recognize that what we accept as good may be nothing less than evil because it harms people. I know of no book which more beautifully describes meaningful relationships between a man and a woman than does Fanny Hill. In many marriages, men use a woman for sexual gratification and otherwise, as well as vice versa. But this is not the case in the story of Fanny Hill. The point is simply that there are many, many ways in which we hurt, injure and degrade people that are far worse than either being or visiting a prostitute. We do this all in the name of morality. At the same time that Dr. Peale is concerned with sick people, John Cleland attempts to describe healthy ones. Fanny Hill is a more modern and certainly more valuable book than Sin, Sex and Self-Control because the author does not tell us how to behave, but attempts to help us understand ourselves and the nature of love and understanding in being related to other persons. Dr. Peale’s writing emphasizes the most useful commodities available to man—self-centeredness and self-control. John Cleland suggests that self-understanding and self-expression may not be as popular, but they are more humane. The “Peale approach” to life breeds contentment, for it suggests that each one of us can be certain as to what is good and true. Standards for thinking and behavior are available and all we need to do is appropriate them MEMOIRS v. MASSACHUSETTS. 439 413 Appendix to opinion of Douglas, J. for our use. In a day when life is marked by chaos and confusion, this viewpoint offers much in the way of comfort and satisfaction. There is only one trouble with it, however, and that is that it results in conformity, rigid behavior and a lack of understanding. It results in personality configurations that are marked with an intense interest in propositions about Truth and Right but, at the same time, build a wall against people. Such an attitude creates certainty, but there is little warmth. The idea develops that there are “my kind of people” and they are “right.” It forces us to degrade, dismiss and ultimately attempt to destroy anyone who does not agree with us. To be alive and sensitive to life means that we have to choose what we want. There is no possible way for a person to be a slave and free at the same time. Selfcontrol and self-expression are at opposite ends of the continuum. As much as some persons would like to have both, it is necessary to make a choice, since restraint and openness are contradictory qualities. To internalize external values denies the possibility of self-expression. We must decide what we want, when it comes to conformity and creativity. If we want people to behave in a structured and predictable manner, then the ideal of creativity cannot have meaning. Long ago Plato said, “What is honored in a country will be cultivated there.” More and more, we reward people for thinking alike and as a result, we become Tightened, beyond belief, of those who take exception to the current consensus. If our society collapses, it will not be because people read a book such as Fanny Hill. t will fall, because we will have refused to understand jt. Decadence, in a nation or an individual, arises not ecause there is a lack of ability to distingush between Morality and immorality, but because the opportunity 440 383 U. S. OCTOBER TERM, 1965. Appendix to opinion of Douglas, J. for self-expression has been so controlled or strangled that the society or the person becomes a robot. The issue which a Dr. Peale will never understand, because he is a victim of it himself and which John Cleland describes with brilliant clarity and sensitive persuasion is that until we learn to respect ourselves enough that we leave each other alone, wTe cannot discover the meaning of morality. Dr. Peale and Fanny Hill offer the two basic choices open to man. Man is free to choose an autocentric existence which is marked by freedom from ambiguity and responsibility. Autocentricity presupposes a “closed world” where life is predetermined and animal-like. In contrast to this view, there is the allocentric outlook which is marked by an “open encounter of the total person with the world.” Growth, spontaneity and expression are the goals of such an existence. Dr. Peale epitomizes the autocentric approach. He offers “warm blankets” and comfortable “cocoons” for those who want to lose their humanity. On the other hand, Fanny Hill represents the allocentric viewpoint which posits the possibility for man to raise his sights, stretch his imagination, cultivate his sensitiveness as well as deepen and broaden his perspectives. In discussing the autocentric idea, Floyd W. Matson writes, “Human beings conditioned to apathy and affluence may well prefer this regressive path of least resistance, with its promise of escape from freedom and an end to striving. But we know at least that it is open to them to choose otherwise: in a word, to choose themselves.” (The Broken Image, page 193.) In a day when people are overly sensitive in drawing lines between the good and the bad, the right and the wrong, as well as the true and the false, it seems to me MEMOIRS v. MASSACHUSETTS. 441 413 Clark, J., dissenting. that there is great irony in the availability of a book such as Fanny Hill. Prostitution may be the oldest profession in the world, but we are ever faced with a question which is becoming more and more disturbing: “What does a prostitute look like?” Mr. Justice Clark, dissenting. It is with regret that I write this dissenting opinion. However, the public should know of the continuous flow of pornographic material reaching this Court and the increasing problem States have in controlling it. Memoirs of a Woman of Pleasure, the book involved here, is typical. I have “stomached” past cases for almost 10 years without much outcry. Though I am not known to be a purist—or a shrinking violet—this book is too much even for me. It is important that the Court has refused to declare it obscene and thus affords it further circulation. In order to give my remarks the proper setting I have been obliged to portray the book’s contents, which causes me embarrassment. However, quotations from typical episodes would so debase our Reports that I will not follow that course. I. Let me first pinpoint the effect of today’s holding in t e obscenity field. While there is no majority opinion ni this case, there are three Justices who import a new test into that laid down in Roth v. United States, 354 ’ ’ 476 (1957), namely, that “[a] book cannot be pro-scri ed unless it is found to be utterly without redeeming social value.” I agree with my Brother White that such a condition rejects the basic holding of Roth and g ves t e smut artist free rein to carry on his dirty busi- s. My vote in that case—which was the deciding one tor the majority opinion—was cast solely because the our declared the test of obscenity to be: “whether to 442 383 U. S. OCTOBER TERM, 1965. Clark, J., dissenting. the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” I understood that test to include only two constitutional requirements: (1) the book must be judged as a whole, not by its parts; and (2) it must be judged in terms of its appeal to the prurient interest of the average person, applying contemporary community standards.1 Indeed, obscenity was denoted in Roth as having “such slight social value as a step to truth that any benefit that may be derived . . . is clearly outweighed by the social interest in order and morality. . . .” At 485 (quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)). Moreover, in no subsequent decision of this Court has any “utterly without redeeming social value” test been suggested, much less expounded. My Brother Harlan in Manual Enterprises, Inc. v. Day, 370 U. S. 478 (1962), made no reference whatever to such a requirement in Roth. Rather he interpreted Roth as including a test of “patent offensiveness” besides “prurient appeal.” Nor did my Brother Brennan in his concurring opinion in Manual Enterprises mention any “utterly without redeeming social value” test. The first reference to such a test was made by my Brother Brennan in Jacobellis v. Ohio, 378 U. S. 184, 191 (1964), seven years after Roth. In an opinion joined only by Justice Goldberg, he there wrote: “Recognizing that the test for obscenity enunciated [in Roth^ ... is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard.” Nevertheless, he proceeded to add: “We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance,’ . . . .” 1 See Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 53-55 (1960). MEMOIRS v. MASSACHUSETTS. 443 413 Clark, J., dissenting. This language was then repeated in the converse to announce this non sequitur: “It follows that material dealing with sex in a manner that advocates ideas ... or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection.” At 191. Significantly no opinion in Jacobellis, other than that of my Brother Brennan, mentioned the “utterly without redeeming social importance” test which he there introduced into our many and varied previous opinions in obscenity cases. Indeed, rather than recognizing the “utterly without social importance” test, The Chief Justice in his dissent in Jacobellis, which I joined, specifically stated: “In light of the foregoing, I would reiterate my acceptance of the rule of the Roth case: Material is obscene and not constitutionally protected against regulation and proscription if ‘to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ ” (Emphasis added.) At 202. The Chief Justice and I further asserted that the enforcement of this rule should be committed to the state and federal courts whose judgments made pursuant to t e Roth rule we would accept, limiting our review to a consideration of whether there is “sufficient evidence” in the record to support a finding of obscenity. At 202. II. Three members of the majority hold that reversal here is necessary solely because their novel “utterly without re eeming social value” test was not properly interpreted or applied by the Supreme Judicial Court of Massachu- 444 383 U. S. OCTOBER TERM, 1965. Clark, J., dissenting. setts. Massachusetts now has to retry the case although the “Findings of Fact, Rulings of Law and Order for Final Decree” of the trial court specifically held that “this book is ‘utterly without redeeming social importance’ in the fields of art, literature, science, news or ideas of any social importance and that it is obscene, indecent and impure.” I quote portions of the findings: “Opinions of experts are admitted in evidence to aid the Court in its understanding and comprehension of the facts, but, of course, an expert cannot usurp the function of the Court. Highly artificial, stylistic writing and an abundance of metaphorical descriptions are contained in the book but the conclusions of some experts were pretty well strained in attempting to justify its claimed literary value: such as the book preached a moral that sex with love is better than sex without love, when Fanny’s description of her sexual acts, particularly with the young boy she seduced, in Fanny’s judgment at least, was to the contrary. Careful review of all the expert testimony has been made, but, the best evidence of all, is the book itself and it plainly has no value because of ideas, news or artistic, literary or scientific attributes. . . . Nor does it have any other merit. ‘This Court will not adopt a rule of law which states obscenity is suppressible but well written obscenity is not.’ Mr. Justice Scileppi in People v. Fritch, 13 N. Y. 2d 119.” (Emphasis added.) Finding 20. None of these findings of the trial court were overturned on appeal, although the Supreme Judicial Court of Massachusetts observed in addition that “the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the ‘social importance’ test as re- MEMOIRS v. MASSACHUSETTS. 445 413 Clark, J., dissenting. quiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.” My Brother Brennan reverses on the basis of this casual statement, despite the specific findings of the trial court. Why, if the statement is erroneous, Brother Brennan does not affirm the holding of the trial court which beyond question is correct, one cannot tell. This course has often been followed in other cases. In my view evidence of social importance is relevant to the determination of the ultimate question of obscenity. But social importance does not constitute a separate and distinct constitutional test. Such evidence must be considered together with evidence that the material in question appeals to prurient interest and is patently offensive. Accordingly, we must first turn to the book here under attack. I repeat that I regret having to depict the sordid episodes of this book. III. Memoirs is nothing more than a series of minutely and vividly described sexual episodes. The book starts with Fanny Hill, a young 15-year-old girl, arriving in London to seek household work. She goes to an employment office where through happenstance she meets the mistress of a bawdy house. This takes 10 pages. The remaining 200 pages of the book detail her initiation into various sexual experiences, from a lesbian encounter with a sister prostitute to all sorts and types of sexual debauchery in bawdy houses and as the mistress of a variety of men. This is presented to the reader through an uninterrupted succession of descriptions by Fanny, either as an observer or participant, of sexual adventures so vile that one of the male expert witnesses in the case was hesitant to repeat any one of them in the courtroom. 446 OCTOBER TERM, 1965. Clark, J., dissenting. 383 U. S. These scenes run the gamut of possible sexual experience such as lesbianism, female masturbation, homosexuality between young boys, the destruction of a maidenhead with consequent gory descriptions, the seduction of a young virgin boy, the flagellation of male by female, and vice versa, followed by fervid sexual engagement, and other abhorrent acts, including over two dozen separate bizarre descriptions of different sexual intercourses between male and female characters. In one sequence four girls in a bawdy house are required in the presence of one another to relate the lurid details of their loss of virginity and their glorification of it. This is followed the same evening by “publick trials” in which each of the four girls engages in sexual intercourse with a different man while the others witness, with Fanny giving a detailed description of the movement and reaction of each couple. In each of the sexual scenes the exposed bodies of the participants are described in minute and individual detail. The pubic hair is often used for a background to the most vivid and precise descriptions of the response, condition, size, shape, and color of the sexual organs before, during and after orgasms. There are some short transitory passages between the various sexual episodes, but for the most part they only set the scene and identify the participants for the next orgy, or make smutty reference and comparison to past episodes. There can be no doubt that the whole purpose of the book is to arouse the prurient interest. Likewise the repetition of sexual episode after episode and the candor with which they are described renders the book “patently offensive.” These facts weigh heavily in any appraisal of the book’s claims to “redeeming social importance.” Let us now turn to evidence of the book’s alleged social value. While unfortunately the State offered little tes- MEMOIRS v. MASSACHUSETTS. 447 413 Clark, J., dissenting. timony,2 the defense called several experts to attest that the book has literary merit and historical value. A careful reading of testimony, however, reveals that it has no substance. For example, the first witness testified: “I think it is a work of art . . . it asks for and receives a literary response . . . presented in an orderly and organized fashion, with a fictional central character, and with a literary style .... I think the central character is . . . what I call an intellectual . . . someone who is extremely curious about life and who seeks ... to record with accuracy the details of the external world, physical sensations, psychological responses ... an empiricist .... I find that this tells me things . . . about the 18th century that I might not otherwise know.” If a book of art is one that asks for and receives a literary response, Memoirs is no work of art. The sole response evoked by the book is sensual. Nor does the orderly presentation of Memoirs make a difference; it presents nothing but lascivious scenes organized solely to arouse prurient interest and produce sustained erotic tension.3 Certainly the book’s baroque style cannot vitiate the determination of obscenity. From a legal standpoint, we must remember that obscenity is no less obscene though it be expressed in “elaborate language.” Indeed, the more meticulous its presentation, the more it appeals to the prurient interest. To say that Fanny is an “intellectual” is an insult to those who travel under that tag. 2 In a preface to the paperbook edition, “A Note on the American History of Memoirs of a Woman of Pleasure,” the publisher itself en ions several critics who denied the book had any literary merit an found it totally undistinguished. These critics included Ralph Thompson and Clifton Fadiman. P. xviii. As one review stated: “Yet all these pangs of defloration are in e service of erotic pleasure—Fanny’s and the reader’s. Postponing e cummation of Fanny’s deflowering is equivalent to postponing e point where the reader has a mental orgasm.” 448 383 U. S. OCTOBER TERM, 1965. Clark, J., dissenting. She was nothing but a harlot—a sensualist—exploiting her sexual attractions which she sold for fun, for money, for lodging and keep, for an inheritance, and finally for a husband. If she was curious about life, her curiosity extended only to the pursuit of sexual delight wherever she found it. The book describes nothing in the “external world” except bawdy houses and debaucheries. As an empiricist, Fanny confines her observations and “experiments” to sex, with primary attention to depraved, lewd, and deviant practices. Other experts produced by the defense testified that the book emphasizes the profound “idea that a sensual passion is only truly experienced when it is associated with the emotion of love” and that the sexual relationship “can be a wholesome, healthy, experience itself,” whereas in certain modern novels “the relationship between the sexes is seen as another manifestation of modern decadence, insterility or perversion.” In my view this proves nothing as to social value. The state court properly gave such testimony no probative weight. A review offered by the defense noted that “where ‘pornography’ does not brutalize, it idealizes. The book is, in this sense, an erotic fantasy—and a male fantasy, at that, put into the mind of a woman. The male organ is phenomenal to the point of absurdity.” Finally, it saw the book as “a minor fantasy, deluding as a guide to conduct, but respectful of our delight in the body ... an interesting footnote in the history of the English novel.” These unrelated assertions reveal to me nothing whatever of literary, historical, or social value. Another review called the book “a great novel . . . one which turns its convention upside down . . . .” Admittedly Cleland did not attempt “high art” because he was writing “an erotic novel. He can skip the elevation and get on with the erections.” Fanny’s “downfall” is seen as “one long delightful swoon into the depths of pleasurable sensa- MEMOIRS v. MASSACHUSETTS. 449 413 Clark, J., dissenting. tion.” Rather than indicating social value in the book, this evidence reveals just thé contrary. Another item offered by the defense described Memoirs as being ‘‘widely accredited as the first deliberately dirty novel in English.” However, the reviewer found Fanny to be “no common harlot. Her ‘Memoirs’ combine literary grace with a disarming enthusiasm for an activity which is, after all, only human. What is more, she never uses a dirty word.” The short answer to such “expertise” is that none of these so-called attributes have any value to society. On the contrary, they accentuate the prurient appeal. Another expert described the book as having “detectable literary merit” since it reflects “an effort to interpret a rather complex character . . . going through a number of very different adventures.” To illustrate his assertion that the “writing is very skillfully done” this expert pointed to the description of a whore, “Phoebe, who is red-faced, fat and in her early 50’s, who waddles into a room.’ She doesn’t walk in, she waddles in.” Given this standard for “skillful writing,” it is not suprising that he found the book to have merit. The remaining experts testified in the same manner, claiming the book to be a “record of the historical, psycho-ogical, [and] social events of the period.” One has but to read the history of the 18th century to disprove this assertion. The story depicts nothing besides the brothels that are present in metropolitan cities in every period of history. One expert noticed “in this book a tendency away from nakedness during the sexual act which I find an interesting sort of sociological observation” on tastes iiierent from contemporary ones. As additional proof, e marvels that Fanny “refers constantly to the male sexual organ as an engine . . . which is pulling you away r°m the way these events would be described in the 19th °r Oth century.” How this adds social value to the book 450 383 U. S. OCTOBER TERM, 1965. Clark, J., dissenting. is beyond my comprehension. It only indicates the lengths to which these experts go in their effort to give the book some semblance of value. For example, the ubiquitous descriptions of sexual acts are excused as being necessary in tracing the “moral progress” of the heroine, and the giving of a silver watch to a servant is found to be “an odd and interesting custom that I would like to know more about.” This only points up the bankruptcy of Memoirs in both purpose and content, adequately justifying the trial court’s finding that it had absolutely no social value. It is, of course, the duty of the judge or the jury to determine the question of obscenity, viewing the book by contemporary community standards. It can accept the appraisal of experts or discount their testimony in the light of the material itself or other relevant testimony. So-called “literary obscenity,” i. e., the use of erotic fantasies of the hard-core type clothed in an engaging literary style has no constitutional protection. If a book deals solely with erotic material in a manner calculated to appeal to the prurient interest, it matters not that it may be expressed in beautiful prose. There are obviously dynamic connections between art and sex—the emotional, intellectual, and physical—but where the former is used solely to promote prurient appeal, it cannot claim constitutional immunity. Cleland uses this technique to promote the prurient appeal of Memoirs. It is true that Fanny’s perverse experiences finally bring from her the observation that “the heights of [sexual] enjoyment cannot be achieved until true affection prepares the bed of passion.” But this merely emphasizes that sex, wherever and however found, remains the sole theme of Memoirs. In my view, the book’s repeated and unrelieved appeals to the prurient interest of the average person leave it utterly without redeeming social importance. MEMOIRS v. MASSACHUSETTS. 451 413 Clark, J., dissenting. IV. In his separate concurrence, iny Brother Douglas asserts there is no proof that obscenity produces antisocial conduct. I had thought that this question was foreclosed by the determination in Roth that obscenity was not protected by the First Amendment. I find it necessary to comment upon Brother Douglas’ views, however, because of the new requirement engrafted upon Roth by Brother Brennan, i. e., that material which “appeals to a prurient interest” and which is “patently offensive” may still not be suppressed unless it is “utterly without redeeming social value.” The question of antisocial effect thus becomes relevant to the more limited question of social value. Brother Brennan indicates that the social importance criterion encompasses only such things as the artistic, literary, and historical qualities of the material. But the phrasing of the “utterly without redeeming social value” test suggests that other evidence must be considered. To say that social value may “redeem” implies that courts must balance alleged esthetic merit against the harmful consequences that may flow from pornography. Whatever the scope of the social value criterion—which need not be defined with precision here—it at least anticipates that the trier of fact will weigh evidence of the material’s influence in causing deviant or criminal conduct, particularly sex crimes, as well as its effect upon the mental, moral, and physical health of the average person. Brother Douglas’ view as to the lack of proof in this area is not so firmly held among behavioral scientists as he would lead us to believe. For this reason, I should mention that there is a division of thought on the correlation between obscenity and socially deleterious behavior. Psychological and physiological studies clearly indicate t at many persons become sexually aroused from reading 452 383 U. S. OCTOBER TERM, 1965. Clark, J., dissenting. obscene material.4 While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct.5 For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person.6 A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community.7 In addition, there is persuasive evidence from criminologists and police officials. Inspector Herbert Case of the Detroit Police Department contends that sex murder cases are invariably tied to some form of obscene literature.8 And the Director of the Federal Bureau of Investigation, J. Edgar Hoover, has repeatedly emphasized that pornography is associated with an overwhelmingly large number of sex crimes. Again, while the correlation between possession of obscenity and deviant be- 4 For a summary of experiments with various sexual stimuli see Cairns, Paul & Wishner, Sex Censorship: The Assumptions of AntiObscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009 (1962). The authors cite research by Kinsey disclosing that obscene literature stimulated a definite sexual response in a majority of the male and female subjects tested. 5 E. g., Wertham, Seduction of the Innocent (1954), p. 164. 6 Testimony before the Subcommittee of the Judiciary Committee to Investigate Juvenile Delinquency, S. Rep. No. 2381, 84th Cong., 2d Sess., pp. 8-12 (1956). 7 Sorokin, The American Sex Revolution (1956). 8 Testimony before the House Select Committee on Current Pornographic Materials, H. R. Rep. No. 2510, 82d Cong., 2d Sess., p. 62 (1952). MEMOIRS v. MASSACHUSETTS. 453 413 Clark, J., dissenting. havior has not been conclusively established, the files of our law enforcement agencies contain many reports of persons who patterned their criminal conduct after behavior depicted in obscene material.9 The clergy are also outspoken in their belief that pornography encourages violence, degeneracy and sexual misconduct. In a speech reported by the New York Journal-American August 7, 1964, Cardinal Spellman particularly stressed the direct influence obscenity has on immature persons. These and related views have been confirmed by practical experience. After years of service with the West London Mission, Rev. Donald Soper found that pornography was a primary cause of prostitution. Rolph, Does Pornography Matter? (1961), pp. 47-48.10 Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material,11 justifying these controls by reference to evidence that antisocial behavior may result in part from reading obscenity.12 Likewise, upon another trial, the parties may offer this sort of evidence along with other “social value” characteristics that they attribute to the book. 9See, e. g., Hoover, Combating Merchants of Filth: The Role of the FBI, 25 U. Pitt. L. Rev. 469 (1964); Hoover, The Fight Against Filth, Ihe American Legion Magazine (May 1961). 10For a general discussion see Murphy, Censorship: Government and Obscenity (1963), pp. 131-151. 11 The statutes are compiled in S. Rep. No. 2381, 84th Cong., 2d Sess., pp. 17-23 (1956). While New Mexico itself does not pro-i it the distribution of obscenity, it has a statute giving municipalities the right to suppress “obscene” publications. N. M. Stat. §14-17^14 (1965 Supp.). See Report of the New York State Joint Legislative Committee tudying the Publication and Dissemination of Offensive and Obscene Material (1958), pp. 141-166. 454 383 U. S. OCTOBER TERM, 1965. Clark, J., dissenting. But this is not all that Massachusetts courts might consider. I believe it can be established that the book “was commercially exploited for the sake of prurient appeal, to the exclusion of all other values” and should therefore be declared obscene under the test of commercial exploitation announced today in Ginzburg and Mishkin. As I have stated, my study of Memoirs leads me to think that it has no conceivable “social importance.” The author’s obsession with sex, his minute descriptions of phalli, and his repetitious accounts of bawdy sexual experiences and deviant sexual behavior indicate the book was designed solely to appeal to prurient interests. In addition, the record before the Court contains extrinsic evidence tending to show that the publisher was fully aware that the book attracted readers desirous of vicarious sexual pleasure, and sought to profit solely from its prurient appeal. The publisher’s “Introduction” recites that Cleland, a “never-do-well bohemian,” wrote the book in 1749 to make a quick 20 guineas. Thereafter, various publications of the book, often “embellished with fresh inflammatory details” and “highly exaggerated illustrations,” appeared in “surreptitious circulation.” Indeed, the cover of Memoirs tempts the reader with the announcement that the sale of the book has finally been permitted “after 214 years of suppression.” Although written in a sophisticated tone, the “Introduction” repeatedly informs the reader that he may expect graphic descriptions of genitals and sexual exploits. For instance, it states: “Here and there, Cleland’s descriptions of lovemaking are marred by what perhaps could be best described as his adherence to the ‘longitudinal fallacy’—the formidable bodily equipment of his most MEMOIRS v. MASSACHUSETTS. 455 413 Harlan, J., dissenting. accomplished lovers is apt to be described with quite unnecessary relish . . . .” Many other passages in the “Introduction” similarly reflect the publisher’s “own evaluation” of the book’s nature. The excerpt printed on the jacket of the hardcover edition is typical: “Memoirs of a Woman of Pleasure is the product of a luxurious and licentious, but not a commercially degraded, era. ... For all its abounding improprieties, his priapic novel is not a vulgar book. It treats of pleasure as the aim and end of existence, and of sexual satisfaction as the epitome of pleasure, but does so in a style that, despite its inflammatory subject, never stoops to a gross or unbecoming word.” Cleland apparently wrote only one other book, a sequel called Memoirs of a Coxcomb, published by Lancer Books, Inc. The “Introduction” to that book labels Memoirs of a Woman of Pleasure as “the most sensational piece of erotica in English literature.” I daresay that this fact alone explains why G. P. Putnam’s Sons published this obscenity—preying upon prurient and carnal proclivities for its own pecuniary advantage. I would affirm the judgment. Mr. Justice Harlan, dissenting. The central development that emerges from the aftermath of Roth v. United States, 354 U. S. 476, is that no stable approach to the obscenity problem has yet been devised by this Court. Two Justices believe that the First and Fourteenth Amendments absolutely protect obscene and nonobscene material alike. Another Justice believes that neither the States nor the Federal Government may suppress any material save for “hard-core pornography.” Roth in 1957 stressed prurience and 456 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. utter lack of redeeming social importance;1 as Roth has been expounded in this case, in Ginzburg v. United States, post, p. 463, and in Mishkin v. New York, post, p. 502, it has undergone significant transformation. The concept of “pandering,” emphasized by the separate opinion of The Chief Justice in Roth, now emerges as an uncertain gloss or interpretive aid, and the further requisite of “patent offensiveness” has been made explicit as a result of intervening decisions. Given this tangled state of affairs, I feel free to adhere to the principles first set forth in my separate opinion in Roth, 354 U. S., at 496, which I continue to believe represent the soundest constitutional solution to this intractable problem. My premise is that in the area of obscenity the Constitution does not bind the States and the Federal Government in precisely the same fashion. This approach is plainly consistent with the language of the First and Fourteenth Amendments and, in my opinion, more responsive to the proper functioning of a federal system of government in this area. See my opinion in Roth, 354 U. S., at 505-506. I believe it is also consistent with past decisions of this Court. Although some 40 years have passed since the Court first indicated that the Fourteenth Amendment protects “free speech,” see Gitlow v. New York, 268 U. S. 652; Fiske v. Kansas, 274 U. S. 380, the decisions have never declared that every utterance the Federal Government may not reach or every regulatory scheme it may not enact is also beyond the power of the State. The very criteria used in opinions to delimit the protection of free speech—the gravity of the evil being regulated, see Schneider v. State, 308 U. S. 147; how “clear and present” is the danger, Schenck v. 1 Given my view of the applicable constitutional standards, I find no occasion to consider the place of “redeeming social importance” in the majority opinion in Roth, an issue which further divides the present Court. MEMOIRS v. MASSACHUSETTS. 457 413 Harlan, J., dissenting. United States, 249 U. S. 47, 52 (Holmes, J.); the magnitude of “such invasion of free speech as is necessary to avoid the danger,” United States v. Dennis, 183 F. 2d 201, 212 (L. Hand, J.)—may and do depend on the particular context in which power is exercised. When, for example, the Court in Beauhamais n. Illinois, 343 U. S. 250, upheld a criminal group-libel law because of the “social interest in order and morality,” 343 U. S., at 257, it was acknowledging the responsibility and capacity of the States in such public-welfare matters and not committing itself to uphold any similar federal statute applying to such communications as Congress might otherwise regulate under the commerce power. See also Kovacs v. Cooper, 336 U. S. 77. Federal suppression of allegedly obscene matter should, in my view, be constitutionally limited to that often described as “hard-core pornography.” To be sure, that rubric is not a self-executing standard, but it does describe something that most judges and others will “know . . . when [they] see it” (Stewart, J., in Jac-obellis v. Ohio, 378 U. S. 184, 197) and that leaves the smallest room for disagreement between those of varying tastes. To me it is plain, for instance, that Fanny Hill does not fall within this class and could not be barred from the federal mails. If further articulation is meaningful, I would characterize as “hard-core” that prurient material that is patently offensive or whose indecency is self-demonstrating and I would describe it substantially as does Mr. Justice Stewart’s opinion in Ginzburg, post, p. 499. The Federal Government may be conceded a limited interest in excluding from the mails such gross pornography, almost universally condemned in this country.2 But I believe the dangers of national 2 This interest may be viewed from different angles. Com-pe ing the Post Office to aid actively in disseminating this most o noxious material may simply appear too offensive in itself. Or, 458 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. censorship and the existence of primary responsibility at the state level amply justify drawing the line at this point. State obscenity laws present problems of quite a different order. The varying conditions across the country, the range of views on the need and reasons for curbing obscenity, and the traditions of local self-government in matters of public welfare all favor a far more flexible attitude in defining the bounds for the States. From my standpoint, the Fourteenth Amendment requires of a State only that it apply criteria rationally related to the accepted notion of obscenity and that it reach results not wholly out of step with current American standards. As to criteria, it should be adequate if the court or jury considers such elements as offensiveness, pruriency, social value, and the like. The latitude which I believe the States deserve cautions against any federally imposed formula listing the exclusive ingredients of obscenity and fixing their proportions. This approach concededly lacks precision, but imprecision is characteristic of mediating constitutional standards;3 voluntariness of a confession, clear and present danger, and probable cause are only the most ready illustrations. In time and with more litigated examples, predictability increases, but there is no shortcut to satisfactory solutions in this field, and there is no advantage in supposing otherwise. I believe the tests set out in the prevailing opinion, judged by their application in this case, offer only an more concretely, use of the mails may facilitate or insulate distribution so greatly that federal inaction amounts to thwarting state regulation. 3 The deterrent effect of vagueness for that critical class of books near the law’s borderline could in the past be ameliorated by devices like the Massachusetts in rem procedure used in this case. Of course, the Court’s newly adopted “panderer” test, turning as it does on the motives and actions of the particular defendant, seriously undercuts the effort to give any seller a yes or no answer on a book in advance of his own criminal prosecution. MEMOIRS v. MASSACHUSETTS. 459 413 Harlan, J., dissenting. illusion of certainty and risk confusion and prejudice. The opinion declares that a book cannot be banned unless it is “utterly without redeeming social value” (ante, p. 418). To establish social value in the present case, a number of acknowledged experts in the field of literature testified that Fanny Hill held a respectable place in serious writing, and unless such largely uncontradicted testimony is accepted as decisive it is very hard to see that the “utterly without redeeming social value” test has any meaning at all. Yet the prevailing opinion, while denying that social value may be “weighed against” or “canceled by” prurience or offensiveness (ante, p. 419), terminates this case unwilling to give a conclusive decision on the status of Fanny Hill under the Constitution.4 Apparently, the Court believes that the social value of the book may be negated if proof of pandering is present. Using this inherently vague “pandering” notion to offset “social value” wipes out any certainty the latter term might be given by reliance on experts, and admits into the case highly prejudicial evidence without appropriate restrictions. See my dissenting opinion in Ginzburg, post, p. 493. I think it more satisfactory to acknowledge that on this record the book has been shown to have some quantum of social value, that it may at the same time be deemed offensive and salacious, and that the State’s decision to weigh these elements and to ban this particular work does not exceed constitutional limits. A final aspect of the obscenity problem is the role this Court is to play in administering its standards, a matter 4 As I understand the prevailing opinion, its rationale is that the ® ate court may not condemn Fanny Hill as obscene after finding e book to have a modicum of social value; the opinion does note hat proof of pandering “might justify the conclusion” that the book w o y lacks social value (ante, p. 420). Given its premise for reversal, the opinion has “no occasion to assess” for itself the pruri-ency, offensiveness, or lack of social value of the book (ante, p. 420). 460 OCTOBER TERM, 1965. White, J., dissenting. 383 U. S. that engendered justified concern at the oral argument of the cases now decided. Short of saying that no material relating to sex may be banned, or that all of it may be, I do not see how this Court can escape the task of reviewing obscenity decisions on a case-by-case basis. The views of literary or other experts could be made controlling, but those experts had their say in Fanny Hill and apparently the majority is no more willing than I to say that Massachusetts must abide by their verdict. Yet I venture to say that the Court’s burden of decision would be ameliorated under the constitutional principles that I have advocated. “Hard-core pornography” for judging federal cases is one of the more tangible concepts in the field. As to the States, the due latitude my approach would leave them ensures that only the unusual case would require plenary review and correction by this Court. There is plenty of room, I know, for disagreement in this area of constitutional law. Some will think that what I propose may encourage States to go too far in this field. Others will consider that the Court’s present course unduly restricts state experimentation with the still elusive problem of obscenity. For myself, I believe it is the part of wisdom for those of us who happen currently to possess the “final word” to leave room for such experimentation, which indeed is the underlying genius of our federal system. On the premises set forth in this opinion, supplementing what I have earlier said in my opinions in Roth, supra, Manual Enterprises, Inc. v. Day, 370 U. S. 478, and Jacobellis v. Ohio, 378 U. S., at 203, I would affirm the judgment of the Massachusetts Supreme Judicial Court. Mr. Justice White, dissenting. In Roth v. United States, 354 U. S. 476, the Court held a publication to be obscene if its predominant theme MEMOIRS v. MASSACHUSETTS. 461 413 White, J., dissenting. appeals to the prurient interest in a manner exceeding customary limits of candor. Material of this kind, the Court said, is “utterly without redeeming social importance” and is therefore unprotected by the First Amendment. To say that material within the Roth definition of obscenity is nevertheless not obscene if it has some redeeming social value is to reject one of the basic propositions of the Roth case—that such material is not protected because it is inherently and utterly without social value. If “social importance” is to be used as the prevailing opinion uses it today, obscene material, however far beyond customary limits of candor, is immune if it has any literary style, if it contains any historical references or language characteristic of a bygone day, or even if it is printed or bound in an interesting way. Well written, especially effective obscenity is protected; the poorly written is vulnerable. And why shouldn’t the fact that some people buy and read such material prove its “social value”? A fortiori, if the predominant theme of the book appeals to the prurient interest as stated in Roth but the book nevertheless contains here and there a passage descriptive of character, geography or architecture, the book would not be “obscene” under the social importance test. I had thought that Roth counseled the contrary: that the character of the book is fixed by its predominant theme and is not altered by the presence of minor themes of a different nature. The Roth Court’s emphatic reliance on the quotation from Chaplinsky v. New Hampshire, 315 U. S. 568, means nothing less: “ . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include 462 383 U. S. OCTOBER TERM, 1965. White, J., dissenting. the lewd and obscene .... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .’ (Emphasis added.)” 354 U. S., at 485. In my view, “social importance” is not an independent test of obscenity but is relevant only to determining the predominant prurient interest of the material, a determination which the court or the jury will make based on the material itself and all the evidence in the case, expert or otherwise. Application of the Roth test, as I understand it, necessarily involves the exercise of judgment by legislatures, courts and juries. But this does not mean that there are no limits to what may be done in the name of Roth. Cf. Jacobellis v. Ohio, 378 U. S. 184. Roth does not mean that a legislature is free to ban books simply because they deal with sex or because they appeal to the prurient interest. Nor does it mean that if books like Fanny Hill are unprotected, their nonprurient appeal is necessarily lost to the world. Literary style, history, teachings about sex, character description (even of a prostitute) or moral lessons need not come wrapped in such packages. The fact that they do impeaches their claims to immunity from legislative censure. Finally, it should be remembered that if the publication and sale of Fanny Hill and like books are proscribed, it is not the Constitution that imposes the ban. Censure stems from a legislative act, and legislatures are constitutionally free to embrace such books whenever they wish to do so. But if a State insists on treating Fanny Hill as obscene and forbidding its sale, the First Amendment does not prevent it from doing so. I would affirm the judgment below. GINZBURG v. UNITED STATES. 463 Syllabus. GINZBURG et al. v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 42. Argued December 7, 1965.—Decided March 21, 1966. Petitioner Ginzburg and three corporations which he controlled were convicted of violating the federal obscenity statute, 18 U. S. C. § 1461, by mailing three publications: an expensive hardcover magazine dealing with sex, a sexual newsletter, and a short book purporting to be a sexual autobiography. The prosecution charged that these publications were obscene in the context of their production, sale, and attendant publicity. Besides testimony as to the merit of the material, abundant evidence was introduced that each of the publications was originated or sold as stock in trade of the business of pandering, i. e., the purveying of publications openly advertised to appeal to the customers’ erotic interest. Mailing privileges were sought from places with salaciously suggestive names; circulars for the magazine and newsletter stressed unrestricted expression of sex; and advertising of the book which purported to be of medical and psychiatric interest, but whose distribution was not confined to a professional audience, dwelt on the book’s sexual imagery. In finding petitioners guilty, the trial judge applied the obscenity standards first enunciated in Roth v. United States, 354 U. S. 476, and the Court of Appeals affirmed. Held: Evidence that the petitioners deliberately represented the accused publications as erotically arousing and commercially exploited them as erotica solely for the sake of prurient appeal amply supported the trial court’s determination that the material was obscene under the standards of the Roth case, supra. The mere fact of profit from the sale of the publication is not considered; but in a close case a showing of exploitation of interests in titillation by pornography with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters supports a determination that the material is obscene. Pp. 470-476. 338 F. 2d 12, affirmed. Sidney Dickstein argued the cause for petitioners. With him on the briefs was George Kaufmann. 464 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. Paul Bender argued the cause for the United States, pro hoc vice, by special leave of Court. With him on the brief were Solicitor General Marshall and Assistant Attorney General Vinson. Briefs of amici curiae, urging reversal, were filed by Irwin Karp for the Authors League of America, Inc.; by Bernard A. Berkman and Melvin L. Wulf for the American Civil Liberties Union et al.; and by Horace S. Manges and Marshall C. Berger for American Book Publishers Council, Inc. Briefs of amici curiae, urging affirmance, were filed by Charles H. Keating, Jr., and James J. Clancy for Citizens for Decent Literature, Inc., et al. Mr. Justice Brennan delivered the opinion of the Court. A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania1 convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute, 18 U. S. C. § 1461 (1964 ed.).2 224 F. Supp. 129. Each count alleged that a resident of the Eastern District received mailed matter, either one of three publications challenged as obscene, or advertising telling how and where the publications might 1 No challenge was or is made to venue under 18 U. S. C. § 3237 (1964 ed.). 2 The federal obscenity statute, 18 U. S. C. § 1461, provides in pertinent part: “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, cr substance; and— “Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or GINZBURG v. UNITED STATES. 465 463 Opinion of the Court. be obtained. The Court of Appeals for the Third Circuit affirmed, 338 F. 2d 12. We granted certiorari, 380 U. S. 961. We affirm. Since petitioners do not argue that the trial judge misconceived or failed to apply the standards we first enunciated in Roth v. United States, 354 U. S. 476,3 the only serious question is whether those standards were correctly applied.4 In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the ques-indirectly, where, or how, or from whom, or by what means any of such mentioned matters . . . may be obtained .... ‘Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense . . . .” 3 We are not, however, to be understood as approving all aspects of the trial judge’s exegesis of Roth, for example his remarks that the community as a whole is the proper consideration. In this community, our society, we have children of all ages, psychotics, feeble-minded and other susceptible elements. Just as they cannot set the pace for the average adult reader’s taste, they cannot be overlooked as part of the community.” 224 F. Supp., at 137. Compare Butler v. Michigan, 352 U. S. 380. 4 The Government stipulated at trial that the circulars advertising the publications were not themselves obscene; therefore the convictions on the counts for mailing the advertising stand only if the mailing of the publications offended the statute. 466 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. tion of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin n. New York, post, p. 502, and as did the courts below, 224 F. Supp., at 134, 338 F. 2d, at 14-15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal.5 The record in that regard amply supports the decision of the trial judge that the mailing of all three publications offended the statute.6 The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter; and The Housewife’s Handbook on Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Vol. 1, No. 1, contains a prefatory “Letter from the Editors” announcing its dedication to “keeping sex an art and preventing it from becoming a science.” The remainder of the issue consists of digests of two 5 Our affirmance of the convictions for mailing EROS and Liaison is based upon their characteristics as a whole, including their editorial formats, and not upon particular articles contained, digested, or excerpted in them. Thus we do not decide whether particular articles, for example, in EROS, although identified by the trial judge as offensive, should be condemned as obscene whatever their setting. Similarly, we accept the Government’s concession, note 13, infra, that the prosecution rested upon the manner in which the petitioners sold the Handbook; thus our affirmance implies no agreement with the trial judge’s characterizations of the book outside that setting. 6 It is suggested in dissent that petitioners were unaware that the record being established could be used in support of such an approach, and that petitioners should be afforded the opportunity of a new trial. However, the trial transcript clearly reveals that at several points the Government announced its theory that made the mode of distribution relevant to the determination of obscenity, and the trial court admitted evidence, otherwise irrelevant, toward that end. GINZBURG v. UNITED STATES. 467 463 Opinion of the Court. articles concerning sex and sexual relations which had earlier appeared in professional journals and a report of an interview with a psychotherapist who favors the broadest license in sexual relationships. As the trial judge noted, “[w]hile the treatment is largely superficial, it is presented entirely without restraint of any kind. According to defendants’ own expert, it is entirely without literary merit.” 224 F. Supp., at 134. The Handbook purports to be a sexual autobiography detailing with complete candor the author’s sexual experiences from age 3 to age 36. The text includes, and prefatory and concluding sections of the book elaborate, her views on such subjects as sex education of children, laws regulating private consensual adult sexual practices, and the equality of women in sexual relationships. It was claimed at trial that women would find the book valuable, for example as a marriage manual or as an aid to the sex education of their children. Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering—“the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.” 7 EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners’ efforts to sell their publications on the basis of salacious appeal;8 the facilities of the Roth v. United States, supra, 354 U. S., at 495-496 (Warren, C. J., concurring). Evidence relating to petitioners’ efforts to secure mailing privileges from these post offices was, contrary to the suggestion of Mr. Justice Harlan in dissent, introduced for the purpose of supporting such a finding. Scienter had been stipulated prior to trial. The 468 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey. EROS and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500 copies of the Handbook were mailed. The “leer of the sensualist” also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded as an unrestricted license allowed by law in the expression of sex and sexual matters.9 The advertising for the Government’s position was revealed in the following colloquy, which occurred when it sought to introduce a letter to the postmaster of Blue Ball, Pennsylvania: ‘'The COURT. Who signed the letter? “Mr. CREAMER. It is signed by Frank R. Brady, Associate Publisher of Mr. Ginzburg. It is on Eros Magazine, Incorporated’s stationery. “The COURT. And your objection is----------- “Mr. SHAPIRO. It is in no way relevant to the particular issue or publication upon which the defendant has been indicted and in my view, even if there was an identification with respect to a particular issue, it would be of doubtful relevance in that event. “The COURT. Anything else to say? Mr. CREAMER. If Your Honor pleases, there is a statement in this letter indicating that it would be advantageous to this publication to have it disseminated through Blue Ball, Pennsylvania, post office. I think this clearly goes to intent, as to what the purpose of publishing these magazines was. At least, it clearly establishes one of the reasons why they were disseminating this material. “The COURT. Admitted.” 9Thus, one EROS advertisement claimed: “Eros is a child of its times. . . . [It] is the result of recent court decisions that have realistically interpreted America’s obscenity laws and that have given to this country a new breadth of freedom GINZBURG v. UNITED STATES. Opinion of the Court. 469 463 Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book’s informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book’s sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or psychiatrists, who might independently discern the book’s of expression. . . . EROS takes full advantage of this new freedom of expression. It is the magazine of sexual candor.” In another, more lavish spread: “EROS is a new quarterly devoted to the subjects of Love and Sex. In the few short weeks since its birth, EROS has established itself as the rave of the American intellectual community—and the rage of prudes everywhere! And it’s no wonder: EROS handles the subjects of Love and Sex with complete candor. The publication of this magazine—which is frankly and avowedly concerned with erotica has been enabled by recent court decisions ruling that a literary piece or painting, though explicitly sexual in content, has a right to be published if it is a genuine work of art. “EROS is a genuine work of art. . . .” An undisclosed number of advertisements for Liaison were mailed. The outer envelopes of these ads ask, “Are you among the chosen few?” The first line of the advertisement eliminates the ambiguity: Are you a member of the sexual elite?” It continues: That is, are you among the few happy and enlightened individuals who believe that a man and woman can make love without feeling pangs of conscience? Can you read about love and sex and discuss them without blushing and stammering? If so, you ought to know about an important new periodical called Liaison. In short, Liaison is Cupid’s Chronicle. . . . Though Liaison handles the subjects of love and sex with com-P ete candor, I wish to make it clear that it is not a scandal sheet an it is not written for the man in the street. Liaison is aimed at intelligent, educated adults who can accept love and sex as part ot life. • . . Ill venture to say that after you’ve read your first biwee y issue, Liaison will be your most eagerly awaited piece of mail.” 470 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. therapeutic worth.10 Inserted in each advertisement was a slip labeled “GUARANTEE” and reading, “Documentary Books, Inc. unconditionally guarantees full refund of the price of THE HOUSEWIFE’S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you because of U. S. Post Office censorship interference.” Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss petitioners put on the publications, eliminating any doubt what the purchaser was bejng asked to buy.11 This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners’ publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality—whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply sup- 10 Note 13, infra. 11 There is much additional evidence supporting the conclusion of petitioners’ pandering. One of petitioners’ former writers for Liaison, for example, testified about the editorial goals and practices of that publication. GINZBURG v. UNITED STATES. 471 463 Opinion of the Court. pression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test. A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine to be obscene as a whole, since he concluded that only four of the 15 articles predominantly appealed to prurient interest and substantially exceeded community standards of candor, while the other articles were admittedly nonoffensive. But the trial judge found that “[t]he deliberate and studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient interest and to insulate through the inclusion of nonoffensive material.” 224 F. Supp., at 131. However erroneous such a conclusion might be if unsupported by the evidence of pandering, the record here supports it. EROS was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring. Like the other publications, its pervasive treatment of sex and sexual matters rendered it available to exploitation by those who would make a business of pandering to “the widespread weakness for titillation by pornography.”12 Petitioners’ own expert agreed, correctly we think, that “[i]f the object [of a work] is material gain for the creator through an appeal to the sexual curiosity and appetite,” the work is pornographic. In other words, by animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion. A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to social importance concerned this publication. Before selling publication rights to petitioners, its author had 12 Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677 (1963). 472 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. printed it privately; she sent circulars to persons whose names appeared on membership lists of medical and psychiatric associations, asserting its value as an adjunct to therapy. Over 12,000 sales resulted from this solicitation, and a number of witnesses testified that they found the work useful in their professional practice. The Government does not seriously contest the claim that the book has worth in such a controlled, or even neutral, environment. Petitioners, however, did not sell the book to such a limited audience, or focus their claims for it on its supposed therapeutic or educational value; rather, they deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed. They proclaimed its obscenity; and we cannot conclude that the court below erred in taking their own evaluation at its face value and declaring the book as a whole obscene despite the other evidence.13 The decision in United States v. Rebhuhn, 109 F. 2d 512, is persuasive authority for our conclusion.14 That 13 The Government drew a distinction between the author’s and petitioners’ solicitation. At the sentencing proceeding the United States Attorney stated: “. . . [the author] was distributing . . . only to physicians; she never had widespread, indiscriminate distribution of the Handbook, and, consequently, the Post Office Department did not interfere .... If Mr. Ginzburg had distributed and sold and advertised these books solely to . . . physicians . . . we, of course, would not be here this morning with regard to The Housewife’s Handbook . . , 14 The Proposed Official Draft of the ALI Model Penal Code likewise recognizes the question of pandering as relevant to the obscenity issue, §251.4(4); Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-17, 45-46, 53; Schwartz, supra, n. 12; see Craig, Suppressed Books, 195-206 (1963). Compare Grove Press, Inc. v. Christen-berry, 175 F. Supp. 488, 496-497 (D. C. S. D. N. Y. 1959), aff’d 276 F. 2d 433 (C. A. 2d Cir. 1960); United States v. One Book Entitled Ulysses, 72 F. 2d 705, 707 (C. A. 2d Cir. 1934), affirming 5 F. Supp. 182 (D. C. S. D. N. Y. 1933). See also The Trial of Lady Chat-terly—Regina v. Penguin Books, Ltd. (Rolph. ed. 1961). GINZBURG v. UNITED STATES. 473 463 Opinion of the Court. was a prosecution under the predecessor to § 1461, brought in the context of pandering of publications assumed useful to scholars and members of learned professions. The books involved were written by authors proved in many instances to have been men of scientific standing, as anthropologists or psychiatrists. The Court of Appeals for the Second Circuit therefore assumed that many of the books were entitled to the protection of the First Amendment, and “could lawfully have passed through the mails, if directed to those who would be likely to use them for the purposes for which they were written . . . .” 109 F. 2d, at 514. But the evidence, as here, was that the defendants had not disseminated them for their “proper use, but . . . woefully misused them, and it was that misuse which constituted the gravamen of the crime.” Id., at 515. Speaking for the Court in affirming the conviction, Judge Learned Hand said: “. . . [T]he works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications .... However, in the case at bar, the prosecution succeeded . . . when it showed that the defendants had indiscriminately flooded the mails with advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for these defendants exceeded any possible limit; the circulars were no more than ap- 474 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. peals to the salaciously disposed, and no [fact finder] could have failed to pierce the fragile screen, set up to cover that purpose.” 109 F. 2d, at 514-515. We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test.15 No weight is ascribed to the fact that petitioners have profited from the sale of publications which we have assumed but do not hold cannot themselves be adjudged obscene in the abstract; to sanction consideration of this fact might indeed induce self-censorship, and offend the frequently stated principle that commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.16 Rather, the fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests17 strengthens the conclusion that the transac- 15 Our conclusion is consistent with the statutory scheme. Although § 1461, in referring to “obscene . . . matter” may appear to deal with the qualities of material in the abstract, it is settled that the mode of distribution may be a significant part in the determination of the obscenity of the material involved. United States v. Rebhuhn, supra. Because the statute creates a criminal remedy, cf. Manual Enterprises n. Day, 370 U. S. 478, 495 (opinion of Brennan, J.), it readily admits such an interpretation, compare United States v. 31 Photographs, etc., 156 F. Supp. 350 (D. C. S. D. N. Y. 1957). 16 See New York Times v. Sullivan, 376 U. S. 254, 265-266; Smith v. California, 361 U. S. 147, 150. 17 See Valentine v. Chrestensen, 316 U. S. 52, where the Court viewed handbills purporting to contain protected expression as merely commercial advertising. Compare that decision with Jamison v. Texas, 318 U. S. 413, and Murdock v. Pennsylvania, 319 U. S. 105, where speech having the characteristics of advertising was held to be an integral part of religious discussions and hence protected. Material sold solely to produce sexual arousal, like commercial advertising, does not escape regulation because it has been dressed up as speech, or in other contexts might be recognized as speech. GINZBURG v. UNITED STATES. 475 463 Opinion of the Court. tions here were sales of illicit merchandise, not sales of constitutionally protected matter.18 A conviction for mailing obscene publications, but explained in part by the presence of this element, does not necessarily suppress the materials in question, nor chill their proper distribution for a proper use. Nor should it inhibit the enterprise of others seeking through serious endeavor to advance human knowledge or understanding in science, literature, or art. All that will have been determined is that questionable publications are obscene in a context which brands them as obscene as that term is defined in Roth—a use inconsistent with any claim to the shelter of the First Amendment.19 “The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.” Roth v. United States, 354 U. S., at 495 (Warren, C. J., concurring). It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation 18 Compare Breard v. Alexandria, 341 U. S. 622, with Martin v. Struthers, 319 U. S. 141. Cf. Kovacs v. Cooper, 336 U. S. 77; Giboney v. Empire Storage Co., 336 U. S. 490; Cox v. Louisiana, 379 U. S. 536, 559. 19 One who advertises and sells a work on the basis of its prurient appeal is not threatened by the perhaps inherent residual vagueness of the Roth test, cf. Dombrowski v. Pfister, 380 U. S. 479, 486-487, 491-492; such behavior is central to the objectives of criminal obscenity laws. ALI Model Penal Code, Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-17; Comments to the Proposed Official Draft §251.4, supra; Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677-681 (1963); Paul & Schwartz, Federal Censorship—Obscenity in the Mail, 212-219 (1961); see Mishkin v. New York, post, p. 502, at 507, n. 5. 476 OCTOBER TERM, 1965. Black, J., dissenting. 383 U. S. through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation. Petitioners raise several procedural objections, principally directed to the findings which accompanied the trial court’s memorandum opinion, Fed. Rules Crim. Proc. 23. Even on the assumption that petitioners’ objections are well taken, we perceive no error affecting their substantial rights. Affirmed Mr. Justice Black, dissenting. Only one stark fact emerges with clarity out of the confusing welter of opinions and thousands of words written in this and two other cases today.1 That fact is that Ginzburg, petitioner here, is now finally and authoritatively condemned to serve five years in prison .for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal. Since, as I have said many times, I believe the Federal Government is without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind (as distinguished from conduct), I agree with Part II of the dissent of my Brother Douglas in this case, and I would reverse Ginzburg’s conviction on this ground alone. Even assuming, however, that the Court is correct in holding today that Congress does have power to clamp official censorship on some subjects selected by the Court, in some ways approved by it, I believe that the federal obscenity statute as enacted by Congress and as enforced by the Court against Ginzburg in this case should be held invalid on two other grounds. 1 See No. 49, Mishkin v. New York, post, p. 502, and No. 368, Memoirs v. Massachusetts, ante, p. 413. GINZBURG v. UNITED STATES. 477 463 Black, J., dissenting. I. Criminal punishment by government, although universally recognized as a necessity in limited areas of conduct, is an exercise of one of government’s most awesome and dangerous powers. Consequently, wise and good governments make all possible efforts to hedge this dangerous power by restricting it within easily identifiable boundaries. Experience, and wisdom flowing out of that experience, long ago led to the belief that agents of government should not be vested with power and discretion to define and punish as criminal past conduct which had not been clearly defined as a crime in advance. To this end, at least in part, written laws came into being, marking the boundaries of conduct for which public agents could thereafter impose punishment upon people. In contrast, bad governments either wrote no general rules of conduct at all, leaving that highly important task to the unbridled discretion of government agents at the moment of trial, or sometimes, history tells us, wrote their laws in an unknown tongue so that people could not understand them or else placed their written laws at such inaccessible spots that people could not read them. It seems to me that these harsh expedients used by bad governments to punish people for conduct not previously clearly marked as criminal are being used here to put Mr. Ginzburg in prison for five years. I agree with my Brother Harlan that the Court has m effect rewritten the federal obscenity statute and hereby imposed on Ginzburg standards and criteria that Congress never thought about; or if it did think about enh certainly it did not adopt them. Consequently, mz urg is, as I see it, having his conviction and sen-ence affirmed upon the basis of a statute amended by is Court for violation of which amended statute he was c arged in the courts below. Such an affirmance we 478 383 U. S. OCTOBER TERM, 1965. Black, J., dissenting. have said violates due process. Cole v. Arkansas, 333 U. S. 196. Compare Shuttlesworth v. Birmingham, 382 U. S. 87. Quite apart from this vice in the affirmance, however, I think that the criteria declared by a majority of the Court today as guidelines for a court or jury to determine whether Ginzburg or anyone else can be punished as a common criminal for publishing or circulating obscene material are so vague and meaningless that they practically leave the fate of a person charged with violating censorship statutes to the unbridled discretion, whim and caprice of the judge or jury which tries him. I shall separately discuss the three elements which a majority of the Court seems to consider material in proving obscenity.2 (a) The first element considered necessary for determining obscenity is that the dominant theme of the material taken as a whole must appeal to the prurient interest in sex. It seems quite apparent to me that human beings, serving either as judges or jurors, could 2 As I understand all of the opinions in this case and the two related cases decided today, three things must be proven to establish material as obscene. In brief these are (1) the material must appeal to the prurient interest, (2) it must be patently offensive, and (3) it must have no redeeming social value. Mr. Justice Brennan in his opinion in Memoirs v. Massachusetts, ante, p. 413, which is joined by The Chief Justice and Mr. Justice Fortas, is of the opinion that all three of these elements must coalesce before material can be labeled obscene. Mr. Justice Clark in a dissenting opinion in Memoirs indicates, however, that proof of the first two elements alone is enough to show obscenity and that proof of the third—the material must be utterly without redeeming social value— is only an aid in proving the first two. In his dissenting opinion in Memoirs Mr. Justice White states that material is obscene “if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor.” In the same opinion Mr. Justice White states that the social importance test “is relevant only to determining the predominant prurient interest of the material.” GINZBURG v. UNITED STATES. 479 463 Black, J., dissenting. not be expected to give any sort of decision on this element which would even remotely promise any kind of uniformity in the enforcement of this law. What conclusion an individual, be he judge or juror, would reach about whether the material appeals to “prurient interest in sex” would depend largely in the long run not upon testimony of witnesses such as can be given in ordinary criminal cases where conduct is under scrutiny, but would depend to a large extent upon the judge’s or juror’s personality, habits, inclinations, attitudes and other individual characteristics. In one community or in one courthouse a matter would be condemned as obscene under this so-called criterion but in another community, maybe only a few miles away, or in another courthouse in the same community, the material could be given a clean bill of health. In the final analysis the submission of such an issue as this to a judge or jury amounts to practically nothing more than a request for the judge or juror to assert his own personal beliefs about whether the matter should be allowed to be legally distributed. Upon this subjective determination the law becomes certain for the first and last time. (b) The second element for determining obscenity as it is described by my Brother Brennan is that the material must be “patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters . . . .” Nothing that I see in any position adopted by a majority of the Court today and nothing that has been said in previous opinions for the Court leaves me with any kind of certainty as to whether the “community standards” 3 referred to are world-wide, nation-wide, section-wide, state-wide, 3 See the opinion of Mr. Justice Brennan, concurred in by Mr. Justice Goldberg in Jacobellis v. Ohio, 378 U. S. 184, but compare the issent in that case of The Chief Justice, joined by Mr. Justice Clark, at 199. 480 383 U. S. OCTOBER TERM, 1965. Black, J., dissenting. country-wide, precinct-wide or township-wide. But even if some definite areas were mentioned, who is capable of assessing “community standards” on such a subject? Could one expect the same application of standards by jurors in Mississippi as in New York City, in Vermont as in California? So here again the guilt or innocence of a defendant charged with obscenity must depend in the final analysis upon the personal judgment and attitudes of particular individuals and the place where the trial is held. And one must remember that the Federal Government has the power to try a man for mailing obscene matter in a court 3,000 miles from his home. (c) A third element which three of my Brethren think is required to establish obscenity is that the material must be “utterly without redeeming social value.” This element seems to me to be as uncertain, if not even more uncertain, than is the unknown substance of the Milky Way. If we are to have a free society as contemplated by the Bill of Rights, then I can find little defense for leaving the liberty of American individuals subject to the judgment of a judge or jury as to whether material that provokes thought or stimulates desire is “utterly without redeeming social value ... .” Whether a particular treatment of a particular subject is with or without social value in this evolving, dynamic society of ours is a question upon which no uniform agreement could possibly be reached among politicians, statesmen, professors, philosophers, scientists, religious groups or any other type of group. A case-by-case assessment of social values by individual judges and jurors is, I think, a dangerous technique for government to utilize in determining whether a man stays in or out of the penitentiary. My conclusion is that certainly after the fourteen separate opinions handed down in these three cases today no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate GINZBURG v. UNITED STATES. 481 463 Black, J., dissenting. decision in his particular case by this Court whether certain material comes within the area of “obscenity” as that term is confused by the Court today. For this reason even if, as appears from the result of the three cases today, this country is far along the way to a censorship of the subjects about which the people can talk or write, we need not commit further constitutional transgressions by leaving people in the dark as to what literature or what words or what symbols if distributed through the mails make a man a criminal. As bad and obnoxious as I believe governmental censorship is in a Nation that has accepted the First Amendment as its basic ideal for freedom, I am compelled to say that censorship that would stamp certain books and literature as illegal in advance of publication or conviction would in some ways be preferable to the unpredictable book-by-book censorship into which we have now drifted. I close this part of my dissent by saying once again that I think the First Amendment forbids any kind or type or nature of governmental censorship over views as distinguished from conduct. II. It is obvious that the effect of the Court’s decisions in the three obscenity cases handed down today is to make it exceedingly dangerous for people to discuss either orally or in writing anything about sex. Sex is a fact of life. Its pervasive influence is felt throughout the world and it cannot be ignored. Like all other facts of life it can lead to difficulty and trouble and sorrow and pain. But while it may lead to abuses, and has in many instances, no words need be spoken in order for people to now that the subject is one pleasantly interwoven in all uman activities and involves the very substance of the creation of life itself. It is a subject which people are ound to consider and discuss whatever laws are passed 482 OCTOBER TERM, 1965. Douglas, J., dissenting. 383 U. S. by any government to try to suppress it. Though I do not suggest any way to solve the problems that may arise from sex or discussions about sex, of one thing I am confident, and that is that federal censorship is not the answer to these problems. I find it difficult to see how talk about sex can be placed under the kind of censorship the Court here approves without subjecting our society to more dangers than we can anticipate at the moment. It was to avoid exactly such dangers that the First Amendment was written and adopted. For myself I would follow the course which I believe is required by the First Amendment, that is, recognize that sex at least as much as any other aspect of life is so much a part of our society that its discussion should not be made a crime. I would reverse this case. Mr. Justice Douglas, dissenting. Today’s condemnation of the use of sex symbols to sell literature engrafts another exception on First Amendment rights that is as unwarranted as the judge-made exception concerning obscenity. This new exception condemns an advertising technique as old as history. The advertisements of our best magazines are chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the potential buyer’s attention to lotions, tires, food, liquor, clothing, autos, and even insurance policies. The sexy advertisement neither adds to nor detracts from the quality of the merchandise being offered for sale. And I do not see how it adds to or detracts one whit from the legality of the book being distributed. A book should stand on its own, irrespective of the reasons why it was written or the wiles used in selling it. I cannot imagine any promotional effort that would make chapters 7 and 8 of the Song of Solomon any the less GINZBURG v. UNITED STATES. 483 463 Douglas, J., dissenting. or any more worthy of First Amendment protection than does their unostentatious inclusion in the average edition of the Bible. I. The Court has, in a variety of contexts, insisted that preservation of rights safeguarded by the First Amendment requires vigilance. We have recognized that a “criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms.” Dombrowski v. Pfister, 380 U. S. 479, 486. Where uncertainty is the distinguishing characteristic of a legal principle—in this case the Court’s “pandering” theory—“the free dissemination of ideas may be the loser.” Smith v. California, 361 U. S. 147, 151. The Court today, however, takes the other course, despite the admonition in Speiser v. Randall, 357 U. S. 513, 525, that “[t]he separation of legitimate from illegitimate speech calls for . . . sensitive tools.” Before today, due regard for the frailties of free expression led us to reject insensitive procedures 1 and clumsy, vague, or overbroad substantive rules even in the realm of obscenity.2 For as the Court emphasized in Roth v. United States, 354 U. S. 476, 488, “ [t]he door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.” Certainly without the aura of sex in the promotion of these publications their contents cannot be said to be ^Marcus v. Search Warrant, 367 U. S. 717; A Quantity of Books v. Kansas, 378 U. S. 205; Freedman v. Maryland, 380 U. S. 51. 2 Butler v. Michigan, 352 U. S. 380; Smith v. California, 361 U. S. 147; Manual Enterprises, Inc. v. Day, 370 U. S. 478 (opinion of Harlan, J.). 484 383 U.S. OCTOBER TERM, 1965. Douglas, J., dissenting. “utterly without redeeming social importance.” Roth n. United States, supra, at 484.3 One of the publications condemned today is the Housewife’s Handbook on Selective Promiscuity, which a number of doctors and psychiatrists thought had clinical value. One clinical psychologist said: “I should like to recommend it, for example, to the people in my church to read, especially those who are having marital difficulties, in order to increase their tolerance and understanding for one another. Much of the book, I should think, would be very suitable reading for teen age people, especially teen age young women who could empathize strongly with the growing up period that Mrs. Rey [Anthony] relates, and could read on and be disabused of some of the unrealistic notions about marriage and sexual experiences. I should think this would make very good reading for the average man to help him gain a better appreciation of female sexuality.” The Rev. George Von Hilsheimer III, a Baptist minister,4 testified that he has used the book “insistently in 3 The Court’s premise is that Ginzburg represented that his publications would be sexually arousing. The Court, however, recognized in Roth: “[S]ex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest . . . i. e., a shameful or morbid interest in nudity, sex, or excretion . . . .” Id., 487 and n. 20 (emphasis added). The advertisements for these publications, which the majority quotes {ante, at 468—469, n. 9), promised candor in the treatment of matters pertaining to sex, and at the same time proclaimed that they were artistic or otherwise socially valuable. In effect, then, these advertisements represented that the publications are not obscene. 4 Rev. Von Hilsheimer obtained an A. B. at the University of Miami in 1951. He did graduate work in psychology and studied analysis and training therapy. Thereafter, he did graduate work as a theological student, and received a degree as a Doctor of Divinity from the University of Chicago in 1957. He had exten GINZBURG v. UNITED STATES. 485 463 Douglas, J., dissenting. my pastoral counseling and in my formal psychological counseling”: “The book is a history, a very unhappy history, of a series of sexual and psychological misadventures and the encounter of a quite typical and average American woman with quite typical and average American men. The fact that the book itself is the history of a woman who has had sexual adventures outside the normally accepted bounds of marriage which, of course for most Americans today, is a sort of serial polygamy, it does not teach or advocate this, but gives the women to whom I give the book at least a sense that their own experiences are not unusual, that their sexual failures are not unusual, and that they themselves should not be guilty because they are, what they say, sexual failures.” I would think the Baptist minister’s evaluation would be enough to satisfy the Court’s test, unless the censor’s word is to be final or unless the experts are to be weighed in the censor’s scales, in which event one Anthony Comstock would too often prove more weighty than a dozen more detached scholars, or unless we, the ultimate Board of Censors, are to lay down standards for review that give the censor the benefit of the “any evidence” rule or the substantial evidence” rule as in the administrative law field. Cf. Universal Camera Corp. v. Labor Board, 340 U. S. 474. Or perhaps we mean to let the courts sift and choose among conflicting versions of the “redeeming social importance” of a particular book, making sure that they keep their findings clear of doubt lest we reverse, as sive experience as a group counselor, lecturer, and family counselor. He was a consultant to President Kennedy’s Study Group on National Voluntary Services, and a member of the board of directors of Mobilization for Youth. 486 OCTOBER TERM, 1965. Douglas, J., dissenting. 383 U. S. we do today in Memoirs v. Massachusetts, ante, p. 413, because the lower court in an effort to be fair showed how two-sided the argument was. Since the test is whether the publication is “utterly without redeeming social importance,” then I think we should honor the opinion of the Baptist minister who testified as an expert in the field of counseling. Then there is the newsletter Liaison. One of the defendants’ own witnesses, critic Dwight Macdonald, testified that while, in his opinion, it did not go beyond the customary limits of candor tolerated by the community, it was “an extremely tasteless, vulgar and repulsive issue.” This may, perhaps, overstate the case, but Liaison is admittedly little more than a collection of “dirty” jokes and poems, with the possible exception of an interview with Dr. Albert Ellis. As to this material, I find wisdom in the words of the late Judge Jerome Frank: “Those whose views most judges know best are other lawyers. Judges can and should take judicial notice that, at many gatherings of lawyers at Bar Association or of alumni of our leading law schools, tales are told fully as ‘obscene’ as many of those distributed by men . . . convicted for violation of the obscenity statute. . . . ‘One thinks of the lyrics sung ... by a certain respected and conservative member of the faculty of a great law-school which considers itself the most distinguished and which is the Alma Mater of many judges sitting on upper courts.’ ”5 Liaison’s appeal is neither literary nor spiritual. But neither is its appeal to a “shameful or morbid interest in nudity, sex, or excretion.” The appeal is to the ribald “ United States v. Roth, 237 F. 2d 796, 822 and n. 58 (concurring opinion). GINZBURG V. UNITED STATES. 487 463 Douglas, J., dissenting. sense of humor which is—for better or worse—a part of our culture. A mature society would not suppress this newsletter as obscene but would simply ignore it. Then there is EROS. The Court affirms the judgment of the lower court, which found only four of the many articles and essays to be obscene. One of the four articles consisted of numerous ribald limericks, to which the views expressed as to Liaison would apply with equal force. Another was a photo essay entitled “Black and White in Color” which dealt with interracial love: a subject undoubtedly offensive to some members of our society. Critic Dwight Macdonald testified: “I suppose if you object to the idea of a Negro and a white person having sex together, then, of course, you would be horrified by it. I don’t. From the artistic point of view I thought it was very good. In fact, I thought it was done with great taste, and I don’t know how to say it—I never heard of him before, but he is obviously an extremely competent and accomplished photographer.” Another defense witness, Professor Horst W. Janson, presently the Chairman of the Fine Arts Department at New York University, testified: “I think they are outstandingly beautiful and artistic photographs. I can not imagine the theme being treated in a more lyrical and delicate manner than it has been done here. “I might add here that of course photography in appropriate hands is an artistic instrument and this particular photographer has shown a very great awareness of compositional devices and patterns that have a long and well-established history in western art. 488 383 U.S. OCTOBER TERM, 1965. Douglas, J., dissenting. “The very contrast in the color of the two bodies of course has presented him with certain opportunities that he would not have had with two models of the same color, and he has taken rather extraordinary and very delicate advantage of these contrasts.” The third article found specifically by the trial judge to be obscene was a discussion by Drs. Eberhard W. and Phyllis C. Kronhausen of erotic writing by women, with illustrative quotations.6 The worth of the article was discussed by Dwight Macdonald, who stated: “I thought [this was] an extremely interesting and important study with some remarkable quotations from the woman who had put down her sense of love-making, of sexual intercourse ... in an extremely eloquent way. I have never seen this from the woman’s point of view. I thought the point they made, the difference between the man’s and the woman’s approach to sexual intercourse was very well made and very important.” Still another article found obscene was a short introduction to and a lengthy excerpt from My Life and Loves by Frank Harris, about which there is little in the record. Suffice it to say that this seems to be a book of some literary stature. At least I find it difficult on this record to say that it is “utterly without redeeming social importance.” 7 6 The Kronhausens wrote Pornography and the Law (1959). ‘ The extensive literary comment which the book’s publication generated demonstrates that it is not “utterly without redeeming social importance.” See, e. g., New York Review of Books, p. 6 (Jan. 9, 1964); New Yorker, pp. 79-80 (Jan. 4, 1964); Library Journal, pp. 4743-4744 (Dec. 15, 1963); New York Times Book Review, p. 10 (Nov. 10, 1963); Time, pp. 102-104 (Nov. 8, 1963); Newsweek, pp. 98-100 (Oct. 28, 1963); New Republic, pp. 23-27 (Dec. 28, 1963). GINZBURG v. UNITED STATES. 489 463 Douglas, J., dissenting. Some of the tracts for which these publishers go to prison concern normal sex, some homosexuality, some the masochistic yearning that is probably present in everyone and dominant in some. Masochism is a desire to be punished or subdued. In the broad frame of reference the desire may be expressed in the longing to be whipped and lashed, bound and gagged, and cruelly treated.8 Why is it unlawful to cater to the needs of this group? They are, to be sure, somewhat offbeat, nonconformist, and odd. But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin, others like “rock and roll.” Some are “normal,” some are masochistic, some deviant in other respects, such as the homosexual. Another group also represented here translates mundane articles into sexual symbols. This group, like those embracing masochism, are anathema to the so-called stable majority. But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of “social value,” does it mean a “value” to the majority? Why is not a minority “value” cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the “written word” forbidden? If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the “normal” community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be “utterly 8 See Krafft-Ebing, Psychopathia Sexualis, p. 89 et seq. (1893) ; M uMan Int0 Wolb P- 23 et seq. (1951); Stekel, Sadism and /1929). Passimi Bergler, Principles of Self-Damage ' 59) passim; Reik, Masochism in Modern Man (1941) passim. 490 OCTOBER TERM, 1965. Douglas, J., dissenting. 383U.S. without redeeming social importance”? “Redeeming” to whom? “Importance” to whom? We took quite a different stance in One, Inc. v. Olesen, 355 U. S. 371, where we unanimously reversed the decision of the Court of Appeals in 241 F. 2d 772 without opinion. Our holding was accurately described by Lockhart and McClure, Obscenity Censorship: The Core Constitutional Issue—What Is Obscene? 7 Utah L. Rev. 289, 293 (1961): “[This] was a magazine for homosexuals entitled One—The Homosexual Magazine, which was definitely not a scientific or critical magazine, but appears to have been written to appeal to the tastes and interests of homosexuals.”9 9 The Court of Appeals summarized the contents as follows: “The article 'Sappho Remembered’ is the story of a lesbian’s influence on a young girl only twenty years of age but 'actually nearer sixteen in many essential ways of maturity,’ in her struggle to choose between a life with the lesbian, or a normal married life with her childhood sweetheart. The lesbian’s affair with her roommate while in college, resulting in the lesbian’s expulsion from college, is recounted to bring in the jealousy angle. The climax is reached when the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view. “The poem ‘Lord Samuel and Lord Montagu’ is about the alleged homosexual activities of Lord Montagu and other British Peers and contains a warning to all males to avoid the public toilets while Lord Samuel is 'sniffing round the drains’ of Piccadilly (London).... “The stories ‘All This and Heaven Too,’ and ‘Not Til the End,’ pages 32-36, are similar to the story ‘Sappho Remembered,’ except that they relate to the activities of the homosexuals rather than lesbians.” 241 F. 2d 772, 777, 778. There are other decisions of ours which also reversed judgments condemning publications catering to a wider range of literary tastes GINZBURG v. UNITED STATES. 491 463 Douglas, J., dissenting. Man was not made in a fixed mould. If a publication caters to the idiosyncrasies of a minority, why does it not have some “social importance”? Each of us is a very temporary transient with likes and dislikes that cover the spectrum. However plebian my tastes may be, who am I to say that others’ tastes must be so limited and that other tastes have no “social importance”? How can we know enough to probe the mysteries of the subconscious of our people and say that this is good for them and that is not? Catering to the most eccentric taste may have “social importance” in giving that minority an opportunity to express itself rather than to repress its inner desires, as I suggest in my separate opinion in Memoirs v. Massachusetts, ante, at 431-432. How can we know that this expression may not prevent antisocial conduct? I find it difficult to say that a publication has no “social importance” because it caters to the taste of the most unorthodox amongst us. We members of this Court should be among the last to say what should be orthodox in literature. An omniscience would be required which few in our whole society possess. II. This leads me to the conclusion, previously noted, that the First Amendment allows all ideas to be expressed—whether orthodox, popular, offbeat, or repulsive. I do not think it permissible to draw lines between than we seem to tolerate today. See, e. g., Mounce v. United States, 355 U. S. 180, vacating and remanding 247 F. 2d 148 (nudist magazines) ; Sunshine Book Co. v. Summerfield, 355 U. S. 372, reversing 101 U. S. App. D. C. 358, 249 F. 2d 114 (nudist magazine); Tralins ^Gerstein, 378 U. S. 576, reversing 151 So. 2d 19 (book titled Pleasure Was My Business” depicting the happenings in a house of prostitution); Grove Press v. Gerstein, 378 U. S. 577, reversing 56 So. 2d 537 (book titled “Tropic of Cancer” by Henry Miller). 492 OCTOBER TERM, 1965. Douglas, J., dissenting. 383 U. S. the “good” and the “bad” and be true to the constitutional mandate to let all ideas alone. If our Constitution permitted “reasonable” regulation of freedom of expression, as do the constitutions of some nations,10 we would be in a field where the legislative and the judiciary would have much leeway. But under our charter all regulation or control of expression is barred. Government does not sit to reveal where the “truth” is. People are left to pick and choose between competing offerings. There is no compulsion to take and read what is repulsive any more than there is to spend one’s time poring over government bulletins, political tracts, or theological treatises. The theory is that people are mature enough to pick and choose, to recognize trash when they see it, to be attracted to the literature that satisfies their deepest need, and, hopefully, to move from plateau to plateau and finally reach the world of enduring ideas. I think this is the ideal of the Free Society written into our Constitution. We have no business acting as censors or endowing any group with censorship powers. It is shocking to me for us to send to prison anyone for publishing anything, especially tracts so distant from any incitement to action as the ones before us. [This opinion applies also to Mishkin n. New York, post, p. 502.] 10 See, e. g., Constitution of the Union of Burma, Art. 17 (i), reprinted in I Peaslee, Constitutions of Nations, p. 281 (2d ed. 1956); Constitution of India, Art. 19 (2), II Peaslee, op. cit. supra, p. 227; Constitution of Ireland, Art. 40 (6)(l)(i), II Peaslee, op. cit. supra, p. 458; Federal Constitution of the Swiss Confederation, Art. 55, III Peaslee, op. cit. supra, p. 344; Constitution of Libya, Art. 22, I Peaslee, Constitutions of Nations, p. 438 (3d ed. 1965) ; Constitution of Nigeria, Art. 25 (2), id., p. 605; Constitution of Zambia, Art. 22 (2), id., pp. 1040-1041. GINZBURG v. UNITED STATES. 493 463 Harlan, J., dissenting. Mr. Justice Harlan, dissenting. I would reverse the convictions of Ginzburg and his three corporate co-defendants. The federal obscenity statute under which they were convicted, 18 U. S. C. § 1461 (1964 ed.), is concerned with unlawful shipment of “nonmailable” matter. In my opinion announcing the judgment of the Court in Manual Enterprises, Inc. v. Day, 370 U. S. 478, the background of the statute was assessed, and its focus was seen to be solely on the character of the material in question. That too has been the premise on which past cases in this Court arising under this statute, or its predecessors, have been decided. See, e. g., Roth v. United States, 354 U. S. 476. I believe that under this statute the Federal Government is constitutionally restricted to banning from the mails only “hardcore pornography,” see my separate opinion in Roth, supra, at 507, and my dissenting opinion in A Book Named “John Cleland’s Memoirs” v. Attorney General of Massachusetts, ante, p. 455. Because I do not think it can be maintained that the material in question here falls within that narrow class, I do not believe it can be excluded from the mails. The Court recognizes the difficulty of justifying these convictions; the majority refuses to approve the trial judge’s “exegesis of Roth” (note 3, ante, p. 465); it declines to approve the trial court’s “characterizations” of the Handbook “outside” the “setting” which the majority for the first time announces to be crucial to this conviction (note 5, ante, p. 466). Moreover, the Court accepts the Government’s concession that the Handbook has a certain “worth” when seen in something labeled a controlled, or even neutral, environment” (ante, p. 472); the majority notes that these are “publications which we have assumed . . . cannot themselves be adjudged obscene in the abstract” (ante, p. 474). In fact, the Court in the last analysis sustains the convictions on the 494 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. express assumption that the items held to be obscene are not, viewing them strictly, obscene at all (ante, p. 466). This curious result is reached through the elaboration of a theory of obscenity entirely unrelated to the language, purposes, or history of the federal statute now being applied, and certainly different from the test used by the trial court to convict the defendants. While the precise holding of the Court is obscure, I take it that the objective test of Roth, which ultimately focuses on the material in question, is to be supplemented by another test that goes to the question whether the mailer’s aim is to “pander” to or “titillate” those to whom he mails questionable matter. Although it is not clear whether the majority views the panderer test as a statutory gloss or as constitutional doctrine, I read the opinion to be in the latter category.1 The First Amendment, in the obscenity area, no longer fully protects material on its face nonobscene, for such material must now also be examined in the light of the defendant’s conduct, attitude, motives. This seems to me a mere euphemism for allowing punishment of a person who mails otherwise constitutionally protected material just because a jury or a judge may not find him or his business agreeable. Were a State to enact a “panderer” statute under its police power, I have little doubt that—subject to clear drafting to avoid attacks on vagueness and equal protection grounds—such a statute would be constitutional. Possibly the same might be true of the Federal Government acting under its postal or commerce powers. What I fear the Court has done today is in effect to write a new statute, but without the sharply focused definitions and standards necessary in such a sensitive area. Casting such a dubious gloss over a 1 The prevailing opinion in Memoirs v. Massachusetts, ante, p. 413, makes clearer the constitutional ramifications of this new doctrine. GINZBURG v. UNITED STATES. 495 463 Harlan, J., dissenting. straightforward 101-year-old statute (see 13 Stat. 507) is for me an astonishing piece of judicial improvisation. It seems perfectly clear that the theory on which these convictions are now sustained is quite different from the basis on which the case was tried and decided by the District Court and affirmed by the Court of Appeals.2 The District Court found the Handbook “patently offensive on its face” and without “the slightest redeeming social, artistic or literary importance or value”; it held that there was “no credible evidence that The Handbook has the slightest valid scientific importance for treatment of individuals in clinical psychiatry, psychology, or any field of medicine.” 224 F. Supp. 129, 131. The trial court made similar findings as to Eros and Liaison. The majority’s opinion, as I read it, casts doubts upon these explicit findings. As to the Handbook, the Court interprets an offhand remark by the government prosecutor at the sentencing hearing as a “concession,” which the majority accepts, that the prosecution rested upon the conduct of the petitioner, and the Court explicitly refuses to accept the trial judge’s “characterizations” of the book, which I take to be an implied rejection of the findings of fact upon which the conviction was in fact based (note 5, ante, p. 466). Similarly as to Eros, the Court implies that the finding of obscenity might be “erroneous” were it not supported “by the evidence of pandering” {ante, p. 471). The Court further characterizes the Eros decision, aside from pandering, as “an otherwise debatable conclusion” {ante, p. 471). If there is anything to this new pandering dimension to the mailing statute, the Court should return the case 2 Although at one point in its opinion the Court of Appeals referred to “the shoddy business of pandering,” 338 F. 2d 12, 15, a reading of the opinion as a whole plainly indicates that the Court 0 Appeals did not affirm these convictions on the basis on which this Court now sustains them. 496 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. for a new trial, for petitioners are at least entitled to a day in court on the question on which their guilt has ultimately come to depend. Compare the action of the Court in Memoirs v. Massachusetts, ante, p. 413, also decided today, where the Court affords the State an opportunity to prove in a subsequent prosecution that an accused purveyor of Fanny Hill in fact used pandering methods to secure distribution of the book. If a new trial were given in the present case, as I read the Court’s opinion, the burden would be on the Government to show that the motives of the defendants were to pander to “the widespread weakness for titillation by pornography” (ante, p. 471). I suppose that an analysis of the type of individuals receiving Eros and the Handbook would be relevant. If they were ordinary people, interested in purchasing Eros or the Handbook for one of a dozen personal reasons, this might be some evidence of pandering to the general public. On the other hand, as the Court suggests, the defendants could exonerate themselves by showing that they sent these works only or perhaps primarily (no standards are set) to psychiatrists and other serious-minded professional people. Also relevant would apparently be the nature of the mailer’s advertisements or representations. Conceivably someone mailing to the public selective portions of a recognized classic with the avowed purpose of titillation would run the risk of conviction for mailing nonmailable matter. Presumably the Post Office under this theory might once again attempt to ban Lady Chat-terley’s Lover, which a lower court found not bannable in 1960 by an abstract application of Roth. Grove Press, Inc. v. Christenberry, 276 F. 2d 433. I would suppose that if the Government could show that Grove Press is pandering to people who are interested in the book’s sexual passages and not in D. H. Lawrence’s social theories or literary technique § 1461 could properly be GINZBURG v. UNITED STATES. 497 463 Stewart, J., dissenting. invoked. Even the well-known opinions of Judge A. N. Hand in United States v. One Book Entitled Ulysses, 12 F. 2d 705, and of Judge Woolsey in the District Court, 5 F. Supp. 182, might be rendered nugatory if a mailer of Ulysses is found to be titillating readers with its “coarse, blasphemous, and obscene” portions, 72 F. 2d, at 707, rather than piloting them through the intricacies of Joyce’s stream of consciousness. In the past, as in the trial of these petitioners, evidence as to a defendant’s conduct was admissible only to show relevant intent.3 Now evidence not only as to conduct, but also as to attitude and motive, is admissible on the primary question of whether the material mailed is obscene. I have difficulty seeing how these inquiries are logically related to the question whether a particular work is obscene. In addition, I think such a test for obscenity is impermissibly vague, and unwarranted by anything in the First Amendment or in 18 U. S. C. § 1461. I would reverse the judgments below. Mr. Justice Stewart, dissenting. Ralph Ginzburg has been sentenced to five years in prison for sending through the mail copies of a magazine, 3 To show pandering, the Court relies heavily on the fact that the defendants sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania, before settling upon Middlesex, New Jersey, as a mailing point {ante, pp. 467-468). This evidence was admitted, however, only to show required scienter, see 338 F. 2d 12, 16. On appeal to the Court of Appeals and to this Court, petitioner Ginzburg asserted that at most the evidence shows the intent of petitioner Eros Magazine, Inc., and was erroneously used against im. The Court of Appeals held the point de minimis, 338 F. 2d, at 16-17, on the ground that the parties had stipulated the necessary' intent. The United States, in its brief in this Court, likewise viewed t is evidence as relating solely to scienter; nowhere did the United tates attempt to sustain these convictions on anything like a pandering theory. 498 OCTOBER TERM, 1965. Stewart, J., dissenting. 383 U. S. a pamphlet, and a book. There was testimony at his trial that these publications possess artistic and social merit. Personally, I have a hard time discerning any. Most of the material strikes me as both vulgar and unedifying. But if the First Amendment means anything, it means that a man cannot be sent to prison merely for distributing publications which offend a judge’s esthetic sensibilities, mine or any other’s. Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman’s intrusive thumb or a judge’s heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.1 Because such is the mandate of our Constitution, there is room for only the most restricted view of this Court’s decision in Roth v. United States, 354 U. S. 476. In that case the Court held that “obscenity is not within the area of constitutionally protected speech or press.” 1 Different constitutional questions would arise in a. case involving an assault upon individual privacy by publication in a manner so blatant or obtrusive as to make it difficult or impossible for an unwilling individual to avoid exposure to it. Cf. e. g., Breard v. Alexandria, 341 U. S. 622; Public Utilities Commission of the District of Columbia v. Pollak, 343 U. S. 451 ; Griswold v. Connecticut, 381 U. 8. 479. Still other considerations might come into play with respect to laws limited in their effect to those deemed insufficiently adult to make an informed choice. No such issues were tendered in this case. GINZBURG v. UNITED STATES. 499 463 Stewart, J., dissenting. Id., at 485. The Court there characterized obscenity as that which is “utterly without redeeming social importance,” id., at 484, “deals with sex in a manner appealing to prurient interest,” id., at 487, and “goes substantially beyond customary limits of candor in description or representation of such matters.” Id., at 487, n. 20.2 In Manual Enterprises v. Day, 370 U. S. 478, I joined Mr. Justice Harlan’s opinion adding “patent indecency” as a further essential element of that which is not constitutionally protected. There does exist a distinct and easily identifiable class of material in which all of these elements coalesce. It is that, and that alone, which I think government may constitutionally suppress, whether by criminal or civil sanctions. I have referred to such material before as hardcore pornography, without trying further to define it. Jacobellis v. Ohio, 378 U. S. 184, at 197 (concurring opinion). In order to prevent any possible misunderstanding, I have set out in the margin a description, borrowed from the Solicitor General’s brief, of the kind of thing to which I have reference.3 See also Lockhart and 2 It is not accurate to say that the Roth opinion “fashioned standards” for obscenity, because, as the Court explicitly stated, no issue was there presented as to the obscenity of the material involved. 354 U. 8., at 481, n. 8. And in no subsequent case has a majority of the Court been able to agree on any such “standards.” ... Such materials include photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. They also include strips of drawings in comic-book format grossly depicting similar activities in an exaggerated fashion. There are, in addition, pamphlets and booklets, sometimes with photographic illustrations, verbally describing such activities in a bizarre manner with no attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value. All of this material . . . cannot conceivably be characterized as embody-mg communication of ideas or artistic values inviolate under the First Amendment. . . .” 500 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 63-64. Although arguments can be made to the contrary, I accept the proposition that the general dissemination of matter of this description may be suppressed under valid laws.4 That has long been the almost universal judgment of our society. See Roth v. United States, 354 U. S., at 485. But material of this sort is wholly different from the publications mailed by Ginzburg in the present case, and different not in degree but in kind. The Court today appears to concede that the materials Ginzburg mailed were themselves protected by the First Amendment. But, the Court says, Ginzburg can still be sentenced to five years in prison for mailing them. Why? Because, says the Court, he was guilty of ‘‘commercial exploitation,” of “pandering,” and of “titillation.” But Ginzburg was not charged with “commercial exploitation”; he was not charged with “pandering”; he was not charged with “titillation.” Therefore, to affirm his conviction now on any of those grounds, even if otherwise valid, is to deny him due process of law. Cole v. Arkansas, 333 U. S. 196. But those grounds are not, of course, otherwise valid. Neither the statute under which Ginzburg was convicted nor any other federal statute I know of makes “commercial exploitation” or “pandering” or “titillation” a criminal offense. And any criminal law that sought to do so in the terms so elusively defined by the Court would, of course, be unconstitutionally vague and therefore void. All of these matters are developed in the dissenting opinions of my Brethren, and I simply note here that I fully agree with them. 4 During oral argument we were advised by government counsel that the vast majority of prosecutions under this statute involve material of this nature. Such prosecutions usually result in guilty pleas and never come to this Court. GINZBURG v. UNITED STATES. 501 463 Stewart, J., dissenting. For me, however, there is another aspect of the Court’s opinion in this case that is even more regrettable. Today the Court assumes the power to deny Ralph Ginzburg the protection of the First Amendment because it disapproves of his “sordid business.” That is a power the Court does not possess. For the First Amendment protects us all with an even hand. It applies to Ralph Ginzburg with no less completeness and force than to G. P. Putnam’s Sons.5 In upholding and enforcing the Bill of Rights, this Court has no power to pick or to choose. When we lose sight of that fixed star of constitutional adjudication, we lose our way. For then we forsake a government of law and are left with government by Big Brother. I dissent. 5 See Memoirs v. Massachusetts, ante, p. 413. 502 OCTOBER TERM, 1965. Syllabus. 383 U. S. MISHKIN v. NEW YORK. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 49. Argued December 7, 1965.—Decided March 21, 1966. Appellant was convicted of violating § 1141 of the New York Penal Law for publishing, hiring others to prepare, and possessing with intent to sell obscene books. Held: 1. The statute is not impermissibly vague. Roth v. United States, 354 U. S. 476, 491-492. Pp. 506-507. 2. The books were properly found to be obscene. Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. P. 508. 3. There was ample evidence that appellant possessed the requisite scienter. Pp. 510-512. 4. The unrestricted notation of probable jurisdiction of the appeal may be regarded as a grant of the writ of certiorari as to appellant’s claim that the books had been illegally seized and that their admission into evidence was therefore improper. However, such writ is dismissed as improvidently granted for lack of sufficient clarity in the record as to justify resolution of the issue. Pp. 512-514. 15 N. Y. 2d 671, 724, 204 N. E. 2d 209, 205 N. E. 2d 201, affirmed. Emanuel Redfield argued the cause and filed a brief for appellant. H. Richard Uviller argued the cause for appellee. With him on the brief were Frank S. Hogan and Alan F. Leibowitz. Edward de Grazia filed a brief for Marshall Cohen et al., as amici curiae, urging reversal. Briefs of amici curiae, urging affirmance, were filed by Leo A. Larkin, Roger Arnebergh and Max P. Zoll for the City of New York et al.; and by Charles H. Keating, Jr., and James J. Clancy for Citizens for Decent Literature, Inc., et al. MISHKIN v. NEW YORK. 503 502 Opinion of the Court. Mr. Justice Brennan delivered the opinion of the Court. This case, like Ginzburg v. United States, ante, p. 463, also decided today, involves convictions under a criminal obscenity statute. A panel of three judges of the Court of Special Sessions of the City of New York found appellant guilty of violating § 1141 of the New York Penal Law1 by hiring others to prepare obscene books, publishing obscene books, and possessing obscene books with intent to sell them.2 26 Mise. 2d 152, 207 N. Y. S. 2d 390 1 Section 1141 of the Penal Law, in pertinent part, reads as follows: “LA person who . . . has in his possession with intent to sell, lend, distribute . . . any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book ... or who . . . prints, utters, publishes, or in any manner manufactures, or prepares any such book ... or who “2. In any manner, hires, employs, uses or permits any person to do or assist in doing any act or thing mentioned in this section, or any of them, “Is guilty of a misdemeanor .... 4. The possession by any person of six or more identical or similar articles coming within the provisions of subdivision one of this section is presumptive evidence of a violation of this section. 5. The publication for sale of any book, magazine or pamphlet designed, composed or illustrated as a whole to appeal to and commercially exploit prurient interest by combining covers, pictures, drawings, illustrations, caricatures, cartoons, words, stories and advertisements or any combination or combinations thereof devoted to the description, portrayal or deliberate suggestion of illicit sex, including adultery, prostitution, fornication, sexual crime and sexual perversion or to the exploitation of sex and nudity by the presentation of nude or partially nude female figures, posed, photographed or otherwise presented in a manner calculated to provoke or incite prurient interest, or any combination or combinations thereof, shall be a violation of this section.” The information charged 159 counts of violating § 1141; in each instance a single count named a single book, although often the same book was the basis of three counts, each alleging one of the 504 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. (1960). He was sentenced to prison terms aggregating three years and ordered to pay $12,000 in fines for these crimes.3 The Appellate Division, First Department, affirmed those convictions. 17 App. Div. 2d 243, 234 N. Y. S. 2d 342 (1962). The Court of Appeals affirmed without opinion. 15 N. Y. 2d 671, 204 N. E. 2d 209 (1964), remittitur amended, 15 N. Y. 2d 724, 205 N. E. 2d 201 (1965). We noted probable jurisdiction. 380 U. S. 960. We affirm. Appellant was not prosecuted for anything he said or believed, but for what he did, for his dominant role in several enterprises engaged in producing and selling three types of § 1141 offenses. Of these, 11 counts were dismissed on motion of the prosecutor at the outset of the trial and verdicts of acquittal were entered on seven counts at the end of trial. The remaining § 1141 counts on which appellant was convicted are listed in the Appendix to this opinion. Appellant was also convicted on 33 counts charging violations of § 330 of the General Business Law for failing to print the publisher’s and printer’s names and addresses on the books. The Appellate Division reversed the convictions under these counts, and the Court of Appeals affirmed. The State has not sought review of that decision in this Court. 3 The trial court divided the counts into five groups for purposes of sentencing. One group consisted of the possession counts concerning books seized from a basement storeroom in a warehouse; a second group of possession counts concerned books seized from appellant’s retail bookstore, Publishers’ Outlet; the third consisted of the publishing counts; the fourth consisted of the counts charging him with hiring others to prepare the books, and the fifth consisted of the counts charging violations of the General Business Law. Sentences of one year and a $3,000 fine were imposed on one count of each of the first four groups; the prison sentences on the first three were made consecutive and that on the count in the fourth group was made concurrent with that in the third group. A $500 fine was imposed on one count in the fifth group. Sentence was suspended on the convictions on all other counts. The suspension of sentence does not render moot the claims as to invalidity of the convictions on those counts. MISHKIN v. NEW YORK. 505 502 Opinion of the Court. allegedly obscene books. Fifty books are involved in this case. They portray sexuality in many guises. Some depict relatively normal heterosexual relations, but more depict such deviations as sado-masochism, fetishism, and homosexuality. Many have covers with drawings of scantily clad women being whipped, beaten, tortured, or abused. Many, if not most, are photo-offsets of typewritten books written and illustrated by authors and artists according to detailed instructions given by the appellant. Typical of appellant’s instructions was that related by one author who testified that appellant insisted that the books be “full of sex scenes and lesbian scenes .... [T]he sex had to be very strong, it had to be rough, it had to be clearly spelled out. ... I had to write sex very bluntly, make the sex scenes very strong. ... [T]he sex scenes had to be unusual sex scenes between men and women, and women and women, and men and men. . . . [H]e wanted scenes in which women were making love with women .... [H]e wanted sex scenes ... in which there were lesbian scenes. He didn’t call it lesbian, but he described women making love to women and men . . . making love to men, and there were spankings and scenes—sex in an abnormal and irregular fashion.” Another author testified that appellant instructed him “to deal very graphically with ... the darkening of the flesh under flagella-tmn . . . ” Artists testified in similar vein as to appellant’s instructions regarding illustrations and covers for the books. u All the books are cheaply prepared paperbound pulps” with imprinted sales prices that are several thousand percent above costs. All but three were printed by a photo-offset printer who was paid 400 or 150 per copy, depending on whether it was a “thick” or “thin” ook. The printer was instructed by appellant not to use appellant’s name as publisher but to print some fic- 506 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. titious name on each book, to “make up any name and address.” Appellant stored books on the printer’s premises and paid part of the printer’s rent for the storage space. The printer filled orders for the books, at appellant’s direction, delivering them to appellant’s retail store, Publishers’ Outlet, and, on occasion, shipping books to other places. Appellant paid the authors, artists, and printer cash for their services, usually at his bookstore. I. Appellant attacks § 1141 as invalid on its face, contending that it exceeds First Amendment limitations by proscribing publications that are merely sadistic or masochistic, that the terms “sadistic” and “masochistic” are impermissibly vague, and that the term “obscene” is also impermissibly vague. We need not decide the merits of the first two contentions, for the New York courts held in this case that the terms “sadistic” and “masochistic,” as well as the other adjectives used in § 1141 to describe proscribed books, are “synonymous with ‘obscene.’ ” 26 Mise. 2d, at 154, 207 N. Y. S. 2d, at 393. The contention that the term “obscene” is also impermissibly vague fails under our holding in Roth v. United States, 354 U. S. 476, 491-492. Indeed, the definition of “obscene” adopted by the New York courts in interpreting § 1141 delimits a narrower class of conduct than that delimited under the Roth definition, People v. Richmond County News, Inc., 9 N. Y. 2d 578, 586-587, 175 N. E. 2d 681, 685-686 (1961),4 and thus § 1141, like the statutes in 4 It [obscene material covered by § 1141] focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable 'by the insult it offers, invariably, to sex, and to the human spirit’ (D. H. Lawrence, Pornography and Obscenity [1930], p. 12), it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt s sake, the obscene is the vile, rather than the coarse, the blow to MISHKIN v. NEW YORK. 507 502 Opinion of the Court. Roth, provides reasonably ascertainable standards of guilt.5 Appellant also objects that § 1141 is invalid as applied, first, because the books he was convicted of publishing, hiring others to prepare, and possessing for sale are not obscene, and second, because the proof of scienter is inadequate. 1. The Nature of the Material.—The First Amendment prohibits criminal prosecution for the publication and dissemination of allegedly obscene books that do not satisfy the Roth definition of obscenity. States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition, which sense, not merely to sensibility. It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, ‘a debauchery of the sexual faculty.’ (Murray, Literature and Censorship, 14 Books on Trial 393, 394; see, also, Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 65.)” 9 N. Y. 2d, at 587, 175 N. E. 2d, at 686. See also People v. Fritch, 13 N. Y. 2d 119, 123, 192 N. E. 2d 713, 716 (1963): In addition to the foregoing tests imposed by the decisions of the [United States] Supreme Court, this court interpreted section 1141 of the Penal Law in People v. Richmond County News ... as applicable only to material which may properly be termed ‘hard-core pornography.’ ” 5 The stringent scienter requirement of §1141, as interpreted in People v. Finkelstein, 9 N. Y. 2d 342, 345, 174 N. E. 2d 470, 472 (1961), also eviscerates much of appellant’s vagueness claim. See, mfra, pp. 510-512. See generally, Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342; American Communications Assn. v. Douds, 339 U. S. 382, 412-413; Screws v. United States, 325 U. S. 91, 101-104 (opinion of Mr. Justice Douglas) ; United States v. Rogen, 314 U. S. 513, 524; Gorin v. United States, 312 U. S. 19, 27-28; Hygrade Provision Co. v. Sherman, 266 U. S. 497, 501-503; Omaechevarria v. Idaho, 246 U. S. 343, 348. 508 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. restrict the regulation of the publication and sale of books to that traditionally and universally tolerated in our society. The New York courts have interpreted obscenity in § 1141 to cover only so-called “hard-core pornography,” see People v. Richmond County News, Inc., 9 N. Y. 2d 578, 586-587, 175 N. E. 2d 681, 685-686 (1961), quoted in note 4, supra. Since that definition of obscenity is more stringent than the Roth definition, the judgment that the constitutional criteria are satisfied is implicit in the application of § 1141 below. Indeed, appellant’s sole contention regarding the nature of the material is that some of the books involved in this prosecution,6 those depicting various deviant sexual practices, such as flagellation, fetishism, and lesbianism, do not satisfy the prurient-appeal requirement because they do not appeal to a prurient interest of the “average person” in sex, that “instead of stimulating the erotic, they disgust and sicken.” We reject this argument as being founded on an unrealistic interpretation of the prurient-appeal requirement. Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the “average” or “normal” person in Roth, 354 U. S., at 489-490, does not foreclose this holding.7 In regard to the prurient-appeal requirement, the 8 It could not be plausibly maintained that all of the appellant’s books, including those dominated by descriptions of relatively normal heterosexual relationships, are devoid of the requisite prurient appeal. 7 See Manual Enterprises, Inc. v. Day, 370 U. S. 478, 482 (opinion of Harlan, J.); Lockhart and McClure, Censorship of Obscenity: MISHKIN v. NEW YORK. 509 502 Opinion of the Court. concept of the “average” or “normal” person was employed in Roth to serve the essentially negative purpose of expressing our rejection of that aspect of the Hicklin test, Regina v. Hicklin, [1868] L. R. 3 Q. B. 360, that made the impact on the most susceptible person determinative. We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons,8 it also avoids the inadequacy of the most-susceptible-person facet of the Hicklin test. No substantial claim is made that the books depicting sexually deviant practices are devoid of prurient appeal to sexually deviant groups. The evidence fully establishes that these books were specifically conceived and marketed for such groups. Appellant instructed his authors and artists to prepare the books expressly to induce their purchase by persons who would probably be sexually stimulated by them. It was for this reason that appellant “wanted an emphasis on beatings and fetishism and clothing—irregular clothing, and that sort of thing, The Developing Constitutional Standards, 45 Minn. L. Rev 5 72-73 (1960). It is true that some of the material in Alberts v. California, decided with Roth, resembled the deviant material involved here. But no issue involving the obscenity of the material was before us in either case. 354 U. S., at 481, n. 8. The basic question for decision there was whether the publication and sale of obscenity, however defined, could be criminally punished in light of First Amend-ment guarantees. Our discussion of definition was not intended to c evelop all the nuances of a definition required by the constitutional guarantees. 8 See generally, 1 American Handbook of Psychiatry 593-604 (Arieti ed. 1959), for a description of the pertinent types of deviant sexual groups. 510 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. and again sex scenes between women; always sex scenes had to be very strong.” And to be certain that authors fulfilled his purpose, appellant furnished them with such source materials as Caprio, Variations in Sexual Behavior, and Krafft-Ebing, Psychopathia Sexualis. Not only was there proof of the books’ prurient appeal, compare United States n. Klaw, 350 F. 2d 155 (C. A. 2d Cir. 1965), but the proof was compelling; in addition appellant’s own evaluation of his material confirms such a finding. See Ginzburg v. United States, ante, p. 463. 2. Scienter.—In People v. Finkelstein, 9 N. Y. 2d 342, 344-345, 174 N. E. 2d 470, 471 (1961), the New York Court of Appeals authoritatively interpreted § 1141 to require the “vital element of scienter,” and it defined the required mental element in these terms: “A reading of the statute [§ 1141] as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised . ...” 9 (Emphasis added.) Appellant’s challenge to the validity of § 1141 founded on Smith v. California, 361 U. S. 147, is thus foreclosed,10 9 For a similar scienter requirement see Model Penal Code §251.4 (2); Commentary, Model Penal Code (Tentative Draft No. 6, 1957), 14, 49-51; cf. Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677 (1963). We do not read Judge Froessel’s parenthetical reference to knowledge of the contents of the books in his opinion in People n. Finkelstein, 11 N. Y. 2d 300, 304, 183 N. E. 2d 661, 663 (1962), as a modification of this definition of scienter. Cf. People n. Fritch, 13 N. Y. 2d 119, 126, 192 N. E. 2d 713, 717-718 (1963). 10 The scienter requirement set out in the text would seem to be, as a matter of state law, as applicable to publishers as it is to booksellers; both types of activities are encompassed within subdivision 1 of § 1141. Moreover, there is no need for us to speculate as to whether this scienter requirement is also present in subdivision 2 of MISHKIN v. NEW YORK. 511 502 Opinion of the Court. and this construction of § 1141 makes it unnecessary for us to define today “what sort of mental element is requisite to a constitutionally permissible prosecution.” Id., at 154. The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity. The New York definition of the scienter required by § 1141 amply serves those ends, and therefore fully meets the demands of the Constitution.11 Cf. Roth v. United States, 354 U. S., at 495-496 (Warren, C. J., concurring). Appellant’s principal argument is that there was insufficient proof of scienter. This argument is without merit. The evidence of scienter in this record consists, in part, of appellant’s instructions to his artists and writers; his efforts to disguise his role in the enterprise that published and sold the books; the transparency of the character of the material in question, highlighted by the titles, covers, and illustrations; the massive number of obscene books appellant published, hired others to prepare, and possessed for sale; the repetitive quality of the sequences and formats of the books; and the exorbi- § 1141 (making it a crime to hire others to prepare obscene books), for appellant’s convictions for that offense involved books for the publication of which he was also convicted. No constitutional claim was asserted below or in this Court as to the possible duplicative character of the hiring and publishing counts. The first appeal in Finkelstein defining the scienter required by § 1141 was decided after this case was tried, but before the Appellate Division and Court of Appeals affirmed these convictions, e therefore conclude that the state appellate courts were satisfied t at the § 1141 scienter requirement was correctly applied at trial. he § 1141 counts did not allege appellant’s knowledge of the character of the books, but appellant has not argued, below or ere, that this omission renders the information constitutionally inadequate. 512 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. tant prices marked on the books. This evidence amply shows that appellant was “aware of the character of the material” and that his activity was “not innocent but calculated purveyance of filth.” II . Appellant claims that all but one of the books were improperly admitted in evidence because they were fruits of illegal searches and seizures. This claim is not capable in itself of being brought here by appeal, but only by a petition for a writ of certiorari under 28 U. S. C. § 1257 (3) (1964 ed.) as specifically setting up a federal constitutional right.12 Nevertheless, since appellant challenged the constitutionality of § 1141 in this prosecution, and the New York courts sustained the statute, the case is properly here on appeal, and our unrestricted notation of probable jurisdiction justified appellant’s briefing of the search and seizure issue. Flournoy v. Weiner, 321 U. S. 253, 263; Prudential Ins. Co. v. Cheek, 259 U. S. 530, 547. The nonappealable issue is treated, however, as if contained in a petition for a writ of certiorari, see 28 U. S. C. § 2103 (1964 ed.), and the unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ on that issue. The issue thus remains within our certiorari jurisdiction, and we may, for good reason, even at this stage, decline to decide the merits of the issue, much as we would dismiss a writ of certiorari as improvidently granted. We think that this is a case for such an exercise of our discretion. The far-reaching and important questions tendered by this claim are not presented by the record with sufficient 12 Unlike the claim here, the challenges decided in the appeals in Marcus v. Search Warrant, 367 U. S. 717, and A Quantity of Copies of Books v. Kansas, 378 U. S. 205, implicated the constitutional validity of statutory schemes establishing procedures for seizing the books. MISHKIN v. NEW YORK. 513 502 Opinion of the Court. clarity to require or justify their decision. Appellant’s standing to assert the claim in regard to all the seizures is not entirely clear; there is no finding on the extent or nature of his interest in two book stores, the Main Stem Book Shop and Midget Book Shop, in which some of the books were seized. The State seeks to justify the basement storeroom seizure, in part, on the basis of the consent of the printer-accomplice; but there were no findings as to the authority of the printer over the access to the storeroom, or as to the voluntariness of his alleged consent. It is also maintained that the seizure in the storeroom was made on the authority of a search warrant; yet neither the affidavit upon which the warrant issued nor the warrant itself is in the record. Finally, while the search and seizure issue has a First Amendment aspect because of the alleged massive quality of the seizures, see A Quantity of Copies of Books n. Kansas, 378 U. S. 205, 206 (opinion of Brennan, J.); Marcus v. Search Warrant, 367 U. S. 717, the record in this regard is inadequate. There is neither evidence nor findings as to how many of the total available copies of the books in the various bookstores were seized and it is impossible to determine whether the books seized in the basement storeroom were on the threshold of dissemination. Indeed, this First Amendment aspect apparently was not presented or considered by the state courts, nor was it raised in appellant’s jurisdictional statement; it appeared for the first time in his brief on the merits. In light of these circumstances, which were not fully apprehended at the time we took the case, we decline to reach the merits of the search and seizure claim; insofar as notation of probable jurisdiction may be regarded as a grant of the certiorari writ on the search and seizure issue, that writ is dismissed as improvidently granted. “Examination of a case on the merits . . . may bring into ‘proper focus’ a consideration which . . . 514 OCTOBER TERM, 1965. Appendix to opinion of the Court. 383 U. S. later indicates that the grant was improvident.” The Monrosa v. Carbon Black, 359 U. S. 180, 184. Affirmed. [For dissenting opinion of Mr. Justice Douglas, see ante, p. 482.] APPENDIX TO OPINION OF THE COURT. THE CONVICTIONS BEING REVIEWED. § 1141 Counts Naming the Book Exhibit Pub- Hiring No. Title of Book Possession lishing Others 1 Chances Go Around 1 63 111 2 Impact 2 64 112 3 Female Sultan 3 65 113 4 Satin Satellite 4 5 Her Highness 5 67 115 6 Mistress of Leather 6 68 116 7 Educating Edna 7 69 117 8 Strange Passions 8 70 118 9 The Whipping Chorus Girls 9 71 119 10 Order Of The Day and Bound Maritally 10 72 120 11 Dance With the Dominant Whip 11 73 121 12 Cult Of The Spankers 12 74 122 13 Confessions 13 75 123 14&46 The Hours Of Torture 14 & 40 76 124 15&47 Bound In Rubber 15&41 77 125 16&48 Arduous Figure Training at Bondhaven 16&42 78 126 17&49 Return Visit To Fetterland 17&43 79 127 18 Fearful Ordeal In Restraintland 18 80 128 19&50 Women In Distress 19&44 81 129 20 & 54 Pleasure Parade No. 1 20&48 82 130 21&57 Screaming Flesh 21 & 51 86 134 22 & 58 Fury 22&52 23 So Firm So Fully Packed 23 87 135 24 I’ll Try Anything Twice 24 25&59 Masque 25&53 26 Catanis 26 MISHKIN v. NEW YORK. 515 502 Black, J., dissenting. Exhibit § 1141 Counts Naming the Book Pub- Hiring No. Title of Book Possession lishing Others 27 The Violated Wrestler 27 89 137 28 Betrayal 28 29 Swish Bottom 29 90 138 30 Raw Dames 30 91 139 31 The Strap Returns 31 92 140 32 Dangerous Years 32 93 141 43 Columns of Agony 37 95 144 44 The Tainted Pleasure 38 96 145 45 Intense Desire 39 97 146 51 Pleasure Parade No. 4 45 85 133 52 Pleasure Parade No. 3 46 84 132 53 Pleasure Parade No. 2 47 83 131 55 Sorority Girls Stringent Initiation 49 98 147 56 Terror At The Bizarre Museum 50 99 148 60 Temptation 57 61 Peggy’s Distress On Planet Venus 58 101 150 62 Ways of Discipline •59 102 151 63 Mrs. Tyrant’s Finishing School 60 103 152 64 Perilous Assignment 61 104 153 68 Bondage Correspondence 107 156 69 Woman Impelled 106 155 70 Eye Witness 108 157 71 Stud Broad 109 158 72 Queen Bee 110 159 Mr. Justice Harlan, concurring. On the issue of obscenity I concur in the judgment of affirmance on premises stated in my dissenting opinion in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, ante, P- 455. In all other respects I agree with and join the Court’s opinion. Mr. Justice Black, dissenting. The Court here affirms convictions and prison sentences aggregating three years plus fines totaling $12,000 im- 516 OCTOBER TERM, 1965. Black, J., dissenting. 383U.S. posed on appellant Mishkin based on state charges that he hired others to prepare and publish obscene books and that Mishkin himself possessed such books. This Court has held in many cases that the Fourteenth Amendment makes the First applicable to the States. See for illustration cases collected in my concurring opinion in Speiser v. Randall, 357 U. S. 513, 530. Consequently upon the same grounds that I dissented from a five-year federal sentence imposed upon Ginzburg in No. 42, ante, p. 476, for sending “obscene” printed matter through the United States mails I dissent from affirmance of this three-year state sentence imposed on Mishkin. Neither in this case nor in Ginzburg have I read the alleged obscene matter. This is because I believe for reasons stated in my dissent in Ginzburg and in many other prior cases that this Court is without constitutional power to censor speech or press regardless of the particular subject discussed. I think the federal judiciary because it is appointed for life is the most appropriate tribunal that could be selected to interpret the Constitution and thereby mark the boundaries of what government agencies can and cannot do. But because of life tenure, as well as other reasons, the federal judiciary is the least appropriate branch of government to take over censorship responsibilities by deciding what pictures and writings people throughout the land can be permitted to see and read. When this Court makes particularized rules on what people can see and read, it determines which policies are reasonable and right, thereby performing the classical function of legislative bodies directly responsible to the people. Accordingly, I wish once more to express my objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this Court what pornography (whatever that means) is too hard core for people MISHKIN v. NEW YORK. 517 502 Black, J., dissenting. to see or read. If censorship of views about sex or any other subject is constitutional then I am reluctantly compelled to say that I believe the tedious, time-consuming and unwelcome responsibility for finally deciding what particular discussions or opinions must be suppressed in this country, should, for the good of this Court and of the Nation, be vested in some governmental institution or institutions other than this Court. I would reverse these convictions. The three-year sentence imposed on Mishkin and the five-year sentence imposed on Ginzburg for expressing views about sex are minor in comparison with those more lengthy sentences that are inexorably bound to follow in state and federal courts as pressures and prejudices increase and grow more powerful, which of course they will. Nor is it a sufficient answer to these assuredly ever-increasing punishments to rely on this Court’s power to strike down “cruel and unusual punishments” under the Eighth Amendment. Distorting or stretching that Amendment by reading it as granting unreviewable power to this Court to perform the legislative function of fixing punishments for all state and national offenses offers a sadly inadequate solution to the multitudinous problems generated by what I consider to be the un-American policy of censoring the thoughts and opinions of people. The only practical answer to these concededly almost unanswerable problems is, I think, for this Court to decline to act as a national board of censors over speech and press but instead to stick to its clearly authorized constitutional duty to adjudicate cases over things and conduct. Halfway censorship methods, no matter how laudably motivated, cannot in my judgment protect our cherished First niendment freedoms from the destructive aggressions o oth state and national government. I would reverse this case and announce that the First and Fourteenth mendments taken together command that neither Con- 518 OCTOBER TERM, 1965. Stewart, J., dissenting. 383 U. S. gress nor the States shall pass laws which in any manner abridge freedom of speech and press—whatever the subjects discussed. I think the Founders of our Nation in adopting the First Amendment meant precisely that the Federal Government should pass “no law” regulating speech and press but should confine its legislation to the regulation of conduct. So too, that policy of the First Amendment made applicable to the States by the Fourteenth, leaves the States vast power to regulate conduct but no power at all, in my judgment, to make the expression of views a «crime. Mr. Justice Stewart, dissenting. The appellant was sentenced to three years in prison for publishing numerous books. However tawdry those books may be, they are not hard-core pornography, and their publication is, therefore, protected by the First and Fourteenth Amendments. Ginzburg v. United States, ante, p. 497 (dissenting opinion). The judgment should be reversed." *See Ginzburg v. United States, ante, p. 497, at 499, note 3 (dissenting opinion). Moreover, there was no evidence at all that any of the books are the equivalent of hard-core pornography in the eyes of any particularized group of readers. Cf. United States v, Klaw, 350 F. 2d 155 (C. A. 2d Cir.). Although the New York Court of Appeals has purported to interpret § 1141 to cover only what it calls “hard-core pornography,” this case makes abundantly clear that that phrase has by no means been limited in New York to the clearly identifiable and distinct class of material I have described in Ginzburg v. United States, ante, p. 497, at 499, note 3 (dissenting opinion). BRENNER v. MANSON. 519 Syllabus. BRENNER, COMMISSIONER OF PATENTS v. MANSON. CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS. No. 58. Argued November 17, 1965.—Decided March 21, 1966. In December 1957 Ringold and Rosenkranz applied for a patent on an allegedly novel process for making certain steroids, claiming priority as of December 1956. A patent issued thereon in 1959. In January 1960 respondent filed an application to patent the same process, asserting that he had discovered it prior to December 1956, and requesting that an “interference” be declared to test the issue of priority. Respondent’s application was denied by a Patent Office examiner, the Board of Appeals affirming, for failure “to disclose any utility for” the compound produced by the process. The Court of Customs and Patent Appeals (CCPA) reversed, holding that “where a claimed process produces a known product it is not necessary to show utility for the product” as long as it is not detrimental to the public interest. Held: 1. This Court has jurisdiction under 28 U. S. C. § 1256 to review upon petition of the Commissioner of Patents patent decisions of the CCPA. Pp. 523-528. 2. The Patent Office properly may refuse to declare an “interference” on the ground that the application therefor fails to disclose a prima facie case of patentability. P. 528, n. 12. 3. The practical utility of the compound produced by a chemical process is an essential element in establishing a prima facie case for the patentability of the process. Pp. 528-536. (a) One may patent only that which is useful. Pp. 528-529, 535. (b) Respondent has not provided any basis for overturning the determination of the Patent Office that the utility requirement was not satisfied in this case by reference to the alleged utility of an adjacent homologue. Pp. 531-532. (c) The requirement that a chemical process be useful is not satisfied by a showing that the compound yielded belongs to a class of compounds which scientists are screening for possible uses. Pp. 532-536. 520 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. (d) Nor is the utility requirement for chemical processes satisfied by a showing that the process works, i. e., yields the intended product. Pp. 532-536. 52 C. C. P. A. (Pat.) 739, 333 F. 2d 234, reversed. Paul Bender argued the cause for petitioner, pro hoc vice, by special leave of Court. With him on the brief were Solicitor General Marshall, Assistant Attorney General Douglas, Sherman L. Cohn and Edward Berlin. Dean Laurence argued the cause for respondent. With him on the brief were Herbert I. Sherman and John L. White. W. Brown Morton, Jr., and Ellsworth H. Mosher filed a brief for the American Patent Law Association, as amicus curiae, urging affirmance. Mr. Justice Fortas delivered the opinion of the Court. This case presents two questions of importance to the administration of the patent laws: First, whether this Court has certiorari jurisdiction, upon petition of the Commissioner of Patents, to review decisions of the Court of Customs and Patent Appeals; and second, whether the practical utility of the compound produced by a chemical process is an essential element in establishing a prima facie case for the patentability of the process. The facts are as follows: In December 1957, Howard Ringold and George Rosenkranz applied for a patent on an allegedly novel process for making certain known steroids.1 They claimed 1 The applicants described the products of their process as “2-methyl dihydrotestosterone derivatives and esters thereof as well as 2-methyl dihydrotestosterone derivatives having a C-17 lower alkyl group. The products of the process of the present invention have a useful high anabolic-androgenic ratio and are especially valuable for treatment of those ailments where anabolic or antiestrogenic effect together with a lesser androgenic effect is desired.” BRENNER v. MANSON. 521 519 Opinion of the Court. priority as of December 17, 1956, the date on which they had filed for a Mexican patent. United States Patent No. 2,908,693 issued late in 1959. In January 1960, respondent Manson, a chemist engaged in steroid research, filed an application to patent precisely the same process described by Ringold and Rosenkranz. He asserted that it was he who had discovered the process, and that he had done so before December 17, 1956. Accordingly, he requested that an “interference” be declared in order to try out the issue of priority between his claim and that of Ringold and Rosenkranz.2 A Patent Office examiner denied Manson’S application, and the denial was affirmed by the Board of Appeals within the Patent Office. The ground for rejection was the failure “to disclose any utility for” the chemical compound produced by the process. Letter of Examiner, dated May 24, 1960. This omission was not 235 U. S. C. §135 (1964 ed.) provides: “Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof .... The question of priority of invention shall be determined by a board of patent interferences . . . whose decision, if adverse to the claim of an applicant, shall constitute the final refusal by the Patent Office of the claims involved, and the Commissioner may issue a patent to the applicant who is adjudged the prior inventor. . . .” Patent Office Rule 204 (b), 37 CFR § 1.204 (b), provides: “When the filing date or effective filing date of an applicant is subsequent to the filing date of a patentee, the applicant, before an interference will be declared, shall file an affidavit that he made the invention in controversy in this country, before the filing date of the patentee . . . and, when required, the applicant shall file an affidavit . . . setting forth facts which would prima facie entitle him to an award of priority relative to the filing date of the patentee.” Judge Thurman Arnold has provided an irreverent description of the way patent claims, including “interferences,” are presented to the Patent Office. See Monsanto Chemical Co. v. Coe, 79 U. S. APP- D. C. 155, 145 F. 2d 18. 522 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. cured, in the opinion of the Patent Office, by Manson’s reference to an article in the November 1956 issue of the Journal of Organic Chemistry, 21 J. Org. Chern. 1333— 1335, which revealed that steroids of a class which included the compound in question were undergoing screening for possible tumor-inhibiting effects in mice, and that a homologue3 adjacent to Manson’s steroid had proven effective in that role. Said the Board of Appeals, “It is our view that the statutory requirement of usefulness of a product cannot be presumed merely because it happens to be closely related to another compound which is known to be useful.” The Court of Customs and Patent Appeals (hereinafter CCPA) reversed, Chief Judge Worley dissenting. 52 C. C. P. A. (Pat.) 739, 745, 333 F. 2d 234, 237-238. The court held that Manson was entitled to a declaration of interference since “where a claimed process produces a known product it is not necessary to show utility for the product,” so long as the product “is not alleged to be detrimental to the public interest.” Certiorari was granted, 380 U. S. 971, to resolve this running dispute over what constitutes “utility” in chemical process claims,4 as well as to answer the question concerning our certiorari jurisdiction. 3 “A homologous series is a family of chemically related compounds, the composition of which varies from member to member by CH2 (one atom of carbon and two atoms of hydrogen). . . • Chemists knowing the properties of one member of a series would in general know what to expect in adjacent members.” Application of Henze, 37 C. C. P. A. (Pat.) 1009, 1014, 181 F. 2d 196, 200-201. See also In re Hass, 31 C. C. P. A. (Pat.) 895, 901, 141 F. 2d 122, 125; Application of Norris, 37 C. C. P. A. (Pat.) 876, 179 F. 2d 970; Application of Jones, 32 C. C. P. A. (Pat.) 1020, 149 F. 2d 501. With respect to the inferior predictability of steroid homologues, see, infra, p. 532. 4 In addition to the clear conflict between the Patent Office and the CCPA, there arguably exists one between the CCPA and the Court of Appeals for the District of Columbia. See Petrocarbon BRENNER v. MANSON. 523 519 Opinion of the Court. I. Section 1256 of Title 28 U. S. C. (1964 ed.), enacted in 1948, provides that “Cases in the Court of Customs and Patent Appeals may be reviewed by the Supreme Court by writ of certiorari.” This unqualified language would seem to foreclose any challenge to our jurisdiction in the present case. Both the Government5 and the respondent urge that we have certiorari jurisdiction over patent decisions of the CCPA, although the latter would confine our jurisdiction to those petitions filed by dissatisfied applicants and would deny the Commissioner of Patents the right to seek certiorari.6 This concert of opinion does not settle the basic question because jurisdiction cannot be conferred by consent of the parties. The doubt that does exist stems from a decision of this Limited, v. Watson, 101 U. S. App. D. C. 214, 247 F. 2d 800, cert, denied, 355 U. S. 955. But see Application of Szwarc, 50 C. C. P. A. (Pat.) 1571, 1576-1583, 319 F. 2d 277, 281-286. 5 The present case is the first in which the Government has taken the position that § 1256 confers jurisdiction upon this Court to review patent decisions in the CCPA. Prior to Glidden Co. v. ^danok, 370 U. S. 530, the Government was of the view that the Court lacked jurisdiction. See, e. g., the Brief in Opposition in Dalton v. Marzall, No. 87, O. T. 1951, cert, denied, 342 U. S. 818. After the decision in Glidden, discussed infra, at 526, the Government conceded the issue was a close one. See, e. g., Brief in Opposition in In re Gruschwitz, No. 579, O. T. 1963, cert, denied, 375 U. S. 967. 6 We find no warrant for this curious limitation either in the statutory language or in the legislative history of § 1256. Nor do we find persuasive the circumstance that the Commissioner may not appeal adverse decisions of the Board of Appeals. 35 U. S. C. §§141, 142, and 145 (1964 ed.). As a member of the Board and t e official responsible for selecting the membership of its panels, 35 • S. C. §7 (1964 ed.), the Commissioner may be appropriately considered as bound by Board determinations. No such consideration operates to prevent his seeking review of adverse decisions rendered by the CCPA. 524 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. Court, rendered in January 1927, in Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, which has been widely interpreted as precluding certiorari jurisdiction over patent and trademark decisions of the CCPA. Postum, however, was based upon a statutory scheme materially different from the present one. Postum involved a proceeding in the Patent Office to cancel a trademark. The Commissioner of Patents rejected the application. An appeal was taken to the then Court of Appeals for the District of Columbia, which in 1927 exercised the jurisdiction later transferred to the CCPA. Under the statutory arrangement in effect at the time, the judgment of the Court of Appeals was not definitive because it was not an order to the Patent Office determinative of the controversy. A subsequent bill in equity could be brought in the District Court and it was possible that a conflicting adjudication could thus be obtained. On this basis, the Court held that it could not review the decision of the Court of Appeals. It held that the conclusion of the Court of Appeals was an “administrative decision” rather than a “judicial judgment”: “merely an instruction to the Commissioner of Patents by a court which is made part of the machinery of the Patent Office for administrative purposes.” 272 U. S., at 698-699. Therefore, this Court concluded, the proceeding in the Court of Appeals—essentially administrative in nature—was neither case nor controversy within the meaning of Article III of the Constitution. Congress might confer such administrative” tasks upon the courts of the District of Columbia, wrote Chief Justice Taft, but it could not empower this Court to participate therein. Congress soon amended the statutory scheme. In March of 1927 it provided that an action in the District Court was to be alternative and not cumulative to appellate review, that it could not be maintained to overcome BRENNER v. MANSON. 525 519 Opinion of the Court. an adjudication in the Court of Appeals.7 In 1929 Congress transferred appellate jurisdiction over the Commissioner’s decisions from the Court of Appeals to what had been the Court of Customs Appeals and was now styled the Court of Customs and Patent Appeals.8 Whereas the Court of Appeals had been empowered to take additional evidence and to substitute its judgment for that of the Commissioner, the CCPA was confined to the record made in the Patent Office.9 Compare Federal Communications Common v. Pottsville Broadcasting Co., 309 U. S. 134, 144-145. Despite these changes, however, Postum had acquired a life of its own. It continued to stand in the way of attempts to secure review here of CCPA decisions respecting the Commissioner of Patents. See, e. g., McBride v. Teeple, 311 U. S. 649, denying certiorari for “want of jurisdiction” on the authority of Postum™ This was the background against which Congress, in its 1948 codification of statutes pertaining to the judiciary, enacted § 1256, blandly providing in unqualified language for review on certiorari of “[c]ases in the Court of Customs and Patent Appeals.” Nothing in the legislative materials relating to the statute, except its language, is of assistance to us in the resolution of the present problem: Did the statutory changes which followed Act of March 2, 1927, c. 273, § 11, 44 Stat. 1335, 1336. See Mden Co. v. Zdanok, supra, at 572-579; Kurland & Wolfson, ^premc Court Review of the Court of Customs and Patent Appeals, 18 Geo. Wash. L. Rev. 192 (1950). This remains the law. 35 U. S. C. §§ 141, 145. 8 Act of March 2, 1929, c. 488, 45 Stat. 1475. 9 See Kurland & Wolfson, op. cit. supra, n. 7, at 196. 0 Apart from Postum, until enactment of § 1256 in 1948 there existed no statutory basis for jurisdiction in these cases. See Rob-er son & Kirkham, Jurisdiction of the Supreme Court of the United States, §251 (Wolfson & Kurland ed. 1951). 526 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. Postum mean that a patent decision by the CCPA was a “judicial” determination reviewable by this Court under Article III? And, if so, was § 1256 intended to create such jurisdiction? Assistance came with the 1958 revision of the Judicial Code. Congress there declared the CCPA “a court established under article III . . . ,” that is, a constitutional court exercising judicial rather than administrative power. 28 U. S. C. § 211 (1964 ed.). In 1962 this Court addressed itself to the nature and status of the CCPA. Glidden Co. v. Zdanok, 370 U. S. 530, raised the question whether a judge of the CCPA was an Article III judge, capable of exercising federal judicial power. In answering that question in the affirmative, Mr. Justice Harlan's opinion, for three of the seven Justices participating, expressly left open the question whether § 1256 conferred certiorari jurisdiction over patent and trademark cases decided in the CCPA, 370 U. S., at 578 n. 49. It suggested, however, that Postum might be nothing more than a museum piece. The opinion noted that Postum “must be taken to be limited to the statutory scheme in existence before” 1929. 370 U. S., at 579. The concurring opinion of Mr. Justice Clark, in which The Chief Justice joined, did not reflect any difference on this point. Thus, the decision sought to be reviewed is that of an Article III court. It is “judicial” in character. It is not merely an instruction to the Commissioner or part of the “administrative machinery” of the Patent Office. It is final and binding in the usual sense.11 In sum, Postum 11 This is not to say that a CCPA determination that an applicant is entitled to a patent precludes a contrary result in a subsequent infringement suit, any more than issuance of a patent by the Patent Office or the decision in an earlier infringement action against a different “infringer” has that effect. See, e. g., Graham v. John Deere Co., ante, p. 1, at 4. We review decisions of the Dis- BRENNER v. MANSON. 527 519 Opinion of the Court. has no vitality in the present setting, and there remains no constitutional bar to our jurisdiction. Having arrived at this conclusion, we have no difficulty in giving full force and effect to the generality of the language in § 1256. It would be entirely arbitrary for us to assume, despite the statutory language, that Congress in 1948 intended to enshrine Postum—dependent as it was upon a statutory scheme fundamentally altered in 1927 and 1929—as a hidden exception to the sweep of § 1256. The contrary is more plausible: that by using broad and unqualified language, Congress intended our certiorari jurisdiction over CCPA cases to be as broad as the Constitution permits. This conclusion is reinforced by reference to the anomalous consequences which would result were we to adopt a contrary view of § 1256. Determinations of the Patent Office may be challenged either by appeal to the CCPA or by suit instituted in the United States District Court for the District of Columbia. 35 U. S. C. § 145, 28 U. S. C. § 1542 (1964 ed.). Where the latter route is elected, the decision obtained may be reviewed in the Court of Appeals for the District of Columbia Circuit, and ultimately in this Court upon writ of certiorari. Hoover Co. v. Coe, 325 U. S. 79. It would be strange indeed if corresponding certiorari jurisdiction did not exist where the alternative route was elected. Were that so, in the event of conflict between the CCPA and the courts of the District of Columbia, resolution by this Court would be achievable only if the litigants chose to proceed through the latter. Obviously, the orderly administration both of our certiorari jurisdiction and of the patent laws requires that ultimate review be available in this Court, regardless of the route chosen by the litigants. trict Court under 35 U. S. C. § 145 although these are subject to the same measure of read judication in infringement suits. See Hoover Co- v. Coe, 325 U. S. 79. 528 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. We therefore conclude that § 1256 authorizes the grant of certiorari in the present case. We now turn to the merits.12 II. Our starting point is the proposition, neither disputed nor disputable, that one may patent only that which is 12 Respondent and the amicus curiae take a different view than does the Government of precisely what the issue on the merits is. They argue that the issue of “patentability” is not properly before us, that the issue actually presented is whether the Primary Examiner in the Patent Office has authority under Rule 204 (b) himself to evaluate the sufficiency of affidavits submitted under that Rule. Both the Board of Appeals and the CCPA rejected this view and focused instead on the question of what averments satisfy the statutory requirement that a claimed chemical process be “useful.” We agree. First, the issue of “patentability” cannot be foreclosed by the circumstance that the Patent Office—which, according to counsel for respondent, processes some 1,800 claims and issues 700 patents each week—has already issued a patent to Ringold and Rosenkranz who asserted in their claim that their process yielded useful products. See note 1, supra. Second, there is no basis for the proposition that even where an applicant for an interference presents a claim which on its face is unpatentable, a complicated and frequently lengthy factual inquiry into priority of invention must 'inexorably take place. On the contrary, Rule 201 (a), 37 CFR § 1.201 (a), defines an interference proceeding as one involving “two or more parties claiming substantially the same patentable invention and may be instituted as soon as it is determined that common patentable subject matter is claimed . . . .” (Emphasis supplied.) See Application of Rogofi, 46 C. C. P. A. (Pat.) 733, 739, 261 F. 2d 601, 606: “The question as to patentability of claims to an applicant must be determined before any question of interference arises and claims otherwise unpatentable to an applicant cannot be allowed merely in order to set up an interference.” See also Wirkler v. Perkins, 44 C. C. P. A. (Pat.) 1005, 1008, 245 F. 2d 502, 504. Cf. Glass v. De Roo, 44 C. C. P. A. (Pat.) 723, 239 F. 2d 402. The current version of Rule 203 (a), 37 CFR § 1.203 (a), makes it explicit that the examiner, “[b]efore the declaration of interference,” must determine the patentability of the claim as to each party. See also Rule 237, 37 CFR § 1.237. BRENNER v. MANSON. 529 519 Opinion of the Court. “useful.” In Graham n. John Deere Co., ante, p. 1, at 5-10, we have reviewed the history of the requisites of patentability, and it need not be repeated here. Suffice it to say that the concept of utility has maintained a central place in all of our patent legislation, beginning with the first patent law in 179013 and culminating in the present law’s provision that “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 14 As is so often the case, however, a simple, everyday word can be pregnant with ambiguity when applied to the facts of life. That this is so is demonstrated by the present conflict between the Patent Office and the CCPA over how the test is to be applied to a chemical process which yields an already known product whose utility— other than as a possible object of scientific inquiry—has not yet been evidenced. It was not long ago that agency and court seemed of one mind on the question. In Application of Bremner, 37 C. C. P. A. (Pat.) 1032, 1034, 182 F. 2d 216, 217, the court affirmed rejection by the Patent Office of both process and product claims. It noted that “no use for the products claimed to be developed by the processes had been shown in the specification.” It held that “It was never intended that a patent be granted upon a product, or a process producing a product, unless such product be useful.” Nor was this new doctrine in the court. See Thomas v. Michael, 35 c- C. P. A. (Pat.) 1036, 1038-1039, 166 F. 2d 944, 946-947. 17^ee Act of April 10,1790, c-7> 1 stat 109’Act °f Feb- 2i> 793 c. 11, 1 Stat. 318; Act of July 4, 1836, c. 357, 5 Stat. 117; Act of July 8, 1870, c. 230, 16 Stat. 198; Rev. Stat. §4886 (1874). 4 35 U.S. C. § 101 (1964 ed.). 530 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. The Patent Office has remained steadfast in this view. The CCPA, however, has moved sharply away from Bremner. The trend began in Application of Nelson, 47 C. C. P. A. (Pat.) 1031, 280 F. 2d 172. There, the court reversed the Patent Office’s rejection of a claim on a process yielding chemical intermediates “useful to chemists doing research on steroids,” despite the absence of evidence that any of the steroids thus ultimately produced were themselves “useful.” The trend has accelerated,15 culminating in the present case where the court held it sufficient that a process produces the result intended and is not “detrimental to the public interest.” 52 C. C. P. A. (Pat.), at 745, 333 F. 2d, at 238. It is not remarkable that differences arise as to how the test of usefulness is to be applied to chemical processes. Even if we knew precisely what Congress meant in 1790 when it devised the “new and useful” phraseology and in subsequent re-enactments of the test, we should have difficulty in applying it in the context of contemporary chemistry where research is as comprehensive as man’s grasp and where little or nothing is wholly beyond the pale of “utility”—if that word is given its broadest reach. Respondent does not—at least in the first instance— rest upon the extreme proposition, advanced by the court below, that a novel chemical process is patentable so long 15 Thus, in Application of Wilke, 50 C. C. P. A. (Pat.) 964, 314 F. 2d 558, the court reversed a Patent Office denial of a process claim, holding that 35 U. S. C. § 112 (1964 ed.) was satisfied even though the specification recited only the manner in which the process was to be used and not any use for the products thereby yielded. See also Application of Adams, 50 C. C. P. A. (Pat.) 1185, 316 F. 2d 476. In Application of Szwarc, 50 C. C. P. A. (Pat.) 1571, 319 F. 2d 277, the court acknowledged that its view of the law respecting utility of chemical processes had changed since Bremner. See generally, Note, The Utility Requirement in the Patent Law, 53 Geo. L. J. 154, 175-181 (1964). BRENNER v. MANSON. 531 519 Opinion of the Court. as it yields the intended product10 and so long as the product is not itself “detrimental.” Nor does he commit the outcome of his claim to the slightly more conventional proposition that any process is “useful” within the meaning of § 101 if it produces a compound whose potential usefulness is under investigation by serious scientific researchers, although he urges this position, too, as an alternative basis for affirming the decision of the CCPA. Rather, he begins with the much more orthodox argument that his process has a specific utility which would entitle him to a declaration of interference even under the Patent Office’s reading of § 101. The claim is that the supporting affidavits filed pursuant to Rule 204 (b), by reference to Ringold’s 1956 article, reveal that an adjacent homologue of the steroid yielded by his process has been demonstrated to have tumor-inhibiting effects in mice, and that this discloses the requisite utility. We do not accept any of these theories as an adequate basis for overriding the determination of the Patent Office that the utility” requirement has not been met. Even on the assumption that the process would be patentable were respondent to show that the steroid produced had a tumor-inhibiting effect in mice,17 we would ^ Respondent couches the issue in terms of whether the process Jie s a known product. We fail to see the relevance of the tact that the product is “known,” save to the extent that references to a compound in scientific literature suggest that it might be a ^Jeet of interest and possible investigation. In light of our disposition of the case, we express no view as ° t e patentability of a process whose sole demonstrated utility is o yield a product shown to inhibit the growth of tumors in labora-ory animals. See Application of Hitchings, 52 C. C. P. A. (Pat.) 1109 F’ 2d 8°’ A™lication °f Bergel, 48 C. C. P. A. (Pat.) 2, 292 F. 2d 955; cf. Application of Dodson, 48 C. C. P. A. (Pat.) 111ft 292 F‘ 2d 943’ A'P'Plication °f Krimmel, 48 C. C. P. A. (Pat.) Pat ’+2?LF’ 2d 948‘ F°r a Patent Office view> see Marcus, The a®™ °ffice and Pharmaceutical Invention, 47 J. Pat. Off. Soc. 669 073-676 (1965). 532 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. not overrule the Patent Office finding that respondent has not made such a showing. The Patent Office held that, despite the reference to the adjacent homologue, respondent’s papers did not disclose a sufficient likelihood that the steroid yielded by his process would have similar tumor-inhibiting characteristics. Indeed, respondent himself recognized that the presumption that adjacent homologues have the same utility18 has been challenged in the steroid field because of “a greater known unpredictability of compounds in that field.” 19 In these circumstances and in this technical area, we would not overturn the finding of the Primary Examiner, affirmed by the Board of Appeals and not challenged by the CCPA. The second and third points of respondent’s argument present issues of much importance. Is a chemical process “useful” within the meaning of § 101 either (1) because it works—i. e., produces the intended product? or (2) because the compound yielded belongs to a class of compounds now the subject of serious scientific investigation? These contentions present the basic problem for our adjudication. Since we find no specific assistance in the legislative materials underlying § 101, we are remitted to an analysis of the problem in light of the general intent of Congress, the purposes of the patent system, and the implications of a decision one way or the other. In support of his plea that we attenuate the requirement of “utility,” respondent relies upon Justice Story’s 18 See n. 3, supra. 19 See respondent’s letter requesting amendment, dated July 21, 1960, Record, pp. 20-23. See also Application of Adams, 50 C. C. P. A. (Pat.) 1185, 1190, 316 F. 2d 476, 479-480 (concurring-dissenting opinion). In the present case, the Board of Appeals found support in the Ringold article itself for the view that “minor changes in the structure of a steroid may produce profound changes in its biological activity.” Record, p. 52. BRENNER v. MANSON. 533 519 Opinion of the Court. well-known statement that a “useful” invention is one “which may be applied to a beneficial use in society, in contradistinction to an invention injurious to the morals, health, or good order of society, or frivolous and insignificant” 20—and upon the assertion that to do so would encourage inventors of new processes to publicize the event for the benefit of the entire scientific community, thus widening the search for uses and increasing the fund of scientific knowledge. Justice Story’s language sheds little light on our subject. Narrowly read, it does no more than compel us to decide whether the invention in question is “frivolous and insignificant”—a query no easier of application than the one built into the statute. Read more broadly, so as to allow the patenting of any invention not positively harmful to society, it places such a special meaning on the word “useful” that we cannot accept it in the absence of evidence that Congress so intended. There are, after all, many things in this world which may not be considered “useful” but which, nevertheless, are totally without a capacity for harm. It is true, of course, that one of the purposes of the patent system is to encourage dissemination of information concerning discoveries and inventions.21 And it may be that inability to patent a process to some extent discourages disclosure and leads to greater secrecy than would otherwise be the case. The inventor of the process, or the corporate organization by which he is employed, has some incentive to keep the invention 20 Note on the Patent Laws, 3 Wheat. App. 13, 24. See also Jus-ice Story’s decisions on circuit in Lowell v. Lewis, 15 Fed. Cas. 1018 No. 8568) (C. C. D. Mass.), and Bedford v. Hunt, 3 Fed. Cas 37 (N0J217) (C- C- D- Mass.). a reWard for inventions and to encourage their disclosure, e United States offers a seventeen-year monopoly to an inventor who refrains from keeping his invention a trade secret.” Universal U Prods. Co. v. Globe Oil & Ref. Co., 322 U. S. 471, 484. 534 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. secret while uses for the product are searched out. However, in light of the highly developed art of drafting patent claims so that they disclose as little useful information as possible—while broadening the scope of the claim as widely as possible—the argument based upon the virtue of disclosure must be warily evaluated. Moreover, the pressure for secrecy is easily exaggerated, for if the inventor of a process cannot himself ascertain a “use” for that which his process yields, he has every incentive to make his invention known to those able to do so. Finally, how likely is disclosure of a patented process to spur research by others into the uses to which the product may be put? To the extent that the patentee has power to enforce his patent, there is little incentive for others to undertake a search for uses. Whatever weight is attached to the value of encouraging disclosure and of inhibiting secrecy, we believe a more compelling consideration is that a process patent in the chemical field, which has not been developed and pointed to the degree of specific utility, creates a monopoly of knowledge which should be granted only if clearly commanded by the statute. Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation. It may engross a vast, unknown, and perhaps unknowable area. Such a patent may confer power to block off whole areas of scientific development,22 without compensating benefit to the public. The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point—where specific bene- 22 See Monsanto Chemical Co. n. Coe, 79 U. S. App. D. C. 155, 158-161, 145 F. 2d 18, 21-24. BRENNER v. MANSON. 535 519 Opinion of the Court. fit exists in currently available form—there is insufficient justification for permitting an applicant to engross what may prove to be a broad field. These arguments for and against the patentability of a process which either has no known use or is useful only in the sense that it may be an object of scientific research would apply equally to the patenting of the product produced by the process. Respondent appears to concede that with respect to a product, as opposed to a process, Congress has struck the balance on the side of nonpatentability unless “utility” is shown. Indeed, the decisions of the CCPA are in accord with the view that a product may not be patented absent a showing of utility greater than any adduced in the present case.23 We find absolutely no warrant for the proposition that although Congress intended that no patent be granted on a chemical compound whose sole “utility” consists of its potential role as an object of use-testing, a different set of rules was meant to apply to the process which yielded the unpatentable product.24 That proposition seems to us little more than an attempt to evade the impact of the rules which concededly govern patentability of the product itself. This is not to say that we mean to disparage the importance of contributions to the fund of scientific infor- 23 See, e. g., the decision below, 52 C. C. P. A. (Pat.), at 744, 333 F. 2d, at 237. See also Application of Bergel, 48 C. C. P. A. (Pat.), at 1105, 292 F. 2d, at 958. Cf. Application of Nelson, 47 C. C. P. A. (Pat.), at 1043-1044, 280 F. 2d, at 180-181; Application of Folkers, 52 C. C. P. A. (Pat.) 1269, 344 F. 2d 970. 24 The committee reports which preceded enactment of the 1952 revision of the patent laws disclose no intention to create such a dichotomy, and in fact provide some evidence that the contrary was assumed. Sen. Rep. No. 1979, Committee on the Judiciary, 82d Cong., 2d Sess., 5, 17; H. R. Rep. No. 1923, Committee on the Judiciary, 82d Cong., 2d Sess., 6, 17. Cf. Hoxie, A Patent Attorney’s View, 47 J. Pat. Off. Soc. 630, 636 (1965). 536 OCTOBER TERM, 1965. Opinion of Harlan, J. 383U.S. mation short of the invention of something “useful,” or that we are blind to the prospect that what now seems without “use” may tomorrow command the grateful attention of the public. But a patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion. “[A] patent system must be related to the world of commerce rather than to the realm of philosophy. . . 25 The judgment of the CCPA is Reversed Mr. Justice Douglas, while acquiescing in Part I of the Court’s opinion, dissents on the merits of the controversy for substantially the reasons stated by Mr. Justice Harlan. Mr. Justice Harlan, concurring in part and dissenting in part. While I join the Court’s opinion on the issue of certiorari jurisdiction, I cannot agree with its resolution of the important question of patentability. Respondent has contended that a workable chemical process, which is both new and sufficiently nonobvious to satisfy the patent statute, is by its existence alone a contribution to chemistry and “useful” as the statute employs that term.1 Certainly this reading of “useful” in the statute is within the scope of the constitutional grant, which states only that “[t]o promote the Progress of Science and useful Arts,” the exclusive right to “Writings and Discoveries” may be secured for limited times to those who produce them. Art. I, § 8. Yet the patent statute is somewhat differently worded and is on 25 Application of Ruschig, 52 C. C. P. A. (Pat.) 1238, 1245, 343 F. 2d 965, 970 (Rich, J.). See also, Katz v. Homi Signal Mfg. Corp., 145 F. 2d 961 (C. A. 2d Cir.). 1 The statute in pertinent part is set out in the Court’s opinion, p. 529, ante. BRENNER v. MANSON. 537 519 Opinion of Harlan, J. its face open both to respondent’s construction and to the contrary reading given it by the Court. In the absence of legislative history on this issue, we are thrown back on policy and practice. Because I believe that the Court’s policy arguments are not convincing and that past practice favors the respondent, I would reject the narrow definition of “useful” and uphold the judgment of the Court of Customs and Patent Appeals (hereafter CCPA). The Court’s opinion sets out about half a dozen reasons in support of its interpretation. Several of these arguments seem to me to have almost no force. For instance, it is suggested that “[u]ntil the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation” (p. 534, ante) and “[i]t may engross a vast, unknown, and perhaps unknowable area” (p. 534, ante). I fail to see the relevance of these assertions; process claims are not disallowed because the products they produce may be of “vast” importance nor, in any event, does advance knowledge of a specific product use provide much safeguard on this score or fix “metes and bounds” precisely since a hundred more uses may be found after a patent is granted and greatly enhance its value. The further argument that an established product use is part of “[t]he basic quid pro quo” (p. 534, ante) for the patent or is the requisite “successful conclusion” (P- 536, ante) of the inventor’s search appears to beg the very question whether the process is “useful” simply because it facilitates further research into possible product uses. The same infirmity seems to inhere in the ourt s argument that chemical products lacking imme-iate utility cannot be distinguished for present purposes from the processes which create them, that respondent appears to concede and the CCPA holds that 538 OCTOBER TERM, 1965. Opinion of Harlan, J. 383 U. S. the products are nonpatentable, and that therefore the processes are nonpatentable. Assuming that the two classes cannot be distinguished, a point not adequately considered in the briefs, and assuming further that the CCPA has firmly held such products non-patentable,2 this permits us to conclude only that the CCPA is wrong either as to the products or as to the processes and affords no basis for deciding whether both or neither should be patentable absent a specific product use. More to the point, I think, are the Court’s remaining, prudential arguments against patentability: namely, that disclosure induced by allowing a patent is partly undercut by patent-application drafting techniques, that disclosure may occur without granting a patent, and that a patent will discourage others from inventing uses for the product. How far opaque drafting may lessen the public benefits resulting from the issuance of a patent is not shown by any evidence in this case but, more important, the argument operates against all patents and gives no reason for singling out the class involved here. The thought that these inventions may be more likely than most to be disclosed even if patents are not allowed may have more force; but while empirical study of the industry might reveal that chemical researchers would behave in this fashion, the abstractly logical choice for them seems to me to maintain secrecy until a product use can be discovered. As to discouraging the search by 2 Any concession by respondent would hardly be controlling on an issue of this general importance, but I am less clear than the Court that such a concession exists. See, e. g., Brief for Respondent, p. 53. As to the CCPA, it is quite true that that court purports in the very case under review and in others to distinguish product patents, although its actual practice may be somewhat less firm. See Application of Adams, 50 C. C. P. A. (Pat.) 1185, 316 F. 2d 476, Application of Nelson, 47 C. C. P. A. (Pat.) 1031, 280 F. 2d 172. BRENNER v. MANSON. 539 519 Opinion of Harlan, J. others for product uses, there is no doubt this risk exists but the price paid for any patent is that research on other uses or improvements may be hampered because the original patentee will reap much of the reward. From the standpoint of the public interest the Constitution seems to have resolved that choice in favor of patentability. What I find most troubling about the result reached by the Court is the impact it may have on chemical research. Chemistry is a highly interrelated field and a tangible benefit for society may be the outcome of a number of different discoveries, one discovery building upon the next. To encourage one chemist or research facility to invent and disseminate new processes and products may be vital to progress, although the product or process be without “utility” as the Court defines the term, because that discovery permits someone else to take a further but perhaps less difficult step leading to a commercially useful item. In my view, our awareness in this age of the importance of achieving and publicizing basic research should lead this Court to resolve uncertainties in its favor and uphold the respondent’s position in this case. This position is strengthened, I think, by what appears to have been the practice of the Patent Office during most of this century. While available proof is not conclusive, the commentators seem to be in agreement that until Application of Bremner, 37 C. C. P. A. (Pat.) 1032, 182 F. 2d 216, in 1950, chemical patent applications were commonly granted although no resulting end use was stated or the statement was in extremely broad terms.3 Taking this to be true, Bremner represented See, e. g., the statement of a Patent Office Examiner-in-Chief: Until recently it was also rather common to get patents on chemical compounds in cases where no use was indicated for the claimed compounds or in which a very broad indication or suggestion as 540 OCTOBER TERM, 1965. Opinion of Harlan, J. 383 U. S. a deviation from established practice which the CCPA has now sought to remedy in part only to find that the Patent Office does not want to return to the beaten track. If usefulness was typically regarded as inherent during a long and prolific period of chemical research and development in this country, surely this is added reason why the Court’s result should not be adopted until Congress expressly mandates it, presumably on the basis of empirical data which this Court does not possess. Fully recognizing that there is ample room for disagreement on this problem when, as here, it is reviewed in the abstract, I believe the decision below should be affirmed. to use was included in the application. [Bremner and another later ruling] . . . have put an end to this practice.” Wolft’e, Adequacy of Disclosure as Regards Specific Embodiment and Use of Invention, 41 J. Pat. Off. Soc. 61, 66 (1959). The Government’s brief in this case is in accord: “[I]t was apparently assumed by the Patent Office [prior to 1950] , . . that chemical compounds were necessarily useful . . . and that specific inquiry beyond the success of the process was therefore unnecessary . . . .” Brief for the Commissioner, p. 25. See also Cohen & Schwartz, Do Chemical Intermediates Have Patentable Utility? 29 Geo. Wash. L. Rev. 87, 91 (1960); Note, 53 Geo. L. J. 154, 183 (1964); 14 Am. U. L. Rev. 78 (1964). KENT v. UNITED STATES. 541 Syllabus. KENT v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 104. Argued January 19, 1966.—Decided March 21, 1966. Petitioner was arrested at the age of 16 in connection with charges of housebreaking, robbery and rape. As a juvenile, he was subject to the exclusive jurisdiction of the District of Columbia Juvenile Court unless that court, after “full investigation,” should waive jurisdiction over him and remit him for trial to the United States District Court for the District of Columbia. Petitioner’s counsel filed a motion in the Juvenile Court for a hearing on the question of waiver, and for access to the Juvenile Court’s Social Service file which had been accumulated on petitioner during his probation for a prior offense. The Juvenile Court did not rule on these motions. It entered an order waiving jurisdiction, with the recitation that this was done after the required “full investigation.” Petitioner was indicted in the District Court. He moved to dismiss the indictment on the ground that the Juvenile Court’s waiver was invalid. The District Court overruled the motion, and petitioner was tried. He was convicted on six counts of housebreaking and robbery, but acquitted on two rape counts by reason of insanity. On appeal petitioner raised among other things the validity of the Juvenile Court’s waiver of jurisdiction; the United States Court of Appeals for the District of Columbia Circuit affirmed, finding the procedure leading to waiver and the waiver order itself valid. Held: The Juvenile Court order waiving jurisdiction and remitting petitioner for trial in the District Court was invalid. Pp. 552-564. (a) The Juvenile Court’s latitude in determining whether to waive jurisdiction is not complete. It “assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a ‘full investigation.’ ” Pp. 552-554. (b) The parens patriae philosophy of the Juvenile Court “is not an invitation to procedural arbitrariness.” Pp. 554-556. (c) As the Court of Appeals for the District of Columbia Circuit has held, “the waiver of jurisdiction is a ‘critically important’ 542 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. action determining vitally important statutory rights of the juvenile.” Pp. 556-557. (d) The Juvenile Court Act requires “full investigation” and makes the Juvenile Court records available to persons having a “legitimate interest in the protection ... of the child . . . These provisions, “read in the context of constitutional principles relating to due process and the assistance of counsel,” entitle a juvenile to a hearing, to access by his counsel to social records and probation or similar reports which presumably are considered by the Juvenile Court, and to a statement of the reasons for the Juvenile Court’s decision sufficient to enable meaningful appellate review thereof. Pp. 557-563. (e) Since petitioner is now 21 and beyond the jurisdiction of the Juvenile Court, the order of the Court of Appeals and the judgment of the District Court are vacated and the case is remanded to the District Court for a hearing de novo, consistent with this opinion, on whether waiver was appropriate when ordered by the Juvenile Court. “If that court finds that waiver was inappropriate, petitioner’s conviction must be vacated. If, however, it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment.” Pp. 564-565. 119 U. S. App. D. C. 378, 343 F. 2d 247, reversed and remanded. Myron G. Ehrlich and Richard Arens argued the cause for petitioner. With them on the briefs were Monroe H. Freedman and David Carliner. Theodore George Gilinsky argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin and Beatrice Rosenberg. Nicholas N. Kittrie filed a brief for Thurman Arnold et al., as amici curiae. Mr. Justice Fortas delivered the opinion of the Court. This case is here on certiorari to the United States Court of Appeals for the District of Columbia Circuit. The facts and the contentions of counsel raise a number KENT v. UNITED STATES. 543 541 Opinion of the Court. of disturbing questions concerning the administration by the police and the Juvenile Court authorities of the District of Columbia laws relating to juveniles. Apart from raising questions as to the adequacy of custodial and treatment facilities and policies, some of which are not within judicial competence, the case presents important challenges to the procedure of the police and Juvenile Court officials upon apprehension of a juvenile suspected of serious offenses. Because we conclude that the Juvenile Court’s order waiving jurisdiction of petitioner was entered without compliance with required procedures, we remand the case to the trial court. Morris A. Kent, Jr., first came under the authority of the Juvenile Court of the District of Columbia in 1959. He was then aged 14. He was apprehended as a result of several housebreakings and an attempted purse snatching. He was placed on probation, in the custody of his mother who had been separated from her husband since Kent was two years old. Juvenile Court officials interviewed Kent from time to time during the probation period and accumulated a “Social Service” file. On September 2, 1961, an intruder entered the apartment of a woman in the District of Columbia. He took her wallet. He raped her. The police found in the apartment latent fingerprints. They were developed and processed. They matched the fingerprints of Morris Kent, taken when he was 14 years old and under the jurisdiction of the Juvenile Court. At about 3 p. m. on September 5, 1961, Kent was taken into custody by the police. Kent was then 16 and therefore subject to the exclusive jurisdiction” of the Juvenile Court. D. C. Code § 11-907 (1961), now § 11-1551 (Supp. IV, 1965). He was still on probation to that court as a result of the 1959 proceedings. Upon being apprehended, Kent was taken to police headquarters where he was interrogated by police officers. 544 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. It appears that he admitted his involvement in the offense which led to his apprehension and volunteered information as to similar offenses involving housebreaking, robbery, and rape. His interrogation proceeded from about 3 p. m. to 10 p. m. the same evening.1 Some time after 10 p. m. petitioner was taken to the Receiving Home for Children. The next morning he was released to the police for further interrogation at police headquarters, which lasted until 5 p. m.2 The record does not show when his mother became aware that the boy w’as in custody, but shortly after 2 p. m. on September 6, 1961, the day following petitioner’s apprehension, she retained counsel. Counsel, together with petitioner’s mother, promptly conferred with the Social Service Director of the Juvenile Court. In a brief interview, they discussed the possibility that the Juvenile Court might waive jurisdiction under D. C. Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965) and remit Kent to trial by the District Court. Counsel made known his intention to oppose waiver. Petitioner was detained at the Receiving Home for almost a week. There was no arraignment during this 1 There is no indication in the file that the police complied with the requirement of the District Code that a child taken into custody, unless released to his parent, guardian or custodian, “shall be placed in the custody of a probation officer or other person designated by the court, or taken immediately to the court or to a place of detention provided by the Board of Public Welfare, and the officer taking him shall immediately notify the court and shall file a petition when directed to do so by the court.” D. C. Code § 11-912 (1961), now § 16-2306 (Supp. IV, 1965). 2 The elicited statements were not used in the subsequent trial before the United States District Court. Since the statements were made while petitioner was subject to the jurisdiction of the Juvenile Court, they were inadmissible in a subsequent criminal prosecution under the rule of Harling v. United States, 111 U. S. App. D. C. 174, 295 F. 2d 161 (1961). KENT v. UNITED STATES. 545 541 Opinion of the Court. time, no determination by a judicial officer of probable cause for petitioner’s apprehension.3 During this period of detention and interrogation, petitioner’s counsel arranged for examination of petitioner by two psychiatrists and a psychologist. He thereafter filed with the Juvenile Court a motion for a hearing on the question of waiver of Juvenile Court jurisdiction, together with an affidavit of a psychiatrist certifying that petitioner “is a victim of severe psychopathology” and recommending hospitalization for psychiatric observation. Petitioner’s counsel, in support of his motion to the effect that the Juvenile Court should retain jurisdiction of petitioner, offered to prove that if petitioner were given adequate treatment in a hospital under the aegis of the Juvenile Court, he would be a suitable subject for rehabilitation. 3 In the case of adults, arraignment before a magistrate for determination of probable cause and advice to the arrested person as to his rights, etc., are provided by law and are regarded as fundamental. Cf. Fed. Rules Crim. Proc. 5 (a), (b); Mallory v. United States, 354 U. S. 449. In Harling v. United States, supra, the Court of Appeals for the District of Columbia has stated the basis for this distinction between juveniles and adults as follows: It is, of course, because children are, generally speaking, exempt from criminal penalties that safeguards of the criminal law, such as Rule 5 and the exclusionary Mallory rule, have no general application in juvenile proceedings.” Ill U. S. App. D. C., at 176, 295 F. 2d, at 163. In Edwards v. United States, 117 U. S. App. D. C. 383, 384, 330 F. 2d 849, 850 (1964), it was said that: “. . . special practices . . . follow the apprehension of a juvenile. He may be held in custody by the juvenile authorities—and is available to investigating officers— for five days before any formal action need be taken. There is no duty to take him before a magistrate, and no responsibility to inform him of his rights. He is not booked. The statutory intent is to establish a non-punitive, non-criminal atmosphere.” We indicate no view as to the legality of these practices. Cf. Harling v. United States, supra, 111 U. S. App. D. C., at 176, 295 F. 2d, at 163, n. 12. 546 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. At the same time, petitioner’s counsel moved that the Juvenile Court should give him access to the Social Service file relating to petitioner which had been accumulated by the staff of the Juvenile Court during petitioner’s probation period, and which would be available to the Juvenile Court judge in considering the question whether it should retain or waive jurisdiction. Petitioner’s counsel represented that access to this file was essential to his providing petitioner with effective assistance of counsel. The Juvenile Court judge did not rule on these motions. He held no hearing. He did not confer with petitioner or petitioner’s parents or petitioner’s counsel. He entered an order reciting that after “full investigation, I do hereby waive” jurisdiction of petitioner and directing that he be “held for trial for [the alleged] offenses under the regular procedure of the U. S. District Court for the District of Columbia.” He made no findings. He did not recite any reason for the waiver.4 He made no reference to the motions filed by petitioner’s counsel. We must assume that he denied, sub silentio, the motions for a hearing, the recommendation for hospitalization for psychiatric observation, the request for access to the Social Service file, and the offer to prove that petitioner was a fit subject for rehabilitation under the Juvenile Court’s jurisdiction.5 4 At the time of these events, there was in effect Policy Memorandum No. / of November 30, 1959, promulgated by the judge of the Juvenile Court to set forth the criteria to govern disposition of waiver requests. It is set forth in the Appendix. This Memorandum has since been rescinded. See United States v. Caviness, 239 F. Supp. 545, 550 (D. C. D. C. 1965). 5 It should be noted that at this time the statute provided for only one Juvenile Court judge. Congressional hearings and reports attest the impossibility of the burden which he was supposed to carry. See Amending the Juvenile Court Act of the District of Columbia, Hearings before Subcommittee No. 3 of the House Com- KENT v. UNITED STATES. 547 541 Opinion of the Court. Presumably, prior to entry of his order, the Juvenile Court judge received and considered recommendations of the Juvenile Court staff, the Social Service file relating to petitioner, and a report dated September 8, 1961 (three days following petitioner’s apprehension), submitted to him by the Juvenile Probation Section. The Social Service file and the September 8 report were later sent to the District Court and it appears that both of them referred to petitioner’s mental condition. The September 8 report spoke of “a rapid deterioration of [petitioner’s] personality structure and the possibility of mental illness.” As stated, neither this report nor the Social Service file was made available to petitioner’s counsel. The provision of the Juvenile Court Act governing waiver expressly provides only for “full investigation.” It states the circumstances in which jurisdiction may be waived and the child held for trial under adult procedures, but it does not state standards to govern the Juvenile Court s decision as to waiver. The provision reads as follows: If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and. order mittee on the District of Columbia, 87th Cong, 1st Sess. (1961); uvemle Delinquency, Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary C \lst Sess- i1959“19"); Additional Judges for Juvenile ou , Hearing before the House Committee on the District of Columbia, 86th Cong, 1st Sess. (1959).; H. R. Rep. No. 1041, 87th man « (1%1); S- Rep- No- 841’ 87th Co^-> lst Se^ * 1 ’ j?15' N°’ 116’ 86th Cong-’ lst Sess- (1959)- The statute 76 m 1962 t0 Provide for three judges for the court. b Stat. 21; D. C. Code § 11-1502 (Supp. IV, 1965). 548 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.” 6 Petitioner appealed from the Juvenile Court’s waiver order to the Municipal Court of Appeals, which affirmed, and also applied to the United States District Court for a writ of habeas corpus, which was denied. On appeal from these judgments, the United States Court of Appeals held on January 22, 1963, that neither appeal to the Municipal Court of Appeals nor habeas corpus was available. In the Court of Appeals’ view, the exclusive method of reviewing the Juvenile Court’s waiver order was a motion to dismiss the indictment in the District Court. Kent v. Reid, 114 U. S. App. D. C. 330, 316 F. 2d 331 (1963). Meanwhile, on September 25, 1961, shortly after the Juvenile Court order waiving its jurisdiction, petitioner was indicted by a grand jury of the United States District Court for the District of Columbia. The indictment contained eight counts alleging two instances of housebreaking, robbery, and rape, and one of housebreaking and robbery. On November 16, 1961, petitioner moved the District Court to dismiss the indictment on the grounds that the waiver was invalid. He also moved the District Court to constitute itself a Juvenile Court as authorized by D. C. Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965). After substantial delay occasioned by petitioner’s appeal and habeas corpus proceedings, the District Court addressed itself to the motion to dismiss on February 8, 1963.7 6D. C. Code §11-914 (1961), now § 11-1553 (Supp. IV, 1965). 7 On February 5, 1963, the motion to the District Court to constitute itself a Juvenile Court was denied. The motion was renewed KENT v. UNITED STATES. 549 541 Opinion of the Court. The District Court denied the motion to dismiss the indictment. The District Court ruled that it would not “go behind” the Juvenile Court judge’s recital that his order was entered “after full investigation.” It held that “The only matter before me is as to whether or not the statutory provisions were complied with and the Courts have held . . . with reference to full investigation, that that does not mean a quasi judicial or judicial hearing. No hearing is required.” On March 7, 1963, the District Court held a hearing on petitioner’s motion to determine his competency to stand trial. The court determined that petitioner was competent.8 orally and denied on February 8, 1963, after the District Court’s decision that the indictment should not be dismissed. 8 The District Court had before it extensive information as to petitioner’s mental condition, bearing upon both competence to stand trial and the defense of insanity. The court had obtained the “Social Service” file from the Juvenile Court and had made it available to petitioner’s counsel. On October 13, 1961, the District Court had granted petitioner’s motion of October 6 for commitment to the Psychiatric Division of the General Hospital for 60 days. On December 20, 1961, the hospital reported that “It is the concensus [sic] of the staff that Morris is emotionally ill and severely so . . . we feel that he is incompetent to stand trial and to participate in a mature way in his own defense. His illness has interfered with his judgment and reasoning ability . . . .” The prosecutor opposed a finding of incompetence to stand trial, and at the prosecutor’s request, the District Court referred petitioner to St. Elizabeths Hospital for psychiatric observation. According to a letter from the Superintendent of St. Elizabeths of April 5, 1962, t e hospitals staff found that petitioner was “suffering from mental isease at the present time, Schizophrenic Reaction, Chronic Undif-erentiated Type,” that he had been suffering from this disease at the time of the charged offenses, and that “if committed by him [those criminal acts] were the product of this disease.” They stated, however, that petitioner was “mentally competent to under-s and the nature of the proceedings against him and to consult Properly with counsel in his own defense.” 550 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. At trial, petitioner’s defense was wholly directed toward proving that he was not criminally responsible because “his unlawful act was the product of mental disease or mental defect.” Durham v. United States, 94 U. S. App. D. C. 228, 241, 214 F. 2d 862, 875 (1954). Extensive evidence, including expert testimony, was presented to support this defense. The jury found as to the counts alleging rape that petitioner was “not guilty by reason of insanity.” Under District of Columbia law, this made it mandatory that petitioner be transferred to St. Elizabeths Hospital, a mental institution, until his sanity is restored.9 On the six counts of housebreaking and robbery, the jury found that petitioner was guilty.19 Kent was sentenced to serve five to 15 years on each count as to which he was found guilty, or a total of 30 to 90 years in prison. The District Court ordered that the time to be spent at St. Elizabeths on the mandatory commitment after the insanity acquittal be counted as part of the 30- to 90-year sentence. Petitioner appealed to the United States Court of Appeals for the District of Columbia Circuit. That court affirmed. 119 U. S. App. D. C. 378, 343 F. 2d 247 (1964).11 aD. C. Code §24-301 (1961). 10 The basis for this distinction—that petitioner was “sane” for purposes of the housebreaking and robbery but “insane” for the purposes of the rape—apparently was the hypothesis, for which there is some support in the record, that the jury might find that the robberies had anteceded the rapes, and in that event, it might conclude that the housebreakings and robberies v’ere not the products of his mental disease or defect, while the rapes were produced thereby. 31 Petitioner filed a petition for rehearing en banc, but subsequently moved to withdraw the petition in order to prosecute his petition for certiorari to this Court. The Court of Appeals permitted withdrawal. Chief Judge Bazelon filed a dissenting opinion in which Circuit Judge Wright joined. 119 U. S. App. D. C., at 395, 343 F. 2d, at 264 (1964). KENT v. UNITED STATES. 551 541 Opinion of the Court. Before the Court of Appeals and in this Court, petitioner’s counsel has urged a number of grounds for reversal. He argues that petitioner’s detention and interrogation, described above, were unlawful. He contends that the police failed to follow the procedure prescribed by the Juvenile Court Act in that they failed to notify the parents of the child and the Juvenile Court itself, note 1, supra; that petitioner was deprived of his liberty for about a week without a determination of probable cause which would have been required in the case of an adult, see note 3, supra; that he was interrogated by the police in the absence of counsel or a parent, cf. Harting v. United States, 111 U. S. App. D. C. 174, 176, 295 F. 2d 161, 163, n. 12 (1961), without warning of his right to remain silent or advice as to his right to counsel, in asserted violation of the Juvenile Court Act and in violation of rights that he would have if he were an adult; and that petitioner was fingerprinted in violation of the asserted intent of the Juvenile Court Act and while unlawfully detained and that the fingerprints were unlawfully used in the District Court proceeding.12 These contentions raise problems of substantial concern as to the construction of and compliance with the Juvenile Court Act. They also suggest basic issues as to the justifiability of affording a juvenile less protection than is accorded to adults suspected of criminal o enses, particularly where, as here, there is an absence o any indication that the denial of rights available to adults was offset, mitigated or explained by action of o overnment, as parens patriae, evidencing the special F Harli/ng v- United States> Hl U. S. App. D. C. 174, 295 iRs (1961); Bynum v- United States, 104 U. S. App. D. C. the fl F 465 (I058). It is not clear from the record whether thos ngeJpnnts used were taken during the detention period or were th . tv W^Ie petitioner was in custody in 1959, nor is it clear Pe itioner s counsel objected to the use of the fingerprints. 552 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. solicitude for juveniles commanded by the Juvenile Court Act. However, because we remand the case on account of the procedural error with respect to waiver of jurisdiction, we do not pass upon these questions.13 It is to petitioner’s arguments as to the infirmity of the proceedings by which the Juvenile Court waived its otherwise exclusive jurisdiction that we address our attention. Petitioner attacks the waiver of jurisdiction on a number of statutory and constitutional grounds. He contends that the waiver is defective because no hearing was held; because no findings were made by the Juvenile Court; because the Juvenile Court stated no reasons for waiver; and because counsel was denied access to the Social Service file which presumably was considered by the Juvenile Court in determining to waive jurisdiction. We agree that the order of the Juvenile Court waiving its jurisdiction and transferring petitioner for trial in the United States District Court for the District of Columbia was invalid. There is no question that the order is reviewable on motion to dismiss the indictment in the District Court, as specified by the Court of Appeals in this case. Kent v. Reid, supra. The issue is the standards to be applied upon such review. We agree with the Court of Appeals that the statute contemplates that the Juvenile Court should have con- 13 Petitioner also urges that the District Court erred in the following respects: (1) It gave the jury a version of the “Allen” charge. See Allen v. United States, 164 U. S. 492. (2) It failed to give an adequate and fair competency hearing. (3) It denied the motion to constitute itself a juvenile court pursuant to D. C. Code §11-914 (1961), now § 11-1553. (Supp. IV, 1965.) (4) It should have granted petitioner’s motion for acquittal on all counts, n. o. v., on the grounds of insanity. We decide none of these claims. KENT v. UNITED STATES. 553 541 Opinion of the Court. siderable latitude within which to determine whether it should retain jurisdiction over a child or—subject to the statutory delimitation 14—should waive jurisdiction. But this latitude is not complete. At the outset, it assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a “full investigation.” Green v. United States, 113 U. S. App. D. C. 348, 308 F. 2d 303 (1962).15 The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached. It does not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the “critically important” question whether a child will be deprived of the special protections and provisions of the Juvenile Court Act.16 It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide—as in this case—that the child will be taken from the Receiving Home for Children 14 The statute is set out at pp. 547-548, supra. 15 What is required before a waiver is, as we have said, 'full investigation.’ ... It prevents the waiver of jurisdiction as a matter of routine for the purpose of easing the docket. It prevents routine waiver in certain classes of alleged crimes. It requires a judgment in each case based on ‘an inquiry not only into the facts of the alleged offense but also into the question whether the parens patriae plan of procedure is desirable and proper in the particular case.’ Pee v. United States, 107 U. S. App. D. C. 47, 50; 274 F- 2d 556, 559 (1959).” Green v. United States, supra, at 350, 308 F. 2d, at 305. 16 See Watkins v. United States, 119 U. S. App. D. C. 409, 413, 343 F. 2d 278, 282 (1964); Black v. United States, 122 U. S. App. D- C. 393, 355 F. 2d 104 (1965). 554 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence17 instead of treatment for a maximum, in Kent’s case, of five years, until he is 21.18 We do not consider whether, on the merits, Kent should have been transferred; but there is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults, with respect to a similar issue, would proceed in this manner. It would be extraordinary if society’s special concern for children, as reflected in the District of Columbia’s Juvenile Court Act, permitted this procedure. We hold that it does not. 1. The theory of the District’s Juvenile Court Act, like that of other jurisdictions,19 is rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens 17 D. C. Code §22-2801 (1961) fixes the punishment for rape at 30 years, or death if the jury so provides in its verdict. The maximum punishment for housebreaking is 15 years, D. C. Code §22-1801 (1961); for robbery it is also 15 years, D. C. Code §22-2901 (1961). 18 The jurisdiction of the Juvenile Court over a child ceases when he becomes 21. D. C. Code § 11-907 (1961), now § 11-1551 (Supp. IV, 1965). 19 All States have juvenile court systems. A study of the actual operation of these systems is contained in Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 Harv. L. Rev. 775 (1966). KENT v. UNITED STATES. 555 541 Opinion of the Court. patriae rather than prosecuting attorney and judge.20 But the admonition to function in a “parental” relationship is not an invitation to procedural arbitrariness. 2. Because the State is supposed to proceed in respect of the child as parens patriae and not as adversary, courts have relied on the premise that the proceedings are “civil” in nature and not criminal, and have asserted that the child cannot complain of the deprivation of important rights available in criminal cases. It has been asserted that he can claim only the fundamental due process right to fair treatment.21 For example, it has been held that he is not entitled to bail; to indictment by grand jury; to a speedy and public trial; to trial by jury; to immunity against self-incrimination; to confrontation of his accusers; and in some jurisdictions (but not in the District of Columbia, see Shioutakon v. District of Columbia, 98 U. S. App. D. C. 371, 236 F. 2d 666 (1956), and Black v. United States, supra) that he is not entitled to counsel.22 While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults.23 There is much evidence that some juvenile courts, including that of the District of Columbia, lack See Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis. L. Rev. 7. 21 Pee v. United States, 107 U. S. App. D. C. 47, 274 F. 2d 556 (1959). 22 See Pee v. United States, supra, at 54, 274 F. 2d, at 563; aulsen, Fairness to the Juvenile Offender, 41 Minn. L. Rev. 547 (1957). 23 Cf. Harting v. United States, 111 U. S. App. D. C. 174, 177, 295 F. 2d 161, 164 (1961). 556 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.24 This concern, however, does not induce us in this case to accept the invitation25 to rule that constitutional guaranties which would be applicable to adults charged with the serious offenses for which Kent was tried must be applied in juvenile court proceedings concerned with allegations of law violation. The Juvenile Court Act and the decisions of the United States Court of Appeals for the District of Columbia Circuit provide an adequate basis for decision of this case, and we go no further. 3. It is clear beyond dispute that the waiver of jurisdiction is a “critically important” action determining vitally important statutory rights of the juvenile. The Court of Appeals for the District of Columbia Circuit has so held. See Black v. United States, supra; Watkins v. United States, 119 U. S. App. D. C. 409, 343 F. 2d 278 (1964). The statutory scheme makes this plain. The Juvenile Court is vested with “original and exclusive jurisdiction” of the child. This jurisdiction confers special rights and immunities. He is, as specified by the statute, shielded from publicity. He may be confined, but with rare exceptions he may not be jailed along with adults. He may be detained, but only until he is 21 years of age. The court is admonished by the statute to give preference to retaining the child in the custody of his parents “unless his welfare and the safety and protec- 24 See Handler, op. cit. supra, note 20; Note, supra, note 19; materials cited in note 5, supra. 25 See brief of amicus curiae. KENT v. UNITED STATES. 557 541 Opinion of the Court. tion of the public can not be adequately safeguarded without . . . removal.” The child is protected against consequences of adult conviction such as the loss of civil rights, the use of adjudication against him in subsequent proceedings, and disqualification for public employment. D. C. Code 11-907, 11-915, 11-927, 11-929 (1961).26 The net, therefore, is that petitioner—then a boy of 16—was by statute entitled to certain procedures and benefits as a consequence of his statutory right to the “exclusive” jurisdiction of the Juvenile Court. In these circumstances, considering particularly that decision as to waiver of jurisdiction and transfer of the matter to the District Court was potentially as important to petitioner as the difference between five years’ confinement and a death sentence, we conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court’s decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.27 The Court of Appeals in this case relied upon Wilhite v. United States, 108 U. S. App. D. C. 279, 281 F. 2d 642 (1960). In that case, the Court of Appeals held, for purposes of a determination as to waiver of jurisdiction, 26 These are now, without substantial changes, §§ 11-1551,16-2307, 16-2308, 16-2313, 11-1586 (Supp. IV, 1965). 7 While we “will not ordinarily review decisions of the United States Court of Appeals [for the District of Columbia Circuit] which are based upon statutes . . . limited [to the District] . . . ,” Dei Vecchio v. Bowers, 296 U. S. 280, 285, the position of that c°urt, as we discuss infra, is self-contradictory. Nor have we deerred to decisions on local law where to do so would require adjudication of difficult constitutional questions. See District of Columbia v. Little, 339 U. S. 1. 558 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. that no formal hearing is required and that the “full investigation” required of the Juvenile Court need only be such “as is needed to satisfy that court ... on the question of waiver.” 28 (Emphasis supplied.) The authority of Wilhite, however, is substantially undermined by other, more recent, decisions of the Court of Appeals. In Black v. United States, decided by the Court of Appeals on December 8, 1965, the court29 held that assistance of counsel in the “critically important” determination of waiver is essential to the proper administration of juvenile proceedings. Because the juvenile was not advised of his right to retained or appointed counsel, the judgment of the District Court, following waiver of jurisdiction by the Juvenile Court, was reversed. The court relied upon its decision in Shioutakon n. District of Columbia, 98 U. S. App. D. C. 371, 236 F. 2d 666 (1956), in which it had held that effective assistance of counsel in juvenile court proceedings is essential. See also McDaniel v. Shea, 108 U. S. App. D. C. 15, 278 F. 2d 460 (1960). In Black, the court referred to the Criminal Justice Act, enacted four years after Shioutakon, in which Congress provided for the assistance of counsel “in proceedings before the juvenile court of the District of Columbia.” D. C. Code § 2-2202 (1961). The court held that “The need is even greater in the adjudication of waiver [than in a case like Shioutakon] since it contemplates the imposition of criminal sanctions.” 122 U. S. App. D. C., at 395, 355 F. 2d, at 106. In Wat kins v. United States, 119 U. S. App. D. C. 409, 343 F. 2d 278 (1964), decided in November 1964, the 28 The panel was composed of Circuit Judges Miller, Fahy and Burger. Judge Fahy concurred in the result. It appears that the attack on the regularity of the waiver of jurisdiction was made 17 years after the event, and that no objection to waiver had been made in the District Court. 29 Bazelon, C. J., and Fahy and Leventhal, JJ. KENT v. UNITED STATES. 559 541 Opinion of the Court. Juvenile Court had waived jurisdiction of appellant who was charged with housebreaking and larceny. In the District Court, appellant sought disclosure of the social record in order to attack the validity of the waiver. The Court of Appeals held that in a waiver proceeding a juvenile’s attorney is entitled to access to such records. The court observed that “All of the social records concerning the child are usually relevant to waiver since the Juvenile Court must be deemed to consider the entire history of the child in determining waiver. The relevance of particular items must be construed generously. Since an attorney has no certain knowledge of what the social records contain, he cannot be expected to demonstrate the relevance of particular items in his request. “The child’s attorney must be advised of the information upon which the Juvenile Court relied in order to assist effectively in the determination of the waiver question, by insisting upon the statutory command that waiver can be ordered only after ‘full investigation,’ and by guarding against action of the Juvenile Court beyond its discretionary authority.” 119 U. S. App. D. C., at 413, 343 F. 2d, at 282. The court remanded the record to the District Court for a determination of the extent to which the records should be disclosed. The Court of Appeals’ decision in the present case was handed down on October 26, 1964, prior to its decisions in Black and Watkins. The Court of Appeals assumed that since petitioner had been a probationer of the Juvenile Court for two years, that court had before it sufficient evidence to make an informed judgment. It therefore concluded that the statutory requirement of a “full investigation” had been met. It noted the absence of 560 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. “a specification by the Juvenile Court Judge of precisely why he concluded to waive jurisdiction.” 119 U. S. App. D. C., at 384, 343 F. 2d, at 253. While it indicated that “in some cases at least” a useful purpose might be served “by a discussion of the reasons motivating the determination,” id., at 384, 343 F. 2d, at 253, n. 6, it did not conclude that the absence thereof invalidated the waiver. As to the denial of access to the social records, the Court of Appeals stated that “the statute is ambiguous.” It said that petitioner’s claim, in essence, is “that counsel should have the opportunity to challenge them, presumably in a manner akin to cross-examination.” Id., at 389, 343 F. 2d, at 258. It held, however, that this is “the kind of adversarial tactics which the system is designed to avoid.” It characterized counsel’s proper function as being merely that of bringing forward affirmative information which might help the court. His function, the Court of Appeals said, “is not to denigrate the staff’s submissions and recommendations.” Ibid. Accordingly, it held that the Juvenile Court had not abused its discretion in denying access to the social records. We are of the opinion that the Court of Appeals misconceived the basic issue and the underlying values in this case. It did note, as another panel of the same court did a few months later in Black and Watkins, that the determination of whether to transfer a child from the statutory structure of the Juvenile Court to the criminal processes of the District Court is “critically important.” We hold that it is, indeed, a “critically important” proceeding. The Juvenile Court Act confers upon the child a right to avail himself of that court’s “exclusive” jurisdiction. As the Court of Appeals has said, “[I]t is implicit in [the Juvenile Court] scheme that non-criminal treatment is to be the rule—and the adult criminal treatment, the exception which must be gov- KENT v. UNITED STATES. 561 541 Opinion of the Court. erned by the particular factors of individual cases.” Harling v. United States, 111 U. S. App. D. C. 174, 177-178, 295 F. 2d 161, 164-165 (1961). Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not “assume” that there are adequate reasons, nor may it merely assume that “full investigation” has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of “full investigation” has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review. Correspondingly, we conclude that an opportunity for a hearing which may be informal, must be given the child prior to entry of a waiver order. Under Black, the child is entitled to counsel in connection with a waiver proceeding, and under Watkins, counsel is entitled to see t e child s social records. These rights are meaningless—an illusion, a mockery—unless counsel is given an opportunity to function. The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice. Appointment of counsel without affording an opportunity for earing on a “critically important” decision is tanta-ount to denial of counsel. There is no justification 562 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. for the failure of the Juvenile Court to rule on the motion for hearing filed by petitioner’s counsel, and it was error to fail to grant a hearing. We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing ; but we do hold that the hearing must measure up to the essentials of due process and fair treatment. Pee v. United States, 107 U. S. App. D. C. 47, 50, 274 F. 2d 556, 559 (1959). With respect to access by the child’s counsel to the social records of the child, we deem it obvious that since these are to be considered by the Juvenile Court in making its decision to waive, they must be made available to the child’s counsel. This is what the Court of Appeals itself held in Watkins. There is no doubt as to the statutory basis for this conclusion, as the Court of Appeals pointed out in Watkins. We cannot agree with the Court of Appeals in the present case that the statute is “ambiguous.” The statute expressly provides that the record shall be withheld from “indiscriminate” public inspection, “except that such records or parts thereof shall be made available by rule of court or special order of court to such persons ... as have a legitimate interest in the protection ... of the child . . . .” D. C. Code § 11-929 (b) (1961), now § 11-1586 (b) (Supp. IV, 1965). (Emphasis supplied.)30 The Court of Appeals has held in Black, and we agree, that counsel must be afforded to the child in waiver proceedings. Counsel, therefore, 30 Under the statute, the Juvenile Court has power by rule or order, to subject the examination of the social records to conditions which will prevent misuse of the information. Violation of any such rule or order, or disclosure of the information “except for purposes for which . . . released,” is a misdemeanor. D. C. Code § 11-929 (1961), now, without substantial change, § 11-1586 (Supp. IV, 1965). KENT v. UNITED STATES. 563 541 Opinion of the Court. have a “legitimate interest” in the protection of the child, and must be afforded access to these records.31 We do not agree with the Court of Appeals’ statement, attempting to justify denial of access to these records, that counsel’s role is limited to presenting “to the court anything on behalf of the child which might help the court in arriving at a decision; it is not to denigrate the staff’s submissions and recommendations.” On the contrary, if the staff’s submissions include materials which are susceptible to challenge or impeachment, it is precisely the role of counsel to “denigrate” such matter. There is no irrebuttable presumption of accuracy attached to staff reports. If a decision on waiver is “critically important” it is equally of “critical importance” that the material submitted to the judge—which is protected by the statute only against “indiscriminate” inspection—be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise. The Juvenile Court is governed in this respect by the established principles which control courts and quasi-judicial agencies of the Government. For the reasons stated, we conclude that the Court of ppeals and the District Court erred in sustaining the validity of the waiver by the Juvenile Court. The Government urges that any error committed by the Juvenile the C°Urt °f APPeak seems to have permitted o mg of some portions of the social record from examination J petltloner’s counsel. To the extent that Watkins is inconsistent the standard which we state, it cannot be considered as controlling. 564 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. Court was cured by the proceedings before the District Court. It is true that the District Court considered and denied a motion to dismiss on the grounds of the invalidity of the waiver order of the Juvenile Court, and that it considered and denied a motion that it should itself, as authorized by statute, proceed in this case to “exercise the powers conferred upon the juvenile court.” D. C. Code § 11-914 (1961), now § 11-1553 (Supp. IV, 1965). But we agree with the Court of Appeals in Black, that “the waiver question was primarily and initially one for the Juvenile Court to decide and its failure to do so in a valid manner cannot be said to be harmless error. It is the Juvenile Court, not the District Court, which has the facilities, personnel and expertise for a proper determination of the waiver issue.” 122 U. S. App. D. C., at 396, 355 F. 2d, at 107.32 Ordinarily we would reverse the Court of Appeals and direct the District Court to remand the case to the Juvenile Court for a new determination of waiver. If on remand the decision were against waiver, the indictment in the District Court would be dismissed. See Black v. United States, supra. However, petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him. In view of the unavailability of a redetermination of the waiver question by the Juvenile Court, it is urged by petitioner that the conviction should be vacated and the indictment dismissed. In the circumstances of this case, and in light of the remedy which the Court of Appeals fashioned in 32 It also appears that the District Court requested and obtained the Social Sendee file and the probation staff’s report of September 8, 1961, and that these were made available to petitioner’s counsel. This did not cure the error of the Juvenile Court. Perhaps the point of it is that it again illustrates the maxim that while nondisclosure may contribute to the comfort of the staff, disclosure does not cause heaven to fall. KENT v. UNITED STATES. 565 541 Appendix to opinion of the Court. Black, supra, we do not consider it appropriate to grant this drastic relief.33 Accordingly, we vacate the order of the Court of Appeals and the judgment of the District Court and remand the case to the District Court for a hearing de novo on waiver, consistent with this opinion.34 If that court finds that waiver was inappropriate, petitioner’s conviction must be vacated. If, however, it finds that the waiver order was proper when originally made, the District Court may proceed, after consideration of such motions as counsel may make and such further proceedings, if any, as may be warranted, to enter an appropriate judgment. Cf. Black v. United States, supra. Reversed and remanded. APPENDIX TO OPINION OF THE COURT. Policy Memorandum No. 7, November 30,1959. The authority of the Judge of the Juvenile Court of the District of Columbia to waive or transfer jurisdiction to the U. S. District Court for the District of Columbia is contained in the Juvenile Court Act (§ 11-914 D. C. Code, 1951 Ed.). This section permits the Judge to waive jurisdiction “after full investigation” in the case of any child “sixteen years of age or older [who is] charged with an offense which would amount to a felony in the case of an adult, or any child charged with an 33 Petitioner is in St. Elizabeths Hospital for psychiatric treatment as a result of the jury verdict on the rape charges. 34 We do not deem it appropriate merely to vacate the judgment and remand to the Court of Appeals for reconsideration of its present decision in light of its subsequent decisions in Watkins and Black, supra. Those cases were decided by different panels of the Court of Appeals from that which decided the present case, and in view of our grant of certiorari and of the importance of the issue, we consider it necessary to resolve the question presented instead ° leaving it open for further consideration by the Court of Appeals. 566 383 U. S. OCTOBER TERM, 1965. Appendix to opinion of the Court. offense which if committed by an adult is punishable by death or life imprisonment.” The statute sets forth no specific standards for the exercise of this important discretionary act, but leaves the formulation of such criteria to the Judge. A knowledge of the Judge’s criteria is important to the child, his parents, his attorney, to the judges of the U. S. District Court for the District of Columbia, to the United States Attorney and his assistants, and to the Metropolitan Police Department, as well as to the staff of this court, especially the Juvenile Intake Section. Therefore, the Judge has consulted with the Chief Judge and other judges of the U. S. District Court for the District of Columbia, with the United States Attorney, with representatives of the Bar, and with other groups concerned and has formulated the following criteria and principles concerning waiver of jurisdiction which are consistent with the basic aims and purpose of the Juvenile Court Act. An offense falling within the statutory limitations (set forth above) will be waived if it has prosecutive merit and if it is heinous or of an aggravated character, or— even though less serious—if it represents a pattern of repeated offenses which indicate that the juvenile may be beyond rehabilitation under Juvenile Court procedures, or if the public needs the protection afforded by such action. The determinative factors which will be considered by the Judge in deciding whether the Juvenile Court’s jurisdiction over such offenses will be waived are the following: 1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver. KENT v. UNITED STATES. 567 541 Appendix to opinion of the Court. 2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner. 3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted. 4. The prosecutive merit of the complaint, i. e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney). 5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults who will be charged with a crime in the U. S. District Court for the District of Columbia. 6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living. 7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions. 8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court. It will be the responsibility of any officer of the Court’s staff assigned to make the investigation of any complaint in which waiver of jurisdiction is being considered to develop fully all available information which may bear upon the criteria and factors set forth above. Although not all such factors will be involved in an individual case, the Judge will consider the relevant factors in a 568 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. specific case before reaching a conclusion to waive juvenile jurisdiction and transfer the case to the U. S. District Court for the District of Columbia for trial under the adult procedures of that Court. Mr. Justice Stewart, with whom Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White join, dissenting. This case involves the construction of a statute applicable only to the District of Columbia. Our general practice is to leave undisturbed decisions of the Court of Appeals for the District of Columbia Circuit concerning the import of legislation governing the affairs of the District. General Motors Corp. v. District of Columbia, 380 U. S. 553, 556. It appears, however, that two cases decided by the Court of Appeals subsequent to its decision in the present case may have considerably modified the court’s construction of the statute. Therefore, I would vacate this judgment and remand the case to the Court of Appeals for reconsideration in the light of its subsequent decisions, Watkins v. United States, 119 U. S. App. D. C. 409, 343 F. 2d 278, and Black v. United States, 122 U. S. App. D. C. 393, 355 F. 2d 104. MALAT v. RIDDELL. 569 Per Curiam. MALAT et ux. v. RIDDELL, DISTRICT DIRECTOR OF INTERNAL REVENUE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 487. Argued March 3, 1966.—Decided March 21, 1966. Upon the sale of real estate which had been acquired by a joint venture in which petitioners participated, petitioners reported the profits therefrom as capital gains. Respondent argued that the venture had a dual purpose, to develop the property for rental or to sell it, and that the profit was taxable as ordinary income. The District Court ruled that petitioners failed to establish that the property was not held primarily for sale to customers in the ordinary course of business, and that the profits were not capital gains under 26 U. S. C. § 1221 (1). The Court of Appeals affirmed. Respondent urges the construction of “primarily” as meaning that a purpose may be “primary” if it is a “substantial” one. Held: The word “primarily,” as used in § 1221 (1), means “of first importance” or “principally.” 347 F. 2d 23, vacated and remanded. George T. Altman argued the cause and filed briefs for petitioners. Jack S. Levin argued the cause for respondent. With him on the brief were Solicitor General Marshall, Acting Assistant Attorney General Roberts, Melva M. Graney and Carolyn R. Just. Per Curiam. Petitioner1 was a participant in a joint venture which acquired a 45-acre parcel of land, the intended use for which is somewhat in dispute. Petitioner contends that the venturers’ intention was to develop and operate an apartment project on the land; the respondent’s posi- 1 The taxpayer and his wife who filed a joint return are the petitioners, but for simplicity are referred to throughout as “petitioner.” 570 OCTOBER TERM, 1965. Per Curiam. 383 U. S. tion is that there was a “dual purpose” of developing the property for rental purposes or selling, whichever proved to be the more profitable. In any event, difficulties in obtaining the necessary financing were encountered, and the interior lots of the tract were subdivided and sold. The profit from those sales was reported and taxed as ordinary income. The joint venturers continued to explore the possibility of commercially developing the remaining exterior parcels. Additional frustrations in the form of zoning restrictions were encountered. These difficulties persuaded petitioner and another of the joint venturers of the desirability of terminating the venture; accordingly, they sold out their interests in the remaining property. Petitioner contends that he is entitled to treat the profits from this last sale as capital gains; the respondent takes the position that this was “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business,” 2 and thus subject to taxation as ordinary income. The District Court made the following finding: “The members of [the joint venture], as of the date the 44.901 acres were acquired, intended either to sell the property or develop it for rental, depending upon which course appeared to be most profitable. The venturers realized that they had made a good purchase price-wise and, if they were unable to obtain acceptable construction financing or rezoning . . . which would be prerequisite to commercial development, they would sell the property 2 Internal Revenue Code of 1954, § 1221 (1), 26 U. S. C. § 1221 (1): “For purposes of this subtitle, the term ‘capital asset’ means property held by the taxpayer (whether or not connected with his trade or business), but does not include— “(1) . . . property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.” MALAT v. RIDDELL. 571 569 Per Curiam. in bulk so they wouldn’t get hurt. The purpose of either selling or developing the property continued during the period in which [the joint venture] held the property.” The District Court ruled that petitioner had failed to establish that the property was not held primarily for sale to customers in the ordinary course of business, and thus rejected petitioner’s claim to capital gain treatment for the profits derived from the property’s resale. The Court of Appeals affirmed, 347 F. 2d 23. We granted certiorari (382 U. S. 900) to resolve a conflict among the courts of appeals3 with regard to the meaning of the term “primarily” as it is used in § 1221 (1) of the Internal Revenue Code of 1954. The statute denies capital gain treatment to profits reaped from the sale of “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.” (Emphasis added.) The respondent urges upon us a construction of “primarily” as meaning that a purpose may be “primary” if it is a “substantial” one. As we have often said, “the words of statutes—including revenue acts—should be interpreted where possible in their ordinary, everyday senses.” Crane v. Commissioner, 331 U. S. 1, 6. And see Hanover Bank v. Commissioner, 369 U. S. 672, 687-688; Commissioner v. Korell, 339 U. S. 619, 627-628. Departure from a literal reading of statutory language may, on occasion, be indicated by relevant internal evidence of the statute itself 3 Compare Rollingwood Corp. v. Commissioner, 190 F. 2d 263, -66 (C. A. 9th Cir.); American Can Co. v. Commissioner, 317 F. 2d 4, 605 (C. A. 2d Cir.), with United States v. Bennett, 186 F. 2d , 410-411 (C. A. 5th Cir.); Municipal Bond Corp. v. Commissioner, 341 F. 2d 683, 688-689 (C. A. Sth Cir.). Cf. Recordak Corp. v. United States, 163 Ct. Cl. 294, 300-301, 325 F. 2d 460, 463-464. 572 OCTOBER TERM, 1965. Per Curiam. 383 U. S. and necessary in order to effect the legislative purpose. See, e. g., Board of Governors v. Agnew, 329 U. S. 441, 446-448. But this is not such an occasion. The purpose of the statutory provision with which we deal is to differentiate between the “profits and losses arising from the everyday operation of a business” on the one hand (Com Products Co. v. Commissioner, 350 U. S. 46, 52) and “the realization of appreciation in value accrued over a substantial period of time” on the other. (Commissioner v. Gillette Motor Co., 364 U. S. 130,134.) A literal reading of the statute is consistent with this legislative purpose. We hold that, as used in § 1221 (1), “primarily” means “of first importance” or “principally.” Since the courts below applied an incorrect legal standard, we do not consider whether the result would be supportable on the facts of this case had the correct one been applied. We believe, moreover, that the appropriate disposition is to remand the case to the District Court for fresh fact-findings, addressed to the statute as we have now construed it. Vacated and remanded. Mr. Justice Black would affirm the judgments of the District Court and the Court of Appeals. Mr. Justice White took no part in the decision of this case. DECISIONS PER CURIAM. 573 383U.S. March 21, 1966. CROSS v. CALIFORNIA. APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT. No. 1161, Mise. Decided March 21, 1966. Appeal dismissed. Per Curiam. The appeal is dismissed for want of a substantial federal question. MOTORLEASE CORP. v. UNITED STATES. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 24. Decided March 21, 1966. Certiorari granted; 334 F. 2d 617, reversed. Ellis Lyons for petitioner. Solicitor General Cox for the United States. Per Curiam. The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Second Circuit is reversed. Fribourg Navigation Co., Inc. v. Commissioner of Internal Revenue, ante, p. 272. Mr. Justice Black, Mr. Justice Clark and Mr. Justice White dissent for the reasons stated in the dissenting opinion of Mr. Justice White in Fribourg Navi-Qutwn Co., Inc. v. Commissioner of Internal Revenue, supra. 574 OCTOBER TERM, 1965. March 21, 1966. 383 U.S. BRIDGES v. CITY OF BILOXI, MISSISSIPPI. APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. No. 923. Decided March 21, 1966. 253 Miss. 812,178 So. 2d 683, appeal dismissed. Upton Sisson and Forrest B. Jackson for appellant. L. Arnold Pyle and Albert Sidney Johnston, Jr., for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. KUKICH et al. v. SERBIAN EASTERN ORTHODOX CHURCH OF PITTSBURGH et al. APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. No. 931. Decided March 21, 1966. 418 Pa. 634, 213 A. 2d 80, appeal dismissed and certioraii denied. Harry Alan Sherman for appellants. Harry Edward Leas 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 petition for a writ of certiorari, certiorari is denied. Mr. Justice Douglas is of the opinion that in treating the papers as a petition for a writ of certiorari, certiorari should be granted. DECISIONS PER CURIAM. 575 383 U. S. March 21, 1966. COUNTY BOARD OF ELECTION OF MONROE COUNTY, NEW YORK, et al. v. UNITED STATES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK. No. 1040. Decided March 21, 1966. 248 F. Supp. 316, appeal dismissed. Louis J. Lefkowitz, Attorney General of New York, Jean M. Coon, Assistant Attorney General, Ruth Kessler Toch, Acting Solicitor General, and William A. Stevens for appellants. Solicitor General Marshall for the United States. Per Curiam. The appeal is dismissed for want of jurisdiction. Swift & Co. v. Wickham, 382 U. S. Ill; Pennsylvania Public Utility Commission v. PennsyIvania Railroad Co., 382 U. S. 281. PUGACH v. NEW YORK. appeal from the court of APPEALS OF NEW YORK. No. 131, Mise. Decided March 21, 1966. Appeal dismissed. Petitioner pro se. Isidore Dollinger and Bertram R. Gelfand for respondent. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. 576 OCTOBER TERM, 1965. Syllabus. 383 U.S. INTERSTATE COMMERCE COMMISSION v. ATLANTIC COAST LINE R. CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIIT?H CIRCUIT. No. 14. Argued December 6, 1965.—Decided March 22, 1966. Upon a complaint by Thomson Phosphate Company the ICC found that rates on shipments by Thomson on respondent railroads were unjust and unreasonable and that the shipper was entitled to reparations. The respondents refused to certify Thomson’s statements showing shipments made and then the ICC determined the amount of reparations due and entered an order directing payment. Respondents refused to comply and brought this suit in the District Court for the Middle District of Florida under § 17 (9) of the Interstate Commerce Act to enjoin and annul the ICC orders. Thereafter Thomson brought suit under § 16 (2) of the Act in the District Court for the Southern District of New York to enforce the ICC’s reparation order, but that suit was stayed pending disposition of the carrier-initiated action. The District Court in Florida denied the ICC’s motion to dismiss which alleged that the carriers’ sole remedy was to defend the suit brought by the shipper under §16(2). The court set aside the ICC order on the ground that Thomson’s claim was barred by the statute of limitations. The Court of Appeals sustained the District Court’s jurisdiction and affirmed. Held: Carriers may obtain full review of ICC reparation orders by defending actions brought by shippers under § 16 (2) of the Act to enforce such orders. The policy underlying that section precludes the carriers from obtaining review in a forum other than that chosen by the shippers, but there is no obstacle to a cross-proceeding under § 17 (9) brought by the carriers in that forum. Pp. 579-606. (a) The carriers have ample opportunity to secure review of the ICC’s orders through defense of the shipper’s § 16 (2) enforcement action. Pennsylvania R. Co. v. United States, 363 U. S. 202, and United States v. Interstate Commerce Comm’n, 337 U. S. 426, distinguished, as those cases dealt with situations where the challenged orders could only be reviewed in § 17 (9) proceedings. Pp. 589-595. (b) To effectuate the policy of encouraging prompt payment of reparation awards expressed in § 16 (2) Congress provided the ICC v. ATLANTIC COAST LINE R. CO. 577 576 Opinion of the Court. shipper with certain procedural and substantive benefits, particularly choice of venue, which would not be available in an action instituted by the carrier under § 17 (9). Pp. 595-598. (c) Limiting review of the ICC’s orders to § 16 (2) enforcement actions would not be likely to result in disparity of treatment of shippers. Pp. 598-602. (d) The language and history of the direct review provisions of § 17 (9) are consistent with limitation of review to the forum selected by the shipper in his enforcement proceeding, and the direct review proceeding may be brought as a cross-action in that forum. Pp. 603-606. 334 F. 2d 46, reversed. Robert W. Ginnane argued the cause for petitioner. With him on the briefs for petitioner and for the United States, as amicus curiae, were Solicitor General Marshall, former Solicitor General Cox, Bruce J. Terris, Leonard S. Goodman and Richard A. Posner. J. Edgar McDonald argued the cause for respondents. With him on the brief were Phil C. Beverly and Urchie B. Ellis. Mr. Justice White delivered the opinion of the Court. This case is before the Court for a determination of when and in what proceedings a common carrier by rail may challenge an order of the Interstate Commerce Commission awarding reparations to a shipper claiming injury because of the carrier’s violation of the Act. A shipper, Thomson Phosphate Company, filed a complaint with the Commission alleging that certain rates charged by respondent railroads were unjust and unreasonable and seeking reimbursement of those transportation charges to the extent they were unlawful. Interstate Commerce Act §§ 8 and 9, 24 Stat. 382, as amended, 49 U. S. C. §§ 8 and 9 (1964 ed.). The Commission sustained the complaint and issued a report finding that 578 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. the assailed rates were unjust and unreasonable and that the shipper was entitled to reparations. Thomson Phosphate Co. v. Atlantic Coast Line R. Co., 303 I. C. C. 25 (Div. 2, 1958). When respondents refused to certify the shipper’s statements showing the shipments made during the period involved, the Commission reopened the proceeding for a determination of the amount of reparations due. After such additional proceedings, the Commission found Thomson was entitled to reparations of $8,889.76 with interest, and an order was entered authorizing and directing respondents to pay such sum by a specified date, later amended to August 28, 1961. 311 I. C. C. 315. Respondents refused to comply with the order and brought suit in the United States District Court for the Middle District of Florida under § 17 (9) of the Interstate Commerce Act, 24 Stat. 385, as amended, 49 U. S. C. § 17 (9), and 28 U. S. C. §§ 1336 and 1398 (1964 ed.) to enjoin, set aside, and annul the orders of the Commission. Respondents claimed, inter alia, that the Commission erred in finding the rates unreasonable and in not finding Thomson’s claims barred by the Act’s limitation provision, Interstate Commerce Act § 16 (3), 24 Stat. 384, as amended, 49 U. S. C. § 16 (3) (1964 ed.). Thomson, which was not a party to the carriers’ action, filed in the Southern District of New York a suit against respondents and other railroads to enforce the Commission’s reparation award pursuant to § 16 (2) of the Interstate Commerce Act, 49 U. S. C. § 16 (2) (1964 ed.). By stipulation, the New York case has been held in abeyance pending the outcome of the Florida case, which is presently before this Court. The Commission moved to dismiss the carriers’ injunction action, contending that reparation orders are not reviewable in such a suit and that the carriers were required to await the shipper’s enforcement action to attack the Commission’s order. The Florida District ICC v. ATLANTIC COAST LINE R. CO. 579 576 Opinion of the Court. Court denied the motion to dismiss and, on the merits, held that Thomson’s claims were barred by limitations. 213 F. Supp. 199. The sole issue raised on appeal was whether the District Court had jurisdiction. The Court of Appeals affirmed, sustaining the jurisdiction of the Florida District Court. 334 F. 2d 46. We granted certiorari because of the importance of this question in the administration of the Act. 379 U. S. 957. We reverse and hold that when the Commission issues a reparation order, hot accompanied by a cease-and-desist order, a carrier may obtain review of the Commission’s order only in the court where the shipper commences its enforcement action—or where the shipper seeks review of the Commission’s order, see Consolo v. Federal Maritime Comm’n, post, p. 607. I. The Interstate Commerce Act contains detailed provisions governing the presentation and adjudication of claims for reparations. Section 8 is the basic provision creating liability and declares that any common carrier by rail which violates the Act “shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation . . . By § 9, the complainant is given the alternatives of seeking such damages by complaint to the Commission, under the procedures established by § 13 ( 1), or of bringing suit in a federal district court, nt the primary jurisdiction doctrine requires initial submission to the Commission of questions that raise “issues of transportation policy which ought to be considered by e Commission in the interests of a uniform and expert * ministration of the regulatory scheme laid down by [the] Act.” United States v. Western Pac. R. Co., 352 U. S. 59, 65; Texas de Pac. R. Co. v. American Tie de imber Co., 234 U. S. 138. Accordingly, a shipper who commences his § 9 reparation proceeding in the District 580 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. Court will nevertheless be required to repair to the Commission for decision of issues, like the reasonableness of rates, which call the primary jurisdiction doctrine into play. When that occurs, the court ordering the reference of such issues to the Commission has exclusive jurisdiction of any civil action to enforce, enjoin, set aside, or annul a Commission order arising out of the referral, 28 U. S. C. § 1336 (b) (1964 ed.), such action to be brought within 90 days of the entry of the Commission’s final order, 28 U. S. C. § 1336 (c) (1964 ed). Our concern here, however, is with the alternative procedure provided in § 9, which involves an initial complaint before the Commission and culminates in the § 16 (2) suit to enforce the Commission’s reparation award. Section 16 (1) provides that if the Commission determines the complainant is entitled to reparations it “shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.” If the carrier fails to comply with the order by the designated time, the shipper then has the right under § 16 (2) to file suit in either federal or state court to enforce the Commission’s reparation award. Moreover, Congress has provided that in such a suit the shipper is to have certain procedural advantages designed to discourage “harassing resistance by a carrier to [the] reparation order.” St. Louis & S. F. R. Co. v. Spiller, 275 U. S. 156, 159; see also Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 433; Baldwin v. Milling Co., 307 U. S. 478. The shipper has a broad choice of venue. If the suit is brought in a federal court, see Lewis-Simas-J ones Co. v. Southern Pac. Co., 283 U. S. 654, 66Ì, the shipper is free from liability for costs, except as they accrue on its appeal, and it may introduce at trial the findings and order of the Commission, which “shall be prima facie evidence of the facts therein stated. . . .” In addition, the shipper is to be allowed ICC V. ATLANTIC COAST LINE R. CO. 581 576 Opinion of the Court. a reasonable attorney’s fee if it prevails, an advantage also accorded under § 8 to shippers who elect to proceed in court in the first instance.1 1 The relevant text of the provisions discussed in text above reads as follows: “§ 8. Liability in damages to persons injured by violation of law. “In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case. “§9. Remedies of persons damaged; election; witnesses. “Any person or persons claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter in any district court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. . . . § 13. Complaints to and investigations by Commission. (1) Complaint to Commission of violation of law by carrier; reparation; investigation. Any person, firm, corporation, company, or association, or any mercantile, agricultural, or manufacturing society or other organization, or any body politic or municipal organization, or any common carrier complaining of anything done or omitted to be done by any common carrier subject to the provisions of this chapter in contravention of the provisions thereof, may apply to said Commission y petition, which shall briefly state the facts; whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint, or to answer the same in writing, within a reasonable 582 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. The Interstate Commerce Act likewise contains general provision for judicial review of Commission orders. Section 17 (9) provides that after an application for time, to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been done, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper. “§ 16. Orders of Commission and enforcement thereof. “(1) Award of damages. “If, after hearing on a complaint made as provided in section 13 of this title, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this chapter for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named. “(2) Proceedings in courts to enforce orders; costs; attorney’s fee. “If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent state of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.” Interstate Commerce Act §§ 8, 9, 13 (1) and 16 (1) and (2), 49 U. S. C. §§ 8, 9,13 (1) and 16 (1) and (2) (1964 ed.). ICC v. ATLANTIC COAST LINE R. CO. 583 576 Opinion of the Court. rehearing, reargument, or reconsideration has been denied or otherwise disposed of, a suit may be brought to enforce, enjoin, suspend, or set aside the Commission decision, order or requirement.2 Jurisdiction of both § 16 (2) and § 17 (9) suits is vested in the federal district courts by 28 U. S. C. § 1336 (a) (1964 ed.). Venue is determined by 28 U. S. C. § 1398 (a) (1964 ed.), which, “except as otherwise provided by law,” limits suits to the judicial district where the party bringing the action has his residence or principal office. But because of the quoted exception, this venue restriction does not apply to suits commenced pursuant to § 16 (2), as that section contains its own venue provision. Procedures for review of Commission orders “other than for the payment of money,” see 28 U. S. C. § 2321 (1964 ed.), are governed by 28 U. S. C. §§2321-2325 (1964 ed.). Such actions must be brought by or against 2 ‘ § 17 (9) Judicial relief from decisions, etc., upon denial or other disposition of application for rehearing, etc. When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual Commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwise disposed of, by the Commission or an appellate division, a suit to enforce, enjoin, suspend, or set aside such decision, order, or require-ment, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.” Interstate Commerce Act § 17 (9), 49 U. S. C. §17 (9) (1964 ed.). This provision was not added until 1940, Transportation Act of 1940, 54 Stat. 916, and is basically a provision requiring exhaustion of administrative remedies prior to resort to the courts. The first provision for direct judicial review of Commission orders appeared m §5 of the Hepburn Act of 1906, 34 Stat. 590, 592, which was phrased in terms of venue only. For ease of reference, we will refer to direct review proceedings as § 17 (9) proceedings. 584 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. the United States, § 2322; the Commission and parties in interest appearing before the Commission may intervene as of right, § 2323; and no interlocutory or permanent injunction restraining enforcement of a Commission order may be granted unless the application is heard and determined by a three-judge district court, § 2325,3 with direct review here, 28 U. S. C. § 1253 (1964 ed.). In 3 The above-described provisions of the Judicial Code read in pertinent part : “§ 1336. Interstate Commerce Commission’s orders. “(a) Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in any part, any order of the Interstate Commerce Commission. “§ 1398. Interstate Commerce Commission’s orders. “(a) Except as otherwise provided by law, any civil action to enforce, suspend or set aside in whole or in part an order of the Interstate Commerce Commission shall be brought only in the judicial district wherein is the residence or principal office of any of the parties bringing such action. “§2321. Procedure generally; process. “The procedure in the district courts in actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures, shall be as provided in this chapter. . . . “§2322. United States as party. “All actions specified in section 2321 of this title shall be brought by or against the United States. “§2323. Duties of Attorney General; intervenors. “The Attorney General shall represent the Government in the actions specified in section 2321 of this title ... in the district courts, and in the Supreme Court of the United States upon appeal from the district courts. “The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any ICC v. ATLANTIC COAST LINE R. CO. 585 576 Opinion of the Court. United States v. Interstate Commerce Comm’n, 337 U. S. 426, however, this Court held that Commission orders which determine in a reparation proceeding that assailed rates are unlawful but do not direct the carrier to cease and desist charging such rates, because the rates have been discontinued, “are not of sufficient public importance to justify the accelerated judicial review procedure,” 337 U. S., at 442. Thus, though the procedures set out in 28 U. S. C. §§ 2321-2325 (1964 ed.) otherwise govern § 17 (9) proceedings to review such orders, § 2325 is not applicable and the matter may be adjudicated by a single judge. Because § 16 (2) actions seek enforcement of an order “for the payment of money,” the abovedescribed procedures do not apply. Section 16 (2) directs that actions thereunder “shall proceed in all respects like other civil suits for damages,” with the exception of the special procedural advantages accorded the shipper to which we have previously referred. II. From the foregoing summary it will be observed that § 16 (2) actions for enforcement of Commission reparation awards and § 17 (9) actions to set aside Commission orders are quite distinct proceedings, with different venue restrictions and different procedures. Moreover, Congress conferred certain procedural advantages on shippers bringing § 16 (2) actions that may well be lost action involving the validity of such order or requirement or any part thereof, and the interest of such party. . . . §2325. Injunctions; three-judge court required. An interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission shall not be granted unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.” 28 U. S. C. §§1336 (a), 1398 (a), 2321-2323, 2325 (1964 ed.). 586 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. or impaired if carriers may attack the Commission’s order in a direct review proceeding pursuant to § 17 (9). Accordingly, we are asked to harmonize the language and purposes of the two provisions.4 At the outset, however, it should be emphasized that we are here concerned with a narrow, though important, category of cases. First, it is conceded that if the Commission’s reparation order is accompanied by a cease-and-desist order, as it usually will be when the proceeding originates before the Commission and the rates or practices under attack continue in use, the carrier may obtain immediate review of the cease-and-desist order pursuant to § 17 (9); and such review will ordinarily determine the validity of the finding of statutory violation on which the reparation order is founded. A Commission cease-and-desist order respecting rates and charges, for example, which may be issued pursuant to the authority granted by § 15 (1) to prescribe just and reasonable rates, subjects the carrier to $5,000 per day penalties for non-compliance, 49 U. S. C. § 16 (8) (1964 ed.), and is typical of orders reviewed in suits to set aside Commission orders since the first such suit, Stickney v. Interstate Commerce Comm’n, 164 F. 638 (C. C. D. Minn.), aff’d, 215 U. S. 98; see also Interstate Commerce Comm’n n. Delaware, L. & W. R. Co., 220 U. S. 235; United States v. Interstate Commerce Comm’n, 337 U. S. 426, 454 (Frankfurter, J., dissenting). Second, even when a cease-and-desist order is not joined with the reparation order, the latter order will be subject to direct review when no other means of securing review is available, re- 4 As is readily apparent from this opinion, the statutory provisions governing this case and the companion case, Consolo, post, are an historical patchwork subject to more than one interpretation. The entire matter is surely ripe for congressional consideration, for it is of continuing significance and the competing considerations of yesterday may not be those of overriding importance today. ICC v. ATLANTIC COAST LINE R. CO. 587 576 Opinion of the Court. gardless of whether review is sought by a shipper, United States v. Interstate Commerce Comm’n, 337 U. S. 426; Console v. Federal Maritime Comm’n, post, p. 607, or the carrier, Pennsylvania R. Co. v. United States, 363 U. S. 202. In the cited cases the party seeking review could not obtain such review in a §16(2) suit, either directly or through interposition of a defense. Thus in United States v. Interstate Commerce Comm’n, supra, the Government filed with the Commission a complaint seeking reparations, but the Commission found the assailed charges did not violate the Act and dismissed the complaint. As there was no award upon which to base a § 16 (2) suit, the United States would have been denied all review had jurisdiction of the § 17 (9) action not been sustained. Similarly, in Consolo v. Federal Maritime Comm’n, post, p. 607, we hold that a shipper may challenge in a direct review proceeding the adequacy of a reparation award, such a challenge being one that could not be pressed in an enforcement action, see Baltimore & Ohio R. Co. v. Brady, 288 U. S. 448, 457-458; D. L. Piazza Co. v. West Coast Line, 210 F. 2d 947 (C. A. 2d Cir. 1954), cert, denied, 348 U. S. 839. Pennsylvania R. Co. v. United States, supra, involved a suit by a carrier in the Court of Claims to collect the charges due under its tariff. The United States defended on the ground that the rates were unreasonable, and the Court of Claims referred that issue to the Commission pursuant to the primary jurisdiction doctrine, United States v. Western Pac. R. Co., 352 U. S. 59, 62-70. The Commission found certain rates unjust and unreasonable, without ordering reparations or issuing a cease-and-desist order, and the carrier filed a § 17 (9) suit in ederal district court to set the order aside. On review of the Court of Claims’ refusal to further suspend its proceedings pending the District Court action, this 588 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. Court held that the carrier was entitled to judicial review of the Commission order, that the Court of Claims had no jurisdiction to afford such review, and that the Court of Claims should therefore have suspended its proceedings. Because of the holding that the Court of Claims could not review the Commission order, failure to sustain the District Court’s jurisdiction of the carrier’s § 17 (9) action would again have precluded judicial review. The essential question in this case is the extent to which United States v. Interstate Commerce Comm’n and Pennsylvania R. Co. v. United States, compel allowance of respondents’ direct review action. The Commission asks us to limit those cases to their facts—situations where judicial review would not have been available if the § 17 (9) suit was not permitted. It argues that sufficient opportunity to obtain review of the Commission’s finding that a statutory violation has occurred is afforded respondents by their right to challenge that determination in defense of Thomson’s § 16 (2) action to enforce the reparation award. If jurisdiction to review in a §17 (9) suit should be sustained, the Commission further contends, shippers will be deprived of many of the advantages bestowed by § 16 (2). And the historical development of § 16 (2) and the direct review proceeding is said to establish that Congress did not contemplate that the carrier could obtain direct review in a case like that at bar and thereby short-circuit the shipper’s suit. Finally, the Commission urges that in reparation cases where the assailed rates are no longer in effect and no cease-and-desist order issues the Commission’s order has little continuing or general significance but is comparable to an adjudication in a private damages action of interest only to the parties involved; therefore, it is appropriate for the order to be defended by the shipper, who is in effect compensated for such defense by the procedural ICC v. ATLANTIC COAST LINE R. CO. 589 576 Opinion of the Court. advantages accorded by § 16 (2), rather than by the United States and the Commission. Respondents argue that, to the contrary, past practice and the decisions of this Court establish that the exclusive method of reviewing Commission findings that a statutory violation has occurred5 is through a § 17 (9) proceeding and that such a finding may not be challenged and is not open to review in a §16(2) action. Respondents also argue that limiting review to the § 16 (2) proceeding would result in disparate treatment of shippers, through conflicting decisions in enforcement suits, and would thus violate the Act’s cardinal principle of uniformity of rates. As will appear more fully below, we take a middle course. We conclude that carriers may obtain full review by defending the § 16 (2). action and that the policy underlying that section precludes the carriers from obtaining review in a forum other than that chosen by the shipper. But we find no obstacle to the carriers’ bringing a § 17 (9) cross-proceeding in the forum selected by the shipper, should they so desire. III. A threshold question is raised by respondents’ contention that the statutory violation issue is not open to review in a §16(2) enforcement action, the Commission’s finding being conclusive on the enforcement court unless set aside ina§17(9) proceeding. If respondents are correct on this point, their § 17 (9) action must be 5 Frequent Commission practice, illustrated by the procedure adopted m the present case, is to separate from the issue of ship-pcr s damages issues respecting the existence of a statutory violation an the availability of statutory defenses such as the statute of imitations defense asserted by respondents and to try the latter ues rst. The core of the dispute here concerns the forum for review of Commission findings on such issues of violation and limitations. 590 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. allowed under even the Commission’s interpretation of United States n. Interstate Commerce Comm’n, 337 U. S. 426, and Pennsylvania R. Co. v. United States, 363 U. S. 202. To support their view of the scope of review in the enforcement action, respondents refer principally to Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247. In that case, a shipper commenced its reparation suit under § § 8 and 9 in a federal district court. This Court held that since the dispute raised “administrative” questions concerning the reasonableness of rates, the primary jurisdiction doctrine required the shipper to proceed first before the Commission. Regarding the weight to be accorded the Commission’s resulting order, the Court said: “Such orders, so far as they are administrative are conclusive, whether they relate to past or present rates, and can be given general and uniform operation, since all shippers, who have been or may be affected by the rate, can take advantage of the ruling and avail themselves of the reparation order. They are quasi-judicial and only prima facie correct in so far as they determine the fact and amount of damage—as to which, since it involves the payment of money and taking of property, the carrier is by § 16 of the act given its day in court and the right to a judicial hearing . . . .” 230 U. S., at 258. Accord, Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U. S. 304. The prima facie evidence provision in § 16 (2), however, draws no express distinction between administrative and quasi-judicial findings of the Commission, and we said of that provision in Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. 412, 430, that “[i]t cuts off no defense [and] interposes no obstacle to a full contestation of all the issues . . . .” See also United States v. Inter- ICC v. ATLANTIC COAST LINE R. CO. 591 576 Opinion of the Court. state Commerce Comm’n, 337 U. S. 426, 435 (§16 (2) proceedings afford “railroads complete judicial review of adverse reparation orders”). Moreover, in one of the earliest cases under the Hepburn Act, the Court reviewed the question of statutory violation in a §16(2) case, concluded that the legal theory applied by the Commission was erroneous, and set aside the Commission’s determination that the disputed rates were unreasonable. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297. See also Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370. The seemingly contradictory statements in the contemporaneous Mitchell Coal and Meeker decisions require explanation, which we believe can be found in the general course of decisions in that era respecting the scope of review of Commission orders. From our brief résumé of the Court’s opinion in Mitchell Coal it should be immediately apparent that the case did not, strictly speaking, require the determination of the scope of judicial review in § 16 (2) enforcement actions. The proceeding under review had been commenced in court pursuant to § 9 rather than § 16 and no Commission order had yet been entered. The question directly in issue concerned the applicability of the primary jurisdiction doctrine to cases involving discontinued, rather than present, rates. Initially formulated in cases arising under the Interstate Commerce Act, the primary jurisdiction doctrine was premised in the early cases on the policy of the Act of assuring uniform rates. The Court reasoned that many questions arising under the Act, such as whether rates were unreasonable or discriminatory, were essentially questions of fact particularly appropriate for determination by an expert Commission. If shippers could challenge the filed rates by proceedings before a court, without prior resort to the Commission, different conclusions might be reached by different courts; and the pre- 592 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. vailing shippers would thereby obtain a rate preference as compared to unsuccessful shippers, which would violate the principle of uniform rates. See, e. g., Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440-441; Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 493-495; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 255-260. Of course a preliminary determination by the Commission would have little effect in achieving uniformity if its determination were subject to de novo review, and it was for that reason that the Court pointed out in Mitchell Coal the “conclusive” effect that would be accorded “administrative” findings of the Commission in any ensuing § 16 action. But other decisions rendered by the Court during the same period indicate that it was not only in § 16 proceedings that the Commission findings would be conclusive, in the sense the Court was actually using that term. Under the original Act, failure to comply with any order of the Commission did not in itself entail any penalty. Commission orders were judicially enforceable at the instance of the Commission or any party in interest, and the Act provided that in an enforcement action “the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated.’ Interstate Commerce Act, § 16, 24 Stat. 384 (1887), as amended, 25 Stat. 860 (1889). Though retaining the prima facie evidence provision for actions on reparation awards, the Hepburn Act of 1906 included no provision respecting the weight to be given Commission findings in nonreparation cases. Section 15 of the amended Act, however, made Commission orders, except orders for the payment of money, self-enforcing for purposes of incurring liability for penalties for noncompliance, unless such orders had been suspended or set aside by a court of competent jurisdiction. In Interstate Commerce ICC v. ATLANTIC COAST LINE R. CO. 593 576 Opinion of the Court. Common v. Illinois Central R. Co., 215 U. S. 452, a suit to set aside a cease-and-desist order, the changes effected by the Hepburn Act in making Commission orders self-enforcing were interpreted as reducing the scope of judicial review from that prevailing when Commission orders were only prima facie evidence. The Court stated it could consider whether the Commission action exceeded constitutional power or right, whether the administrative order was within the scope of authority delegated, and whether the exercise of authority was reasonable, but it could not “usurp merely administrative functions by setting aside a lawful administrative order upon our conception as to whether the administrative power has been wisely exercised. Power to make the order and not the mere expediency or wisdom of having made it, is the question.” 215 U. S., at 470. Through frequent repetition, see Interstate Commerce Comm’n v. Union Pac. R. Co., 222 U. S. 541, 547-548; Procter & Gamble Co. v. United States, 225 U. S. 282, 297-298, the principles elaborated in Illinois Central gradually became restated as a doctrine “that the findings of the Commission were made not merely prima facie but conclusively correct in case of judicial review, except to the extent pointed out in the Illinois Central and other cases . . . ,” United States v. Louisville & Nashville R. Co., 235 U. S. 314, 320. Accord, Central R. Co. v. United States, 257 U. S. 247, 256-257; United States v. Illinois Central R. Co., 263 U. S. 515, 525-526 and n. 7. See generally, Rochester Tel. Corp. v. United States, 307 U. S. 125, 139-140. By a parallel development, the Court placed increasing reliance in primary jurisdiction cases on the conclusive” effect of Commission orders as a factor demonstrating that the requirement of preliminary resort to the Commission on administrative questions would indeed further the statutory policy of uniform treatment. Compare Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 594 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. 215 U. S. 481, 494, with Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 258, quoted, supra, p. 590. When Mitchell Coal and Meeker are read together against the background of the Illinois Central and Louisville & Nashville cases it becomes clear that Commission orders are fully reviewable in § 16 (2) suits, but Commission findings on questions required under the primary jurisdiction doctrine to be determined first by the Commission are conclusive in the same sense that such findings would be conclusive in suits to set aside the Commission’s order. That is, findings on primary jurisdiction issues are to be reviewed by the Court on the administrative record under the familiar standards elaborated in direct review proceedings, while findings on other questions are subject to review under the prima facie evidence provision of § 16 (2), with the statutory rights of introducing evidence not before the Commission and obtaining a jury determination of disputed issues of fact.6 Such an interpretation of § 16 (2)’s prima facie evidence provision is required if that provision is to be consonant with the primary jurisdiction doctrine. That interpretation seems to have been applied by the Court in Pennsylvania R. Co. v. Weber, 257 U. S. 85, 90-91 ; Louisville Æ Nashville R. Co. v. Sloss-Shef- 6 Section 16 (2), of course, does not limit the carrier to introducing opposing evidence to rebut the prima facie effect of the Commission’s order. It may also challenge the admissibility of the order on the grounds, for example, that the Commission did not afford the carrier a fair hearing or that the order was not based upon substantial evidence, Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117,. 126. But if a Commission order containing findings on all matters essential to the shipper’s recovery is admitted and the carrier produces no opposing evidence, the findings and order of the Commission may not be rejected by the jury and the shipper is entitled to judgment. Meeker v. Lehigh Valley R. Co., 236 U. S. 434, 439; see Pennsylvania R. Co. v. Jacoby & Co., 242 U. S. 89, 94 (dictum). ICC v. ATLANTIC COAST LINE R. CO. 595 576 Opinion of the Court. field Co., 269 U. S. 217; News Syndicate Co. v. New York Central R. Co., 275 U. S. 179; Adams v. Mills, 286 U. S. 397, 409-410.7 It is urged in the present case by the Commission and in a companion case by the Federal Maritime Commission, was accepted by the court below, 334 F. 2d, at 49, n. 12, and has been applied by several other lower federal courts, New Process Gear Corp. v. New York Central R. Co., 250 F. 2d 569, 571-572 (C. A. 2d Cir. 1957), cert, denied, 356 U. S. 959; Midland Valley R. Co. v. Excelsior Coal Co., 86 F. 2d 177, 181-182 (C. A. 8th Cir. 1936); Baltimore & O. R. Co. v. Brady, 61 F. 2d 242, 246, 248 (C. A. 4th Cir. 1932), rev’d on other grounds, 288 U. S. 448; City of Danville v. Chesapeake & 0. R. Co., 34 F. Supp. 620, 625, 627-628 (D. C. W. D. Va. 1940); Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 237 F. 272, 275 (D. C. E. D. Pa. 1916). We adhere to that interpretation now. IV. Having established that the carrier has ample opportunity to secure review in the enforcement action, we must now consider whether affording the carrier the alternative of bringing direct review proceedings pursuant to § 17 (9) would vitiate the congressional policy expressed in § 16 (2) of encouraging prompt payment of reparation awards. To effectuate that policy, Congress has provided for the shipper certain procedural and substantive benefits pertaining to venue, freedom from costs, prima facie effect of the Commission’s order, and allow-ance of a reasonable attorney’s fee. The Commission 'In Louisville & Nashville R. Co. v. Sloss-Sheffield Co., 269 U. S. ’ the Court considered a carrier’s statute of limitations defense on review of a judgment for the shipper in a § 16 (2) enforcement 412°n A°C?rd’ Meeker & Co. v. Lehigh Valley R. Co., 236 U. S. * ThUS’ I* would seem bey°nd question that respondents here °u nave presented in Thomson’s New York action the defense n which they prevailed in the courts below. 596 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. contends that permitting the carrier to bring direct review proceedings will materially impair the benefits derived by the shipper from the procedural dispensations of § 16 (2). We conclude that although the degree of impairment would be less than that claimed by the Commission, it would nevertheless be substantial. The Commission argument respecting venue, which we accept, proceeds as follows: Because the carrier may bring its § 17 (9) action as soon as the final Commission order is entered but the shipper’s § 16 (2) suit must await passage of the date set for compliance, the carrier may file its suit first and thus obtain priority. Although the carrier’s suit must be brought against the United States, 28 U. S. C. § 2322 (1964 ed.), the Commission and the shipper may intervene as of right, 28 U. S. C. § 2323 (1964 ed.), and the shipper will be under compulsion to do so to protect its interest since a decision setting aside the Commission’s order would destroy the foundation of the enforcement action. In this way, the shipper will frequently be denied his choice of forum on the statutory violation issue as the § 17 (9) suit must be brought in the judicial district of the residence or principal office of the party bringing the suit, 28 U. S. C. § 1398 (a), which may be far removed from the district in which the shipper resides or through which the road of the carrier runs alternatives that are open to the shipper under § 16 (2) and, being likely to offer a more convenient venue to the shipper, would frequently be the shipper’s choice. By a similar analysis the Commission also contends that a shipper forced to intervene in the carrier’s § 17 (9) action would lose the advantages of freedom from costs and the right to a reasonable attorney’s fee, since those rights are conferred only in the § 16 (2) action and not m § 17 (9) actions. But since both the § 16 (2) action and the § 17 (9) action may be heard and determined by ICC v. ATLANTIC COAST LINE R. CO. 597 576 Opinion of the Court. a single district judge when the reparation order is not accompanied by a cease-and-desist order, United States v. Interstate Commerce Comm’n, 337 U. S. 426, 440-443; Pennsylvania R. Co. v. United States, 363 U. S. 202, it would be possible, apart from venue problems,8 for the shipper to press its action in the same district as the carrier’s action, either by an independent action to be consolidated with the carrier’s action, Fed. Rule Civ. Proc. 42 (a), or by a counterclaim after intervention in the carrier’s action, see Switzer Bros., Inc. v. Locklin, 207 F. 2d 483 (C. A. 7th Cir. 1953); 3 Moore, Federal Practice fl 13.05 (2d ed. 1964), 4 Moore, Federal Practice fl 24.17 (2d ed. 1963). Then to the extent that the shipper’s costs and attorney’s fees were attributable 8 Venue of suits to set aside the Commission’s order is limited by 28 U. S. C. § 1398 (1964 ed.) to the district in which the party bringing the action has its residence or principal office. Section 16 (2) provides for venue in the district where the shipper resides “or in which is located the principal operating office of the carrier, or through which the road of the carrier runs . . . .” As § 16 (2) does not expressly provide for venue in the district in which the carrier resides and that district may not coincide with one of the districts that are listed, it would appear that in some cases in which the carrier elects to file its § 17 (9) action in the district of its residence, rather than the district of its principal office, the district chosen by the carrier will not be one where the shipper could originally have brought, suit. It was primarily similar venue problems that prompted enactment in 1964 of 28 U. S. C. §1336 (b), which provides that exclusive jurisdiction of a § 17 (9) action to set aside a Commission order arising out of a primary jurisdiction reference to the Commission shall be vested in the referring court. 1964-2 U. S. Code Cong, and Admin. News 3235-3239. When the § 17 (9) action is filed first, however, venue difficulties are less likely to occur as the § 16 (2) venue provisions are in general broader than those applicable to § 17 (9) actions. In any event, venue objections may perhaps be overcome by transfer of the § 17 (9) action, 28 U. S. C. § 1404 (1964 ed.), or by application of the doctrine of waiver, see 3 Moore, Federal Practice fl 13.16, at p. 45 (2d ed. 1964) (venue of counterclaims by interveners). 598 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. to its § 16 (2) counterclaim or action the § 16 (2) advantages would clearly be applicable. And it would be arguable—an issue we do not decide—that the shipper would be entitled to the benefit of § 16 (2) as to all its costs and attorney’s fees in the combined action. Since the Commission believes that the scope of review of findings on primary jurisdiction issues would be the same regardless of whether review was sought in a §16(2) or a §17(9) action, it makes no claim that allowance of the direct review proceeding would undercut the prima facie evidence provision of § 16 (2). In summary, the principal, if not sole, effect of permitting respondents’ direct review proceeding would be to force on shippers the alternatives of either forgoing the opportunity to defend the Commission order or accepting the carrier’s choice of a distant venue. The first alternative is obviously counter to the policy expressed in § 16 (2), and, as we have said, it is to be expected that shippers would elect to defend the Commission’s order even at the expense of loss of their venue advantage. The importance of choice of venue in these actions should not be discounted. Since the record in the enforcement action is not limited to that made before the Commission, the shipper may desire to call witnesses or to introduce documentary evidence either in direct support of the Commission’s order or in rebuttal to opposing evidence produced by the carrier, thus bringing into play those factors relating to the convenience of witnesses and the relative burden of making proof that make the choice of venue so important in other contexts. See Mercantile National Bank v. Langdeau, 371 U. S. 555; Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260. V. But respondents contend that confining review to the enforcement action would introduce into the administra- ICC v. ATLANTIC COAST LINE R. CO. 599 576 Opinion of the Court. tion of the Act problems of greater severity and importance than any effect such a course might have in safeguarding the shipper’s § 16 (2) privileges. Respondents note that under the doctrine of Phillips Co. v. Grand Trunk Western R. Co., 236 U. S. 662, shippers who are not complainants before the Commission may nevertheless obtain the advantage of the Commission’s reparation order as a basis for their own § 16 (2) action. It is argued that the enforcement court has no power to set aside the Commission order and, therefore, a decision upholding a carrier’s attack on the Commission’s order in one enforcement proceeding would not preclude another shipper from successfully invoking that order in a separate enforcement proceeding, thus resulting in disparate treatment of shippers contrary to the Act’s objective of securing uniform rates. It is of course true that the court may not formally set aside the Commission’s order in an action in which neither the Commission nor the United States is a party. Cf. United States v. Jones. 336 U. S. 641, 651-653, 670-671; Pennsylvania R. Co. v. United States, 363 U. S. 202, 205. But we do not read Phillips Co. v. Grand Trunk Western R. Co., supra, to permit reliance by a nonparticipating shipper on the Commission’s order when it has been disapproved in litigation between the complainant shipper and the railroad. In the Phillips case, the Commission had separately determined that chal-enged rates were unlawful and had issued a cease-and-desist order, which was sustained in an enforcement proceeding brought by the Commission. Illinois Central Co. v. Interstate Commerce Comm’n, 206 U. S. 441. Thereafter, some reparation claims were settled, and rhilhps, which had not been a complainant before the Commission, commenced its reparation action. The ourt reasoned that if Phillips could not rely on the ommission order, shippers prevailing before the Com- 600 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. mission would obtain a preference as compared to nonparticipating shippers. Therefore, the Court ruled that if: “there was a finding of unreasonableness in the proceedings begun by others, [the nonparticipating shipper] could, if in time, present his claim, and await the result of the litigation over the validity of any order made at the instance of those parties. If it was ultimately sustained by the court as valid he would then be in position to obtain reparation from the Commission—or a judgment from a court of competent jurisdiction, on a claim that had been seasonably presented.” 236 U. S., at 666. The Phillips case thus contemplates that the suit of a nonparticipating shipper is to await the outcome of litigation over the validity of the Commission order and that the nonparticipating shipper may rely on the Commission’s order only when the policy of uniformity will thereby be served. It might still be argued that disparity in treatment of shippers would result in cases involving multiple complainants before the Commission. The several shippers could commence separate enforcement actions in different courts, and those courts might disagree concerning the validity of the Commission’s order. But such conflicts could be completely avoided only by limiting review on the question of statutory violation to a single suit by a carrier to set aside the Commission’s order, and the long and unvarying course of decisions permitting review in the enforcement court precludes our limiting review to § 17 (9) proceedings. Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297; Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370; Adams v. Mills, 286 U. S. 397; Brown Lumber Co. v. Louisville & N. R-Co., 299 U. S. 393; Porter Co. v. Central Vermont R- ICC v. ATLANTIC COAST LINE R. CO. 601 576 Opinion of the Court. Co., 366 U. S. 272, 274, n. 6 (dictum). In any event, we do not believe that in practice such conflicts will frequently occur. If the first enforcement court to issue its decision sustains the Commission order, that decision will generally be accepted as persuasive authority by other courts. Such conflicts as do occur will be similar to those that may arise when, in a suit commenced in court under § 9, the primary jurisdiction doctrine is not applicable and the court is free to decide questions under the Act as an original matter; and such conflicts may ultimately be resolved here. If the first court to reach a decision strikes down the Commission order, it may do so on grounds permitting reconsideration of the matter by the Commission. When the primary jurisdiction doctrine requires initial decision by the Commission, it also precludes the court from redetermining the question itself should the Commission decision be defective. The proper course is to remand to the Commission, Southern R. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 302; Louisville & Nashville R. Co. v. Behlmer, 175 U. S. 648; compare United States v. Jones, 336 U. S. 641, 651-653, 670-671, with United States v. Bianchi & Co., 373 U. S. 709, 718, which has continuing power to suspend or to modify its orders, Interstate Commerce Act § 16 (6), 49 U. S. C. § 16 (6) (1964 ed.). The carrier will naturally request the Commission to reopen the prior order as to all shippers. See Baldwin v. Milling Co., 307 U. S. 478; but cf. Gulf, M. de N. R. Co. v. Merchants’ Specialty Co., 50 F. 2d 21 (C. A. 5th Cir. 1931). In some cases, however, a decision refusing to enforce the Commission’s order will finally determine its validity as between the parties to that action without any necessity for a remand to the Commission. Here too the first adjudication will generally be persuasive and, if not, conflicting decisions may be reviewed in this Court. Finally, under the interpretation of §§ 16 (2) and 17 (9) that we elaborate below 602 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. the carrier may bring a direct review proceeding as a cross-action in the forum selected by a shipper, thus ensuring that the court will have power to affect the order itself and thereby maintain uniformity as between shippers. VI. Recent decisions of this Court have recognized that Commission orders determining a “right or obligation” so that “legal consequences” will flow therefrom are judicially reviewable. Pennsylvania R. Co. v. United States, 363 U. S. 202, 205; Rochester Telephone Corp. v. United States, 307 U. S. 125, 131, 132, 143. Such review “is equally available whether a Commission order relates to past or future rates, or whether its proceeding follows referral by a court or originates with the Commission.” Pennsylvania R. Co. v. United States, supra, at 205. Under these established principles the order attacked in this case is unquestionably subject to review, and in Pennsylvania R. Co. v. United States, supra, and United States n. Interstate Commerce Comm’n, 337 U. S. 426, similar orders were held reviewable in direct proceedings. The question before us now, however, is not whether review is to be afforded but where that review is to occur. In the three preceding sections of this opinion we have established three conclusions that must serve as guideposts for our decision of that question. First, respondents have ample opportunity to secure review of the Commission’s order through defense of the shipper’s enforcement action. By contrast, the Pennsylvania R. Co. and Interstate Commerce Comm’n cases dealt with situations where the order in dispute could only be reviewed in § 17 (9) proceedings, and those cases thus do not control decision here. Second, allowing respondents the alternative of bringing direct review proceedings would substantially impair the shipper’s § 16 (2) right to select a convenient venue. Third, contrary to respond- ICC v. ATLANTIC COAST LINE R. CO. 603 576 Opinion of the Court. ents’ contention, limiting review to the enforcement action would not be likely to result in disparity in treatment of shippers. If, therefore, review can be limited to the enforcement forum selected by the shipper consistent with the language and history of the provisions establishing the direct review proceeding, we should adopt that course. During the first 19 years of the Commission’s existence its orders were not reviewable through direct proceedings. Until 1906, noncompliance with a Commission order did not expose a carrier to immediate sanctions; an order was enforceable only after judicial proceedings in which the carrier could challenge its validity. The Hepburn Act imposed penalties of $5,000 a day for violation of Commission orders and “(t]he statutory jurisdiction to enjoin and set aside an order was granted in 1906, because then, for the first time, the rate-making power was conferred upon the Commission, and then disobedience of its orders was first made punishable,” United States v. Los Angeles R. Co., 273 U. S. 299, 309; see also 40 Cong. Rec. 5133 (remarks of Senator Foraker). Thus the genesis of the direct review proceeding was the desire to afford an injunctive remedy for persons faced with the threat of irreparable injury through exposure to liability for mounting penalties without any other opportunity for judicial review until the Commission or some interested party should choose to commence enforcement proceedings. Compare Ex parte Young, 209 U. S. 123, 147-148. The essentially equitable nature of the direct review proceeding was remarked in early cases denying review of “negative orders” that did not command any action by the carrier and therefore did not threaten the carrier with any sanctions. Compare United States v. Los Angeles R. Co., 273 U. S. 299, with Rochester Tel. Corp. v. United States, 307 U. S. 125. Similarly, as the per diem penalties do not apply to non- 604 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. compliance with orders for the payment of money, two of the three courts to have considered the issue presented in the case at bar denied carriers direct review on the ground that no equitable cause of action had been stated. Pittsburgh & W. V. R. Co. v. United States, 6 F. 2d 646, 648-649 (D. C. W. D. Pa. 1924); Baltimore & 0. R. Co. v. United States, 12 F. Supp. 261, 263 (D. C. D. Del. 1935), appeal dismissed, 87 F. 2d 605 (C. A. 3d Cir. 1937); contra, Southern R. Co. v. United States, 193 F. 664 (Commerce Ct. 1911). And decisions sustaining direct review of reparation orders have stressed the absence of alternative means for obtaining review—in equity terms, inadequacy of remedies at law. See, supra, at pp. 587-588. As the principles stated at the beginning of this section demonstrate, the test of reviewability is no longer pregnant with the concept of irreparable injury to the same extent as when the negative order doctrine held sway, and we do not mean to resurrect the strict equity approach. This history nevertheless establishes that the main concern of Congress in creating the direct review proceeding was with orders that were “self-enforcing” in the sense of exposing recalcitrant carriers to substantial monetary penalties. The legislative history permits absolutely no inference that Congress intended to undercut the shipper’s remedies in the enforcement action. To the contrary, the Hepburn Act simplified those enforcement procedures so as to provide additional assistance to shippers. H. R. Rep. No. 591, 59th Cong., 1st Sess., p. 5; 40 Cong. Rec. 2256 (remarks.of Congressman Hepburn). Moreover, the equitable nature of the direct review proceedings certainly affords ample basis for requiring the direct review court to defer its proceedings pending the outcome of the enforcement action, a course that is consistent with the legislative history of the direct ICC V. ATLANTIC COAST LINE R. CO. 605 576 Opinion of the Court. review proceeding and that will maximize the remedial purposes of § 16 (2). Lest there be any misunderstanding, we emphasize that our reasons for finding the direct review proceeding unavailable in a case such as this where the carriers began that proceeding in a forum other than that selected by the shipper for its enforcement action are inapplicable when the direct review proceeding is brought as a crossaction in the enforcement court.9 Obviously allowance of the cross-action will not impair the shipper’s venue right. And we think that the § 16 (2) provisions respecting court costs and attorney’s fees unquestionably would be applicable to the whole of the combined action in such a case. The Commission argues, nevertheless, that reparation orders respecting past rates are not of sufficient general importance to require their defense by the United States and the Commission, and that the direct review proceeding should not be permitted regardless of the court in which it is brought. That apparently is not the view of Congress, however, for when it provided in 1964 that review of Commission orders entered on reference of primary jurisdiction issues should be had only in the court making the reference, 28 U. S. C. §§ 1336 (b) and 1398 (b) (1964 ed.), it did so by placing jurisdiction and venue of the direct review proceeding in 9 “Except as otherwise provided by law,” 28 U. S. C. § 1398 (a) (1964 ed.), quoted, supra, n. 3, limits venue of direct review proceedings to the judicial district of the residence or principal place of business of the party bringing the action. Since we interpret S 16 (2) as precluding a carrier from bringing an enforcement action in any court but the enforcement court, that section provides venue or the, carrier s cross-action under the “except as otherwise provided y law provision of § 1398 (a). In the rare cases when the enforcement action is brought in state, rather than federal, court it will of course not be possible for the carrier to bring a § 17 (9) crossaction. 606 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. that court, see generally S. Rep. No. 1394, 88th Cong., 2d Sess. (1964), in 1964-2 U. S. Code Cong, and Admin. News 3235, rather than by providing for review as an incident of the original action. See also Brief for the United States in Pennsylvania R. Co. v. United States (No. 451 0. T. 1959), 7-9, 21-22. As we indicated in the preceding section, in some cases there will be some advantage for purposes of assuring the uniform application of the Act in the courts having jurisdiction to directly affect the Commission’s order, and we see no justifiable reason for preventing the carrier from bringing the United States into the enforcement court should it so desire. The proceeding before us, however, was not brought in the enforcement court. Indeed, proceedings in the latter court have been deferred pending the outcome of this case. For the reasons stated herein, the District Court erred in entertaining respondents’ action and the judgment of the Court of Appeals sustaining the District Court must be Reversed. Mr. Justice Douglas concurs in the result. Mr. Justice Black took no part in the consideration or decision of this case. CONSOLO v. FEDERAL MARITIME COMM’N. 607 Syllabus. CONSOLO v. FEDERAL MARITIME COMMISSION ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 63. Argued December 6-7, 1965.—Decided March 22, 1966. Respondent Flota, a common carrier by water, made an exclusive contract with Panama Ecuador to transport bananas. The contract was executed after a Federal Maritime Board ruling, later reiterated, that Flota’s competitor had violated the Shipping Act, 1916 by its exclusive contracts and refusal to allocate banana shipping space among all qualified shippers. Petitioner, a competitor of Panama Ecuador, demanded a reasonable amount of Flota’s banana carrying space under the Board’s decisions and threatened litigation if rejected. Flota rejected the demand and brought a proceeding before the Board for declaratory relief exonerating it from liability to petitioner. Petitioner then filed a complaint with the Board asking for damages. The actions were consolidated and the Board ruled that Flota’s exclusive contract violated the Shipping Act and ordered a fair allocation of banana shipping space. Flota, pursuant to the Administrative Orders Review Act, petitioned the Court of Appeals to set aside the order, and the appeal was stayed pending determination of the reparation proceeding. Following the Board’s reparation order, Flota and petitioner each appealed, Flota asking that the award and finding of a Shipping Act violation be set aside, petitioner that the award be increased. After holding that it had jurisdiction over the appeals, the Court of Appeals affirmed the Board’s finding of a Shipping Act violation but remanded the case for the Board to consider whether it was inequitable to make Flota pay reparations. The Federal Maritime Commission (FMC) held that it was not inequitable but reduced the award. Following renewed appeals, the Court of Appeals reversed and vacated the award as inequitable and an abuse of discretion, in effect on the ground that there was substantial evidence to support a conclusion contrary to that reached by the FMC. Held: 1. The Court of Appeals had jurisdiction to consider petitioner, shipper’s, direct appeal challenging the adequacy of the FMC reparation order. Section 2 of the Administrative Orders Review Act in conjunction with Section 31 of the Shipping Act, 1916 provides a procedure for direct review of FMC orders similar to that applicable to ICC orders. Such orders are reviewable on 608 OCTOBER TERM, 1965. Syllabus. 383 U.S. direct appeal by a shipper denied reparations in whole or in part, since the adequacy of a reparation award cannot be challenged in an enforcement proceeding, United States v. Interstate Commerce Comm’n, 337 U. S. 426. Pp. 612-614. 2. Since the jurisdiction of the Court of Appeals had been invoked by the shipper seeking to increase the amount of his damages, that court also had jurisdiction over the carrier’s direct review appeal as to the validity of the FMC order and the amount of reparations, whether considered as a consolidated appeal or as an intervenor’s cross-claim. ICC v. Atlantic Coast Line R. Co., ante, p. 576. Pp. 614-618. 3. The PMC’s finding that it would not be inequitable to require Flota to pay petitioner reparations was supported by substantial evidence and must be sustained on review. Pp. 618-626. (a) A reviewing court is not at liberty to weigh the evidence and substitute its discretion for that of the administrative agency. Pp. 619-621. (b) In determining whether to exercise its discretion to award reparations to a complainant under the Shipping Act, the FMC may be guided by such factors as whether an award would further the Act’s enforcement, injury to the shipper, the carrier’s culpability, and whether the award would conform to previous application of the Act. P. 622. (c) The findings that Flota had unjustly discriminated against petitioner and given undue preference to his competitor in violation of the Shipping Act undercut Flota’s claimed equities. Pp. 622-623. 119 U. S. App. D. C. 345, 342 F. 2d 924, reversed. Robert N. Kharasch argued the cause for petitioner. With him on the briefs were William J. Lippman and Amy Scupi. Richard A. Posner argued the cause for the Federal Maritime Commission and the United States, pro hac vice, by special leave of Court. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Turner, Irwin A. Seibel, Milan C. Miskovsky and Walter H. Mayo III. J. Alton Boyer argued the cause for respondent Flota Mercante Grancolombiana, S. A. With him on the brief was Odell Kominers. CONSOLO v. FEDERAL MARITIME COMM’N. 609 607 Opinion of the Court. Mr. Justice White delivered the opinion of the Court. We have been asked, in this case, to determine whether the Court of Appeals had jurisdiction to set aside a reparation order of the Federal Maritime Commission which was before it upon the consolidated appeals of the shipper and the carrier, the shipper asking that the award be increased and the carrier asking that it be set aside. In addition, we have been asked to determine whether the Court of Appeals applied the proper standard of review when it set aside the reparation award. We answer the first question in the affirmative and the second in the negative. Accordingly, we reverse. Flota Mercante Grancolombiana, S. A. (Flota) is a common carrier engaged in carrying bananas from South America to the United States. In July 1955, it entered into an exclusive two-year carrying contract with Panama Ecuador, a banana shipper, and gave Panama Ecuador an option to renew the contract for an additional three years, subject to its meeting the rate offered by any other shipper. This exclusive contract was executed after the Federal Maritime Board, in June 1953, had ruled that Flota’s competitor, Grace Line, was a common carrier of bananas and had violated the Shipping Act, 1916, §§14 Fourth 1 and 16 First,2 by refusing 1 “§ 14 Fourth. [No common carrier by water shall] Make any unfair or unjustly discriminatory contract with any shipper based on the volume of freight offered, or unfairly treat or unjustly discriminate against any shipper in the matter of (a) cargo space accommodations or other facilities, due regard being had for the proper loading of the vessel and the available tonnage; (b) the oading and landing of freight in proper condition; or (c) the adjustment and settlement of claims.” 39 Stat. 733, as amended, J S-C:§812 ed.). § 16 First. [It shall be unlawful for any common carrier by water] To make or give any undue or unreasonable preference or advantage to any particular person, locality, or description of traffic in any respect whatsoever, or to subject any particular person, 610 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. to allocate its banana shipping space equitably among all qualified shippers.3 In April 1957, the Board reiterated its view that Grace Line had violated the Shipping Act by signing exclusive carrying contracts and it ordered Grace Line to offer to all qualified shippers, upon a fair basis, shipping space on forward-booking contracts not to exceed two years in length.4 One month after this ruling Flota rejected a bid by Consolo, a banana shipper competing with Panama Ecuador, for the entire shipping space and honored the option given Panama Ecuador by executing to it a three-year exclusive carrying contract. Shortly thereafter Consolo demanded a “fair and reasonable” amount of the carrying space pursuant to the previous Grace Line decisions of the Board and threatened to file a complaint if its demand were rejected. Flota rejected the demand and itself filed a petition before the Board for declaratory relief exonerating it from liability to Consolo. Consolo followed with a complaint before the Board asking for damages. These proceedings were consolidated and, in June 1959, the Board ruled that Flota’s three-year exclusive contract with Panama Ecua- locality, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .” 39 Stat. 734, as amended, 46 U. S. C. § 815 (1964 ed.). 3 Philip R. Consolo v. Grace Line Inc., 4 F. M. B. 293 (1953). No order was issued pursuant to this report. 4 Banana Distributors, Inc. v. Grace Line Inc., 5 F. M. B. 278 (1957). This decision predicated liability upon the theory that bananas were “susceptible to common carriage” and could be carried by a carrier only under terms of common carriage. This decision was reversed and remanded by the Second Circuit, 263 F. 2d 709. On remand the Board dropped its “susceptibility” theory but nevertheless found Grace Line to be a common carrier under the Shipping Act and held it could not evade the requirements of the Act as to any part of the goods it carried. 5 F. M. B. 615 (1959). This was affirmed by the Second Circuit upon appeal. 280 F. 2d 790, cert, denied, 364 U. S. 933. CONSOLO v. FEDERAL MARITIME COMM’N. 611 607 Opinion of the Court. dor violated the Shipping Act, § § 14 Fourth and 16 First, and it ordered Flota to allocate its space fairly among all qualified banana shippers.5 Pursuant to § 2 (c) of the Administrative Orders Review Act (64 Stat. 1129, as amended, 5 U. S. C. § 1032 (c) (1964 ed.)), Flota petitioned the Court of Appeals for the District of Columbia Circuit to set aside this order. This appeal was stayed, pending determination of the reparations proceeding. In March 1961, the Board ordered Flota to pay Consolo certain reparations for the violation of the Shipping Act.6 Both Flota and Consolo appealed from this reparation order and each intervened in the appeal of the other, Consolo asking that the reparation award be increased and Flota asking that it be set aside. These appeals were consolidated together with Flota’s appeal to set aside the Board’s finding of a violation of the Shipping Act. The Court of Appeals held that it had jurisdiction to consider these appeals. It affirmed the Board’s finding that Flota had violated the Shipping Act but remanded to the Board the issue of reparations so that it could consider whether, under all the circumstances, it is inequitable to force Flota to pay reparations . . . 7 On remand the Federal Maritime Commission8 concluded that it was not inequitable to require Flota to pay Consolo reparations, although it did reduce the amount of the award.9 Again, both Flota and Consolo appealed to the Court of Appeals for the District of 5 5 F. M. B. 633, 641. This order was issued on July 2, 1959. Flota complied by September 1, 1959. 6 6 F. M. B. 262. 7112 U. S. App. D. C. 302, 311, 302 F. 2d 887, 896. The functions and duties of the Federal Maritime Board, so far as relevant to this case, were transferred to the Federal Maritime ommission on August 12, 1961. Reorganization Plan No. 7 of 1961, 75 Stat. 840, 46 U. S. C. § 1111, note (1964 ed.). 9 7 F. M. C. 635. 612 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. Columbia Circuit, each intervened in the appeal of the other, and the two appeals were consolidated.10 Again Consolo maintained that the award was too small and Flota argued that it should be set aside in part or in whole. The Court of Appeals reversed and vacated the reparation award, concluding that “[i]n view of the substantial evidence showing that it would be inequitable to assess damages against Flota in favor of Consolo,... the Commission abused the discretion granted it under Section 22 of the Shipping Act11 [to issue reparation awards] . . . .” 119 U. S. App. D. C. 345, 352, 342 F. 2d 924, 931. Consolo petitioned this Court for a writ of certiorari to review that decision, which we granted. 381 U. S. 933. I. The first question we have is whether the Court of Appeals had jurisdiction of the appeals filed by Consolo and Flota.12 10 None of the parties challenged, at this time, the jurisdiction of the Court of Appeals to hear these consolidated appeals. 11 “Any person may file with the Federal Maritime Board a sworn complaint setting forth any violation of this chapter by a common carrier by water, or other person subject to this chapter, and asking reparation for the injury, if any, caused thereby. ... If the complaint is not satisfied the Board shall, except as otherwise provided in this chapter, investigate it in such manner and by such means, and make such order as it deems proper. The Board, if the complaint is filed within two years after the cause of action accrued, may direct the payment, on or before a day named, of full reparation to the complainant for the injury caused by such violation.” 39 Stat. 736, as amended, 46 U. S. C. §821 (1964 ed.). 12 Much of what we said in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., ante, is relevant to the jurisdictional issue presented by this case. The Senate Report explaining the Shipping Act expressly observed that the enforcement provisions of the Shipping Act were “modeled very closely after the interstate-commerce act . . . .” S. Rep. No. 689, 64th Cong., 1st Sess., p. 13. That report also counsels that “the administration and enforcement CONSOLO v. FEDERAL MARITIME COMM’N. 613 607 Opinion of the Court. As we read the controlling statutory provisions, it seems clear that the Court of Appeals had jurisdiction to consider Console’s direct appeal from the Commission’s reparation order granting only part of the relief requested. Section 2 of the Administrative Orders Review Act (5 U. S. C. § 1032 (1964 ed.)) gives the courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ... (c) such final orders of the . . . Federal Maritime Board ... as are now subject to judicial review pursuant to the provisions of section 830 of Title 46 . . . .” Section 830 of Title 46 (§31 of the Shipping Act, 1916, 39 Stat. 738, as amended), in turn, says that, “except as otherwise provided,” orders of the Federal Maritime Board are reviewable pursuant to the same procedures as are available “in similar suits in regard to orders of the Interstate Commerce Commission . . . .” Accordingly, if pursuant to provisions in the Interstate Commerce Act a shipper can bring a direct review proceeding to challenge the adequacy of a reparation award issued by the Interstate Commerce Commission, he should be permitted to bring a similar proceeding to challenge the adequacy of a reparation award from the Federal Maritime Commission, subject of course to any special provisions applicable to maritime cases such as the provision in § 2 of the Administrative Orders Review Act that direct review proceedings shall be conducted in the courts of appeals rather than the district courts. The Court has previously held that an order of the Interstate Commerce Commission denying a shipper’s reparation claim is subject to direct review at the instance of the shipper, United States v. Interstate Com- provisions of the [interstate commerce] act and the nearly 30 years’ experience of the Interstate Commerce Commission [may] be adapted with slight modifications to the purposes of [the Shipping Act].” Id., p. 12. * 614 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. merce Comm’n, 337 U. S. 426, primarily because the adverse order would be wholly unreviewable unless the shipper is permitted to bring an appeal. See Rochester Tel. Corp. v. United States, 307 U. S. 125. Likewise, in D. L. Piazza Co. v. West Coast Line, Inc., 210 F. 2d 947, cert, denied, 348 U. S. 839, the Court of Appeals for the Second Circuit was of the opinion that the principles of United States v. Interstate Commerce Comm’n were authority for allowing the shipper to seek direct review of an order of the Federal Maritime Board denying a major part, but not all, of the shipper’s reparation claim. We think Piazza was correct in this respect and we accordingly agree with the court below that it would have jurisdiction to consider Consolo’s appeal. As for Flota’s appeal, much of what we have said in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., decided today, is pertinent to our consideration here. In that case, where direct review had not been sought by the shipper, we held that the carrier may have review of a reparation order of the Interstate Commerce Commission only in connection with the shipper’s enforcement action under § 16 (2) of the Interstate Commerce Act. Section 30 of the Shipping Act, 39 Stat. 737, as amended, provides for a similar action by the shipper to enforce a reparation award by the Maritime Commission and extends certain procedural advantages to the shipper generally comparable to those provided by § 16 (2) of the Interstate Commerce Act. He has a wide scope of venue; he is not liable for costs unless they accrue on his own appeal; he is allowed reasonable attorney fees if he ultimately prevails; he is the beneficiary of broad service of process and joinder provisions; and the findings and order of the Commission are given prima facie effect in the enforcement action. These advantages were given to the shipper because he was considered generally to be the weaker party in the controversy and he serves an impor- CONSOLO v. FEDERAL MARITIME COMM’N. 615 607 Opinion of the Court. tant role in the enforcement of the Shipping Act. It was to protect advantages similar to these by preventing the carrier from emasculating the enforcement action that we concluded in Interstate Commerce Comm’n v. Atlantic Coast Line R. Co., that the carrier could not seek review of the reparation award except in connection with a shipper’s enforcement action. It is readily apparent, we think, that this holding is applicable to Shipping Act cases when the shipper himself has not sought direct review in the Court of Appeals. Here, however, the jurisdiction of the Court of Appeals has been invoked by the shipper, who seeks to increase the amount of his damages. In these circumstances, we find nothing in the Shipping Act or the Administrative Orders Review Act that would prevent the Court of Appeals from also considering Flota’s request, either as a consolidated appeal pursuant to § 2 of the Administrative Orders Review Act or as an intervenor’s crossclaim, to have the reparation order set aside or reduced, a result which will not, in our view, substantially impair the procedural advantages intended for a shipper under § 30. Concerning venue, the shipper will still be able to select the forum. Although the venue provisions governing an appeal are somewhat different from those governing an enforcement suit, the shipper still has relatively wide opportunities to find a convenient forum. Section 3 of the Administrative Orders Review Act (64 Stat. 1130, 5 U. S. C. § 1033 (1964 ed.)) enables the Petitioner to bring suit in the judicial circuit where he resides, where his principal office is located or in the District of Columbia. By requiring that the carrier’s review proceeding be brought in the court selected by the ipper for his appeal, all the issues in the controversy will be tried in a relatively convenient forum for the shipper. 616 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. The shipper will not have the benefit in a direct review of those provisions in § 30 that exempt him from his costs and enable him to collect his attorney’s fees if he ultimately prevails.13 However, the only additional costs and attorney’s fees that the shipper will incur if the carrier is permitted to challenge the reparation award upon a consolidated appeal or cross-claim are those costs and fees attributable to additional issues not otherwise raised by the shipper’s appeal. To the extent the arguments a carrier may advance to decrease or set aside an award would be asserted in any event as defenses to the shipper’s claim for increased reparations, no additional costs or fees will be incurred beyond those which the shipper would normally assume for his appeal. And, if the shipper prevails against the carrier’s appeal, any additional costs, although not attorney’s fees, as are incurred may be assessed against the carrier as the losing party under 28 U. S. C. § 1912 (1964 ed.). See also District of Columbia Cir. R. 20 (b). The minimal disadvantages resulting to the shipper from permitting the carrier to attack the reparation order are more than offset by the desirability of a prompt and efficient determination of the validity of the Commission’s order. Many of the arguments a carrier might make in defense against a shipper’s suit to increase the award could also be advanced to show that the award should be reduced or set aside entirely. And, once the carrier intervenes in the shipper’s appeal, all the parties interested in the complete resolution of the validity of 13 Unlike the Interstate Commerce Commission situation, there is no possibility here that an enforcement action can be joined with a direct review proceeding (thereby raising the possibility that the favorable provisions of the enforcement section may become applicable and ensuring that the Commission will be a party), because enforcement suits must be in the district courts and direct reviews can be taken only to the courts of appeals. CONSOLO v. FEDERAL MARITIME COMM’N. 617 607 Opinion of the Court. the Commission’s order are before the court. In this situation it would make little sense to require the carrier to break off his argument short of its logical conclusion and relitigate it anew before a district court in an enforcement action.14 With the jurisdiction of the Court of Appeals properly invoked by the shipper, there is, therefore, every reason to permit the carrier not only to litigate the amount of the reparation order but also to insist upon a determination of the validity of the Commission’s order, both with respect to the carrier’s violation of the Act15 and with respect to the reparation award itself. If the carrier finally prevails on either of these claims, there would then be no occasion for a separate enforcement suit in the District Court. If the carrier’s claims going to the validity of the order are rejected by the Court of Appeals, the determination of a violation by the carrier would be binding in the subsequent enforcement action by the shipper; nor would there be any basis in the course of a subsequent enforcement action conducted in accordance with § 30 to redetermine whether or not the award itself is supported by substantial evidence in the administrative record.16 Hence, the shipper will need to litigate the These same considerations of judicial economy and fairness to all the parties lie behind the doctrine of ancillary jurisdiction, Moore v. New York Cotton Exchange, 270 U. S. 593; Siler v. Louisville & Nashville R. Co., 213 U. S. 175; 2 Moore, Federal Practice 11 8.07 [5] (2d ed. 1965), and the doctrine that an intervenor of right may assert a cross-claim without independent jurisdictional grounds, 4 Moore, Federal Practice I24.17 (2d ed. 1963). 15 Of course, in this case the issue of Flota’s violation of the Act was resolved in a previous direct appeal by Flota from the Board’s cease-and-desist order. There is no question of the jurisdiction of e Court of Appeals to consider that appeal. 16 See our discussion of the defenses available to a carrier in an orcement action at Interstate Commerce Common v. Atlantic '-oast Line R. Co., ante, p. 594, n. 6. 618 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. issue of validity only once, and this in the Court of Appeals at the instance of the carrier. Although two proceedings may be required to collect his damages, this is only a necessary incident of the shipper’s decision to bring his appeal in the first place. In short, although a shipper may lose some of the procedural advantages given him by § 30 if he is forced to defend the validity of the Commission’s order in conjunction with his appeal, these losses generally will not be substantial. To the extent that he is disadvantaged, this is the result of a conscious choice he has made. And from the point of view of the enforcement of the Shipping Act, it is certainly less important that the shipper be assisted in his efforts to obtain a greater award than it is to assist him in his efforts to enforce an existing award. The Court of Appeals was correct in sustaining its own jurisdiction to hear Flota’s appeal. II. We turn, then, to the standard of review used by the Court of Appeals when it reversed the Commission’s reparation order. The Court of Appeals rejected the Commission’s finding that it would not be inequitable to award Console reparations because it felt this finding “ignores . . . the substantial weight of the evidence . . . .” 119 U. S. App. D. C. 345, 347, 342 F. 2d 924, 926. It then concluded that the Commission abused its discretion in ordering reparations because “of the substantial evidence showing that [the reparations] would be inequitable.” Id., at 352, 342 F. 2d, at 931. In effect, the standard of review applied and articulated by the Court of Appeals in this case was that if “substantial evidence” or “the substantial evidence” supports a conclusion contrary to that reached by the Commission, then the Commission CONSOLO v. FEDERAL MARITIME COMM’N. 619 607 Opinion of the Court. must be reversed.17 This standard is not consistent with that provided by the Administrative Procedure Act. Section 10 (e) of the Administrative Procedure Act (60 Stat. 243, 5 U. S. C. § 1009 (e) (1964 ed.)) gives a reviewing court authority to “set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, [or] an abuse of discretion . . . [or] (5) unsupported by substantial evidence . . . .” Cf. United States v. Interstate Commerce Comm’n, 91 U. S. App. D. C. 178, 183-184, 198 F. 2d 958, 963-964, cert, denied, 344 U. S. 893. We have defined “substantial evidence” 17 In its first opinion, remanding the issue of reparations to the Commission, the Court of Appeals said, “But in reviewing the evidence [as opposed to reviewing issues of law], we are confined to a much more restricted standard, as the Administrative Procedure Act, § 1 et seq., 5 U. S. C. A. § 1001 et seq., and a long line of Supreme Court decisions, clearly indicate. See, e. g., Universal Camera Corp. v. National Labor Relations Board, 340 U. S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951); United States v. Carolina Freight Carriers Corp., 315 U. S. 475, 489, 62 S. Ct. 722, 86 L. Ed. 971 (1942). We have examined the appeals from the reparations award with these considerations in mind.” 112 U. S. App. D. C. 302, 309, 302 F. 2d 887, 894. However, in its second opinion, when it reviewed the Commission’s finding that it would not be inequitable to award reparations, the Court of Appeals made no reference to the Administrative Procedure Act. The standard of review articulated and apparently applied in that opinion was inconsistent with the Administrative Procedure Act. We do not read the opinion below as asserting that the Court of Appeals, in a direct review proceeding, may conduct a de novo review of the equities of a reparation award. We find nothing in the hipping Act, the Hobbs Act, or the Administrative Procedure Act that would authorize a de novo review in these circumstances, and in the absence of specific statutory authorization, a de novo review is generally not to be presumed. 4 Davis, Administrative Law reatise §29.08 (1958). See United States v. Carlo Bianchi & Co., nc., 373 U. S. 709, 715; Morrison-Knudsen Co. v. O’Learii, 288 F 2d 542, 543-544. 620 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229. “[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300.18 This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Labor Board n. Nevada Consolidated Copper Corp., 316 U. S. 105, 106; Keele Hair de Scalp Specialists, Inc. v. FTC, 275 F. 2d 18, 21. Congress was very deliberate in adopting this standard of review.19 It frees the reviewing courts of the timeconsuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.20 These policies are particularly important when a court is asked to review an agency’s 18 Although these two cases were decided before the enactment of the Administrative Procedure Act, they are considered authoritative in defining the words “substantial evidence” as used in the Act. 4 Davis, Administrative Law Treatise § 29.02. 39 The test of substantial evidence in the record considered as a whole had been applied by some reviewing courts even before Congress acted. See Universal Camera Corp. v. Labor Board, 340 U. S. 474, 483, 490. 20 See Federal Trade Common v. Mary Carter Paint Co., 382 U. S. 46; Labor Board v. Southland Mfg. Co., 201 F. 2d 244, 246. These same policies are behind the “primary jurisdiction doctrine.” Far East Conference v. United States, 342 U. S. 570, 574-575; United States Navigation Co., Inc. v. Cunard Steamship Co., Ltd., 284 U. S. 474. See generally, Stason, “Substantial Evidence” in Administrative Law, 89 U. Pa. L. Rev. 1026 (1941). CONSOLO v. FEDERAL MARITIME COMM’N. 621 607 Opinion of the Court. fashioning of discretionary relief.21 In this area agency determinations frequently rest upon a complex and hard-to-review mix of considerations. By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency. These policies would be damaged by the standard of review articulated by the court below. Ordinarily we would be inclined to remand to the Court of Appeals for further consideration in light of the standard of review established by the Administrative Procedure Act. Universal Camera Corp. v. Labor Board, 340 U. S. 474; Labor Board v. Walton Mjg. Co., 369 U. S. 404. However, in view of the fact that this controversy already dates back more than eight years, that it has been before the Court of Appeals twice and that the relevant standard is not hard to apply in this instance, we think this controversy had better terminate now. See O'Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504. Section 22 of the Shipping Act, 1916, provides that The Board . . . may direct the payment ... of full reparation to the complainant for the injury caused by such violation.” 46 U. S. C. § 821 (1964 ed.). (Emphasis added.) This contemplates that the Commission shall have a certain amount of discretion,22 but it does not See Labor Board v. Seven-Up Bottling Co. of Miami, Inc., 344 . b. 344; Securities & Exchange Comm’n v. Chenery Corp., 332 177S q^’ 207-209’ Bhelps Dodge Corp. v. Labor Board, 313 U. S. . See also Security Administrator v. Quaker Oats Co., 318 U. S. , where considerable deference was given the Federal Security * ^n^trator in the Promulgation of rules pursuant to the Federal °2°2d’ DruS> and Cosmetic Act. 4^2Sqe Grace L™6’ Inc- v- SkiPs Viking Line, 7 F. M. C. • See also Johnston Seed Co. v. United States, 90 F. Supp. 358, 622 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. specify what factors are to be considered by the Commission in exercising this discretion. However, we assume that the Commission could validly consider such factors as whether a reparation award would enhance the enforcement of the Act, whether the shipper had suffered compensable injury and whether the award of reparations would be consistent with the previous application of the Act, as well as the factor of culpability of the carrier.23 Hence, even if the carrier’s conduct were such that it would be inequitable to require it to pay a reparation award, this by itself might not be sufficient to establish that the Commission abused its discretion under the Act. However, we need not rest upon this distinction because we feel that it is clear that there is substantial evidence in the record, considered as a whole, to support the Commission’s findings that it would not be inequitable in this case to require Flota to pay Consolo reparations. The Maritime Board determined, and the Court of Appeals agreed, that Flota had been guilty of “unfairly” or “unjustly” discriminating against Consolo and of giving an “undue unreasonable preference” to Panama Ecuador in violation of §14 Fourth and § 16 First aff’d 191 F. 2d 228; Boston Wool Trade Assn. v. Director General, 69 I. C. C. 282, 309, where, to avoid an award of reparations that would be inequitable, the I. C. C. and the courts found certain practices by the carriers to be unreasonable only prospectively. See also Delaware, Lackawanna & Western Coal Co. v. Delaware, Lackawanna & W. R. Co., 46 I. C. C. 506, 509. 23 The Senate Report says that the enforcement provisions in the Shipping Act “confer upon the board power to make orders necessary for the enforcement of the act . . . .” S. Rep. No. 689, 64th Cong., 1st Sess., p. 13. (Emphasis added.) Later on, the report says the board shall “make such order as may be proper, including an award of reparation for an injury resulting from the violation.” Ibid. CONSOLO v. FEDERAL MARITIME COMM’N. 623 607 Opinion of the Court. of the Shipping Act.24 These findings, which were essential to the determination that Flota had violated the Shipping Act, substantially undercut any equities that Flota might claim. Nevertheless, the Court of Appeals considered it inequitable to make Flota pay reparations because Flota might have believed, in view of the unsettled law, that it was not illegal to exclude Console. Prior to Flota’s rejection of Console’s request for a fair portion of the shipping space, the Federal Maritime Board had decided only two cases relevant to this issue: Consolo v. Grace Line, supra, and Banana Distributors, Inc. v. Grace Line, supra. Both cases held invalid exclusive dealing contracts similar to the one in question here. The Court of Appeals would minimize these two cases as precedents because no order was issued in the first Grace Line decision and the second Grace Line decision was ultimately reversed and remanded by the Court of Appeals for the Second Circuit. Nevertheless, at the time Flota entered into the 1957 exclusive contract with Panama Ecuador and at the time it rejected Consolo’s request for a fair share of the shipping space, these decisions were authoritative pronouncements by the agency primarily responsible for administering and interpreting the Shipping Act. And, although the second Grace Line decision was ultimately reversed and remanded, upon reconsideration the Board still found the exclusive contract there in question to be illegal and that 24 The Court of Appeals said it is “beyond question” that the Board considered and made sufficient findings, supported by the record, that Flota’s exclusive contract with Panama Ecuador was ^unjust” and “unreasonable.” It also said that the Board was entitled to conclude that neither the exclusive contract nor the request for a declaratory order rendered Flota’s discriminatory refusal of space reasonable or just.” 112 U. S. App. D. C. 302, 307-308, 302 F. 2d 887, 892-893. 624 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. decision was ultimately affirmed upon appeal to the Second Circuit.25 As further evidence of good faith, the Court of Appeals was of the opinion that Flota could reasonably have believed its situation was different from that presented to the Board in the Grace Line cases because of physical differences between its vessels and those owned by Grace Line. However, in its first decision affirming the Board’s finding of a violation the Court of Appeals had affirmed that the record “adequately supported” the Board’s finding that “the differences between Flota’s vessels and Grace’s vessels are not impressive.” 112 U. S. App. D. C. 302, 307, 302 F. 2d 887, 892. We think the Court’s first judgment was the correct one. The record is adequate to establish that Flota took a deliberate, and we think substantial, risk when it gambled that the previous contrary precedent could be distinguished. We agree with the Commission that there is nothing inhering in this situation that would make it inequitable to require Flota to pay reparations. Nor do we feel the record reveals that the reparation award is inequitable because Flota had asked for declaratory relief or because that request was pending before the Board for almost two years. In the first place, Flota did not request declaratory relief until after it had entered into the offending exclusive-dealing contract with Panama Ecuador and until it became clear that Consolo was going to sue anyway. Under these circumstances, the Commission was justifiably skeptical about Flota’s motives in bringing suit. Further, although Flota’s suit was pending for about two years, the record indicates that much of the delay involved in this case was at the request or approval of Flota. At any rate, it has never 25 It is important to distinguish this situation from one where a litigant affirmatively relies upon an agency declaration, later reversed, that specifically authorized particular behavior. See Arizona Grocery Co. v. Atchison, Topeka & Santa Fe R. Co., 284 U. S. 370. CONSOLO v. FEDERAL MARITIME COMM’N. 625 607 Opinion of the Court. been the law that a litigant is absolved from liability for that time during which his litigation is pending. Labor Board n. Electric Cleaner Co., 315 U. S. 685; Louisville & Nashville R. Co. v. Sloss-Sheffield Co., 269 U. S. 217. During this time Flota was able to postpone the predictable demise of its discriminatory contract and Consolo continued to suffer injury. Similarly, we do not believe that Flota acquired any “equities” by being caught between the conflicting demands of Consolo and Panama Ecuador. Not only was this a dilemma of Flota’s own making, but in 1958 Flota rejected an opportunity to escape it. At that time Panama Ecuador announced that it was going to cancel the contract unless Flota reduced its rates. Although believing itself under no legal obligation to reduce rates, Flota nevertheless did so in order to perpetuate the illegal exclusive-dealing contract with Panama Ecuador. Finally, there was a provision in Flota’s contract with Panama Ecuador that absolved Flota from liability for refusing to comply with the contract if it was illegal. Although absolution of liability depended upon the contract being declared, in fact, illegal, in light of the previous Grace Line decisions we think this would have been the more reasonable course of action. Finally wre reject the argument that Flota did not benefit from its policy of excluding Consolo and that Consolo lost “only” expected profits. There is evidence in the record that Flota considered its exclusive-dealing contract with Panama Ecuador more profitable than would have been a multiple contract with several shippers.26 If Flota did not believe there was an advantage it26 Flota’s operating manager in the United States testified that it is better to deal with one [shipper] than with three.” There is also evidence that Flota had been able to settle Panama Ecuador’s claims for shipment damages on a basis of only “2.4% which is a very low percentage in comparison with the usual 15% deduction which applies to this type of transportation.” 626 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. in retaining its exclusive contract with Panama Ecuador it is reasonable to think that it would have taken the opportunity given it in 1958 by Panama Ecuador to cancel that contract and offer space equitably to all shippers. Furthermore, we think the court below wrongly minimized the sting of losing expected profits resulting from being unjustly and illegally denied shipping space. Such a loss is real and it is certainly compensable under the Shipping Act. See McLean v. Denver Ac Rio Grande R. Co., 203 U. S. 38, 48-49; Roberto Hernandez, Inc. n. Arnold Bernstein Schiffahrtsgesellschaft, M. B. H., 116 F. 2d 849, cert, denied, sub nom. Compania Espanola de Navegacion Maritima, S. A. v. Roberto Hernandez, Inc., 313 U. S. 582. Without further belaboring this issue, suffice it to say that there is substantial evidence in the record considered as a whole for the Commission to conclude that, “Flota initiated and pursued the unlawful act without good cause and without a satisfactory showing of good faith, and we have been unable, except as noted, to find any equity in its contentions whether viewed separately or together.” This being so, it was clear error on the part of the Court of Appeals to reverse the Commission’s award of reparations.” Reversed. Mr. Justice Black took no part in the consideration or decision of this case. 27 Because of its disposition of this case, the Court of Appeals found it unnecessary to consider Flota’s objection that counsel for the Commission, who participated in the writing of the Commission’s reparation award upon remand, had violated 5 U. S. C. § 1004 (1964 ed.) because he had previously participated as Public Counsel in the trial before the Hearing Examiner on the issue of whether Flota had violated the Shipping Act (although not in the trial on the reparation issue) and had defended the Commission’s finding of violation and award of reparations before the Court of Appeals in the first consolidated appeals. We have examined Flota’s contention in this regard and find it without merit. UNITED STATES v. O’MALLEY. 627 Syllabus. UNITED STATES v. O’MALLEY et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 127. Argued January 24-25, 1966.—Decided March 23, 1966. Decedent created five irrevocable trusts, each of which allowed the trustees, of whom he was one, discretion to pay the beneficiary trust income or to accumulate it, in which case it became a part of the trust principal. The Commissioner of Internal Revenue included in decedent’s gross estate both the original principal of the trusts and the accumulated income added thereto, on the ground that the power retained by decedent to pay out or accumulate the income of the trusts constituted a power to designate the persons who would possess or enjoy the income under §811 (c) (1) (B) (ii) of the Internal Revenue Code of 1939, which deals with the includability in the gross estate of property involved in certain inter vivos transfers. Respondents, the executors, paid the estate tax deficiency and brought this refund action, contending in part that accumulated trust income since not part of the property “transferred” at the time of the creation of the trust did not come within that statutory provision and should not be included in the decedent’s gross estate. The District Court found the original corpus includable in the estate (a holding not challenged here) but excluded the portion of the trust principal representing accumulated income. The Court of Appeals affirmed. Held: The grantor, by virtue of the original inter vivos transfer and the exercise of the right reserved in the trust instrument to retain trust income as part of the trust principal rather than disburse it, made a “transfer” of accumulated income within the meaning of §811 (c)(1)(B)(ii). The “transfer” requirement of that provision was therefore met, as well as the requirement for retention of the power to determine who would enjoy the income from the transferred property; the accumulated income was therefore properly included in the grantor’s gross estate. Pp. 630-634. 340 F. 2d 930, reversed. Solicitor General Marshall argued the cause for the United States. With him on the brief were Acting 628 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. Assistant Attorney General Roberts, Meyer Rothwacks, Loring W. Post and Richard A. Posner. Leon Fieldman argued the cause for respondents. With him on the brief were Thomas P. Sullivan and Walter F. Cunningham. Mr. Justice White delivered the opinion of the Court. The Internal Revenue Code of 1939 imposes an estate tax “upon the transfer of the net estate of every decedent.” § 810. The gross estate is to include not only all property “[t]o the extent of the interest therein of the decedent at the time of his death,” §811 (a), but also, under §811 (c)(1), all property “To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise— “(A) in contemplation of his death; or “(B) under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death (i) the possession or enjoyment of, or the right to the income from, the property, or (ii) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom; or1 “(C) intended to take effect in possession or enjoyment at or after his death,” 1 Section 2036 of the Int. Rev. Code of 1954, as amended, 26 U. S. C. § 2036 (1964 ed.), is materially the same as § 811 (c) (1) (B) of the Int. Rev. Code of 1939. UNITED STATES v. O’MALLEY. 629 627 Opinion of the Court. and, under § 811 (d), property which has been the subject of a revocable transfer described in that section.2 Edward H. Fabrice, who died in 1949, created five irrevocable trusts in 1936 and 1937, two for each of two daughters and one for his wife. He was one of three trustees of the trusts, each of which provided that the trustees, in their sole discretion, could pay trust income to the beneficiary or accumulate the income, in which event it became part of the principal of the trust.3 Basing his action on §811 (c)(l)(B)(ii) and §811 (d)(1), the Commissioner included in Fabrice’s gross estate both the original principal of the trusts and the accumulated income added thereto. He accordingly assessed a deficiency, the payment of which prompted this refund action by the respondents, the executors of the estate. The District Court found the original corpus of the trusts includable in the estate, a holding not challenged in the Court of Appeals or here. It felt obliged, how- 2 Section 811 (d)(1) provides: “To the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona-fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power (in whatever capacity exercisable) by the decedent alone or by the decedent in conjunction with any other person (without regard to when or from what source the decedent acquired such power), to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death.” 3 The following provision in the trust for Janet Fabrice is also contained in the other trusts: The net income from the Trust Estate shall be paid, in whole or in part, to my daughter, JANET FABRICE, in such proportions, amounts and at such times as the Trustees may, from time to time, m their sole discretion, determine, or said net income may be retained by the Trustees and credited to the account of said beneficiary, and any income not distributed in any calendar year shall become a part of the principal of the Trust Estate.” 630 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. ever, by Commissioner n. McDermott’s Estate, 222 F. 2d 665, to exclude from the taxable estate the portion of the trust principal representing accumulated income and to order an appropriate refund. 220 F. Supp. 30. The Court of Appeals affirmed, 340 F. 2d 930, adhering to its own decision in McDermott’s Estate and noting its disagreement with Round v. Commissioner, 332 F. 2d 590, in which the Court of Appeals for the First Circuit declined to follow McDermott’s Estate. Because of these conflicting decisions we granted certiorari. 382 U. S. 810. We now reverse the decision below. The applicability of §811 (c)(l)(B)(ii), upon which the United States now stands, depends upon the answer to two inquiries relevant to the facts of this case: first, whether Fabrice retained a power “to designate the persons who shall possess or enjoy the property or the income therefrom”; and second, whether the property sought to be included, namely, the portions of trust principal representing accumulated income, was the subject of a previous transfer by Fabrice. Section 811 (c)(1)(B)(ii), which originated in 1931, was an important part of the congressional response to May v. Heiner, 281 U. S. 238, and its offspring4 and of 4 In May v. Heiner the Court dealt with a trust providing for payment of income to the spouse for his life, then to the grantor for her life, with remainder to the children. The corpus of the trust was held not includable in the gross estate under Revenue Act of 1918, c. 18, §402 (c), 40 Stat. 1097, which was the predecessor of §811 (c), I. R. C. 1939, and which then provided for the inclusion of all property . . to the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death . . . .” 281 U. S. 238, 244. There followed on March 2, 1931, three per curiam opinions in the same vein: Burnet v. Northern Trust Co., 283 U. S. 782 (grantor reserved life interest in income) • Morsman v. Burnet, 283 U. S. 783 (the same); McCormick v. Burnet, 283 U. S. 784 (trustees directed to accumulate income sub- UNITED STATES v. O’MALLEY. 631 627 Opinion of the Court. the legislative policy of subjecting to tax all property which has been the subject of an incomplete inter vivos transfer. Cf. Commissioner v. Estate of Church, 335 U. S. 632, 644-645; Helvering v. Hallock, 309 U. S. 106, 114. The section requires the property to be included not only when the grantor himself has the right to its income but also when he has the right to designate those who may possess and enjoy it. Here Fabrice was empowered, with the other trustees, to distribute the trust income to the income beneficiaries or to accumulate it and add it to the principal, thereby denying to the beneficiaries the privilege of immediate enjoyment and conditioning their eventual enjoyment upon surviving the termination of the trust. This is a significant power, see Commissioner v. Estate of Holmes, 326 U. S. 480, 487, and of sufficient substance to be deemed the power to “designate” within the meaning of § 811 (c)(1)(B)(ii). This was the holding of the Tax Court and the Court of Appeals almost 20 years ago. Industrial Trust Co. v. ject to power in the grantor to request distributions for certain specified purposes; grantor also had a power to terminate contingent upon approval of any one beneficiary and a remainder interest contingent upon surviving all named beneficiaries). On March 3, 1931, § 302 (c) of the Revenue Act of 1926 was amended by joint resolution to read as follows: “To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer under which the transferor has retained for his life or any period not ending before his death (1) the possession or enjoyment of, or the income from, the property or (2) the right to designate the persons who shall possess or enjoy the property or the income therefrom; except in case of a bona fide sale for an adequate and full consideration in money or money’s worth.” Revenue Act of 1926, c. 27, §302 (c), 44 Stat. 70, as amended, c. 454, §302 (c), 46 Stat. 1516. Through various amendments in other years, § 302 (c) evolved into §811 (c), Int. Rev. Code of 1939. 632 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. Commissioner, 165 F. 2d 142, affirming in this respect Estate of Budlong v. Commissioner, 7 T. C. 756. The District Court here followed Industrial Trust and affirmed the includability of the original principal of each of the Fabrice trusts. That ruling is not now disputed. By the same token, the first condition to taxing accumulated income added to the principal is satisfied, for the income from these increments to principal was subject to the identical power in Fabrice to distribute or accumulate until the very moment of his death. The dispute in this case relates to the second condition to the applicability of § 811 (c)(1) (B)(ii)—whether Fabrice had ever “transferred” the income additions to the trust principal. Contrary to the judgment of the Court of Appeals, we are sure that he had. At the time Fabrice established these trusts, he owned all of the rights to the property transferred, a major aspect of which was his right to the present and future income produced by that property. Commissioner v. Estate of Church, 335 U. S. 632, 644. With the creation of the trusts, he relinquished all of his rights to income except the power to distribute that income to the income beneficiaries or to accumulate it and hold it for the remaindermen of the trusts. He no longer had, for example, the right to income for his own benefit or to have it distributed to any other than the trust beneficiaries. Moreover, with respect to the very additions to principal now at issue, he exercised his retained power to distribute or accumulate income, choosing to do the latter and thereby adding to the principal of the trusts. All income increments to trust principal are therefore traceable to Fabrice himself, by virtue of the original transfer and the exercise of the power to accumulate. Before the creation of the trusts, Fabrice owned all rights to the property and to its income. By the time of his death he had divested himself of all power and control over accumulated income UNITED STATES v. O’MALLEY. 633 627 Opinion of the Court. which had been added to the principal, except the power to deal with the income from such additions. With respect to each addition to trust principal from accumulated income, Fabrice had clearly made a “transfer” as required by §811 (c)(l)(B)(ii). Under that section, the power over income retained by Fabrice is sufficient to require the inclusion of the original corpus of the trust in his gross estate. The accumulated income added to principal is subject to the same power and is likewise includable. Round v. Commissioner, 332 F. 2d 590; Estate of Yawkey v. Commissioner, 12 T. C. 1164.5 Respondents rely upon two cases in which the Tax Court and two circuit courts of appeals have concluded that where an irrevocable inter vivos transfer in trust, not incomplete in any respect, is subjected to tax as a gift in contemplation of death under § 811 (c), the income of the trust accumulated prior to the grantor’s death is not includable in the gross estate. Commissioner v. Gidwitz’ Estate, 196 F. 2d 813, affirming 14 T. C. 1263; Bums v. Commissioner, 177 F. 2d 739, affirm-mg 9 T. C. 979. The courts in those cases considered the taxable event to be a completed inter vivos transfer, not a transfer at death, and the property includable to be only the property subject to that transfer. The value of that property, whatever the valuation date, was apparently deemed an adequate reflection of any income rights included in the transfer since the grantor retained no interest in the property and no power over income This same result was reached, but without discussion, in Estate oj Spiegel v. Commissioner, 335 U. S. 701, under the “take effect in possession or enjoyment” provision of § 811 (c) and in Commissioner v. ¿state of Holmes, 326 U. S. 480, under §811 (d). Other cases reaching the same conclusion under §811 (d) or its predecessors are Commissioner v. Hager’s Estate, 173 F. 2d 613, petition for cert, ismis^^, 337 U. S. 937; Estate of Showers v. Commissioner, 14 . C. 902; Estate of Guggenheim v. Commissioner, 40 B. T. A. 181 and, 117 F. 2d 469, cert, denied, 314 U. S. 621. 634 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. which might justify the addition of subsequently accumulated income to his own gross estate. Cf. Maass v. Higgins, 312 U. S. 443. This reasoning, however, does not solve those cases arising under other provisions of §811. The courts in both Burns, 9 T. C. 979, 988-989 and Gidwitz, 196 F. 2d 813, 817-818, expressly distinguished those situations where the grantor retains an interest in a property or its income, or a power over either, and his death is a significant step in effecting a transfer which began inter vivos but which becomes final and complete only with his demise. McDermott’s Estate failed to note this distinction and represents an erroneous extension of Gidwitz.6 In both McDermott and the case before us now, the grantor reserved the power to accumulate or distribute income. This power he exercised by accumulating and adding income to principal and this same power he held until the moment of his death with respect to both the original principal and the accumulated income. In these circumstances, §811 (c)(l)(B)(ii) requires inclusion in Fabrice’s gross estate of all of the trust principal, including those portions representing accumulated income. Reversed. Mr. Justice Stewart, with whom Mr. Justice Harlan joins, dissenting. In the 1930’s Edward Fabrice made an irrevocable transfer of certain property to trusts for the benefit of 6 The Court of Appeals in McDermott’s Estate was clearly wrong in saying that the transfer there involved was as complete as was the transfer in Gidwitz. In Gidwitz the transfer was in trust and the grantor was one of the trustees but there was a specific direction to accumulate with no discretionary powers in the trustees over either income or principal. In McDermott, as in this case, the grantor retained the power, with other trustees, to accumulate or distribute trust income. UNITED STATES v. O’MALLEY. 635 627 Stewart, J., dissenting. his wife and daughters. Twelve years later he died. Because of the provisions of §811 (c)(l)(B)(ii) of the Internal Revenue Code of 1939,1 the value of the property Fabrice had irrevocably transferred was nonetheless included in his gross estate for estate tax purposes. The respondents do not question the correctness of that determination. But in this case the Court holds that the accumulated income which that property generated during the 12 years that elapsed after Fabrice had irrevocably transferred it is also to be included in his gross estate under § 811 (c)(l)(B)(ii). I think the Court misreads the statute. By its terms the statutory provision applies only to property “of which the decedent has at any time made a transfer.” Fabrice “made a transfer” only of the original trust corpus. He never “made a transfer” of the income which the corpus thereafter produced, whether accumulated or not.2 I can put the matter no more clearly than did the Court of Appeals for the Seventh Circuit in Commissioner v. McDermott’s Estate, 222 F. 2d 665, 668: “Irrespective of all other considerations, property to be includible must have been transferred. Obviously, the accumulations here involved were not transferred by the decedent to the trustee. It is true, of course, that the accumulations represented the fruit derived from the property which was transferred but, even so, Congress did not make provision for including the fruit, it provided only for the property transferred. If it desired and intended to in irThe relevant text of the statute is set out on page 628 of the Court’s opinion. 2 The value of the original trust corpus at the time of transfer and at the time of Fabrice’s death no doubt reflected its incomeproducing capacity. 636 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. elude the accumulations, it would have been a simple matter for it to have so stated.” See also Michigan Trust Co. v. Kavanagh, 284 F. 2d 502, 506-507 (C. A. 6th Cir.). Nothing in the legislative history persuades me that the statute should not be applied as it was written, and I would therefore affirm the judgment. FTC v. BORDEN CO. 637 Syllabus. FEDERAL TRADE COMMISSION v. BORDEN CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 106. Argued January 19, 1966.—Decided March 23, 1966. Respondent produces and sells evaporated milk under its nationally advertised Borden name, and markets physically and chemically identical milk under various private brands owned by its customers. The FTC found the milk to be of like grade and quality as required for the applicability of § 2 (a) of the Robinson-Patman Act, held the price differential to be discriminatory, ascertained the requisite adverse effect on competition, rejected respondent’s claim of cost justification and issued a cease-and-desist order. The Court of Appeals set aside the FTC order on the ground that as a matter of law private label milk was not of the same grade and quality as Borden brand milk. Held: Labels do not differentiate products for the purpose of determining grade or quality under § 2 (a) of the Act, even though one label may have more customer appeal and command a higher price in the marketplace. Pp. 639-647. (a) This has been the long-standing view of the FTC, and its construction of the Act is entitled to respect. Federal Trade Commission v. Mandel Brothers, Inc., 359 U. S. 385, 391. P. 640. (b) This construction of the statute is supported by the legislative’ history and furthers the purpose and policy of the Act. Pp. 641-645. (c) Economic realities are not ignored, but economic factors inherent in brand names and national advertising are not to be considered in the jurisdictional inquiry under the statutory “like grade and quality” test. Pp. 645-646. (d) Transactions like those involved here may be examined by the FTC under § 2 (a) to determine, subject to judicial review, whether the price differential is discriminatory, whether competition may be injured, and whether the differential is cost-justified or is defensible as a good-faith effort to meet a competitor’s price. P. 646. (e) The question of whether the FTC’s rulings under § 2 (b) of the Act are inconsistent with its construction of § 2 (a) is not before this Court and is not passed upon. Pp. 646-647. 339 F. 2d 133, reversed and remanded. 638 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. Robert B. Hummel argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner, Daniel M. Friedman, Gerald Kadish and James Mcl. Henderson. John E. F. Wood argued the cause for respondent. With him on the brief were Kent V. Lukingbeal, Robert C. Johnston, Philip S. Campbell and C. Brien Dillon. Mr. Justice White delivered the opinion of the Court. The Borden Company, respondent here, produces and sells evaporated milk under the Borden name, a nationally advertised brand. At the same time Borden packs and markets evaporated milk under various private brands owned by its customers. This milk is physically and chemically identical with the milk it distributes under its own brand but is sold at both the wholesale and retail level at prices regularly below those obtained for the Borden brand milk. The Federal Trade Commission found the milk sold under the Borden and the private labels to be of like grade and quality as required for the applicability of § 2 (a) of the Robinson-Patman Act,1 held the price differential to be discriminatory 1 Section 2 (a) of the Clayton Act, 38 Stat. 730 (1914), as amended by the Robinson-Patman Act, 15 IT. S. C. § 13 (a) (1964 ed.), provides in pertinent part: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person FTC v. BORDEN CO. 639 637 Opinion of the Court. within the meaning of the section, ascertained the requisite adverse effect on commerce, rejected Borden’s claim of cost justification and consequently issued a cease-and-desist order. The Court of Appeals set aside the Commission’s order on the sole ground that as a matter of law, the customer label milk was not of the same grade and quality as the milk sold under the Borden brand. 339 F. 2d 133. Because of the importance of this issue, which bears on the reach and coverage of the Robinson-Patman Act, we granted certiorari. 382 U. S. 807. We now reverse the decision of the Court of Appeals and remand the case to that court for the determination of the remaining issues raised by respondent Borden in that court. Cf. Federal Trade Comm’n v. Anheuser-Busch, Inc., 363 U. S. 536, 542. The position of Borden and of the Court of Appeals is that the determination of like grade and quality, which is a threshold finding essential to the applicability of § 2 (a), may not be based solely on the physical properties of the products without regard to the brand names they bear and the relative public acceptance these brands enjoy ‘consideration should be given to all commercially significant distinctions which affect market value, whether they be physical or promotional.” 339 F. 2d, at 137. Here, because the milk bearing the Borden brand regularly sold at a higher price than did the milk with a buyer’s label, the court considered the products to be commercially” different and hence of different “grade” for the purposes of § 2 (a), even though they were physically identical and of equal quality. Although a mere who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing erem contained shall prevent differentials which make only due wance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered 640 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. difference in brand would not in itself demonstrate a difference in grade, decided consumer preference for one brand over another, reflected in the willingness to pay a higher price for the well-known brand, was, in the view of the Court of Appeals, sufficient to differentiate chemically identical products and to place the price differential beyond the reach of § 2 (a). We reject this construction of § 2 (a), as did both the examiner and the Commission in this case. The Commission’s view is that labels do not differentiate products for the purpose of determining grade or quality, even though the one label may have more customer appeal and command a higher price in the marketplace from a substantial segment of the public. That this is the Commission’s long-standing interpretation of the present Act, as well as of § 2 of the Clayton Act before its amendment by the Robinson-Patman Act,2 may be gathered from the Commission’s decisions dating back to 1936. Whitaker Cable Corp., 51 F. T. C. 958 (1955); Page Dairy Co., 50 F. T. C. 395 (1953) ; United States Rubber Co., 46 F. T. C. 998 (1950) ; United States Rubber Co., 28 F. T. C. 1489 (1939) ; Hansen Inoculator Co., 26 F. T. C. 303 (1938); Goodyear Tire & Rubber Co., 22 F. T. C. 232 (1936). These views of the agency are entitled to respect, Federal Trade Comm’n v. Mandel Brothers, Inc., 359 U. S. 385, 391, and represent a more reasonable construction of the statute than that offered by the Court of Appeals.3 2 A proviso to § 2 of the original Clayton Act excepted price discrimination “on account of differences in the grade, quality, or quantity of the commodity sold . . . .” 38 Stat. 730 (1914). 3 The commentators are somewhat divided on the dispute involved in this case. Supporting the Commission’s view are the Report of The Attorney General’s National Committee to Study the Antitrust Laws 158 (1955) ; Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 39 (2d ed. 1959); Patman, The Robinson-Patman Act 27 (1938); Edwards, The Price Discrimina- FTC v. BORDEN CO. 641 637 Opinion of the Court. Obviously there is nothing in the language of the statute indicating that grade, as distinguished from quality, is not to be determined by the characteristics of the product itself, but by consumer preferences, brand acceptability or what customers think of it and are willing to pay for it. Moreover, what legislative history there is concerning this question supports the Commission’s construction of the statute rather than that of the Court of Appeals. During the 1936 hearings on the proposed amendments to § 2 of the Clayton Act, the attention of the Congress was specifically called to the question of the applicability of § 2 to the practice of a manufacturer selling his product under his nationally advertised brand at a different price than he charged when the product was sold under a private label. Because it was feared that the Act would require the elimination of such price differentials, Hearings on H. R. 4995 before the House Committee on the Judiciary, 74th Cong., 2d Sess., p. 355, and because private brands “would [thus] be put out of business by the nationally advertised brands,” it was suggested that the proposed § 2 (a) be amended so as to apply only to sales of commodities of “like grade, quality and brand.” (Emphasis added.) Id., at 421. There was strong objection to the amendment and it was not adopted by the Committee.4 The rejection of this tion Law 31, 463-464 (1959); Seidman, Price Discrimination Cases, reprinted in 2 Hoffmann’s Antitrust Law and Techniques 409, 424-428 (1963). Contrary views are expressed by a minority of the Attorney General’s Committee; in Rowe, Price Discrimination Under the Robinson-Patman Act 75 (1962); and in Cassady & Grether, The Proper Interpretation of “Like Grade and Quality” within the Meaning of Section 2 (a) of the Robinson-Patman Act, 30 So. Cal. L. Rev. 241 (1957). 4 Mr. H. B. Teegarden, who was then counsel to the United States holesale Grocers Association, and who apparently played a large Part in drafting the bill, Hearings on H. R. 4995 before the House 642 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. amendment assumes particular significance since it was pointed out in the hearings that the legality of price differentials between proprietary and private brands was then pending before the Federal Trade Commission in Goodyear Tire de Rubber Co., 22 F. T. C. 232. By the time the Committee Report was written, the Commission had decided Goodyear. The report quoted from the decision and interpreted it as holding that Goodyear had violated the Act because “at no time did it offer to its own dealers prices on Goodyear brands of tires which were comparable to prices at which respondent was selling tires of equal or comparable quality to Sears, Roebuck & Co.” H. R. Rep. No. 2287, 74th Cong., 2d Sess., p. 4. Committee on the Judiciary, 74th Cong., 1st Sess., p. 9, supplemented his oral testimony with a letter addressed in part to the proposed amendment: “To amend the bill by inserting ‘and brands,’ after the words ‘commodities of like grade and quality,’ as suggested by Judge Watkins, although it may seem harmless at first sight, is a specious suggestion that would destroy entirely the efficacy of the bill against larger buyers. So amended, the bill would impose no limitation whatever upon price differentials, except as between different purchasers of the same brand. But where goods are put up under a private brand, there can only be one purchaser, namely the one for whom the brand is designed. Neither Kroger nor any independent could use an A. & P. private brand of canned fruit, for example; and to so amend the bill would leave every manufacturer free, to put up his standard goods under a private brand for a particular purchaser and give him any price discount or discriminations that he might demand. “Under the Patman bill as it stands, manufacturers are still free to put up their products under private brands; but if they do so for one purchaser under his private brand, then they must be ready to do so on the same terms, relative to their comparative costs, for a competing purchaser under his private brand; and unless that equality of treatment is required and assured, the discriminations at which the bill is aimed cannot be suppressed.” Id., 2d Sess., at 469. FTC v. BORDEN CO. 643 637 Opinion of the Court. During the debates on the bill, Representative Patman, one of the bill’s sponsors, was asked about the private label issue. His brief response is wholly consistent with the Commission’s interpretation of § 2 (a), 80 Cong. Rec. 8115: “Mr. TAYLOR of South Carolina. There has grown up a practice on the part of manufacturers of making certain brands of goods for particular chain stores. Is there anything in this bill calculated to remedy that situation? “Mr. PATMAN. ... I have not time to discuss that feature, but the bill will protect the independents in that way, because they will have to sell to the independents at the same price for the same product where they put the same quality of merchandise in a package, and this will remedy the situation to which the gentleman refers. “Mr. TAY LOR of South Carolina. Irrespective of the brand. “Mr. PATMAN. Yes; so long as it is the same quality. . . The Commission’s construction of the statute also appears to us to further the purpose and policy of the Robinson-Patman Act. Subject to specified exceptions and defenses, § 2 (a) proscribes unequal treatment of different customers in comparable transactions, but only if there is the requisite effect upon competition, actual or potential. But if the transactions are deemed to involve goods of disparate grade or quality, the section has no application at all and the Commission never reaches either the issue of discrimination or that of anticompetitive impact. We doubt that Congress intended to foreclose these inquiries in situations where a single seller Markets the identical product under several different brands, whether his own, his customers’ or both. Such 644 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. transactions are too laden with potential discrimination and adverse competitive effect to be excluded from the reach of § 2 (a) by permitting a difference in grade to be established by the label alone or by the label and its consumer appeal.5 If two products, physically identical but differently branded, are to be deemed of different grade because the seller regularly and successfully markets some quantity of both at different prices, the seller could, as far as § 2 (a) is concerned, make either product available to some customers and deny it to others, however discriminatory this might be and however damaging to competition. Those who were offered only one of the two products would be barred from competing for those customers who want or might buy the other. The retailer who was permitted to buy and sell only the more expensive brand would have no chance to sell to those who always buy the cheaper product or to convince others, by experience or otherwise, of the fact which he and all other dealers already know—that the cheaper product is actually identical with that carrying the more expensive label. The seller, to escape the Act, would have only to succeed in selling some unspecified amount of each product to some unspecified portion of his customers, however large or small the price differential might be. The seller’s pricing and branding policy, by being successful, would apparently validate itself by creating a difference 5 Borden argues that it spends large stuns to ensure the high quality of its Borden brand milk on customers’ shelves, inferring that there really is a difference between its own milk and the milk sold under private labels, at least by the time it reaches the consumer. Of course, if Borden could prove this difference, it is unlikely that the case would be here. The findings are to the contrary in this case and we write on the premise that the two products are physically the same at the time of consumer purchase. Borden’s extra expenses in connection with its own milk are more relevant to the cost justification issue than to the question we have before us. FTC v. BORDEN CO. 645 637 Opinion of the Court. in “grade” and thus taking itself beyond the purview of the Act.6 Our holding neither ignores the economic realities of the marketplace nor denies that some labels will command a higher price than others, at least from some portion of the public. But it does mean that “the economic 6 The market acceptability test would hardly stop with insulating from inquiry the price differential between proprietary and private label sales. That test would also immunize from the Act sales at different prices of the same product under two different producer-owned labels, the one being less advertised and having less market acceptability than the other. And if it is “consumer preferences,” dissenting opinion, p. 648, which create the difference in grade or quality, why should not Borden be able to discriminate between two purchasers of private label milk, as long as one label commands a higher price from consumers than the other and hence is of a different grade and quality? In this context perhaps the market acceptability test would be refined to preclude this differential on the grounds that Borden’s customer, as distinguished from the consumer, will not pay more than his competitor for private label milk and therefore the milk sold by Borden under one private brand is really of the same grade and quality as the milk sold under the other brand even though ultimate consumers will pay more for one than the other. Taking this approach, if Borden packed for one wholesale customer under two private labels, one having more consumer appeal than the other because of the customer’s own advertising program, Borden must sell both brands at the same price it charges other private label customers because all such milk is of the same grade and quality. At the same time, the customer buying from Borden under two labels could himself sell one label at a reduced price without inquiry under § 2 (a) because the milk in one container is no longer of the same grade and quality as that in the other, although both the milk and the containers came from Borden. Such an approach would obviously focus not on consumer preference as determinative of grade and quality but on who spent the advertising money that created the preference—Borden’s customer, not Borden, created the preference and hence the milk is of the same grade and quality in orden s hands but not in its customer’s. The dissent would exempt the effective advertiser from the Act. We think Congress intended to remit him to his defenses under the Act, including that of cost justification. 646 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. factors inherent in brand names and national advertising should not be considered in the jurisdictional inquiry under the statutory ‘like grade and quality’ test.” Report of The Attorney General’s National Committee to Study the Antitrust Laws 158 (1955). And it does mean that transactions like those involved in this case may be examined by the Commission under § 2 (a). The Commission will determine, subject to judicial review, whether the differential under attack is discriminatory within the meaning of the Act, whether competition may be injured, and whether the differential is cost-justified or is defensible as a good-faith effort to meet the price of a competitor. “[T]angible consumer preferences as between branded and unbranded commodities should receive due legal recognition in the more flexible ‘injury’ and ‘cost justification’ provisions of the statute.” Id., at 159. This, we think, is precisely what Congress intended. The arguments for exempting private brand selling from § 2 (a) are, therefore, more appropriately addressed to the Congress than to this Court.7 The Court of Appeals suggested that the Commission’s views of like grade and quality for the purposes of § 2 (a) cannot be squared with its rulings in cases where a seller presents the defense under § 2 (b)8 that he is in good 7 This is not, of course, a helpful suggestion to those who think the congressional remedy would be “very difficult if not impossible” and who thus prefer the more “reasonable approach” through the courts. See Cassady & Grether, supra, n. 3, at 277. 8 Section 2 (b), 15 U. S. C. § 13 (b) (1964 ed.), provides as follows: “Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of serv- FTC v. BORDEN CO. 647 637 Stewart, J., dissenting. faith meeting the equally low price of a competitor.9 In those cases, it is said, the Commission has given full recognition to the significance of the higher prices commanded by the nationally advertised brand “in holding that a seller who reduces the price of his premium product to the level of his non-premium competitors is not merely meeting competition, but undercutting it.” 339 F. 2d, at 138. The Commission, on the other hand, sees no inconsistency between its present decision and its § 2 (b) cases. In its view, the issue under § 2 (b) of whether a seller’s lower price is a good-faith meeting of competition involves considerations different from those presented by the jurisdictional question of “like grade and quality” under § 2 (a). We need not resolve these contrary positions. The issue we have here relates to § 2 (a), not to § 2 (b), and we think the Commission has resolved it correctly. The § 2 (b) cases are not now before us and we do not venture to decide them. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. T. . . , It is so ordered. Mr. Justice Stewart, with whom Mr. Justice Harlan joins, dissenting. I cannot agree that mere physical or chemical identity between premium and private label brands is, without ices or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.” The Court of Appeals relied upon Callaway Mills Co., sub nom. Bigelow-Sanford Carpet Co., CCH Trade Reg. Rep. Transfer Binder, 1963-1965, 116,800; Anheuser-Busch, Inc., 54 F. T. C. 277 (1957); tandard Oil Co., 49 F. T. C. 923 (1953); and Minneapolis-Honey-?Regulator Co., 44 F. T. C. 351 (1948). Borden adds Gerber roducts Co. v. Beech-Nut Life Savers Co., 160 F. Supp. 916 (D. C D. N. Y. 1958). 648 383 U.S. OCTOBER TERM, 1965. Stewart, J., dissenting. more, a sufficient basis for a finding of “like grade and quality” within the meaning of § 2 (a) of the Robinson-Patman Act. The conclusion that a product that travels at a premium in the marketplace is of “like grade and quality” with products of inferior commercial value is not required by the language of the Robinson-Patman Act, by its logic, or by its legislative history. It is undisputed that the physical attributes and chemical constituents of Borden’s premium and private label brands of evaporated milk are identical. It is also undisputed that the premium and private label brands are not competitive at the same price, and that if the private label milk is to be sold at all, it must be sold at prices substantially below the price commanded by Borden’s premium brand.1 This simple market fact no more than reflects the obvious economic reality that consumer preferences can and do create significant commercial distinctions between otherwise similar products. By pursuing product comparison only so far as the result of laboratory analysis, the Court ignores a most relevant aspect of the inquiry into the question of “like grade and quality” under § 2 (a) : Whether the products are different in the eyes of the consumer.2 1 For example, one wholesaler, a witness for the Commission, stated: “Private label merchandise is no good for nobody unless there is a price on it. . . . In the retail trade as a whole they haven’t been too much interested in [private label evaporated milk] . . • frankly if it was the same price as advertised or 15 cents or 25 cents a case under, it wouldn’t sell, they couldn’t give it away. ... It has got to have $1.50 or $2 a case spread to make it interesting.” 2 No suggestion is made that any of the private label brands involved in this case show significant commercial differentiation from one another. It is possible, of course, that by extensive promotion private label brands could achieve consumer acceptance equivalent to that of a premium brand. In that situation, the products would still be economically different under the market test of § 2 (a) eluci- FTC v. BORDEN CO. 649 637 Stewart, J., dissenting. There is nothing intrinsic to the concepts of grade and quality that requires exclusion of the commercial attributes of a product from their definition. The product purchased by a consumer includes not only the chemical components that any competent laboratory can itemize, but also a host of commercial intangibles that distinguish the product in the marketplace.3 The premium paid dated in this opinion, since the relevant comparison would exclude promotional efforts by persons other than the producer of the premium brand. Thus, promotional activities by customers of Borden in the present case could not affect the determination of “like grade and quality” with regard to sales by Borden. Cf. Jordan, Robinson-Patman Act Aspects of Dual Distribution by Brand of Consumer Goods, 50 Cornell L. Q. 394, 406-407 (1965). 3 Cf. Chamberlin, The Theory of Monopolistic Competition 56 (8th ed. 1962): “A general class of product is differentiated if any significant basis exists for distinguishing the goods (or services) of one seller from those of another. Such a basis may be real or fancied, so long as it is of any importance whatever to buyers, and leads to a preference for one variety of the product over another. Where such differentiation exists, even though it be slight, buyers will be paired with sellers, not by chance and at random (as under pure competition), but according to their preferences. Differentiation may be based upon certain characteristics of the product itself, such as exclusive patented features; trade-marks; trade names; peculiarities of the package or container, if any; or singularity in quality, design, color, or style. ... In so far as these and other intangible factors vary from seller to seller, the product’ in each case is different, for buyers take them into account, more or less, and may be regarded as purchasing them along with the commodity itself.” See also Brown, Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L. J. 1165, 1181 (1948): • . • The buyer of an advertised good buys more than a parcel of food or fabric; he buys the pause that refreshes, the hand that has never lost its skill, the priceless ingredient that is the reputation of its maker. All these may be illusions, but they cost money to create, and if the creators can recoup their outlay, who is the poorer? Among the many illusions which advertising can fashion are those 650 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. for Borden brand milk reflects the consumer’s awareness, promoted through advertising, that these commercial attributes are part and parcel of the premium product he is purchasing.4 The record in the present case indicates that wholesale purchasers of Borden’s private label brands continued to purchase the premium brand in undiminished quantities. The record also indicates that retail purchasers who bought the premium brand did so with the specific expectation of acquiring a product of premium quality.5 Contrary to the Court’s suggestion, of lavishness, refinement, security, and romance. Suppose the monetary cost of compounding a perfume is trivial; of what moment is this if the ads promise, and the buyer believes, that romance, even seduction, will follow its use? The economist, whose dour lexicon defines as irrational any market behavior not dictated by a logical pecuniary calculus, may think it irrational to buy illusions; but there is a degree of that kind of irrationality even in economic man; and consuming man is full of it.” 4 For example, a grocer testified in the proceedings before the Commission that: “People are going into a grocery store to pick up groceries, the majority of the people buy something that is advertised that they have known for years or heard of for years or see highly advertised. They know it is a good product, they know it is fancy merchandise or best quality.” Another grocer testified that: “A. Some people say they want [Borden’s] Silver Cow milk. In other words, for maybe a coupon on the side of the can or because they have been educated to want that brand. Some of them won’t have anything but that. Some of them won’t have anything except Carnation, and some of them don’t want anything except Pet. “Q. They don’t care what price— “A. If the doctor tells the woman to put the baby on Pet milk, that is all she wants, you couldn’t interest her in something else. “Q. You couldn’t give her something else, could you? “A. I doubt if I could.” 5 The results of a house-to-house survey conducted for Borden by National Analysts, Inc., indicated that consumers selected Borden’s premium brand because of its superior quality. Comparable FTC v. BORDEN CO. 651 637 Stewart, J., dissenting. ante, p. 644, this consumer expectation cannot accurately be characterized as a misapprehension. Borden took extensive precautions to insure that a flawed product did not reach the consumer.6 None of these precautions was taken for the private brand milk packed by Borden.7 An important ingredient of the premium brand inheres in the consumer’s belief, measured by past satisfaction and the market reputation established by Borden for its products, that tomorrow’s can will contain the same premium product as that purchased today. To say, as the Court does, that these and other intangibles, which comprise an important part of the commercial value of a product, are not sufficient to confer on Borden’s premium brand a “grade” or “quality” different from that of private label brands is to ignore the obvious market acceptance of that difference. “[C]ommercially the ‘advertised’ brands had come in the minds of the public to mean a different grade of milk. The public may have studies have reached a similar conclusion. Cf. “Mom Feels Quality, not Ad Cost, Makes Brand Item Costlier, ‘Good House’ Reports,” Advertising Age, Dec. 7, 1964, p. 30. 6 Borden’s Food Products Division maintained a staff of field representatives who inspected code-datings on cans of Borden brand milk in retail stores, in order to insure that older milk was sold first off the retailer’s shelves. A witness for Borden testified that the principal dangers of long storage were discoloration of the milk, precipitation of calcium and other minerals, and separation and hardening of fat from the milk. As a further precaution against sales of defective milk, Borden dispatched its milk to wholesalers and retailers under a first-packed, first-shipped rotation plan that occasionally involved high-cost shipments from distant plants or warehouses. In addition, before shipment from a cold storage warehouse, Borden “tempered” its premium brand milk in order to prevent condensation on the cans, which might have resulted in mat to the cans and damage to the labels. 7 As counsel for the respondent candidly stated on oral argument o the Court, “The difference as to the private label brand packed .J u °rdenthat, as to that product, the Borden Company washes its hands of it at the factory door.” 652 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. been wrong; ... it may have been right .... But right or wrong, that is what it believed, and its belief was the important thing.” Borden’s Farm Products Co. v. Ten Eyck, 11 F. Supp. 599, 601 (D. C. S. D. N. Y.) (opinion of L. Hand, J.).8 The spare legislative history of the Robinson-Patman Act is in no way inconsistent with a construction of § 2 (a) that includes market acceptance in the test of “like grade and quality.” That history establishes no more than that mere differences in brand or design, unaccompanied by any genuine physical, chemical, or market 8 The Court’s suggestion that the commentators are about equally divided upon the issue before us is somewhat misleading. It is true that the members of the Attorney General’s National Committee to Study the Antitrust Laws, Report, pp. 156-159 (1955), were sharply divided as to whether significant consumer preferences should be taken into account under the “like grade and quality” test of § 2 (a). However, the very brief discussions of “like grade and quality” in Austin, Price Discrimination and Related Problems under the Robinson-Patman Act 39 (2d ed. 1959); Patman, Complete Guide to the Robinson-Patman Act 34-35 (1963); and Edwards, The Price Discrimination Law 31, 463—464 (1959), are not addressed to the relevance of significant consumer preferences, and the minimal discussion in Seidman is at best ambiguous, Price Discrimination Cases, reprinted in 2 Hoffmann’s Antitrust Law and Techniques 409, 427— 428 (1963). Those cursory treatments go no further than the view, with which I wholly agree, that no blanket exemption from § 2(a) is available for private label brands. But that view in no sense disposes of the concrete issue presented in this case. Commentators who have in fact focussed on the significance of consumer preferences uniformly favor inclusion of commercial acceptance in the test of “like grade and quality.” Rowe, Price Differentials and Product Differentiation: The Issues under the Robinson-Patman Act, 66 Yale L. J. 1 (1956); Rowe, Price Discrimination Under the Robinson-Patman Act 62-76 (1962); Cassady & Grether, The Proper Interpretation of “Like Grade and Quality” within the Meaning of Section 2 (a) of the Robinson-Patman Act, 30 So. Cal. L. Rev. 241 (1957); Jordan, Robinson-Patman Act Aspects of Dual Distribution by Brand of Consumer Goods, 50 Cornell L. Q. 394 (1965). FTC v. BORDEN CO. 653 637 Stewart, J., dissenting. distinction, are insufficient to negate a finding of “like grade and quality” under § 2 (a).9 Nothing that I have found in the legislative history speaks with precision to the sole issue before us here, the application of § 2 (a) to physically or chemically identical products that are in fact differentiated by substantial market factors.10 Neither the remarks of Representative Patman, ante, p. 643, nor the letter of Mr. Teegarden, ante, p. 641, n. 4, supports the Court’s conclusion that Congress intended physical and chemical identity to be the sole touchstone of “like grade and quality.” Aside from the obviously casual nature of Mr. Patman’s reply to the question con- 9 The Court’s suggestion, ante, p. 644, that a difference in label alone would exclude the reach of § 2 (a) if a market test were accepted for “like grade and quality” is no part of the present case and has never been offered as a serious interpretation of § 2 (a). Nor is there any issue raised here as to whether, under a market test of §2 (a), a dubious pricing and branding policy adopted by a seller could “validate itself” and escape the Act by creating precarious distinctions in grade or quality. The price differential between Borden’s premium and private label brands is concededly grounded upon a legitimate and stable market preference for the premium product. Moreover, the Commission’s willingness to engage in the exhaustive analysis of injury to competition and cost justification under its “physical identity” test of § 2 (a) demonstrates that the Commission’s resources would be more than adequate to determine the level of commercial preference sufficient to negate a finding of “like grade and quality” under a market test of § 2 (a). Certain general language in the congressional reports may be taken, however, as supporting the interpretation that market factors are relevant in the construction of § 2 (a). The Report of the House Commrttee on the Judiciary stated that the general object of the was to amend section 2 of the Clayton Act so as to suppress more effectually discriminations between customers of the same se er not supported by sound economic differences in their business Positions; ” h. R. Rep. No. 2287, 74th Cong., 2d Sess., p. 7. (mphasrs added.) The Report of the Senate Committee on the udiciary is phrased in substantially the same language. S. R. Rep No. 1502, 74th Cong., 2d Sess., p. 3. 654 383 U.S. OCTOBER TERM, 1965. Stewart, J., dissenting. cerning the effect of the Act on private label brands,11 his remarks go embarrassingly further than the circumspect reading sought to be given them by the Court. On its face, Mr. Patman’s statement makes the blanket assertion that all products of the same quality must be sold at the same price. As thus stated, premium brands would have to be sold at the same price as private label brands, regardless of injury to competition, cost justification, or other available defenses under the Act. These undifferentiated remarks are therefore of little assistance in the determination of congressional intent. Far from supporting the Court’s interpretation of § 2 (a), the final paragraph of the Teegarden letter suggests that Mr. Tee-garden considered the bill to have no effect on a premium brand producer’s decision to furnish private label brands to purchasers, so long as the private label brands were made available on the same terms to all purchasers. Mr. Teegarden’s concern was with the prevention of discrimination between purchasers on the basis of artificial differences in brand.12 That same concern, and no more, 11 The remarks of Representative Patman were even more offhand than the opinion of the Court indicates. Prefacing the portion of his remarks quoted by the Court, Mr. Patman said, “I only have a very short time, and I must finish my statement. I have not time to discuss that feature . . , 12 The predominant concern of Congress in enacting the Robinson-Patman amendments to the Clayton Act was to abolish the notorious price discriminations that infected the post-Depression economy, especially the blanket immunity then available for quantity discounts under § 2 of the Clayton Act. An obvious commercial evil at the time was the widespread practice of offering private label brands to favored customers at rates substantially lower than the rates offered to competing purchasers. The abortive attempt, vigorously opposed by Mr. Teegarden, to introduce “and brands” into the “like grade and quality” provision would have left that evil completely unremedied. Cf. 80 Cong. Rec. 8234-8236 (rejection of amendments proposing the addition of “and design” and “purchased under like conditions” to the “like grade and quality” clause). FTC v. BORDEN CO. 655 637 Stewart, J., dissenting. is all that may legitimately be read into the rejection by Congress of the proposal to add “and brands” to the “like grade and quality” provision in the bill. By rejecting that proposal, it can be inferred only that Congress contemplated “no blanket exemption ... for ‘like’ products which differed only in brand . . . , leaving open the application of the Act to differentiated products reflecting more than a nominal or superficial variation.” Rowe, Price Discrimination Under the Robinson-Patman Act 65 (1962). The references in the legislative hearings and the House Committee Report to the Commission’s decision in Goodyear Tire de Rubber Co., 22 F. T. C. 232, are equally inconclusive on the relevance of commercial acceptance to the determination of “like grade and quality.” The striking aspect of that case is that Goodyear conceded that the differently branded tires involved in the proceeding were of like grade and quality, 22 F. T. C., at 290. Moreover, the tires purchased by Sears, Roebuck & Co. from Goodyear and sold under Sears’ “All State” label were advertised by Sears as obtained from “the leading tire manufacturer” and “the world’s foremost tire manufacturer,” so that the market independence of Sears’ private brand was compromised. Id., at 295, 297. The other administrative precedents relied on by the Court also fail to establish any consistently settled interpretation by the Federal Trade Commission that physical identity is the sole touchstone of “like , grade and quality.” Those decisions singularly fail to focus on the significance of consumer preference as a relevant actor in the test of grade and quality.13 Moreover, the ”In Hansen Inoculator Co., 26 F. T. C. 303, and the two United states Rubber Co. cases, 28 F. T. C. 1489; 46 F. T. C. 998, the finding i e grade and quality” was either conceded by the respondent or not challenged. In addition, in Hansen Inoculator, there was significant evidence that the private label product was in fact trading 656 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. Commission has itself explicitly resorted to consumer preference or marketability to resolve the issue of “like grade and quality” in cases where minor physical variations accompany a difference in product brand.14 The on the reputation of the premium product. Further, in Hansen Inoculator, as in Page Dairy Co., 50 F. T. C. 395, it is doubtful that even the labels on the two products were distinguishable. In Whitaker Cable Corp., 51 F. T. C. 958, the resale prices of both products were identical, so that no commercial preference could have been proved in any event. Finally, in the first United States Rubber case and in Whitaker Cable Corp., there was substantial discrimination by the seller between various purchasers of the private label brands. In setting aside the order of the Commission in the present case, the Court of Appeals for the Fifth Circuit emphasized that in none of these cases was there any showing that the brand names affected the market price of the products sold. 14 Universal-Rundle Corp., CCH Trade Reg. Rep. Transfer Binder, 1963-1965, T16948, at pp. 22003-22005 (F. T. C. Dkt. 8070, June 12, 1964) (differences in plumbing fixtures); Quaker Oats Co., CCH Trade Reg. Rep. Transfer Binder, 1963-1965, If 17134, at p. 22215 (F. T. C. Dkt. 8112, Nov. 18, 1964) (differences in flour blends). Compare E. Edelmann & Co., 51 F. T. C. 978 (differences in automobile replacement parts); Bruce’s Juices, Inc. v. American Can Co., 87 F. Supp. 985, aff’d 187 F. 2d 919 (C. A. 5th Cir.) (differences in size of juice cans); Champion Spark Plug Co., 50 F. T. C. 30 (differences in insulator and “ribs” of spark plugs). Cf. Comment, Like Grade and Quality: Emergence of the Commercial Standard, 26 Ohio State L. J. 294, 296-302 (1965). The Commission appears at one time to have held that brand identity may create a presumption of “like grade and quality,” regardless of the existence of physical differences between the products. General Foods Corp., 52 F. T. C. 798, 817; Atalanta Trading Corp., 53 F. T. C. 565, 571. In setting aside the Commission’s order in Atalanta, the Court of Appeals for the Second Circuit stated that “The test of products of like grade and quality was evolved to prevent emasculation of the section by a supplier’s making artificial distinctions in his product but this does not mean that all distinctions are to be disregarded.” Atalanta Trading Corp. v. FTC, 258 F. 2d 365, 371. In a footnote to that opinion, the Court of Appeals indicated that price differences were among the distinctions to be considered. Id., at 371, n. 5. Cf. Rowe, Price Discrimination Under the Robinson-Patman Act 71-72 (1962). FTC v. BORDEN CO. 657 637 Stewart, J., dissenting. caprice of the Commission’s present distinction thus invites Borden to incorporate slight tangible variations in its private label products, in order to bring itself within the Commission’s current practice of considering market preferences in such cases. The Commission’s determination of “like grade and quality” under § 2 (a) in this case is seriously inconsistent with the position it has taken under § 2 (b) in cases where a seller has presented the defense that he is in good faith meeting the equally low price of a competitor. The Commission decisions are clear that the “meeting competition” defense is not available to a seller who reduces the price of his premium product to the level of nonpremium products sold by his competitors. The Commission decisions under § 2 (b) emphasize that market preference must be considered in determining whether a competitor is “meeting” rather than “beating” competition. In Standard Oil Co., 49 F. T. C. 923, 952, the Commission put it baldly: “[I]n the retail distribution of gasoline public acceptance rather than chemical analysis of the product is the important competitive factor.”15 15 See also Minneapolis-Honeywell Regulator Co., 44 F. T. C. 351, 396-397: “To accept [the contrary] proposition would mean that any seller of a commodity which generally sells at a premium price may freely discriminate among its customers so long as it does not undercut the prices of competitors”; Anheuser-Busch, Inc., 54 F. T. C. 277, 302: “It is evident that Budweiser could and did successfully command a premium price in the St. Louis market . . . . The test in such a case is not necessarily a difference in quality but the fact that the public is willing to buy the product at a higher Price in a normal market”; Callaway Mills Co., sub nom. Bigelow-Sanford Carpet Co., CCH Trade Reg. Rep. Transfer Binder, 1963-1965,116,800, at p. 21755 (F. T. C. Dkt. 7634, Feb. 10,1964): “Both the courts and the Commission have consistently denied the shelter of t e [meeting competition] defense to sellers whose product, because o • . . intense public demand, normally commands a price higher an that usually received by sellers of competitive goods”; Standard 658 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. Could the Commission under § 2 (b) now prevent Borden from reducing the price of its premium milk to the level of private label milk? I can see no way that it could, short of maintaining a manifestly unstable equilibrium between § 2 (a) and § 2 (b). By adopting a keyhole approach to § 2 (a), the Court manages to escape resolution of the question, but it does so at the cost of casting grave doubt on what I had regarded as an important bulwark of § 2 (b) against a recognized competitive evil. The Court gives no substantial economic justification for its construction of § 2 (a).16 The principal rationale of the restriction of that section to commodities of “like Brands, Inc., 46 F. T. C. 1485, 1495; Gerber Products Co. v. Beech-Nut Life Savers, Inc., 160 F. Supp. 916, 920, 921-922 (D. C. S. D. N. Y.). Cf. Porto Rican American Tobacco Co. v. American Tobacco Co., 30 F. 2d 234, 237 (C. A. 2d Cir.). In the present case, the Court of Appeals for the Fifth Circuit specifically refused to “approve of the Commission’s construing the Act inconsistently from one case to the next, as appears most advantageous to its position in a particular case.” 339 F. 2d 133, at 139. See the comment of Commissioner Mason: “First the Commission finds you guilty of price discrimination by disregarding popularity of goods, and finds the grade and quality of the commodities in question are the same; then they knock out your meeting of competition defense because your goods are more popular than others, even if the commodities in question are of like grade and quality.” Discriminate in Price between Different Purchasers of Commodities of Like Grade, Quality and Popularity, Proc. Am. Bar Assn. Section of Antitrust Law 82, 91-92 (Aug. 1953). Cf. Eine Kleine Juristische Schlum-mergeschichte, 79 Harv. L. Rev. 921, 928-929 (1966). 16 The Court’s brief discussion of the adverse economic effect of the Fifth Circuit’s ruling is concerned primarily with the supposed injury to secondary line competition. The present proceeding arose as the direct result of the primary line injury caused to midwestem packers of private label evaporated milk when Borden expanded its plants in Tennessee and South Carolina to include private label operation, but the opinion of the Court nowhere discusses such competition. FTC v. BORDEN CO. 659 637 Stewart, J., dissenting. grade and quality” is simply that it is not feasible to measure discrimination and injury to competition where different products are involved. That rationale is as valid for economic as for physical variation between products. Once a substantial economic difference between products is found, therefore, the inquiry of the Commission should be ended, just as it is ended when a substantial physical difference is found. In spite of the assertion of the Attorney General’s Report quoted by the Court, it is unlikely that economic differences between premium and private label brands can realistically be taken into account by the Commission under the “injury to competition” and “cost justification” provisions of § 2 (a).17 Even if relevant cost data can be agreed upon, the cost ratio between Borden’s premium and private label products is hardly the most significant factor in Borden’s pricing decision and market return on those products. Moreover, even if price discrimination is found here, its effect on competition may prove even more difficult to determine than in more con- 17 It is not clear that the “injury to competition” and “cost justification” issues will be reached on the remand. As the opinion of the Court suggests, ante, p. 646, the existence of price discrimination is an issue that remains open in the Court of Appeals. If Borden is able to demonstrate that the price differential between its premium and private label brands is not a price discrimination, the inquiry by the Commission is at an end, and no issue of injury to competition or cost justification under § 2 (a) is reached. Nothing in FTC v. Anheuser-Busch, Inc., 363 U. S. 536, a case concerned only with territorial price discrimination, requires an equation in a circumstances between a price differential and price discrimination. So long as Borden makes private label brands available to all customers of its premium milk, it is unlikely that price discrimination within the meaning of § 2 (a) can be made out. Boss Mfg. v. Payne Glove Co., 71 F. 2d 768, 770-771 (C. A. 8th Cir.); Austin, Price Discrimination and Related Problems under the Robinson Patman Act 21 (2d ed. 1959); Rowe, Price Discrimination Under the Robinson-Patman Act, supra, at 97-99. 660 OCTOBER TERM, 1965. Stewart, J., dissenting. 383 U. S. ventional cases of price discrimination under § 2 (a). Cf. FTC v. Morton, Salt Co., 334 U. S. 37; United Biscuit Co. v. FTC, 350 F. 2d 615 (C. A. 7th Cir.). The threat presented to primary line competition by Borden’s distribution of premium and private label brands is unclear. No allegation was made that Borden has used its dominant position in the premium brand market to subsidize predatory price-cutting campaigns in the private label market. Borden packs its private label brands for national distribution, so that this case is essentially different from those in which geographical price discriminations are involved. Further, Borden’s private label brands are aimed in part at a different, more price-conscious class of consumer. Because relevant economic factors differ in the premium and private label markets, conventional notions of price discrimination under the Robinson-Patman Act may not be applicable.18 More important, Borden’s extensive distribution of its private label brands has introduced significant low-cost competition for Borden’s own premium product. Thus, the large retail chains and cooperative buyer organizations that are Borden’s chief private label customers represent a significant source of countervailing power to the oligopoly pattern of evaporated milk production. The rise of this sort of competition is well known in other parts of the food industry.19 In these circumstances, the anticompetitive leverage against primary line competition available to Borden through its private label production is sharply curtailed. There is, therefore, no real resemblance in this case to the serious discriminatory 18 Cf. Adelman, Price Discrimination as Treated in the Attorney General’s Report, 104 U. Pa. L. Rev. 222, 228-230 (1955). See Staff Report to the Federal Trade Commission, Economic Inquiry into Food Marketing, Part II, The Frozen Fruit, Juice and Vegetable Industry (1962); Jordan, supra, n. 8, at 413-417. FTC v. BORDEN CO. 661 637 Stewart, J., dissenting. practices that the Robinson-Patman Act was enacted to prevent. The potential economic impact of Borden’s distribution of private label brands on secondary line competition is equally ambiguous. It is true that a market test of “like grade and quality” would enable Borden, so far as § 2 (a) is concerned, to make private label brands selectively available to customers of its premium brand. Not all wholesale and retail dealers who carry Borden’s premium brand would be able, as of right, to take advantage of Borden’s private label production. But the Commission could still apply § 2 (a) with full force against discriminations between private label customers. And the Government could still invoke § 2 of the Sherman Act or § 5 of the Federal Trade Commission Act to deal with other forms of price discrimination by Borden against its customers or competitors. Under the Court’s view of § 2 (a), Borden must now make private label milk available to all customers of its premium brand.20 But that interpretation of § 2 (a) is 20 The Commission concedes that there is no evidence in the record that Borden refused to sell private label milk to any customer who specifically requested it. Borden’s private label business in the period covered by these proceedings was substantial. In 1957, Borden sold 4,300,000 cases of its premium brand evaporated milk and 1,100,000 cases of private label milk (government and export business excluded); net sales of these products were $27,600,000 and $5,700,000, respectively. A major source of Borden’s private label usiness was provided by cooperative associations of wholesalers and retailers, so that, in fact, there was an opportunity for large numbers of small retailers to compete in the sale of private label brands of evaporated milk obtained from Borden. One such group, whose purchases accounted for 11% of Borden’s private label volume in 1957, had more than 1,000 retailer members. Not all retailers, however, availed themselves of the opportunity to market private abel milk. One wholesaler testified that, a year after his private a el brand had been offered to the 600 retail grocers in his service area, only 50 of the grocers had become regular customers. 662 383 U. S. OCTOBER TERM, 1965. Stewart, J., dissenting. hardly calculated to speed private label brands to the shelves of retailers. To avoid supplying a private label brand to a premium brand customer, Borden need only forgo further sales of its premium brand to that customer. It is, therefore, not unlikely that the Court’s decision will foster a discrimination greater than that which it purports to eliminate, since retailers previously able to obtain the premium Borden brand but not a private label brand, may now find their access to the premium brand foreclosed as well. In Automatic Canteen Co. n. FTC, 346 U. S. 61, 63, this Court cautioned against construction of the Robinson-Patman Act in a manner that might “give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation.” Today that warning goes unheeded. In the guise of protecting producers and purchasers from discriminatory price competition, the Court ignores legitimate market preferences and endows the Federal Trade Commission with authority to disrupt price relationships between products whose identity has been measured in the laboratory but rejected in the marketplace. I do not believe that any such power was conferred upon the Commission by Congress, and I would, therefore, affirm the judgment of the Court of Appeals. HARPER v. VIRGINIA BD. OF ELECTIONS. 663 Syllabus. HARPER et al. v. VIRGINIA BOARD OF ELECTIONS et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. No. 48. Argued January 25-26, 1966.—Decided March 24, 1966* Appellants, Virginia residents, brought this action to have Virginia’s poll tax declared unconstitutional. The three-judge District Court dismissed the complaint on the basis of Breedlove v. Suttles, 302 U. S. 277. Held: A State’s conditioning of the right to vote on the payment of a fee or tax violates the Equal Protection Clause of the Fourteenth Amendment. Breedlove v. Suttles, supra, pro tanto overruled. Pp. 665-670. (a) Once the franchise is granted to the electorate, lines which determine who may vote may not be drawn so as to cause invidious discrimination. Pp. 665-667. (b) Fee payments or wealth, like race, creed, or color, are unrelated to the citizen’s ability to participate intelligently in the electoral process. Pp. 666-668. (c) The interest of the State, when it comes to voting registration, is limited to the fixing of standards related to the applicant’s qualifications as a voter. P. 668. (d) Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored. P. 668. (e) Classifications which might impinge on fundamental rights and liberties—such as the franchise—must be closely scrutinized. P. 670. 240 F. Supp. 270, reversed. Allison W. Brown, Jr., argued the cause for appellants in No. 48. With him on the brief were Lawrence Speiser and Philip Schwartz. Robert L. Segar and J. A. Jordan, Jr., argued the cause for appellant in No. 655. With them on the brief were Max Dean and Len W. Holt. *Together with No. 655, Butts v. Harrison, Governor of Virginia, €t al., also on appeal from the same court. 664 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. George D. Gibson argued the cause for appellees in both cases. With him on the briefs were Robert Y. Button, Attorney General of Virginia, Richard N. Harris, Assistant Attorney General, and Joseph C. Carter, Jr. Solicitor General Marshall argued the cause for the United States, as amicus curiae in No. 48, by special leave of Court, urging reversal. With him on the brief were Attorney General Katzenbach, Assistant Attorney General Doar, Ralph S. Spritzer, David Rubin, James L. Kelley and Richard A. Posner. Mr. Justice Douglas delivered the opinion of the Court. These are suits by Virginia residents to have declared unconstitutional Virginia’s poll tax.1 The three-judge * Section 173 of Virginia’s Constitution directs the General Assembly to levy an annual poll tax not exceeding $1.50 on every resident of the State 21 years of age and over (with exceptions not relevant here). One dollar of the tax is to be used by state officials “exclusively in aid of the public free schools” and the remainder is to be returned to the counties for general purposes. Section 18 of the Constitution includes payment of poll taxes as a precondition for voting. Section 20 provides that a person must “personally” pay all state poll taxes for the three years preceding the year in which he applies for registration. By §21 the poll tax must be paid at least six months prior to the election in which the voter seeks to vote. Since the time for election of state officials varies (Va. Code §§ 24-136, 24-160—24r-168; id., at §24-22), the six months’ deadline will vary, election from election. The poll tax is often assessed along with the personal property tax. Those who do not pay a personal property tax are not assessed for a poll tax, it being their responsibility to take the initiative and request to be assessed. Va. Code § 58-1163. Enforcement of poll taxes takes the form of disenfranchisement of those who do not pay, § 22 of the Virginia Constitution providing that collection of delinquent poll taxes for a particular year may not be enforced by legal proceedings until the tax for that year has become three years delinquent. HARPER v. VIRGINIA BD. OF ELECTIONS. 665 663 Opinion of the Court. District Court, feeling bound by our decision in Breedlove v. Suttles, 302 U. S. 277, dismissed the complaint. See 240 F. Supp. 270. The cases came here on appeal and we noted probable jurisdiction. 380 U. S. 930, 382 U. S. 806. While the right to vote in federal elections is conferred by Art. I, § 2, of the Constitution (United States v. Classic, 313 U. S. 299, 314-315), the right to vote in state elections is nowhere expressly mentioned. It is argued that the right to vote in state elections is implicit, particularly by reason of the First Amendment and that it may not constitutionally be conditioned upon the payment of a tax or fee. Cf. Murdock v. Pennsylvania, 319 U. S. 105, 113.2 We do not stop to canvass the relation between voting and political expression. For it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. That is to say, the right of suffrage “is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.” Lassiter v. Northampton Election Board, 360 U. S. 45, 51. We were speaking there of a state literacy test which we sustained, warning that the result would be different if a literacy test, fair on its face, were used to discriminate 2 Judge Thornberry, speaking for the three-judge court which recently declared the Texas poll tax unconstitutional, said: “If the State of Texas placed a tax on the right to speak at the rate of one dollar and seventy-five cents per year, no court would hesitate to strike it down as a blatant infringement of the freedom of speech. Yet the poll tax as enforced in Texas is a tax on the equally important right to vote.” 252 F. Supp. 234, 254 (decided February 9, 1966). 666 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. against a class.3 Id., at 53. But the Lassiter case does not govern the result here, because, unlike a poll tax, the “ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot.” Id., at 51. We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.4 Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate. Thus without questioning the power of a State to impose reasonable residence restrictions on the availability of the ballot (see Pope v. Williams, 193 U. S. 621), we 3 We recently held in Louisiana v. United States, 380 U. S. 145, that a literacy test which gave voting registrars “a virtually uncontrolled discretion as to who should vote and who should not” (id., at 150) had been used to deter Negroes from voting and accordingly we struck it down. While the “Virginia poll tax was bom of a desire to disenfranchise the Negro” (Harman v. Forssenius, 380 U. S. 528, 543), we do not stop to determine whether on this record the Virginia tax in its modem setting serves the same end. 4 Only a handful of States today condition the franchise on the payment of a poll tax. Alabama (Ala. Const., §§ 178, 194, and Amendments 96 and 207; Ala. Code Tit. 17, § 12) and Texas (Tex. Const., Art. 6, §2; Vernon’s Ann. Stat., Election Code, Arts. 5.02, 5.09) each impose a poll tax of $1.50. Mississippi (Miss. Const., §§241, 243; Miss. Code §§3130, 3160, 3235) has a poll tax of $2. Vermont has recently eliminated the requirement that poll taxes be paid in order to vote. Act of Feb. 23, 1966, amending Vt. Stat. Ann. Tit. 24, § 701. As already noted, note 2, supra, the Texas poll tax was recently declared unconstitutional by a three-judge United States District Court. United States v. Texas, 252 F. Supp. 234 (decided February 9, 1966). Likewise, the Alabama tax. United States v. Alabama, 252 F. Supp. 95 (decided March 3, 1966). HARPER v. VIRGINIA BD. OF ELECTIONS. 667 663 Opinion of the Court. held in Carrington v. Rash, 380 U. S. 89, that a State may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services. “By forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constitution imposes an invidious discrimination in violation of the Fourteenth Amendment.” Id., at 96. And see Louisiana v. United States, 380 U. S. 145. Previously we had said that neither homesite nor occupation “affords a permissible basis for distinguishing between qualified voters within the State.” Gray v. Sanders, 372 U. S. 368, 380. We think the same must be true of requirements of wealth or affluence or payment of a fee. Long ago in Yick Wo v. Hopkins, 118 U. S. 356, 370, the Court referred to “the political franchise of voting” as a “fundamental political right, because preservative of all rights.” Recently in Reynolds v. Sims, 377 U. S. 533, 561-562, we said, “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” There we were considering charges that voters in one part of the State had greater representation per person in the State Legislature than voters in another part of the State. We concluded: ‘A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution’s Equal Protection Clause. This is an essential part of the concept of a government of laws and not men. This is at the heart of Lincoln’s vision of ‘government of the people, by the people, [and] for the people.’ The Equal Protection Clause 668 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.” Id., at 568. We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen’s vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a fee to vote or who fail to pay. It is argued that a State may exact fees from citizens for many different kinds of licenses; that if it can demand from all an equal fee for a driver’s license,5 it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race {Korematsu v. United States, 323 U. S. 214, 216), are traditionally disfavored. See Edwards v. California, 314 U. S. 160, 184-185 (Jackson, J., concurring); Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353. To introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context—that is, as a condition of obtaining a ballot—the requirement of fee paying causes an “invidious” discrimination {Skinner n. Oklahoma, 316 U. S. 535, 541) that runs afoul of the Equal Protection Clause. Levy “by the poll,” as stated in 5 Maine has a poll tax (Maine Rev. Stat. Ann. Tit. 36, §1381) which is not made a condition of voting; instead, its payment is a condition of obtaining a motor vehicle license (Maine Rev. Stat. Ann. Tit. 29, § 108) or a motor vehicle operator’s license. Id., § 584. HARPER v. VIRGINIA BD. OF ELECTIONS. 669 663 Opinion of the Court. Breedlove v. Suttles, supra, at 281, is an old familiar form of taxation; and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as “a prerequisite of voting.” Id., at 283. To that extent the Breedlove case is overruled. We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statics” (Lochner v. New York, 198 U. S. 45, 75). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. See Malloy v. Hogan, 378 U. S. 1, 5-6. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court in 1896 held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson, 163 U. S. 537. Seven of the eight Justices then sitting subscribed to the Court’s opinion, thus joining in expressions of what constituted unequal and discriminatory treatment that sound strange to a contemporary ear.6 When, in 1954—more than a half-century later—we repudiated the “separate-but-equal” doctrine of Plessy g., “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority, this be so, it is not by reason of anything found in the act, but s°ey because the colored race chooses to put that construction upon it.” 163 U. S., at 551. 670 383 U. S. OCTOBER TERM, 1965. Black, J., dissenting. as respects public education7 we stated: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” Brown v. Board of Education, 347 U. S. 483, 492. In a recent searching re-examination of the Equal Protection Clause, we held, as already noted, that “the opportunity for equal participation by all voters in the election of state legislators” is required.8 Reynolds v. Sims, supra, at 566. We decline to qualify that principle by sustaining this poll tax. Our conclusion, like that in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires. We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. See, e. g., Skinner v. Oklahoma, 316 U. S. 535, 541; Reynolds v. Sims, 377 U. S. 533, 561-562; Carrington n. Rash, supra; Baxstrom v. Herold, ante, p. 107; Cox v. Louisiana, 379 U. S. 536, 580-581 (Black, J., concurring). Those principles apply here. For to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned. Reversed. Mr. Justice Black, dissenting. In Breedlove v. Suttles, 302 U. S. 277, decided December 6, 1937, a few weeks after I took my seat as a member 7 Segregated public transportation, approved in Plessy v. Ferguson, supra, was held unconstitutional in Gayle v. Browder, 352 U. S. 903 (per curiam). 8 Only Mr. Justice Harlan dissented, while Mr. Justice Clark and Mr. Justice Stewart each concurred on separate grounds. HARPER v. VIRGINIA BD. OF ELECTIONS. 671 663 Black, J., dissenting. of this Court, we unanimously upheld the right of the State of Georgia to make payment of its state poll tax a prerequisite to voting in state elections. We rejected at that time contentions that the state law violated the Equal Protection Clause of the Fourteenth Amendment because it put an unequal burden on different groups of people according to their age, sex, and ability to pay. In rejecting the contention that the law violated the Equal Protection Clause the Court noted at p. 281 : “While possible by statutory declaration to levy a poll tax upon every inhabitant of whatsoever sex, age or condition, collection from all would be impossible for always there are many too poor to pay.” Believing at that time that the Court had properly respected the limitation of its power under the Equal Protection Clause and was right in rejecting the equal protection argument, I joined the Court’s judgment and opinion. Later, May 28, 1951, I joined the Court’s judgment in Butler v. Thompson, 341 U. S. 937, upholding, over the dissent of Mr. Justice Douglas, the Virginia state poll tax law challenged here against the same equal protection challenges. Since the Breedlove and Butler cases were decided the Federal Constitution has not been amended in the only way it could constitutionally have been, that is, as provided in Article V1 of the 1 Article V of the Constitution provides : The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner 672 383 U.S. OCTOBER TERM, 1965. Black, J., dissenting. Constitution. I would adhere to the holding of those cases. The Court, however, overrules Breedlove in part, but its opinion reveals that it does so not by using its limited power to interpret the original meaning of the Equal Protection Clause, but by giving that clause a new meaning which it believes represents a better governmental policy. From this action I dissent. It should be pointed out at once that the Court’s decision is to no extent based on a finding that the Virginia law as written or as applied is being used as a device or mechanism to deny Negro citizens of Virginia the right to vote on account of their color. Apparently the Court agrees with the District Court below and with my Brothers Harlan and Stewart that this record would not support any finding that the Virginia poll tax law the Court invalidates has any such effect. If the record could support a finding that the law as written or applied has such an effect, the law would of course be unconstitutional as a violation of the Fourteenth and Fifteenth Amendments and also 42 U. S. C. § 1971 (a). This follows from our holding in Schnell v. Davis, 336 U. S. 933, affirming 81 F. Supp. 872 (D. C. S. D. Ala.); Gomillion v. Lightfoot, 364 U. S. 339; United States v. Mississippi, 380 U. S. 128; Louisiana v. United States, 380 U. S. 145. What the Court does hold is that the Equal Protection Clause necessarily bars all States from making payment of a state tax, any tax, a prerequisite to voting. (1) I think the interpretation that this Court gave the Equal Protection Clause in Breedlove was correct. The mere fact that a law results in treating some groups differently from others does not, of course, automatically amount to a violation of the Equal Protection Clause. affect the first and fourth clauses in the Ninth Section of the First Article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” HARPER v. VIRGINIA BD. OF ELECTIONS. 673 663 Black, J., dissenting. To bar a State from drawing any distinctions in the application of its laws would practically paralyze the regulatory power of legislative bodies. Consequently “The constitutional command for a state to afford ‘equal protection of the laws’ sets a goal not attainable by the invention and application of a precise formula.” Kotch v. River Port Pilot Comm’rs, 330 U. S. 552, 556. Voting laws are no exception to this principle. All voting laws treat some persons differently from others in some respects. Some bar a person from voting who is under 21 years of age; others bar those under 18. Some bar convicted felons or the insane, and some have attached a freehold or other property qualification for voting. The Breedlove case upheld a poll tax which was imposed on men but was not equally imposed on women and minors, and the Court today does not overrule that part of Breedlove which approved those discriminatory provisions. And in Lassiter n. Northampton Election Board, 360 U. S. 45, this Court held that state laws which disqualified the illiterate from voting did not violate the Equal Protection Clause. From these cases and all the others decided by this Court interpreting the Equal Protection Clause it is clear that some discriminatory voting qualifications can be imposed without violating the Equal Protection Clause. A study of our cases shows that this Court has refused to use the general language of the Equal Protection Clause as though it provided a handy instrument to strike down state laws which the Court feels are based on bad governmental policy. The equal protection cases carefully analyzed boil down to the principle that distinctions drawn and even discriminations imposed by state laws do not violate the Equal Protection Clause so long as these distinctions and discriminations are not “irrational,” “irrelevant,” “unreasonable,” “arbitrary,” or “in- 674 383 U.S. OCTOBER TERM, 1965. Black, J., dissenting. vidious.”2 These vague and indefinite terms do not, of course, provide a precise formula or an automatic mechanism for deciding cases arising under the Equal Protection Clause. The restrictive connotations of these terms, however (which in other contexts have been used to expand the Court’s power inordinately, see, e. g., cases cited at pp. 728-732 in Ferguson v. Skrupa, 372 U. S. 726), are a plain recognition of the fact that under a proper interpretation of the Equal Protection Clause States are to have the broadest kind of leeway in areas where they have a general constitutional competence to act.3 In view of the purpose of the terms to restrain the courts from a wholesale invalidation of state laws under the Equal Protection Clause it would be difficult to say that the poll tax requirement is “irrational” or “arbitrary” or works “invidious discriminations.” State poll tax legislation can “reasonably,” “rationally” and without an “invidious” or evil purpose to injure anyone be found to rest on a number of state policies including (1) the State’s desire to collect its revenue, and (2) its belief that voters who pay a poll tax will be interested in furthering the State’s welfare when they vote. Certainly it is rational to believe that people may be more likely to pay taxes if payment is a prerequisite to voting. And if history can be a factor in determining the “rationality” of discrimination in a state law (which we held it could in Kotch v. River Port Pilot Comm’rs, supra), then whatever may be our personal opinion, history is 2 See, e. g., Allied Stores of Ohio v. Bowers, 358 U. S. 522; Goesaert v. Cleary, 335 U. S. 464; Skinner v. Oklahoma, 316 U. S. 535; Minnesota v. Probate Court, 309 U. S. 270; Smith v. Cahoon, 283 U. S. 553; Watson v. Maryland, 218 U. S. 173. 3 “A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.” Metropolitan Co. v. Brownell, 294 U. S. 580, 584 (Stone, J.). HARPER v. VIRGINIA BD. OF ELECTIONS. 675 663 Black, J., dissenting. on the side of “rationality” of the State’s poll tax policy. Property qualifications existed in the Colonies and were continued by many States after the Constitution was adopted. Although I join the Court in disliking the policy of the poll tax, this is not in my judgment a justifiable reason for holding this poll tax law unconstitutional. Such a holding on my part would, in my judgment, be an exercise of power which the Constitution does not confer upon me.4 (2) Another reason for my dissent from the Court’s judgment and opinion is that it seems to be using the old “natural-law-due-process formula”5 to justify striking down state laws as violations of the Equal Protection Clause. I have heretofore had many occasions to express my strong belief that there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add to it substantive constitutional changes which a majority of The opinion of the Court, in footnote two, quotes language from a federal district court’s opinion which implies that since a tax on speech would not be constitutionally allowed a tax which is a prerequisite to voting likewise cannot be allowed. But a tax or any other regulation which burdens and actually abridges the right to speak would, in my judgment, be a flagrant violation of the First Amendment’s prohibition against abridgments of the freedom of speech which prohibition is made applicable to the States by the Fourteenth Amendment. Cf. Murdock v. Pennsylvania, 319 U. S. 105. There is no comparable specific constitutional provision absolutely barring the States from abridging the right to vote. Consequently States have from the beginning and do now qualify the right to vote because of age, prior felony convictions, illiteracy, and various other reasons. Of course the First and Fourteenth Amend-ments forbid any State from abridging a person’s right to speak ecause he is under 21 years of age, has been convicted of a felony, °r is illiterate. °See my dissenting opinion in Adamson v. California, 332 U. S. 676 383 U. S. OCTOBER TERM, 1965. Black, J., dissenting. the Court at any given time believes are needed to meet present-day problems.6 Nor is there in my opinion any more constitutional support for this Court to use the Equal Protection Clause, as it has today, to write into the Constitution its notions of what it thinks is good governmental policy. If basic changes as to the respective powers of the state and national governments are needed, I prefer to let those changes be made by amendment as Article V of the Constitution provides. For a majority of this Court to undertake that task, whether purporting to do so under the Due Process or the Equal Protection Clause amounts, in my judgment, to an exercise of power the Constitution makers with foresight and wisdom refused to give the Judicial Branch of the Government. I have in no way departed from the view I expressed in Adamson n. California, 332 U. S. 46, 90, decided June 23, 1947, that the “natural-law-due-process formula” under which courts make the Constitution mean what they think it should at a given time “has been used in the past, and can be used in the future, to license this Court, in considering regulatory legislation, to roam at large in the broad expanses of policy and morals and to trespass, all too freely, on the legislative domain of the States as well as the Federal Government.” The Court denies that it is using the “natural-law-due-process formula.” It says that its invalidation of the Virginia law “is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.” I find no statement in the Court’s opinion, however, which advances even a plausible argument as to why the alleged discriminations which might possibly be effected by Virginia’s poll tax law are “irrational,” “unreasonable,” “arbitrary,” or “invid- 6 See for illustration my dissenting opinion in Griswold v. Connecticut, 381 U. S. 479, 507, and cases cited therein. HARPER v. VIRGINIA BD. OF ELECTIONS. 677 663 Black, J., dissenting. ious” or have no relevance to a legitimate policy which the State wishes to adopt. The Court gives no reason at all to discredit the long-standing beliefs that making the payment of a tax a prerequisite to voting is an effective way of collecting revenue and that people who pay their taxes are likely to have a far greater interest in their government. The Court’s failure to give any reasons to show that these purposes of the poll tax are “irrational,” “unreasonable,” “arbitrary,” or “invidious” is a pretty clear indication to me that none exist. I can only conclude that the primary, controlling, predominant, if not the exclusive reason for declaring the Virginia law unconstitutional is the Court’s deep-seated hostility and antagonism, which I share, to making payment of a tax a prerequisite to voting. The Court’s justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be “shackled to the political theory of a particular era,” and that to save the country from the original Constitution the Court must have constant power to renew it and keep it abreast of this Court’s more enlightened theories of what is best for our society.7 7 In Brown v. Board of Education, 347 U. S. 483, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. 1 did not vote to hold segregation in public schools unconstitutional on any such theory. I thought when Brown was written, and I think now, that Mr. Justice Harlan was correct in 1896 when he dissented from Plessy v. Ferguson, 163 U. S. 537, which held that it was not a discrimination prohibited by the Equal Protection Clause for state law to segregate white and colored people in public facilities, there railroad cars. I did not join the opinion of the Court in Brown on any theory that segregation where practiced in the public schools denied equal protection in 678 383 U.S. OCTOBER TERM, 1965. Black, J., dissenting. It seems to me that this is an attack not only on the great value of our Constitution itself but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a “political theory” embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power but are far less qualified to choose a new constitutional political theory than the people of this country proceeding in the manner provided by Article V. The people have not found it impossible to amend their Constitution to meet new conditions. The Equal Protection Clause itself is the product of the people’s desire to use their constitutional power to amend the Constitution to meet new problems. Moreover, the people, in §5 of the Fourteenth Amendment, designated the 1954 but did not similarly deny it in 1868 when the Fourteenth Amendment was adopted. In my judgment the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color. See the Slaughter-House Cases, 16 Wall. 36, 71-72; Nixon v. Herndon, 273 U. S. 536, 541. Nor does Malloy v. Hogan, 378 U. S. 1, stand as precedent for the amendatory power which the Court exercises today. The Court in Malloy did not read into the Constitution its own notions of wise criminal procedure, but instead followed the doctrine of Palko v. Connecticut, 302 U. S. 319, and made the Fifth Amendment’s unequivocal protection against self-incrimination applicable to the States. I joined the opinion of the Court in Malloy on the basis of my dissent in Adamson v. California, supra, in which I stated, at p. 89: “If the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States, or the Twining rule applying none of them, I would choose the Palko selective process.” HARPER v. VIRGINIA BD. OF ELECTIONS. 679 663 Black, J., dissenting. governmental tribunal they wanted to provide additional rules to enforce the guarantees of that Amendment. The branch of Government they chose was not the Judicial Branch but the Legislative. I have no doubt at all that Congress has the power under § 5 to pass legislation to abolish the poll tax in order to protect the citizens of this country if it believes that the poll tax is being used as a device to deny voters equal protection of the laws. See my concurring and dissenting opinion in South Carolina v. Katzenbach, ante, p. 355. But this legislative power which was granted to Congress by § 5 of the Fourteenth Amendment is limited to Congress.8 This Court had occasion to discuss this very subject in Ex parte Virginia, 100 U. S. 339, 345-346. There this Court said, referring to the fifth section of the Amendment: “All of the amendments derive much of their force from this latter provision. It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is ap- 8 But § 1 of the Fourteenth Amendment itself outlaws any state law which either as written or as applied discriminates against voters on account of race. Such a law can never be rational. “States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right [to vote] set up in this case.” Nixon v. Herndon, 273 U. S. 536, 541 (Holmes, J.). 680 383 U.S. OCTOBER TERM, 1965. Harlan, J., dissenting. propriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.” (Emphasis partially supplied.) Thus § 5 of the Fourteenth Amendment in accordance with our constitutional structure of government authorizes the Congress to pass definitive legislation to protect Fourteenth Amendment rights which it has done many times, e. g., 42 U. S. C. § 1971 (a). For Congress to do this fits in precisely with the division of powers originally entrusted to the three branches of government—Executive, Legislative, and Judicial. But for us to undertake in the guise of constitutional interpretation to decide the constitutional policy question of this case amounts, in my judgment, to a plain exercise of power which the Constitution has denied us but has specifically granted to Congress. I cannot join in holding that the Virginia state poll tax law violates the Equal Protection Clause. Mr. Justice Harlan, whom Mr. Justice Stewart joins, dissenting. The final demise of state poll taxes, already totally proscribed by the Twenty-Fourth Amendment with respect to federal elections and abolished by the States themselves in all but four States with respect to state elections,1 is perhaps in itself not of great moment. But the fact that the coup de grace has been administered by this Court instead of being left to the affected States or to the federal political process2 should be a matter 1 Alabama, Mississippi, Texas, and Virginia. 2 In the Senate hearings leading to the passage of the Voting Rights Act of 1965, some doubt was expressed whether state poll taxes HARPER v. VIRGINIA BD. OF ELECTIONS. 681 663 Harlan, J., dissenting. of continuing concern to all interested in maintaining the proper role of this tribunal under our scheme of government. I do not propose to retread ground covered in my dissents in Reynolds v. Sims, 377 U. S. 533, 589, and Carrington v. Rash, 380 U. S. 89, 97, and will proceed on the premise that the Equal Protection Clause of the Fourteenth Amendment now reaches both state apportionment (Reynolds) and voter-qualification (Carrington) cases. My disagreement with the present decision is that in holding the Virginia poll tax violative of the Equal Protection Clause the Court has departed from long-established standards governing the application of that clause. The Equal Protection Clause prevents States from arbitrarily treating people differently under their laws. Whether any such differing treatment is to be deemed arbitrary depends on whether or not it reflects an appropriate differentiating classification among those affected; the clause has never been thought to require equal treatment of all persons despite differing circumstances. The test evolved by this Court for determining whether an asserted justifying classification exists is whether such a classification can be deemed to be founded on some rational and otherwise constitutionally permissible state Policy. See, e. g., Powell v. Pennsylvania, 127 U. S. 678; Barrett v. Indiana, 229 U. S. 26; Walters v. City of St. Louis, 347 U. S. 231; Baxstrom v. Herold, ante, p. 107. This standard reduces to a minimum the likelihood that the federal judiciary will judge state policies in terms of the individual notions and predilections of its could be validly abolished through the exercise of Congress’ legis-a ive power under § 5 of the Fourteenth Amendment. See Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th °ng., 1st Sess., 194-197 (1965). I intimate no view on that question. 682 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. own members, and until recently it has been followed in all kinds of “equal protection” cases.3 Reynolds v. Sims, supra, among its other breaks with the past, also marked a departure from these traditional and wise principles. Unless its “one man, one vote” thesis of state legislative apportionment is to be attributed to the unsupportable proposition that “Equal Protection” simply means indiscriminate equality, it seems inescapable that what Reynolds really reflected was but this Court’s own views of how modern American representative government should be run. For it can hardly be thought that no other method of apportionment may be considered rational. See the dissenting opinion of 31 think the somewhat different application of the Equal Protection Clause to racial discrimination cases finds justification in the fact that insofar as that clause may embody a particular value in addition to rationality, the historical origins of the Civil War Amendments might attribute to racial equality this special status. See, e. g., Yick Wo v. Hopkins, 118 U. S. 356; Shelley v. Kraemer, 334 U. S. 1; Takahashi v. Fish & Game Comm’n, 334 U. S. 410; Brown v. Board of Education, 347 U. S. 483; Evans v. Newton, 382 U. S. 296; cf. Korematsu v. United States, 323 U. S. 214, 216. See Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif. L. Rev. 341 (1949); Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 33 (1959). A similar characterization of indigency as a “neutral fact,” irrelevant or suspect for purposes of legislative classification, has never been accepted by this Court. See Edwards v. California, 314 U. S. 160, 184-185 (Jackson, J., concurring). Griffin v. Illinois, 351 U. S. 12, requiring free trial transcripts for indigent appellants, and Douglas v. California, 372 U. S. 353, requiring the appointment of counsel for such appellants, cannot fairly be so interpreted for although reference was made indiscriminately to both equal protection and due process the analysis was cast primarily in terms of the latter. More explicit attempts to infuse “Equal Protection” with specific values have been unavailing. See, e. g., Patsone v. Pennsylvania, 232 U. S. 138 (alienage); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (sex); Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552, 564 (Rutledge, J., dissenting) (consanguinity). HARPER v. VIRGINIA BD. OF ELECTIONS. 683 663 Harlan, J., dissenting. Stewart, J., in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713, 744, and my own dissenting opinion in Reynolds v. Sims, supra, at pp. 615-624. Following Reynolds the Court in Carrington v. Rash, 380 U. S. 89, applied the traditional equal protection standard in striking down a Texas statute disqualifying as voters in state elections certain members of the Armed Forces of the United States.4 But today in holding unconstitutional state poll taxes and property qualifications for voting and pro tanto overruling Breedlove v. Suttles, 302 U. S. 277, and Butler v. Thompson, 341 U. S. 937, the Court reverts to the highly subjective judicial approach manifested by Reynolds. In substance the Court’s analysis of the equal protection issue goes no further than to say that the electoral franchise is “precious” and “fundamental,” ante, p. 670, and to conclude that “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor,” ante, p. 668. These are of course captivating phrases, but they are wholly inadequate to satisfy the standard governing adjudication of the equal protection issue: Is there a rational basis for Virginia’s poll tax as a voting qualification? I think the answer to that question is undoubtedly “yes.” 5 4 So far as presently relevant, my dissent in that case rested not on disagreement with the equal protection standards employed by the Court but only on disagreement with their application in that instance. 380 U. S., at 99-101. s I have no doubt that poll taxes that deny the right to vote on the basis of race or color violate the Fifteenth Amendment and can be struck down by this Court. That question is presented to us in Butts v. Harrison, No. 655, the companion case decided today, he Virginia poll tax is on its face applicable to all citizens, and there was no allegation that it was discriminatorily enforced. The istrict Court explicitly found “no racial discrimination ... in its application as a condition to voting.” 240 F. Supp. 270, 271. Appellant in Butts, supra, argued first, that the Virginia Constitu- 684 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. Property qualifications and poll taxes have been a traditional part of our political structure. In the Colonies the franchise was generally a restricted one.0 Over the years these and other restrictions were gradually lifted, primarily because popular theories of political representation had changed.7 Often restrictions were lifted only after wide public debate. The issue of woman suffrage, for example, raised questions of family relationships, of participation in public affairs, of the very nature of the type of society in which Americans wished to live; eventually a consensus was reached, which culminated in the Nineteenth Amendment no more than 45 years ago. Similarly with property qualifications, it is only by fiat that it can be said, especially in the context of American history, that there can be no rational debate as to their advisability. Most of the early Colonies had them; many of the States have had them during much of their histories;8 and, whether one agrees or not, arguments have been and still can be made in favor of them. For example, it is certainly a rational argument that pay- tional Convention of 1902, which framed the poll-tax provision, was guided by a desire to reduce Negro suffrage, and second, that because of the generally lower economic standard of Negroes as contrasted with whites in Virginia the tax does in fact operate as a significant obstacle to voting by Negroes. The Court does not deal with this Fifteenth Amendment argument, and it suffices for me to say that on the record here I do not believe that the factors alluded to are sufficient to invalidate this $1.50 tax whether under the Fourteenth or Fifteenth Amendment. 6 See generally Ogden, The Poll Tax in the South 2 (1958); 1 Thorpe, A Constitutional History of the American People, 1776-1850, at 92-98 (1898); Williamson, American Suffrage From Property to Democracy, 1760-1860, cc. 1-4 (1960). 7 See Porter, A History of Suffrage in the United States 77-111 (1918) ; Thorpe, op. cit. supra, at 97, 401; Williamson, op. cit. supra, at 138-181. 8 See generally Ogden, op. cit. supra; Porter, op. cit. supra. HARPER v. VIRGINIA BD. OF ELECTIONS. 685 663 Harlan, J., dissenting. ment of some minimal poll tax promotes civic responsibility, weeding out those who do not care enough about public affairs to pay 81.50 or thereabouts a year for the exercise of the franchise. It is also arguable, indeed it was probably accepted as sound political theory by a large percentage of Americans through most of our history, that people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and Nation would be better managed if the franchise were restricted to such citizens.9 Nondiscrimi-natory and fairly applied literacy tests, upheld by this Court in Lassiter v. Northampton Election Board, 360 U. S. 45, find justification on very similar grounds. These viewpoints, to be sure, ring hollow on most contemporary ears. Their lack of acceptance today is evidenced by the fact that nearly all of the States, left to their own devices, have eliminated property or poll-tax qualifications; by the cognate fact that Congress and three-quarters of the States quickly ratified the Twenty-Fourth Amendment; and by the fact that rules such as At the Constitutional Convention, for example, there was some sentiment to prescribe a freehold qualification for federal elections under Art. IV, § 1. The proposed amendment was defeated, in part because it was thought suffrage qualifications were best left to the States. See II Records of the Federal Convention 201-210 (Farrand ed. 1911). Madison’s views were expressed as follows: Whether the Constitutional qualification ought to be a freehold, would with him depend much on the probable reception such a change would meet with in States where the right was now exercised y every description of people. In several of the States a freehold was now the qualification. Viewing the subject in its merits alone, te freeholders of the Country would be the safest depositories of Republican liberty.” Id., at 203. See also Aristotle, Politics, Bks. I, IV; I Tocqueville, Democracy in America, c. xiii, at 199-202 (Knopf ed. 1948). 686 383 U. S. OCTOBER TERM, 1965. Harlan, J., dissenting. the “pauper exclusion” in Virginia law, Va. Const. § 23, Va. Code § 24-18, have never been enforced.10 Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized. It is of course entirely fitting that legislatures should modify the law to reflect such changes in popular attitudes. However, it is all wrong, in my view, for the Court to adopt the political doctrines popularly accepted at a particular moment of our history and to declare all others to be irrational and invidious, barring them from the range of choice by reasonably minded people acting through the political process. It was not too long ago that Mr. Justice Holmes felt impelled to remind the Court that the Due Process Clause of the Fourteenth Amendment does not enact the laissez-faire theory of society, Lochner v. New York, 198 U. S. 45, 75-76. The times have changed, and perhaps it is appropriate to observe that neither does the Equal Protection Clause of that Amendment rigidly impose upon America an ideology of unrestrained egalitarianism.11 I would affirm the decision of the District Court. 10 See Harper v. Virginia State Board of Elections, 240 F. Supp. 270, 271. 11 Justice Holmes’ admonition is particularly appropriate: ^Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” 198 U. S., at 75-76. COMMISSIONER v. TELLIER. 687 Syllabus. COMMISSIONER OF INTERNAL REVENUE v. TELLIER et ux. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 351. Argued January 27, 1966.— Decided March 24, 1966. Respondent securities dealer was tried and found guilty of violating the Securities Act of 1933, the mail fraud statute and of conspiring to violate those statutes. His conviction was affirmed on appeal. He claimed a deduction on his income tax return for legal fees incurred in defending the prosecution. Although the Commissioner conceded that the fees were ordinary and necessary expenses of the respondent’s securities business within the meaning of 26 U. S. C. § 162 (a) and therefore deductible under the literal requirements of that section, he disallowed the deduction on the ground of public policy. The Tax Court sustained his position but was reversed by the Court of Appeals. Held: 1. The federal income tax is a tax on net income and is not a sanction against wrongdoing. P. 691. 2. Deductions of expenses encompassed by § 162 (a), in the absence of specific legislation, are disallowed only where their allowance would severely and immediately frustrate sharply defined national or state policies proscribing particular forms of conduct. Pp. 693-694. 3. Where, as here, an accused exercises his constitutional right to employ counsel to defend against criminal charges, there is no offense to public policy and deduction of the expenses of his defense is proper. Pp. 694-695. 342 F. 2d 690, affirmed. Jack S. Levin argued the cause for petitioner. With him on the brief were Acting Solicitor General Spritzer, Acting Assistant Attorney General Roberts and Robert A. Bernstein. Michael Kaminsky argued the cause and filed a brief for respondents. 688 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. Mr. Justice Stewart delivered the opinion of the Court. The question presented in this case is whether expenses incurred by a taxpayer in the unsuccessful defense of a criminal prosecution may qualify for deduction from taxable income under § 162 (a) of the Internal Revenue Code of 1954, which allows a deduction of “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” 1 The respondent Walter F. Tellier was engaged in the business of underwriting the public sale of stock offerings and purchasing securities for resale to customers. In 1956 he was brought to trial upon a 36-count indictment that charged him with violating the fraud section of the Securities Act of 19332 and the mail fraud statute,3 and with conspiring to violate those statutes.4 He was found guilty on all counts and was sentenced to pay an $18,000 fine and to serve four and a half years in prison. The judgment of conviction was affirmed on appeal.5 In his unsuccessful defense of this criminal prosecution, the respondent incurred and paid $22,964.20 in legal expenses in 1956. He claimed a deduction for that amount on his federal income tax return for that year. The Commissioner disallowed the deduction and was sustained by the Tax Court. T. C. Memo. 1963-212, 22 CCH Tax Ct. Mem. 1062. The Court of Appeals for the Second Circuit reversed in a unanimous en banc decision, 342 F. 2d 690, and we granted certiorari. 382 1 (a) In general.—There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” 26 U. S. C. § 162. 2 48 Stat. 84, § 17, as amended, 15 U. S. C. § 77q (a) 318 U. S. C. § 1341. 4 18 U. S. C. § 371. 5 United States v. Tellier, 255 F. 2d 441 (C. A. 2d Cir.). COMMISSIONER v. TELLIER. 689 687 Opinion of the Court. U. S. 808. We affirm the judgment of the Court of Appeals. There can be no serious question that the payments deducted by the respondent were expenses of his securities business under the decisions of this Court, and the Commissioner does not contend otherwise. In United States v. Gilmore, 372 U. S. 39, we held that “the origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test of whether the expense was ‘business’ or ‘personal’ ” within the meaning of § 162 (a). 372 U. S., at 49. Cf. Kornhauser n. United States, 276 U. S. 145, 153; Deputy v. du Pont, 308 U. S. 488, 494, 496. The criminal charges against the respondent found their source in his business activities as a securities dealer. The respondent’s legal fees, paid in defense against those charges, therefore clearly qualify under Gilmore as “expenses paid or incurred ... in carrying on any trade or business” within the meaning of § 162 (a). The Commissioner also concedes that the respondent’s legal expenses were “ordinary” and “necessary” expenses within the meaning of § 162 (a). Our decisions have consistently construed the term “necessary” as imposing only the minimal requirement that the expense be appropriate and helpful” for “the development of the [taxpayer’s] business.” Welch v. Helvering, 290 U. S. Ill, 113. Cf. Kornhauser v. United States, supra, at 152; Lilly v. Commissioner, 343 U. S. 90, 93-94; Commissioner v. Heininger, 320 U. S. 467, 471; McCulloch v. Maryland, 4 Wheat. 316, 413-415. The principal function of the term “ordinary” in § 162 (a) is to clarify the distinction, often difficult, between those expenses that are currently deductible and those that are in the nature of capital expenditures, which, if deductible at all, 690 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. must be amortized over the useful life of the asset. Welch v. Helvering, supra, at 113-116.6 The legal expenses deducted by the respondent were not capital expenditures. They were incurred in his defense against charges of past criminal conduct, not in the acquisition of a capital asset. Our decisions establish that counsel fees comparable to those here involved are ordinary business expenses, even though a “lawsuit affecting the safety of a business may happen once in a lifetime.” Welch v. Helvering, supra, at 114. Komhauser v. United States, supra, at 152-153; cf. Trust of Bingham v. Commissioner, 325 U. S. 365, 376.7 It is therefore clear that the respondent’s legal fees were deductible under § 162 (a) if the provisions of that section are to be given their normal effect in this case. The Commissioner and the Tax Court determined, however, that even though the expenditures meet the literal requirements of § 162 (a), their deduction must nevertheless be disallowed on the ground of public policy. That view finds considerable support in other administrative and judicial decisions.8 It finds no support, how- 6 See Griswold, An Argument Against the Doctrine that Deductions Should Be Narrowly Construed as a Matter of Legislative Grace, 56 Harv. L. Rev. 1142, 1145; Wolfman, Professors and the “Ordinary and Necessary” Business Expense, 112 U. Pa. L. Rev. 1089, 1111-1112. 7 See Brookes, Litigation Expenses and the Income Tax, 12 Tax L. Rev. 241. 8 See Sarah Backer, 1 B. T. A. 214; Norvin R. Lindheim, 2 B. T. A. 229; Thomas A. Joseph, 26 T. C. 562; Burroughs Bldg. Material Co. v. Commissioner, 47 F. 2d 178 (C. A. 2d Cir.); Commissioner v. Schwartz, 232 F. 2d 94 (C. A. 5th Cir.); Acker v. Commissioner, 258 F. 2d 568 (C. A. 6th Cir.); Bell v. Commissioner, 320 F. 2d 953 (C. A. 8th Cir.); Peckham v. Commissioner, 327 F. 2d 855, 856 (C. A. 4th Cir.); Port v. United States, 143 Ct. Cl. 334, 163 F. Supp. 645. See also Note, Business Expenses, Disallowance, and Public Policy: Some Problems of Sanctioning with the COMMISSIONER v. TELLIER. 691 687 Opinion of the Court. ever, in any regulation or statute or in any decision of this Court, and we believe no such “public policy” exception to the plain provisions of § 162 (a) is warranted in the circumstances presented by this case. We start with the proposition that the federal income tax is a tax on net income, not a sanction against wrongdoing. That principle has been firmly imbedded in the tax statute from the beginning. One familiar facet of the principle is the truism that the statute does not concern itself with the lawfulness of the income that it taxes. Income from a criminal enterprise is taxed at a rate no higher and no lower than income from more conventional sources. “[T]he fact that a business is unlawful [does not] exempt it from paying the taxes that if lawful it would have to pay.” United States n. Sullivan, 274 U. S. 259, 263. See James v. United States, 366 U. S. 213. With respect to deductions, the basic rule, with only a few limited and well-defined exceptions, is the same. During the Senate debate in 1913 on the bill that became the first modern income tax law, amendments were rejected that would have limited deductions for losses to those incurred in a “legitimate” or “lawful” trade or business. Senator Williams, who was in charge of the bill, stated on the floor of the Senate that ‘[T]he object of this bill is to tax a man’s net income; that is to say, what he has at the end of the year after deducting from his receipts his expenditures or losses. It is not to reform men’s moral characters; that is not the object of the bill at all. Internal Revenue Code, 72 Yale L. J. 108; 4 Mertens, Law of Federal Income Taxation § 25.49 ff. Compare Longhorn Portland Cement Co., 3 T. C. 310; G. C. M. 24377, 1944 Cum. Bull. 93; Lamont, Controversial Aspects of Ordinary and Necessary Business Expense, 42 Taxes 808, 833-834. 692 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. The tax is not levied for the purpose of restraining people from betting on horse races or upon ‘futures/ but the tax is framed for the purpose of making a man pay upon his net income, his actual profit during the year. The law does not care where he got it from, so far as the tax is concerned, although the law may very properly care in another way.” 50 Cong. Rec. 3849.9 The application of this principle is reflected in several decisions of this Court. As recently as Commissioner v. Sullivan, 356 U. S. 27, we sustained the allowance of a deduction for rent and wages paid by the operators of a gambling enterprise, even though both the business itself and the specific rent and wage payments there in question were illegal under state law. In rejecting the Commissioner’s contention that the illegality of the enterprise required disallowance of the deduction, we held that, were we to “enforce as federal policy the rule espoused by the Commissioner in this case, we would come close to making this type of business taxable on the basis of its gross receipts, while all other business would be taxable on the basis of net income. If that choice is to be made, Congress should do it.” Id., at 29. In Lilly v. Commissioner, 343 U. S. 90, the Court upheld deductions claimed by opticians for amounts paid to doctors who prescribed the eyeglasses that the opticians sold, although the Court was careful to disavow “approval of the business ethics or public policy involved in the payments . . . .” 343 U. S., at 97. And in Commissioner v. Heining er, 320 U. S. 467, a case akin to the one before us, the Court upheld deductions claimed 9 In challenging the amendments, Senator Williams also stated: “In other words, you are going to count the man as having money which he has not got, because he has lost it in a way that you do not approve of.” 50 Cong. Rec. 3850. COMMISSIONER v. TELLIER. 693 687 Opinion of the Court. by a dentist for lawyer’s fees and other expenses incurred in unsuccessfully defending against an administrative fraud order issued by the Postmaster General. Deduction of expenses falling within the general definition of § 162 (a) may, to be sure, be disallowed by specific legislation, since deductions “are a matter of grace and Congress can, of course, disallow them as it chooses.” Commissioner v. Sullivan, 356 U. S., at 28.10 The Court has also given effect to a precise and longstanding Treasury Regulation prohibiting the deduction of a specified category of expenditures; an example is lobbying expenses, whose nondeductibility was supported by considerations not here present. Textile Mills Corp. v. Commissioner, 314 U. S. 326; Cammarano v. United States, 358 U. S. 498. But where Congress has been wholly silent, it is only in extremely limited circum- 10 Specific legislation denying deductions for payments that violate public policy is not unknown. E. g., Internal Revenue Code of 1954, § 162 (c) (disallowance of deduction for payments to officials and employees of foreign countries in circumstances where the payments would be illegal if federal laws were applicable; cf. Treas. Reg. §1.162-18); § 165 (d) (deduction for wagering losses limited to extent of wagering gains). See also Stabilization Act of 1942, § 5 (a), 56 Stat. 767, 50 U. S. C. App. § 965 (a) (1946 ed.), Defense Production Act of 1950, §405 (a), 64 Stat. 807, as amended, c. 275, § 104 (i), 65 Stat. 136 (1951), 50 U. S. C. App. § 2105 (a) (1952 ed.), and Defense Production Act of 1950, §405 (b), 64 Stat. 807, 50 U. S. C. App. §2105 (b) (1952 ed.) (general authority in President to prescribe extent to which payments violating price and wage regulations should be disregarded by government agencies, including the Internal Revenue Service; see Rev. Rui. 56-180, 1956-1 Cum. ull. 94). Cf. Treas. Reg. § 1.162-1 (a), which provides that “Pen-a ty payments with respect to Federal taxes, whether on account of negligence, delinquency, or fraud, are not deductible from gross income”; Joint Committe on Internal Revenue Taxation, Staff Study 0 ncome Tax Treatment of Treble Damage Payments under the Antitrust Laws, Nov. 1, 1965, p. 16 (proposal that § 162 be amended o eny deductions for certain fines, penalties, treble-damage payments, bribes, and kickbacks). 694 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. stances that the Court has countenanced exceptions to the general principle reflected in the Sullivan, Lilly and Heining er decisions. Only where the allowance of a deduction would “frustrate sharply defined national or state policies proscribing particular types of conduct” have we upheld its disallowance. Commissioner v. Hein-inger, 320 U. S., at 473. Further, the “policies frustrated must be national or state policies evidenced by some governmental declaration of them.” Lilly v. Commissioner, 343 U. S., at 97. (Emphasis added.) Finally, the “test of nondeductibility always is the severity and immediacy of the frustration resulting from allowance of the deduction.” Tank Truck Rentals v. Commissioner, 356 U. S. 30, 35. In that case, as in Hoover Express Co. v. United States, 356 U. S. 38, we upheld the disallowance of deductions claimed by taxpayers for fines and penalties imposed upon them for violating state penal statutes; to allow a deduction in those circumstances would have directly and substantially diluted the actual punishment imposed. The present case falls far outside that sharply limited and carefully defined category. No public policy is offended when a man faced with serious criminal charges employs a lawyer to help in his defense. That is not “proscribed conduct.” It is his constitutional right. Chandler v. Fretag, 348 U. S. 3. See Gideon v. Wainwright, 372 U. S. 335. In an adversary system of criminal justice, it is a basic of our public policy that a defendant in a criminal case have counsel to represent him. Congress has authorized the imposition of severe punishment upon those found guilty of the serious criminal offenses with which the respondent was charged and of which he was convicted. But we can find no warrant for attaching to that punishment an additional financial burden that Congress has neither expressly nor im- COMMISSIONER v. TELLIER. 695 687 Opinion of the Court. plicitly directed.11 To deny a deduction for expenses incurred in the unsuccessful defense of a criminal prosecution would impose such a burden in a measure dependent not on the seriousness of the offense or the actual sentence imposed by the court, but on the cost of the defense and the defendant’s particular tax bracket. We decline to distort the income tax laws to serve a purpose for which they were neither intended nor designed by Congress. The judgment is Affirmed. 11 Cf. Paul, The Use of Public Policy by the Commissioner in Disallowing Deductions, 1954 So. Calif. Tax Inst. 715, 730-731: . Section 23 (a)(1)(A) [the predecessor of §162 (a)] is not an essay in morality, designed to encourage virtue and discourage sin. It 'was not contrived as an arm of the law to enforce State criminal statutes . . . .’ Nor was it contrived to implement the various regulatory statutes which Congress has from time to time enacted. The provision is more modestly concerned with ‘commercial net income’—a businessman’s net accretion in wealth during the taxable year after due allowance for the operating costs of the business. . . . There is no evidence in the Section of an attempt to punish taxpayers . . . when the Commissioner feels that a state or federal statute has been flouted. The statute hardly operates in a vacuum,’ if it serves its own vital function and leaves other problems to other statutes.” 696 OCTOBER TERM, 1965. Syllabus. 383 U. S. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO v. HOOSIER CARDINAL CORP. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 387. Argued January 27, 1966.—Decided March 24, 1966. Petitioner union and respondent company were parties to a collective bargaining agreement which required payment of accumulated vacation pay to qualified employees upon termination of their employment. In June 1957 the company discharged employees covered by the agreement without such payment. An action brought in the Indiana courts to recover the amounts allegedly due was dismissed in 1960 on the ground that the complaint was insufficient under state law. Almost four years later and almost seven years after the employees’ discharge, the union brought this action in the Federal District Court under § 301 of the Labor Management Relations Act, 1947. The Act contains no time limitation upon the bringing of an action under §301. The District Court viewed the action as based partly on the collective bargaining agreement and partly on the oral contract of each employee and held that Indiana in such case would apply its six-year statute of limitations governing contracts not in writing. The complaint was accordingly dismissed as untimely and the Court of Appeals affirmed. Held: 1. A union may properly sue under §301 to recover wages or vacation pay claimed by its members pursuant to a collective bargaining agreement. Smith v. Evening News Assn., 371 U. S. 195, 198. Pp. 699-700. 2. The timeliness of a suit under § 301, there being no governing federal provision, is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations. Pp. 701-704. (a) The fact that Congress did not provide a uniform limitations provision for § 301 suits does not require that the courts invent one. P. 703. (b) State statutes have repeatedly supplied the periods of limitation for federal causes of action when federal legislation has been silent. Pp. 703-704. AUTO WORKERS v. HOOSIER CORP. 697 696 Opinion of the Court. 3. The characterization of this suit as one not exclusively based on a written contract, and the application of the Indiana six-year statute of limitations, do not conflict with federal labor policy. Pp. 705-707. 4. The statute of limitations was not tolled in this case by the prior litigation. Burnett v. New York Central R. Co., 380 U. S. 424, distinguished. Pp. 707-708. 346 F. 2d 242, affirmed. Stephen I. Schlossberg argued the cause for petitioner. With him on the briefs were Joseph L. Rauh, Jr., and John Silard. Harry P. Dees argued the cause and filed a brief for respondent. Mr. Justice Stewart delivered the opinion of the Court. Section 301 of the Labor Management Relations Act, 1947, confers jurisdiction upon the federal district courts oyer suits upon collective bargaining contracts.1 Nowhere xWe use the term “collective bargaining contracts” for convenience only, and do not intend to suggest that § 301 is limited to such contracts. See Retail Clerks v. Lion Dry Goods, 369 U. S. 17. Section 301 provides: “(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. (b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as 698 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. in the Act, however, is there a provision for any time limitation upon the bringing of an action under § 301. The questions presented by this case arise because of the absence of such a provision. The petitioner union and the respondent company were parties to a collective bargaining contract within the purview of § 301. The contract contained a section governing vacations. One clause in this section dealt with payment of accumulated vacation pay, by providing: “Employees who qualified for a vacation in the previous year and whose employment is terminated for any reason before the vacation is taken will be paid that vacation at time of termination.” On June 1, 1957, prior to the expiration of the contract, the company terminated the employment of employees covered by the agreement, but it did not pay them any accumulated vacation pay. Since that date, two lawsuits have been brought to recover amounts allegedly due. The first was a class action in early 1958, brought against the company in an Indiana court, but the court ruled that such an entity and against its assets, and shall not be enforceable against any individual member or his assets. “(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. “(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization. “(e) For the purposes of this section, in determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” 61 Stat. 156-157, 29 U. S. C. § 185 (1964 ed.). AUTO WORKERS v. HOOSIER CORP. 699 696 Opinion of the Court. an action was impermissible under Indiana law. In an attempt to remedy this pleading defect, the former employees assigned their vacation pay claims to a union representative who then filed an amended complaint, but this form of action, too, was held improper under Indiana law. Thereafter, by further amended complaints, the employees sought to reform and reinstitute the class action, but once again the trial court held the complaint insufficient as a matter of state law. The court dismissed the suit in June 1960, and the judgment of dismissal was affirmed on appeal. Johnson v. Hoosier Cardinal Corp., 134 Ind. 477, 189 N. E. 2d 592. Almost four years after the dismissal of that lawsuit by the Indiana trial court, and almost seven years after the employees had left the company, the union filed the present action in the United States District Court for the Southern District of Indiana. On the company’s motion, the trial court dismissed the complaint, concluding that the suit was barred by a six-year Indiana statute of limitations. The court regarded this action as based partly upon the written collective bargaining agreement and partly upon the oral employment contract each employee had made, and it held that Indiana would apply to such a hybrid action its six-year statute governing contracts not in writing. Ind. Stat. Ann. §2-601 (1965 Supp.). 235 F. Supp. 183. The Court of Appeals for the Seventh Circuit affirmed, 346 F. 2d 242, and we granted certiorari, 382 U. S. 808. We note at the outset that this action was properly brought by the union under § 301. There is no merit to the contention that a union may not sue to recover wages or vacation pay claimed by its members pursuant to the terms of a collective bargaining contract. Such a suit is among those “[s]uits for violation of contracts between an employer and a labor organization” that § 301 was designed to permit. This conclusion is unimpaired 700 383 U. S. OCTOBER TERM, 1965. Opinion of the Court. by the fact that each worker’s claim may also depend upon the existence of his individual contract of employment. See J. I. Case Co. v. Labor Board, 321 U. S. 332, 335-336. In Smith v. Evening News Assn., 371 U. S. 195, we rejected the view, once held for varying reasons by a majority of this Court, Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U. S. 437, “that § 301 did not give the . . . courts jurisdiction over a suit brought by a union to enforce employee rights . . . characterized as . . . arising ‘from separate hiring contracts between the employer and each employee.’ ” 371 U. S., at 198. Although the Smith case was brought by an individual worker, there is every reason to recognize the union’s standing to vindicate employee rights under a contract the union obtained. Such recognition is fully consistent with the language of § 301 (b): “Any . . . labor organization may sue . . . in behalf of the employees whom it represents in the courts of the United States.” 61 Stat. 156, 29 U. S. C. § 185 (b) (1964 ed.).2 And indeed, the union’s standing to vindicate employee rights under § 301 implements no more than the established doctrine that the union’s role in the collective bargaining process does not end with the making of the contract.3 2 See also Rule 17 (a) of the Federal Rules of Civil Procedure; Dowd Box v. Courtney, 368 U. S. 502, 504; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593. 3 See, e. g., Conley v. Gibson, 355 U. S. 41, 46; Comment, 28 U. Chi. L. Rev. 707, 716. That the employees in this case did not assign their claims to the union presents no barrier to the union’s standing to sue in their behalf. Such a technical requirement would conflict with one of the widely recognized purposes of Congress in enacting § 301— the elimination of common-law procedural obstacles to suits for breach of collective bargaining agreements, See, e. g., Textile Workers v. Lincoln Mills, 353 U. S. 448, 451. Meltzer, The Supreme AUTO WORKERS v. HOOSIER CORP. 701 696 Opinion of the Court. Since this suit was properly brought under § 301, the question of its timeliness is squarely presented. It is clearly a federal question, for in § 301 suits the applicable law is “federal law, which the courts must fashion from the policy of our national labor laws.” Textile Workers v. Lincoln Mills, 353 U. S. 448, 456. Relying upon that statement and upon the coordinate principle that “incompatible doctrines of local law must give way to principles of federal labor law,” Teamsters Local v. Lucas Flour Co., 369 U. S. 95,102, the union contends that this suit cannot be barred by a statute of limitations enacted by a State. We are urged instead to devise a uniform time limitation to close the statutory gap left by Congress. But the teaching of our cases does not require so bald a form of judicial innovation. Lincoln Mills instructs that, in fashioning federal law, the “range of judicial inventiveness will be determined by the nature of the problem.” 353 U. S., at 457. We do not question that there are problems so vital to the implementation of federal labor policy that they will command a high degree of inventiveness from the courts. The problem presented here, however, is not of that nature. It is true that if state limitations provisions govern § 301 suits, these suits will lack a uniform standard of timeliness. It is also true that the subject matter of § 301 is “peculiarly one that calls for uniform law.” Teamsters Local v. Lucas Flour Co., supra, at 103. Our cases have defined the need for uniformity, however, in terms that are largely inapplicable here: “The possibility that individual contract terms might have different meanings under [two systems of law] would inevitably exert a disruptive influence upon both the negotiation and administration of col- Court, Congress, and State Jurisdiction Over Labor Relations: II, 59 Col. L. Rev. 269. 702 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. lective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation. Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties’ willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes. . . The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy.” Teamsters Local v. Lucas Flour Co., 369 U. S. 95, 103-104. The need for uniformity, then, is greatest where its absence would threaten the smooth functioning of those consensual processes that federal labor law is chiefly designed to promote—the formation of the collective agreement and the private settlement of disputes under it. For the most part, statutes of limitations come into play only when these processes have already broken down. Lack of uniformity in this area is therefore unlikely to frustrate in any important way the achievement of any significant goal of labor policy. Thus, although a uniform limitations provision for § 301 suits might well AUTO WORKERS v. HOOSIER CORP. 703 696 Opinion of the Court. constitute a desirable statutory addition, there is no justification for the drastic sort of judicial legislation that is urged upon us.4 See Smith v. Evening News Assn., supra, at 203 (Black, J., dissenting). That Congress did not provide a uniform limitations provision for § 301 suits is not an argument for judicially creating one, unless we ignore the context of this legislative omission. It is clear that Congress gave attention to limitations problems in the Labor Management Relations Act, 1947; it enacted a six months’ provision to govern unfair labor practice proceedings, 61 Stat. 146, 29 U. S. C. § 160 (b) (1964 ed.), and it did so only after appreciable controversy.5 In this context, and against the background of the relationship between Congress and the courts on the question of limitations provisions, it cannot be fairly inferred that when Congress left § 301 without a uniform time limitation, it did so in the expectation that the courts would invent one. As early as 1830, this Court held that state statutes of limitations govern the timeliness of federal causes of action unless 4 Our cases have spoken of the federal law applicable to §301 suits as “substantive,” see, e. g., Textile Workers v. Lincoln Mills, 353 U. S., at 456, and the need for uniformity in the “substantive principles” that govern these suits. See Teamsters Local v. Lucas Flour Co., 369 U. S., at 103. In the view we take of the problem presented here, we need not decide whether statutes of limitations are substantive” or “procedural.” See Guaranty Trust Co. v. York, 326 U. S. 99; Burnett v. New York Central R. Co., 380 U. S. 424, 427, note 2. Nor need we rigidly classify them as “primary” or remedial.” To the extent that these terms are useful, we need only notice that lack of uniformity in limitations provisions is unlikely to have substantial effect upon the private definition or effectuation of ‘substantive” or “primary” rights in the collective bargaining process. See Wellington, Labor and the Federal System, 26 U. Chi. L. Rev. 542, 556-559. 5 Compare, e. g., the remarks of Senator Wagner, 93 Cong. Rec. 3323, and those of Senator Murray, 93 Cong. Rec. 4030, with the remarks of Senator Smith, 93 Cong. Rec. 4283. 704 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. Congress has specifically provided otherwise. McCluny v. Silliman, 3 Pet. 270, 277. In 1895, the question was re-examined in another context, but the conclusion remained firm. Campbell v. Haverhill, 155 U. S. 610. Since that time, state statutes have repeatedly supplied the periods of limitations for federal causes of action when federal legislation has been silent on the question.6 E. g., McClaine v. Rankin, 197 U. S. 154, Cope n. Anderson, 331 U. S. 461 (National Bank Act); Chattanooga Foundry v. Atlanta, 203 U. S. 390 (Sherman Act); O’Sullivan v. Felix, 233 U. S. 318 (Civil Rights Act of 1870); Englander Motors, Inc. v. Ford Motor Co., 293 F. 2d 802 (C. A. 6th Cir.) (Clayton Act); but see Holmberg v. Armbrecht, 327 U. S. 392 (Federal Farm Loan Act). Yet when Congress has disagreed with such an interpretation of its silence, it has spoken to overturn it by enacting a uniform period of limitations. E. g., 69 Stat. 283, 15 U. S. C. § 15b (1964 ed.) (Clayton Act); 35 U. S. C. § 286 (Patent Act). See also Herget v. Central Bank Co., 324 U. S. 4. Against this background, we cannot take the omission in the present statute as a license to judicially devise a uniform time limitation for § 301 suits. Accordingly, since no federal provision governs, we hold that the timeliness of a § 301 suit, such as the 6 In McAllister v. Magnolia Petroleum Co., 357 U. S. 221, this Court held that, “ where an action for unseaworthiness is combined with an action under the Jones Act a court cannot apply to the former a shorter period of limitations than Congress has prescribed for the latter.” 357 U. S., at 224. The McAllister case represents no departure from the tradition discussed in the text. The Court’s decision rested on the peculiar configuration of the federal maritime remedies. A seaman suing for both unseaworthiness and Jones Act negligence must do so in a single proceeding. Baltimore S. S. Co. v. Phillips, 274 U. S. 316. The Court had no occasion in McAllister to consider whether a state period longer than that provided in the Jones Act could be applied. 357 U. 8., at 227 (Brennan, J.,’ concurring). AUTO WORKERS v. HOOSIER CORP. 705 696 Opinion of the Court. present one, is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.7 This leaves two subsidiary questions to be decided. Which of Indiana’s limitations provisions governs? 8 Does any tolling principle preserve the timeliness of this action? The union argues that if the timeliness of this action is to be determined by reference to Indiana statutes, federal law precludes reference to the Indiana six-year provision governing contracts not in writing. Reference must be made instead, it is urged, to the Indiana 20-year provision governing written contracts. Ind. Stat. Ann. §2-602 (1965 Supp.). This contention rests on the view that under federal law this § 301 suit must be re- 7 The present suit is essentially an action for damages caused by an alleged breach of an employer’s obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law. Whether other § 301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide, and we indicate no view whatsoever on that question. See, e. g., Holmberg v. Armbrecht, 327 U. S. 392; Moviecolor Limited v. Eastman Kodak Co., 288 F. 2d 80 (C. A. 2d Cir.); 2 Moore Federal Practice T3.07[l]-[3], at 740-764 (2d ed. 1965); Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv. L. Rev. 66,111-114. 8 The record indicates that Indiana is both the forum State and the State in which all operative events occurred. Neither party has suggested that the limitations provision of another State is relevant. There is therefore no occasion to consider whether such a choice of law should be made in accord with the principle of Klaxon Co. v. Stentor Mjg. Co., 313 U. S. 487, or by operation of a different federal conflict of laws rule. See Richards v. United States, 369 U. S. 1; De Sylva v. Ballentine, 351 U. S. 570; Vanston Bondholders Protective Committee v. Green, 329 U. S. 156; McKenzie v. Irving Trust Co., 323 U. S. 365; D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447. See also discussion in Hart & Wechsler, The Federal Courts and the Federal System 696 et seq. 706 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. garded as exclusively bottomed upon the written collective bargaining agreement. We agree that the characterization of this action for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law. Textile Workers v. Lincoln Mills, supra; McClaine v. Rankin, supra. But there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with national labor policy. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204, 210; De Sylva v. Ballentine, 351 U. S. 570, 580-582. Applying this principle, we cannot agree that federal law requires that this action be regarded as exclusively based upon a written contract. For purposes of § 301 jurisdiction, we have rejected the view that a suit such as this is based solely upon the separate hiring contracts, frequently oral, between the employer and each employee. Smith v. Evening News Assn., supra. It does not follow, however, that the separate contracts of employment may not be taken into account in characterizing the nature of a specific § 301 suit for the purpose of selecting the appropriate state limitations provision. Indeed, as the present case indicates, consideration of the separate contracts for that purpose is entirely acceptable. The petitioner seeks damages based upon an alleged breach of the vacation pay clause in a written collective bargaining agreement. Proof of the breach and of the measure of damages, however, both depend upon proof of the existence and duration of separate employment contracts between the employer and each of the aggrieved employees. Hence, this § 301 suit may fairly be characterized as one not exclusively based upon a written contract. Moreover, the characterization that Indiana law imposes upon this action does not lead to any conflict with AUTO WORKERS v. HOOSIER CORP. 707 696 Opinion of the Court. federal labor policy. Indeed, to the extent that a policy is manifest in the Labor Management Relations Act, it supports acceptance of the characterization adopted here. The six months’ provision governing unfair labor practice proceedings, 61 Stat. 146, 29 U. S. C. § 160 (b), suggests that relatively rapid disposition of labor disputes is a goal of federal labor law. Since state statutes of limitations governing contracts not exclusively in writing are generally shorter than those applicable to wholly written agreements, their applicability to § 301 actions comports with that goal. There may, of course, be § 301 actions that can only be characterized fairly as based exclusively upon a written agreement. But since many § 301 actions for wages or other individual benefits will concern employment contracts of the sort involved here, there is no reason to inhibit the achievement of an identifiable goal of labor policy by precluding application of the generally shorter limitations provisions.9 Accordingly, we accept the District Court’s application of the six-year Indiana statute of limitations to this action. Cf. Bernhardt v. Polygraphic Co., 350 U. S. 198, 204-205; Steele v. General Mills, 329 U. S. 433, 438. Thus, since this federal lawsuit was not filed until almost seven years after the cause of action accrued, the cause 9 Other questions would be raised if this case presented a state law characterization of a § 301 suit that reasonably described the nature of the cause of action, but required application of an unusually short or long limitations period. See, e. g., N. M. Stat. § 59-3-4 (1953) (an action for wages “must be commenced within sixty [60] days from the date of discharge. . . .”). See Campbell v. Haverhill, 155 U. S. 610, 615; Caldwell v. Alabama Dry Dock & ^hipbuilding Co., 161 F. 2d 83 (C. A. 5th Cir.); Mishkin, The ariousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev. 797, 805-806. 708 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. is barred by the six-year statute unless that statute was somehow tolled by reason of the particularized circumstances of this case.10 The contention that some tolling principle saves the life of this action was raised for the first time in this Court. In any event, we find the contention without merit. In Burnett v. New York Central R. Co., 380 U. S. 424, we held that the bringing of a timely action under the Federal Employers’ Liability Act in a state court, even though venue was improper, served to toll the statute of limitations contained in that Act. The primary underpinning of Burnett, however, is wholly lacking here. As the Court noted in that case, a tolling principle was necessary to implement the national policy of a uniform time bar clearly expressed by Congress when it enacted the FELA limitations provision. 380 U. S., at 434. Section 301 of the Labor Management Relations Act establishes no such policy of uniformity expressed in a national limitations provision. Moreover, unlike the plaintiff in Burnett who could no longer bring a timely federal action after the state court dismissed his complaint, the union here had a full three years to bring this lawsuit in federal court after the dismissal of the state court action.11 Under these circumstances, we have no difficulty in concluding that this cause of action expired in June 1963, six years after it arose. Affirmed. 10 Neither party has suggested that the cause of action “accrued” on any date other than June 1, 1957, when the company terminated the employees’ jobs. Cf. Rawlings v. Ray, 312 U. S. 96; Cope v. Anderson, 331 U. S. 461; Moviecolor Limited v. Eastman Kodak Co., 288 F. 2d 80, 83 (C. A. 2d Cir.). 11 It should be noted also that Indiana has a saving statute, Ind. Ann. Stat. §2—608 (1946 Repl. Vol.), but the union has never contended that it preserves the timeliness of this suit. AUTO WORKERS v. HOOSIER CORP. 709 696 White, J., dissenting. Mr. Justice White, with whom Mr. Justice Douglas and Mr. Justice Brennan join, dissenting. Certain principles are undisputed in this case. The period of limitations for § 301 suits is to be determined by federal law; and, since Congress has made no express provision for any time limitation, this Court must fashion the governing rule. By adopting the statutes of the several States, the Court creates 50 or more different statutes of limitations1 rather than fashioning a uniform rule after consideration of relevant federal and state statutes. The Court justifies its decision in part by reliance on cases decided under the Rules of Decisions Act, 28 U. S. C. § 1652 (1964 ed.), which interpreted “the silence of Congress ... to mean that it is federal policy to adopt the local law of limitation.” Holmberg v. Armbrecht, 327 U. S. 392, 395; see, e. g., Chattanooga Foundry v. Atlanta, 203 U. S. 390, 397; Campbell v. Haverhill, 155 U. S. 610; McCluny v. Silliman, 3 Pet. 270, 277. But the cases also establish that the silence of Congress is not to be read as automatically putting an imprimatur on state law. Rather, state law is applied only because it supplements and fulfills federal policy, and the ultimate question is what federal policy requires. See Board of County Comm’rs v. United States, 308 U. S. 343, 350-352; Holmberg v. Armbrecht, 327 U. S. 392, 394-395; Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U. S. 437, 463 (Reed, J., concurring). 1 The Court’s approach adopts (and thereby creates as federal law) at least one limitations statute for each State and Territory. In many States it adopts a multitude of limitations provisions, each applicable to a particular type of § 301 suit. The Court’s opinion suggests, for example, that had the present suit been “exclusively based upon a written contract,” ante, at p. 706, the Indiana 20-year, rather than the six-year, statute would have governed. 710 383 U. S. OCTOBER TERM, 1965. White, J., dissenting. More specifically, it is quite clear that with respect to § 301 suits congressional silence extends not just to the question of limitations but encompasses the entirety of the governing legal principles. Rather than inferring from congressional silence that state law was to govern, Textile Workers v. Lincoln Mills, 353 U. S. 448, held that the federal courts were to “fashion from the policy of our national labor laws” general federal law applicable to suits on collective bargaining agreements. Id., at 456. Although Lincoln Mills recognized that “state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy,” id., at 457, it did not intimate in any way that federal policy would be furthered by the adoption of 50 different state rules. To the contrary, subsequent decisions have recognized that “[c]om-prehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills” and that, “[m]ore important, the subject matter of § 301 (a) ‘is peculiarly one that calls for uniform law.’ ” Teamsters Local v. Lucas Flour Co., 369 U. S. 95, 103. There is, therefore, no sound basis for saying that Congress by its silence on the limitations matter intended the state laws to apply or for adopting diverse state laws simply because of a reluctance to supply what Congress omitted. The courts are expected to develop the law of labor contracts, and this case represents only another task in this process. The Court reasons, however, that to devise a uniform time limitation would be too “bald a form of judicial innovation.” Ante, at p. 701. Cases defining a need for uniformity in § 301 suits are said to be limited to matters concerning which the possible application of varying systems of law “ ‘would inevitably exert a disruptive influence upon both the negotiation and administration of AUTO WORKERS v. HOOSIER CORP. 711 696 White, J., dissenting. collective agreements.’ ” Ante, at pp. 701-702. Since, according to the majority, the lack of a uniform statute of limitations would generally not have that effect,2 the Court concludes that although such a uniform provision “might well constitute a desirable statutory addition, there is no justification for the drastic sort of judicial legislation that is urged upon us.” Ante, at pp. 702-703. The Court is undoubtedly correct in stating that a uniform limitations period would be desirable. Suppose, for example, that the collective bargaining contract in dispute was one made in Detroit for a multi-state unit of truck drivers and that, as is true in this case, 100 of the covered employees were discharged without payment of accumulated vacation pay. Suppose further that some of the employees were hired in Chicago and discharged in Indiana while others were hired in St. Louis, Cleveland, and Terre Haute and were discharged in Illinois, Michigan, and Iowa (in whatever combinations are preferred). Suppose, finally, that some sue in Indiana, some in other States, some in federal court, and some in state court. Simple justice dictates in such a situation 2 However, limitations questions will have an impact on the negotiation and administration of the collective agreement in many instances—for example, if the parties decide to limit by contract the period for bringing suit. The laws of the several States vary with respect to the enforceability of such contractual limitations periods, particularly when it is asserted that the agreed period is unreasonable, see Williston on Contracts § 183, at 711, n. 10 (Jaeger 3d ed. 1957); Note, 63 Harv. L. Rev. 1177, 1181-1182 (1950). It may be assumed that, under the test advanced by the majority, uniform federal law will be fashioned to determine their validity, just as, at least in some circumstances, federal law will determine when the cause of action arose, see Cope v. Anderson, 331 U. S. 461; Rawlings v. Ray, 312 U. S. 96, and whether the running of limitations was tolled by fraudulent concealment, see Holmberg v. Armbrecht, 327 U. S. 392; Moviecolor Limited v. Eastman Kodak Co., 288 F. 2d 80 (C. A. 2d Cir. 1961). 712 383 U. S. OCTOBER TERM, 1965. White, J., dissenting. that the right of employees in different States to assert their federal claim should be equally available. Clearly there is no sense or justice in referring to 50 or more different statutes of limitations so that one employee may be barred after one year while another employee may sue any time within six years. Nor is there any reason why an employer operating under the contract in one State should be bothered with stale claims already barred as against other employers in other States. Moreover, the Court’s decision creates unnecessary complexities and opportunities for vexatious litigation, some of which are reflected in the Court’s opinion. Thus the Court notes that in a situation involving multi-state contacts, such as the example given above, a federal court hearing the case would be required to decide whether to apply a federal, or the forum State’s, conflict of laws rules to select the State of governing law. If this Court ultimately holds that a federal conflict of laws rule is to govern in federal court suits, the additional question will be presented of whether the federal conflict of laws rule must also be applied by state courts or whether they may continue to apply their own conflict of laws rule. Whatever conflict of laws rule, state or federal, is selected, there will remain the difficult task of applying that rule to find the State whose limitations statute is to control. In cases not involving multi-state contacts, the court may have to choose between two or more state statutes; here the choice is between the limitations period for suits on written contracts and the period for suits on oral contracts. Under today’s decision, this choice is to be governed by the State’s characterization of the federal action (or a federal court’s Delphic opinion of what that characterization would be), “unless that characterization is unreasonable or otherwise inconsistent with national labor policy.” Ante, at p. 706. The gov- AUTO WORKERS v. HOOSIER CORP. 713 696 White, J., dissenting. erning state limitations statute, having finally been determined, is to be applied unless the period is “unusually short or long.” 3 Ante, at p. 707, n. 9. The problems we have indicated are merely illustrative of the complex questions that must be decided under the Court’s approach before it can be determined which of several competing state statutes is to be applied and whether such application is reasonable when tested by the federal labor policy; undoubtedly the fertile imagination of counsel will conceive additional intricacies. The desirability of a single, uniform, federal statute to further justice and to avoid such litigation-creating complexities was of course recognized by Congress in passing the statutes, to which the majority refers, that overruled in particular areas past refusals of this Court to fashion such a uniform rule. The case for the Court’s decision thus ultimately comes down to the proposition that fashioning a uniform federal statute would involve too bald an exercise of judicial innovation. This is an argument I have difficulty in fathoming. Courts have not always been reluctant to “create” statutes of limitations, the common-law doctrine of prescription by which judgments are presumed to have been paid after the lapse of 20 years, see Gaines v. Miller, 111 U. S. 395, 399; McElmoyle v. Cohen, 13 Pet. 312, 327, being just one example. In equity they have applied the doctrine of laches, see Holmberg v. Arm-brecht, 327 U. S. 392. But here there is no dispute concerning whether a statute of limitations is to be fashioned the choice is between one statute or 50. If the Court is to develop the substantive law of labor contracts, Unfortunately the Court provides no enlightenment concerning where we are to look for a limitations period should the state statute e held unreasonable. Perhaps in extremis even the Court’s approach will require the kind of innovation it now rejects. 714 383 U. S. OCTOBER TERM, 1965. White, J., dissenting. which it has undertaken to do with the blessing of Congress, it seems odd that the Court should balk at establishing a single limitations period, drawn from any of the sources available to it, including the relevant federal and state statutes. I undertake no such canvass here,4 but think the Court should do so. I therefore dissent. 4 Nor do I intimate any opinion concerning the tolling question mooted in the Court’s opinion. MINE WORKERS v. GIBBS. 715 Syllabus. UNITED MINE WORKERS OF AMERICA v. GIBBS. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 243. Argued January 20, 1966.—Decided March 28, 1966. A coal company closed a mine in Tennessee and laid off miners belonging to one of petitioner’s local unions. Thereafter the company, through a subsidiary, attempted to open a new mine nearby with members of a rival union. Respondent was hired as mine superintendent and given a contract to truck coal to the nearest rail loading point. On August 15 and 16, 1960, armed members of petitioner’s local forcibly prevented the opening of the mine, threatened respondent, and assaulted an organizer for the rival union. Petitioner’s area representative was away at a union board meeting when he learned of the violence. He returned late on August 16 with instructions to establish a limited picket line, prevent further violence, and to see that neighboring mines were not struck. There was no further violence at the mine site; a picket line was maintained for nine months; and no further effort was made to open the mine. Respondent lost his job as superintendent, never performed his haulage contract, and allegedly lost other trucking contracts and mine leases because of a concerted union plan against him. Suing only the international union, he sought recovery under § 303 of the Labor Management Relations Act and the common law of Tennessee. Jurisdiction was premised on allegations of secondary boycotts under § 303; and the state law claim, for which jurisdiction was based on the doctrine of pendent jurisdiction, asserted an unlawful conspiracy and boycott to interfere with respondent’s contracts of employment and haulage. The jury found that petitioner had violated both § 303 and state law and respondent was awarded actual and punitive damages. On motion, the trial court set aside the damages award with respect to the haulage contract on the ground that damage was not proved. It also held that union pressure on respondent’s employer to discharge him would constitute only a primary dispute with the employer, not cognizable under § 303. Interference with employment was cognizable as a state claim and a remitted award was sustained thereon. The Court of Appeals affirmed. Held: 1. The District Court properly entertained jurisdiction of the claim based on state law. Pp. 721-729. 716 OCTOBER TERM, 1965. Syllabus. 383 U.S. (a) The state law claim, based in part on violence and intimidation, was not pre-empted by §303. P. 721. (b) Pendent jurisdiction, in the sense of judicial power, exists whenever there is a substantial federal claim and the relationship between it and the asserted state claims permits the conclusion that the entire action before the court comprises one “case.” P. 725. (c) Pendent jurisdiction is a doctrine of discretion, justified by judicial economy, convenience and fairness to litigants. P. 726. (d) The District Court did not exceed its discretion in exercising jurisdiction over the state law claim. Pp. 727-729. 2. State law remedies against violence and threats of violence arising in labor disputes have been sustained against the challenge of pre-emption by federal labor legislation, but the scope of such remedies is confined to the direct consequences of such conduct. Pp. 729-731. 3. Although petitioner concedes that violence which would justify application of such limited state tort law occurred during the first two days of the strike, it appeared that neither the pleadings, arguments of counsel, nor the instructions to the jury adequately defined the area within which damages could be awarded under state law, where the tort claimed, essentially a “conspiracy” to interfere with respondent’s contractual relations, was not itself so limited. Pp. 732-735. 4. Since petitioner was not clearly proved to have participated in or authorized the two days’ violence, nor to have ratified it or built its picketing campaign upon the fear of the violence engendered, the special proof requirements of § 6 of the Norris-LaGuardia Act were not satisfied, and petitioner cannot be held liable to respondent under state law. Pp. 735-742. (a) While the Labor Management Relations Act expressly provides that for purposes of that Act, including § 303, the union’s responsibility for acts of its members and officers is to be measured by ordinary agency standards rather than § 6’s more stringent standard of “clear proof,” it does not displace § 6 for other purposes and § 6 plainly applies to federal court hearings of state tort claims arising out of labor disputes. Pp. 736-737. (b) The “clear proof” language of § 6 is similar to “clear, unequivocal, and convincing proof,” used elsewhere. Although under this standard the plaintiff in a civil suit does not have to satisfy the criminal standard of reasonable doubt, he is required to persuade by a substantial margin and to come forward with more than a bare preponderance of the evidence. P. 737. MINE WORKERS v. GIBBS. 717 715 Opinion of the Court. (c) Respondent did not present clear proof that petitioner authorized or participated in the violence, or that it ratified the violence which had occurred, and accordingly cannot recover from petitioner. Pp. 738-742. 343 F. 2d 609, reversed. Willard P. Owens argued the cause for petitioner. With him on the brief were E. H. Rayson and R. R. Kramer. Clarence Walker argued the cause for respondent. With him on the brief was William Ables, Jr. Mr. Justice Brennan delivered the opinion of the Court. Respondent Paul Gibbs was awarded compensatory and punitive damages in this action against petitioner United Mine Workers of America (UMW) for alleged violations of § 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, as amended,1 and of the common law of 1 Section 303 of the Labor Management Relations Act, 1947 provides: “(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158 (b)(4) of this title. “(6) Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.” 29 U. S. C. § 187 (1964 ed.). Section 158 (b)(4) of Title 29 U. S. C. (1964 ed.), §8 (b)(4) of the National Labor Relations Act, as amended, 73 Stat. 542, provides, in relevant part, that: “(b) 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 718 OCTOBER TERM, 1965. Opinion of the Court. 383 U. S. Tennessee. The case grew out of the rivalry between the United Mine Workers and the Southern Labor Union over representation of workers in the southern Appalachian coal fields. Tennessee Consolidated Coal Company, not a party here, laid off 100 miners of the UMW’s Local 5881 when it closed one of its mines in southern Tennessee during the spring of 1960. Late that summer, Grundy Company, a wholly owned subsidiary of Consolidated, hired respondent as mine superintendent to attempt to open a new mine on Consolidated’s property at nearby Gray’s Creek through use of members of the Southern Labor Union. As part of the arrangement, Grundy also gave respondent a contract to haul the mine’s coal to the nearest railroad loading point. On August 15 and 16, 1960, armed members of Local 5881 forcibly prevented the opening of the mine, threatening respondent and beating an organizer for the rival union.2 The members of the local believed Consolidated affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— “(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . . .” 2 These events were also the subject of two proceedings before the National Labor Relations Board. In one, the Board found that Consolidated had unlawfully assisted the Southern Labor Union in violation of § 8 (a) (2) of the National Labor Relations Act, as MINE WORKERS v. GIBBS. 719 715 Opinion of the Court. had promised them the jobs at the new mine; they insisted that if anyone would do the work, they would. At this time, no representative of the UMW, their international union, was present. George Gilbert, the UMW’s field representative for the area including Local 5881, was away at Middlesboro, Kentucky, attending an Executive Board meeting when the members of the local discovered Grundy’s plan;3 he did not return to the area until late in the day of August 16. There was uncontradicted testimony that he first learned of the violence while at the meeting, and returned with explicit instructions from his international union superiors to establish a limited picket line, to prevent any further violence, and to see to it that the strike did not spread to neighboring mines. There was no further violence at the mine site; a picket line was maintained there for nine months; and no further attempts were made to open the mine during that period.4 amended, 49 Stat. 452, 29 U. S. C. § 158 (a)(2) (1964 ed.), Tennessee Consolidated Coal Co., 131 N. L. R. B. 536, enforcement denied sub nom. Labor Board v. Tennessee Consolidated Coal Co., 307 F. 2d 374 (C. A. 6th Cir. 1962). In the other, it found that Local 5881 had engaged in coercive picketing in violation of § 8 (b) (1)(A), 61 Stat. 141, 29 U. S. C. § 158 (b)(1)(A) (1964 ed.), Local 5881, UMWA, 130 N. L. R. B. 1181. The International itself was not charged in this proceeding, and the Board’s consideration focused entirely on the events of August 16. 3 The only testimony suggesting that Gilbert might have been at the mine site on August 15-16 was Gibbs’ statement that “Well, everything happened so fast there, I’m thinking that I seen Mr. Gilbert drive up there, but where he went, I don’t know.” Whether such testimony could ever be sufficient to establish presence we need not decide, since respondent effectively conceded in the Sixth Circuit and here that Gilbert was in Middlesboro when the violence occurred. Immediately after the Board’s order in the proceedings against it, note 2, supra, Consolidated reopened the mine it had closed during the spring of 1960, and hired the men of Local 5881. Later, and while this litigation was awaiting trial, that mine was closed 720 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. Respondent lost his job as superintendent, and never entered into performance of his haulage contract. He testified that he soon began to lose other trucking contracts and mine leases he held in nearby areas. Claiming these effects to be the result of a concerted union plan against him, he sought recovery not against Local 5881 or its members, but only against petitioner, the international union. The suit was brought in the United States District Court for the Eastern District of Tennessee, and jurisdiction was premised on allegations of secondary boycotts under § 303. The state law claim, for which jurisdiction was based upon the doctrine of pendent jurisdiction, asserted “an unlawful conspiracy and an unlawful boycott aimed at him and [Grundy] to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage.”5 The trial judge refused to submit to the jury the claims of pressure intended to cause mining firms other than Grundy to cease doing business with Gibbs; he found those claims unsupported by the evidence. The jury’s verdict was that the UMW had violated both § 303 and state law. Gibbs was awarded $60,000 as damages under the employment contract and $14,500 under the haulage contract; he was also awarded $100,000 punitive damages. On motion, the trial court set aside the award of damages with respect to the haulage contract on the ground that damage was unproved. It also held that union pressure on Grundy to discharge respondent as supervisor would constitute only a primary dispute with Grundy, as respondent’s employer, and hence was not cognizable as a claim under § 303. Interference with the as the result of an accident. At this point, the fall of 1962, the Gray’s Creek mine was opened using members of Local 5881. 5 See Dukes v. Brotherhood of Painters, Local No. 437, 191 Tenn. 495, 235 S. W. 2d 7 (1950); Brumley v. Chattanooga Speedway & Motordrome Co., 138 Tenn. 534, 198 S. W. 775 (1917); Dale v. Temple Co., 186 Tenn. 69, 208 S. W. 2d 344 (1948). MINE WORKERS v. GIBBS. 721 715 Opinion of the Court. employment relationship was cognizable as a state claim, however, and a remitted award was sustained on the state law claim.6 220 F. Supp. 871. The Court of Appeals for the Sixth Circuit affirmed. 343 F. 2d 609. We granted certiorari. 382 U. S. 809. We reverse. I. A threshold question is whether the District Court properly entertained jurisdiction of the claim based on Tennessee law. There was no need to decide a like question in Teamsters Union v. Morton, 377 U. S. 252, since the pertinent state claim there was based on peaceful secondary activities and we held that state law based on such activities had been pre-empted by § 303. But here respondent’s claim is based in part on proofs of violence and intimidation. “[W]e have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. United Automobile Workers v. Russell, 356 U. S. 634; United Construction Workers v. Laburnum Corp., 347 U. S. 656. . . . State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 247. 6 The questions had been submitted to the jury on a special verdict form. The suggested remittitur from $60,000 to $30,000 for damages on the employment contract and from $100,000 to $45,000 punitive damages was accepted by respondent. In view of our disposition, we do not reach petitioner’s contentions that the verdict must be set aside in toto for prejudicial summation by respondent’s counsel, or because the actual damages awarded substantially exceeded the proof, and the punitive damage award may have rested in part on the award of actual damages for interference with the haulage contract, which was vacated as unproved. 722 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. The fact that state remedies were not entirely preempted does not, however, answer the question whether the state claim was properly adjudicated in the District Court absent diversity jurisdiction. The Court held in Hum v. Oursler, 289 U. S. 238, that state law claims are appropriate for federal court determination if they form a separate but parallel ground for relief also sought in a substantial claim based on federal law. The Court distinguished permissible from nonpermissible exercises of federal judicial power over state law claims by contrasting “a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the non-federal ground; in the latter it may not do so upon the non-federal cause of action.” 289 U. S., at 246. The question is into which category the present action fell. Hum was decided in 1933, before the unification of law and equity by the Federal Rules of Civil Procedure. At the time, the meaning of “cause of action” was a subject of serious dispute;7 the phrase might “mean one thing for one purpose and something different for an- 7 See Clark on Code Pleading 75 et seq. (1928); Clark, The Code Cause of Action, 33 Yale L. J. 817 (1924); McCaskill, Actions and Causes of Actions, 34 Yale L. J. 614 (1925); McCaskill, One Form of Civil Action, But What Procedure, for the Federal Courts, 30 Ill. L. Rev. 415 (1935); Gavit, A “Pragmatic Definition” of the “Cause of Action”? 82 U. Pa. L. Rev. 129 (1933); Clark, The Cause of Action, id., at 354 (1934); Gavit, The Cause of Action—a Reply, id., at 695 (1934). MINE WORKERS v. GIBBS. 723 715 Opinion of the Court. other.” United States v. Memphis Cotton Oil Co., 288 U. S. 62, 67-68.8 The Court in Hum identified what it meant by the term by citation of Baltimore S. S. Co. v. Phillips, 274 U. S. 316, a case in which “cause of action” had been used to identify the operative scope of the doctrine of res judicata. In that case the Court had noted that “ ‘the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time.’ ” 274 U. S., at 320. It stated its holding in the following language, quoted in part in the Hum opinion: “Upon principle, it is perfectly plain that the respondent [a seaman suing for an injury sustained while working aboard ship] suffered but one actionable wrong and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex. “A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. ‘The facts are merely the means, 8 See also American Fire & Cas. Co. v. Finn, 341 U. S. 6, 12; Musher Foundation, Inc. v. Alba Trading Co., 127 F. 2d 9, 12 (C. A. 2d Cir. 1942) (dissenting opinion of Clark, J.). 724 OCTOBER TERM, 1965. Opinion of the Court. 383U.S. and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear.’ ” Id., at 321. Had the Court found a jurisdictional bar to reaching the state claim in Hum, we assume that the doctrine of res judicata would not have been applicable in any subsequent state suit. But the citation of Baltimore S. S. Co. shows that the Court found that the weighty policies of judicial economy and fairness to parties reflected in res judicata doctrine were in themselves strong counsel for the adoption of a rule which would permit federal courts to dispose of the state as well as the federal claims. With the adoption of the Federal Rules of Civil Procedure and the unified form of action, Fed. Rule Civ. Proc. 2, much of the controversy over “cause of action” abated. The phrase remained as the keystone of the Hum test, however, and, as commentators have noted,9 has been the source of considerable confusion. Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.10 Yet because the Hum question involves issues of jurisdiction as well as convenience, there has been some tendency to limit its application to cases in which the state and federal claims are, as in Hum, “little more than the equivalent of different epithets to characterize the same group of circumstances.” 289 U. S., at 246.11 0 Shulman & Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L. J. 393, 397-410 (1936); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Con-temp. Prob. 216, 232 (1948); Barron & Holtzoff, Federal Practice and Procedure §23 (1965 Supp.). 10 See, e. g., Fed. Rules Civ. Proc. 2, 18-20, 42. 11E. g., Musher Foundation v. Alba Trading Co., supra; Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Col. L. Rev. 1018, 1029-1030 (1962). MINE WORKERS v. GIBBS. 725 715 Opinion of the Court. This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim “arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,” U. S. Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional “case.” 12 The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U. S. 103. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.13 12 The question whether joined state aqd federal claims constitute one “case” for jurisdictional purposes is to be distinguished from the often equally difficult inquiry whether any “case” at all is presented, Gully v. First National Bank, 299 U. S. 109, although the issue whether a claim for relief qualifies as a case “arising under . . . the Laws of the United States” and the issue whether federal and state claims constitute one “case” for pendent jurisdiction purposes may often appear together, see Dann v. Studebaker-Packard Corp., 288 F. 2d 201, 211-215 (C. A. 6th Cir. 1961); Borak v. J. I. Case Co., 317 F. 2d 838, 847-848 (C. A. 7th Cir. 1963), aff’d on other grounds, 377 U. S. 426. 13 Cf. Armstrong Co. v. Nu-Enamel Corp., 305 U. S. 315, 325. Note, Problems of Parallel State and Federal Remedies, 71 Harv. L. Rev. 513, 514 (1958). While it is commonplace that the Federal Rules of Civil Procedure do not expand the jurisdiction of federal courts, they do embody “the whole tendency of our decisions ... to require a plaintiff to try his . . . whole case at one time,” Baltimore S. S. Co. v. Phillips, supra, and to that extent emphasize the basis of pendent jurisdiction. 726 383 U.S. OCTOBER TERM, 1965. Opinion of the Court. That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.14 Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U. S. 64. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.15 Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.16 Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and 14 Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F. 2d 497 (C. A. 1st Cir. 1950); Moynahan v. Pari-Mutuel Employees Guild, 317 F. 2d 209, 211-212 (C. A. 9th Cir. 1963); op. cit. supra, notes 9 and 11. 15 Some have seen this consideration as the principal argument against exercise of pendent jurisdiction. Thus, before Erie, it was remarked that “the limitations [on pendent jurisdiction] are in the wise discretion of the courts to be fixed in individual cases by the exercise of that statesmanship which is required of any arbiter of the relations of states to nation in a federal system.” Shulman