UNITED STATES REPORTS VOLUME 386 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1966 January 26 Through May 8, 1967 HENRY PUTZEL, jr. REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1967 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $6 (Buckram) JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. EARL WARREN, Chief Justice. HUGO L. BLACK, Associate Justice. WILLIAM 0. 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. RAMSEY CLARK, 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. *Mr. Clark, who had been Acting Attorney General since October 3, 1966, was nominated by President Johnson on February 28, 1967, to be Attorney General; the nomination was confirmed by the Senate on March 2, 1967; he was commissioned on the same date; and he took the oath on March 10, 1967. He was presented to the Court on March 14, 1967. (See post, p. v.) in SUPREME COURT OF THE UNITED STATES. Allotment of Justices. It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, viz.: For the District of Columbia Circuit, Earl Warren, Chief Justice. For the First Circuit, 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 PRESENTATION OF THE ATTORNEY GENERAL. Supreme Court of the United States. TUESDAY, MARCH 14, 196 7. Present: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Fortas. Mr. Solicitor General Marshall presented the Honorable Ramsey Clark, Attorney General of the United States. The Chief Justice said: Mr. Attorney General, the Court welcomes you to the performance of the important duties which devolve upon you as the chief law officer of the Government, and as an officer of this Court. Your commission will be recorded with the Clerk. v TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1964 edition. 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 Aadal v. United States.................................... 970 Abel v. Texas............................................. 928 A. C. E. Freight, Inc.; Mangus v.......................... 482 Acosta v. Texas.......................................... 1008 Acosta v. United States................................... 921 Adams v. California....................................... 282 Ah Chiu Pang v. Immigration and Naturalization Service... 1037 A. J. Armstrong Co.; Limperis v........................... 957 Alabama v. Bell........................................... 916 Alabama; Knowles v....................................... 1011 Alabama; Mathis v......................................... 935 Alabama; Money v.......................................... 985 Alaska; Merrill v........................................ 1040 Albergo v. Reading Co..................................... 983 Albrecht v. Globe-Democrat Publishing Co.................. 941 Albrecht v. Herald Co..................................... 941 Alexander v. California Adult Authority.................. 1042 Ali v. Gordon.................................. 1002,1018,1027 Alire v. United States.................................... 984 Alleghany Corp. v. Mississippi River Fuel Corp............ 162 Allen v. Mathiasen’s Tanker Industries................ 932,1000 Allen v. Turner.......................................... 1011 Alley v. United States................................... 1023 Allgood; Juneau v......................................... 921 Allgood; Price v.......................................... 998 Allis-Chalmers Mfg. Co.; Labor Board v.................... 903 Allison v. United States................................... 13 Alterman Transport Lines v. Public Service Comm’n.... 262,1014 Americana of Puerto Rico, Inc.; Kaplus v.................. 943 American Federation of Musicians; Cutler v................ 993 American Trucking Assns. v. Federal Com. Comm’n.......... 943 VII VIII TABLE OF CASES REPORTED. Page Ames v. Middlebrooks........................................ 967 Ames v. Myers............................................... 965 Andeen; Country Mutual Insurance Co. v.................. 939 Anders v. California.................................... 264, 738 Andersen & Co.; China Union Lines v..................... 933,999 Andersen & Co.; Lan Jing-Chau v.................... 933,1000 Andersen & Co.; Mitsubishi International Corp, v............... 933 Anderson v. Frye............................................ 923 Anderson; Protective Comm, for TMT Trailer Ferry v...... 901 Anderson v. United States............................... 976,1025 Anglin v. Maryland.......................................... 947 A. O. Andersen & Co.; China Union Lines v............... 933,999 A. O. Andersen & Co.; Lan Jing-Chau v................... 933,1000 A. 0. Andersen & Co.; Mitsubishi International Corp. v.... 933 Aponte; Wackenhut Corp, v................................... 268 Arden Farms Co. v. State Dept, of Agriculture........... 350,1014 Arguello v. California...................................... 968 Arizona; Chance v........................................... 966 Arizona; Foggy v........................................... 1025 Arizona; Hitchcock v........................................ 930 Arizona Treasurer v. Powell................................. 910 Arkansas; Gent v............................................ 767 Arkansas; Nelson v......................................... 1039 Arkansas; Stewart v......................................... 946 Arkansas; Walker v.......................................... 682 Armored Carrier Corp. v. United States...................... 778 Armstrong Co.; Limperis v................................. 957 Arnold v. McGuiness....................................... 996 Arnold v. Virginia........................................ 713 Arnold, Schwinn & Co.; United States v...................... 978 Ashby v. Virginia........................................ 1014 Ashley v. Washington...................................... 1023 Association. For labor union, see name of trade. Association of the Bar of New York City; Felber v....... 1005 Atchison, T. & S. F. R. Co. v. United States................ 269 Atchison, T. & S. F. R. Co.; United States v............... 1002 Atkins-Kroll, Ltd.; Guam v.................................. 993 Atlantic C. L. R. Co.; Rich v.............................. 1032 Atlantic Starling, The; Robinson v.......................... 993 Atlass; Muth v............................................. 1037 Attorney General; Higgerson v.............................. 1026 Attorney General; Honda v................................... 484 Attorney General; Schack v................................. 1042 TABLE OF CASES REPORTED. IX Page Attorney General; Soots v................................ 905,988 Attorney General of California; Beer v...................... 11 Austin v. Kentucky......................................... 767 Azzone v. Tahash...................................... 980,1043 Bafico v. Southern Pacific Co.............................. 939 Baker v. California....................................... 1025 Ballard v. Dutton......................................... 1028 Baltimore & O. R. Co.; D’Amico v........................... 544 Baltimore & O. R. Co. v. United States..................... 372 Bankers Life & Casualty Co. v. Guarantee Ins. Co......... 913 Bank of Utah v. Commercial Security Bank.................. 1018 Banks v. California...................................... 923 Banks v. Chicago Grain Trimmers Assn..................... 1002 Banks v. United States................................... 997 Barcley v. Kropp........................................... 970 Barlow v. Texas............................................. 16 Barry v. California....................................... 1024 Bashlor v. Wainwright...................................... 1022 Bata v. Central-Penn National Bank of Philadelphia....... 1007 Bauers v. Heisei.............................. 1021 Beadle v. Illinois.............................. 921 Beattie v. California............................. 285 Beck v. Beto............................................... 904 Beer v. Attorney General of California...................... 11 Beer v. California......................................... 925 Bell; Alabama v............................................ 916 Bell v. Texas.............................................. 969 Bell v. United States..................................... 1040 Bellam v. Warden........................................... 922 Beltran v. Immigration and Naturalization Service.......... 991 Belvin v. Wilson........................................... 996 Bennett v. Labat.......................................... 991 Bennett v. North Carolina................................ 978 Bennett v. Pate........................................ 1028 Bennett v. United States.............................. 917,919 Berea; Ohio ex rel. Sibarco Corp, v........................ 957 Berger v. New York..................................... 980,989 Berman v. Board of Elections of New York City.............. 481 Berry v. New York.......................................... 919 Best v. Fay................................................ 998 Bethlehem Steel Co. v. United States................... 912,987 Beto; Beck v............................................... 904 Beto; Breen v.............................................. 926 X TABLE OF CASES REPORTED. Page Beto; Brooks v....................................... 975,1043 Beto; Clark v............................................. 927 Beto; Cox v............................................... 967 Beto; Davis v............................................ 1040 Beto; Fairris v........................................... 927 Beto; Goodspeed v....................................... 926, 969 Beto; Hewitt v........................................... 994 Beto; Holland v......................................... 1041 Beto; Reed v.............................................. 969 Beto; Ross v.............................................. 948 Beto; Smith v.............................................. 904 Beto; Stephens v........................................... 904 Beto; Stockwell v......................................... 927 Beto; Wagoner v......................................... 926 Beto; Warden v............................................. 927 Beto; Webb v............................................... 930 Bishop; Harris v........................................... 964 Bishop; Trotter v.......................................... 964 Bivens v. U. S. Court of Appeals.......................... 1029 Bjornsen v. La Vallee........................................ 998 Black v. United States.................................. 920, 932 Bloom v. Rlinois.......................................... 1003 Bloomfield Steamship Co. v. Haight........................... 913 Blue River Constructors; Ruth v............................ 929 Board of Education of D. C.; Kraft v....................... 958 Board of Education of D. C.; National Art Academy v....... 958 Board of Elections of New York City; Berman v.............. 481 Boddie v. Michigan........................................ 1037 Boeger; Curtis v....................................... 914,978 Boeger; Grand v........................................ 914,978 Bogart v. Reagan........................................... 211 Bogart v. Traynor.......................................... 939 Boles v. Burnett.......................................... 1002 Bolin v. Kentucky.......................................... 946 Booker v. Illinois......................................... 929 Boone v. Pritchett......................................... 946 Borden Co. v. Freeman...................................... 992 Borough. See name of borough. Borrowdale v. Reuland...................................... 959 Bosler; Swenson v.......................................... 258 Boslow; Hayes v........................................... 1039 Bostick v. South Carolina.................................. 479 Botsch v. United States................................. 937, 987 TABLE OF CASES REPORTED. XI Page Boucher v. Preston........................................ 905 Boulware v. North Carolina................................ 966 Bounougias; Peters v...................................... 983 Boyden v. California...................................... 278 Brabson v. Mancusi........................................ 930 Bragg v. Sinclair Refining Co............................. 946 Brasch v. Superior Court of California............... 943,1000 Brauer v. Cleveland....................................... 956 Braun & Co.; Climax Chemical Co. v........................ 981 Breen v. Beto............................................. 926 Brenner v. Hofstetter..................................... 990 Brenner; Paley v.......................................... 963 Brierley; Meholchick v.................................... 986 Bright v. Rhay............................................ 995 Britton v. New York....................................... 935 Brokaw v. United States................................... 996 Brooks v. Beto....................................... 975,1043 Brotherhood. For labor union, see name of trade. Broussard v. State Farm Mutual Automobile Ins. Co........ 909 Brown v. Florida.......................................... 917 Brown v. General Motors Corp............................. 1036 Brown v. Sterling Aluminum Products.................. 957,1027 Brown v. United States............................... 965,1039 Brown v. Wainwright...................................... 1022 Brownwood Mfg. Co. v. Tanenbaum Textile Co................ 944 Bruce v. United States................................... 1030 Brulotte v. Merrill...................................... 1015 Bryan v. Kershaw Mfg. Co.................................. 959 Bryan v. Texas........................................... 1023 Bryans v. United States................................... 930 Buck v. Oregon............................................ 955 Buckley v. United States................................. 1010 Bullard v. North Carolina................................. 917 Buonomo v. United States.................................. 981 Burbridge v. California.............................. 1030,1031 Burgett v. Texas...................................... 931,953 Burks v. Kentucky......................................... 985 Burnett; Boles v......................................... 1002 Burnett v. Wisconsin...................................... 917 Burrup v. United States.................................. 1034 Butler v. California...................................... 924 Butterwood v. United States............................... 937 Caballero v. New Jersey................................... 996 XII TABLE OF CASES REPORTED. Page Cabral v. California.............................................. 1038 Caddo Parish School Board v. United States........................ 1001 Calhoun v. Hertwig........................................... 966,1033 California; Adams v............................................ 282 California; Anders v........................................ 264,738 California; Arguello v........................................... 968 California; Baker v........................................... 1025 California; Banks v............................................ 923 California; Barry v............................................. 1024 California; Beattie v............................................ 285 California; Beer v............................................... 925 California; Boyden v............................................. 278 California; Burbridge v.................................. 1030,1031 California; Butler v............................................... 924 California; Cabral v.............................................. 1038 California; Candelario v........................................... 918 California; Chapman v........................................... 18,987 California; Chromiak v............................................ 1042 California; Collins v........................................... 1012 California; Comfort v.............................................. 987 California; Conde v................................................ 967 California; Cooper v............................................ 58,988 California; Cotter v............................................... 274 California; Cross v................................................ 546 California; Dale v.................................................. 12 California; Darmiento v........................................... 1010 California; Daugherty v............................................ 271 California; Davis v................................................ 281 California v. El Paso Natural Gas Co............................... 129 California; Erb v.................................................. 273 California; Figaratto v............................................ 921 California; Finn v................................................ 1042 California; Fontaine v............................................. 263 California; Ford v................................................. 266 California; Gamer v................................................ 272 California; Garrison v............................................. 286 California; Giffen v............................................... 980 California; Haynes v............................................... 985 California; Hillery v......................................... 938,1000 California; Hollis v............................................... 262 California; Hudgins v.............................................. 265 California; Jackson v.............................................. 936 California; Jones v................................................ 936 TABLE OF CASES REPORTED. XIII Page California; Juarez v............................................... 936 California; King v................................................. 985 California; La Brasca v............................................ 996 California; Lujan v................................................ 920 California; MacDonald v........................................ 127,987 California; McCaulley v............................................ 921 California; McClellan v............................................ 280 California; Michael v.............................................. 283 California; Miller v............................................... 966 California; Mitchell v........................................... 999 California; Nailor v............................................... 966 California; Otwell v............................................... 276 California; Parra v................................................ 921 California; Pearson v............................................. 1010 California; Phillips v....................................... 212,1000 California; Ponce v............................................... 1026 California; Propp v................................................ 275 California; Pshemensky v........................................... 958 California; Puppe v............................................... 1012 California; Randall v............................................. 1039 California; Reed v............................................ 923,969 California; Ricks v................................................ 263 California; Roberts v............................................. 1026 California; Roy v.............................................. 279 California; Sandoval v....................................... 948,1000 California; Shaw v............................................. 277 California; Smith v.......................................... 924,958 California; Stewart v.......................................... 905 California; Villarino v........................................ 968 California; Wheaton v............................................. 267 California; White v......................................... 922,946 California; Zucker v............................................. 921 California; Zurica v............................................. 937 California Adult Authority; Alexander v........................... 1042 California Adult Authority; Conway v............................... 921 California Adult Authority; Hays v..................... 946 California Adult Authority; Sturm v................................ 977 California Attorney General; Beer v................................. 11 California Board of Equalization; Shell Oil Co. v.................. 211 California Chief Justice; Bogart v................................. 939 California Dept, of Corrections; Werner v.......................... 938 California Dept, of Corrections; Williams v........................ 978 California District Court of Appeal; Jackson v.................... 1003 XIV TABLE OF CASES REPORTED. Page California Governor; Bogart v............................... 211 California Industrial Accident Comm’n; Smith v......... 915,1000 California Medical Facility Supt.; Ring v................... 905 California Superior Court; Brasch v.................... 943,1000 California Superior Court; Holmes v.......................... 13 California Superior Court; Luros v........................ 1034 Callender v. New York........................................ 779 Calloway v. Ohio............................................. 998 Calvert; Young & Co. of Houston v........................... 914 Campbell; Skolnick v........................................ 904 Campbell v. United States............................... 940,951 Campbell v. U. S. Court of Appeals.......................... 905 Candelario v. California.................................... 918 Cannarsa; Southern Brokerage Co. v............... 1004 Capuchino v. Texas...................................... 928,987 Carey v. George Washington University...................... 1013 Carlisle & Jacquelin v. Eisen.............................. 1035 Carriaga v. Immigration and Naturalization Service......... 942 Carrier v. United States................................... 1027 Carroll; Phillips v........................................ 1026 Carter v. U. S. District Court............................. 1028 Carter v. Wilson............................................ 926 Cartwright v. Oregon........................................ 937 Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co............... 129 Castillo v. Department of Corrections Director.............. 998 Catlino v. Taft............................................ 1029 Cavell; Cramer v............................................ 922 CBN Corp. v. United States.................................. 981 C & C Plywood Corp.; Labor Board v.......................... 939 Central Illinois Public Service Co. v. United States........ 908 Central-Penn National Bank of Philadelphia; Bata v......... 1007 C. F. Braun & Co.; Climax Chemical Co. v.................... 981 Chabot; Kelly v............................................. 971 Chambersburg Broadcasting Co. v. Federal Com. Comm’n.. 1004 Chance v. Arizona........................................... 966 Chandler v. Myers........................................... 986 Chan Hing v. Esperdy........................................ 1017 Chapman v. California.................................... 18, 987 Chappell; Esteban v......................................... 936 Chase Manhattan Bank; Krohn v................... 1023 Chatterton; Janousek v...................................... 1017 Chauncey Real Estate Co.; Tharaud v........................ 1035 Cheng Hwa v. Immigration and Naturalization Service........ 1017 Chestnut v. New York....................................... 1009 TABLE OF CASES REPORTED. xv Page Chevallier v. Texas........................................ 1027 Chicago; Railroad Transfer Service v.......................... 351 Chicago & E. I. R. Co. v. United States..................... 372 Chicago Grain Trimmers Assn.; Banks v...................... 1002 Chicago, R. I. & P. R. Co.; Esderts v....................... 993 Chief Justice of California; Bogart v....................... 939 Chief Justice of Tennessee Supreme Court; Boles v.......... 1002 Chief of Police of Coffeyville; Kelly v................. 986,1027 Chief of Police of Coffeyville; Shannon v.............. 986,1027 China Union Lines v. A. O. Andersen & Co................ 933,999 Chiu Pang v. Immigration and Naturalization Service........ 1037 Christofalos v. Immigration and Naturalization Service..... 983 Chromiak v. California..................................... 1042 Circuit Court of Howard County; House v..................... 939 Cities Service Co.; Waldron v.............................. 1015 Cities Service Gas Co.; Western Natural Gas Co. v....... 964,1028 City. See also name of city. City Court of Salt Lake City; Myers v...................... 1040 Civil Service Comm’n of Philadelphia; Wells v.............. 1035 Clark v. Beto............................................... 927 Clark; Honda v.............................................. 484 Clark v. Ohio............................................... 914 Clark; Schack v............................................ 1042 Clarke v. Yax............................................... 916 Clay v. Gordon................................... 1002,1018,1027 Clemons v. United States................................ 921,978 Cleveland; Brauer v......................................... 956 Clewis v. Texas............................................. 707 Cliffside Park; Visidor Corp, v............................. 972 Clifton v. Texas........................................... 1008 Clifton v. United States.................................... 995 Climax Chemical Co. v. C. F. Braun & Co..................... 981 Coastal Club v. Commissioner............................... 1032 Coffey v. Fay.............................................. 1014 Coffeyville Police Chief; Kelly v....................... 986,1027 Coffeyville Police Chief; Shannon v..................... 986,1027 Coglay; Pinkowski v........................................ 1036 Coke v. United States....................................... 918 Colbrese v. National Farmers Union Casualty Co.............. 991 Cole v. United States....................................... 951 Coleman v. United States.................................... 945 Coleman v. Wainwright....................................... 924 Colgate-Palmolive Co.; Levine v........................... 998 College Life Insurance Co. of America; Stucker v............ 934 XVI TABLE OF CASES REPORTED. Page Collier v. United States.................................. 969 Collins v. California.................................... 1012 Collins v. Field......................................... 1025 Collins v. Virgin Islands................................. 958 Collins v. Wilson......................................... 969 Colonial Refrigerated Transportation v. United States.... 480 Colorado; Jordan v........................................ 992 Colorado; Texas v......................................... 901 Colozzo v. United States.................................. 956 Columbia Bank for Cooperatives v. Lee..................... 992 Columbian Carbon Co. v. United States..................... 981 Columbia, N. & L. R. Co.; Sligh v........................ 1007 Comfort v. California..................................... 987 Commercial Security Bank; Bank of Utah v................. 1018 Commissioner; Coastal Club v........................... 1032 Commissioner; Cowden v.................................. 942 Commissioner; Davant v................................ 1022 Commissioner; Henry Van Hummell, Inc. v................ 956 Commissioner; Holt v.................................... 931 Commissioner; Maytag v................................. 1034 Commissioner; Moffatt v................................ 1016 Commissioner; Reef Corp, v............................. 1018 Commissioner; Schildkraut v............................. 959 Commissioner; South Texas Rice Warehouse Co. v......... 1016 Commissioner; Steinberg Estate v.................... 941,988 Commissioner v. Stidger................................... 287 Commissioner of Internal Revenue. See Commissioner. Commissioner of Patents v. Hofstetter..................... 990 Commissioner of Police of New York; Fenster v............. 10 Commissioner of Taxation of Wisconsin; Gray v........... 1033 Committee on Admissions and Grievances; Powell v....... 1035 Commonwealth. See name of Commonwealth. Communications Commission. See Federal Com. Comm’n. Comptroller of Public Accts, of Texas; Young & Co. v..... 914 Comstock; Jones v......................................... 917 Conde v. California....................................... 967 Connor v. Johnson......................................... 483 Conover v. Herold......................................... 947 Conren, Inc. v. Labor Board............................... 974 Continental Baking Co. v. Federal Trade Comm’n............ 932 Continental Baking Co.; Utah Pie Co. v.................... 685 Conway v. California Adult Authority..................... 921 Conway v. Wilson.......................................... 925 Cook v. Maxwell.......................................... 1039 TABLE OF CASES REPORTED. XVII Page Cooper v. California.................................... 58,988 Co-ordinating Committee on Discipline; Kaye v............... 17 Copeland v. Myers............................................ 985 Copley v. United States...................................... 918 Corbin v. Myers........................................... 1013 Cornelio v. Metropolitan District Council................... 975 Corvallis Sand & Gravel Co. v. Hoisting Engineers.......... 931 Cotter v. California......................................... 274 Country Mutual Insurance Co. v. Andeen..................... 939 County. See name of county. Course; Pacific Inland Navigation Co. v.................... 963 Court of Appeals. See U. S. Court of Appeals. Couture v. United States.................................. 1040 Cowden v. Commissioner..................................... 942 Cox v. Beto................................................ 967 Cragan v. New York, N. H. & H. R. Co...................... 1035 Cramer v. Cavell........................................... 922 Crane Boom Life Guard Co. v. Saf-T-Boom Corp............... 908 Crist, White v............................................ 1028 Cross v. California........................................ 546 Cross v. Palo Alto-Mountain View Municipal Court......... 482 Crown Coat Front Co. v. United States.................. 503,903 Curry; Fred Olsen Line v................................... 971 Curtis v. Boeger....................................... 914,978 Cutler v. American Federation of Musicians................. 993 Dacey v. Grievance Comm, of Fairfield County Bar......... 683 Daddona v. Zoning Board of Appeals of Stamford............. 972 Dale v. California.......................................... 12 Dallas v. Florida.......................................... 922 D’Amico v. Baltimore & O. R. Co............................ 544 D’Amico v. Pennsylvania...................................... 8 Daniel v. Skibs A/S Hilda Knudsen.......................... 990 Daniels v. New York........................................ 924 Daniels v. United States.............................. 968,1027 Danning v. Mintz........................................... 990 Darmiento v. California................................... 1010 Daugherty v. California.................................... 271 Davant v. Commissioner.................................... 1022 Davis v. Beto............................................. 1040 Davis v. California........................................ 281 Davis; District of Columbia v..................... 1034 Davis v. Tubbs............................................. 934 Davis v. United States............................ 909,965,1024 Davis v. Warden............................................ 996 247-216 0 - 67 -2 XVIII TABLE OF CASES REPORTED. Page Deaton v. United States..................................... 977 Deckard v. Warden........................................... 284 DeClara v. New York........................................ 1025 DeKalb; Nehring v........................................... 939 Dekle; Fair v............................................... 996 Delaware; Parson v.......................................... 935 Delaware & Hudson R. Corp. v. United States.'............... 372 Deltenre v. New Mexico...................................... 976 De Lucia v. Immigration and Naturalization Service........ 912 DeMaro v. United States..................................... 951 Demers v. Shehab............................................ 966 Dennis v. New York......................................... 1026 Denver; Rogers v....................................... 480,1042 Denver & R. G. W. R. Co. v. Railroad Trainmen.............. 1018 Department of Corrections; Johnson v.................. 924,969 Department of Corrections Director; Castillo v.............. 998 Department of Labor Deputy Comm’r; Williams v............. §17 Department of Revenue of Illinois; National Bellas Hess v... 753 Devitt; Kitzer v............................................ 951 Dickerson v. Rundle......................................... 916 Dickson; Wright v.......................................... 1012 Dillard v. Dillard.......................................... 983 Dillenburg v. Maxwell....................................... 998 Director of Dept, of Corrections; Castillo v................ 998 Director of Highways; Sine v............................ 992 Director of Revenue of Illinois; Miller Brewing Co. v..... 684 Director, U. S. Bureau of Prisons; Young v.................. 546 District Attorney of Kings County; Zwickler v............... 906 District Court. See U. S. District Court. District Court of Appeal of California; Jackson v.......... 1003 District Director of Immigration. See Immigration Director. District Judge. See U. S. District Judge. District of Columbia v. Davis.............................. 1034 District of Columbia Bd. of Ed.; Kraft v.................... 958 District of Columbia Bd. of Ed.; National Art Academy v.. 958 Dodge v. Utah............................................... 939 Donovan; Williams v......................................... 977 Dorsey v. Maroney........................................... 945 Doug Tower, Inc.; Warriner v............................. 999 Downey v. Virginia.......................................... 976 Dubin v. Ohio............................................... 941 Dubin v. United States...................................... 956 Duke v. United States.................................. 934,1000 TABLE OF CASES REPORTED. XIX Page Dukes v. United States................................ 946,988 Duling v. Ohio........................................... 1024 Dunbar; Eason v........................................... 947 Dunbar; Kirk v........................................... 1028 Dunning v. Mississippi.................................... 993 Dupont; Southern Pacific Co. v............................ 958 Du Pont de Nemours & Co.; Union Carbide Corp, v.......... 982 Durham Housing Authority; Thorpe v........................ 670 Durrett v. Indiana....................................... 1024 Dutton; Ballard v........................................ 1028 Dutton; Johnston v........................................ 944 Dutton; Merneigh v........................................ 997 Earl Latsha Lumber Co. v. Labor Board.................... 1032 Eason v. Dunbar........................................... 947 Ebell v. McGee............................................ 929 Eby Construction Co.; Neely v........................ 317,1027 Edwards v. United States.................................. 966 Ehrlich v. Illinois................................... 938,988 Eidenmueller v. Follette................................. 1013 Eidenmueller v. New York.................................. 922 Eidinoff v. Kreimeyer..................................... 905 E. I. du Pont de Nemours & Co.; Union Carbide Corp. v.... 982 Eisen; Carlisle & Jacquelin v............................ 1035 Elbel v. United States.................................... 939 Elkins; Whitehill v....................................... 906 Ellenbogen v. United States............................... 923 Ellis v. Harada........................................... 923 El Paso Nat. Gas Co.; California v........................ 129 El Paso Nat. Gas Co.; Cascade Nat. Gas Corp, v........... 129 El Paso Nat. Gas Co.; Southern California Edison Co. v... 129 El Salvador, The v. McAllister Bros....................... 929 English v. Tennessee..................................... 1037 Entsminger v. Iowa........................................ 748 Equitable Life Assurance Society; United States v........ 1021 Erb v. California......................................... 273 Erie-Lackawanna R. Co. v. United States................... 372 Erving v. Nebraska........................................ 998 Esderts v. Chicago, R. I. & P. R. Co...................... 993 Esperdy; Chan Hing v...................................... 1017 Esperdy; Tai Mui v........................................ 1017 Estate. See name of estate. Esteban v. Chappell....................................... 936 Evanson v. Northwest Holding Co........................... 1004 XX TABLE OF CASES REPORTED. Page Everett v. United States................................... 1013 Exchange & Savings Bank of Berlin v. United States......... 971 Eyman; Hanshaw v............................................ 922 Eyman; Loftis v............................................. 930 Fab’s Famous Foods Co. v. Labor Board....................... 912 Fair v. Dekle.............................................. 996 Fairfield County Bar Grievance Comm.; Dacey v............... 683 Fairris v. Beto............................................... 927 Farmer v. New Jersey.......................................... 991 Farmer v. Pate................................................ 999 Fay; Best v................................................... 998 Fay; Coffey v.............................................. 1014 Fay; Meikle v.............................................. 1012 Federal Bureau of Investigation; Urbano v.................. 935 Federal Bureau of Investigation Director; Schack v......... 977 Federal Com. Comm’n: American Trucking Assns. v............ 943 Federal Com. Comm’n; Chambersburg Broadcasting Co. v.. 1004 Federal Com. Comm’n; Wallerstein v...................... 908,999 Federal Com. Comm’n; WWIZ, Inc. v.......................... 1017 Federal Maritime Comm’n; Stockton Port District v.......... 1031 Federal Power Comm’n; Udall v............................. 902 Federal Power Comm’n v. United Gas Pipe Line Co.......... 237 Federal Trade Comm’n; Continental Baking Co. v........ 932 Federal Trade Comm’n v. Flotill Products................. 1003 Federal Trade Comm’n v. Fred Meyer, Inc................... 907 Federal Trade Comm’n; Fred Meyer, Inc. v.............. 908,978 Federal Trade Comm’n v. Jantzen, Inc...................... 228 Federal Trade Comm’n; Langendorf Bakeries v............... 932 Federal Trade Comm’n v. Procter & Gamble Co............... 568 Federal Trade Comm’n; Safeway Stores v...................... 932 Fein v. New York............................................ 978 Felber v. Association of the Bar of New York City.......... 1005 Fenix & Scisson v. United States........................... 1036 Fenster v. Leary............................................. 10 Ferrell v. Texas............................................ 936 Ferro v. Wilson............................................. 967 Field; Collins v........................................... 1025 Field; Symons v............................................ 1040 Fifth Avenue Coach Lines v. New York........................ 778 Figaratto v. California..................................... 921 Finn v. California......................................... 1042 Firestone Tire & Rubber Co. v. General Tire Co............. 960 First City National Bank of Houston; United States v....... 361 Fleetwood Trailer Co.; Labor Board v..................... 990 TABLE OF CASES REPORTED. XXI Page Fleischmann Distilling Corp. v. Maier Brewing Co............. 714 Fletcher v. Texas.............................................. 928 Flood & Conklin Mfg. Co.; Prima Paint Corp, v.................. 952 Florida; Brown v............................................... 917 Florida; Dallas v.............................................. 922 Florida; Gentille v............................................ 995 Florida; Gilchrist v........................................... 930 Florida; Gobie v............................................... 937 Florida; Harvey v.............................................. 923 Florida; Honea v.............................................. 1012 Florida; Hutchins v............................................ 947 Florida; Johnson v............................................. 925 Florida; Lee v................................................. 983 Florida; Moore v...............,.............................. 1041 Florida; Ornales v............................................. 974 Florida; Pinkney v............................................ 1041 Florida; Pritchett v........................................... 996 Florida; Schack v......................................... 904,1027 Florida; Steppe v.............................................. 929 Florida; Whitney v............................................. 970 Florida; Williams v........................................... 1013 Florida; Woll v................................................ 989 Florida E. C. R. Co. v. United States........................ 8,544 Florida Industrial Comm’n; Nash v.............................. 990 Fiorili Products; Federal Trade Comm’n v...................... 1003 Floyd v. United States......................................... 920 Fluellyn v. New York.......................................... 1008 Foggy v. Arizona.............................................. 1025 Follette; Eidenmueller v...................................... 1013 Fontaine v. California......................................... 263 Fontana v. Schneckloth......................................... 938 Forcella v. Warden............................................ 1035 Ford v. California............................................. 266 Ford; Haendiges v.............................................. 264 Ford v. Wilson................................................. 924 Forrest v. United States....................................... 995 Foster v. U. S. Civil Service Comm’rs......................... 1038 Foster v. Washington.......................................... 1023 Francolino v. United States.................................... 960 Franklin v. McDaniel............................................ 993 Frazier v. United States........................................ 971 Fred Meyer, Inc. v. Federal Trade Comm’n................... 908,978 Fred Meyer, Inc.; Federal Trade Comm’n v........................ 907 Fred Olsen Line v. Curry........................................ 971 XXII TABLE OF CASES REPORTED. Page Freeman; Borden Co. v.................................. 992 Freeman v. Illinois................................... 1009 Friedman v. United States.............................. 913 Fry Roofing Co. v. Volasco Products Co................ 1042 Frye; Anderson v....................................... 923 Furtak v. Mancusi................................ 989,1013,1039 Gaertner v. Wisconsin.................................. 986 Gaito v. Pennsylvania................................. 1009 Gaito v. Strauss....................................... 977 Gajewski v. United States.............................. 913 Gallagher; Quinault Tribe of Indians v................. 969 Gallagher; Tkaczyk v.................................. 1013 Galveston v. United States............................. 269 Gamez v. Texas....................................... 929,988 Gardner; Weiss v........................................ 9 Garner v. California................................... 272 Garrison v. California................................. 286 Gasch; Hobson v....................................... 914 Gatewood v. Hendrick................................... 925 General Motors Corp.; Brown v......................... 1036 General Motors Corp.; Muncy v......................... 1037 General Tire & Rubber Co.; Firestone Tire Co. v.......... 960 Gent v. Arkansas....................................... 767 Gentille v. Florida.................................... 995 George Washington University; Carey v................. 1013 Georgia; White v......................................... 1039 Georgia; Woods v.......................................... 994 Giffen v. California...................................... 980 Gilchrist v. Florida....................................... 930 Giles v. Maryland...................................... 66 Gilmer; Williamson v.................................. 1015 Ginsberg v. United States............................. 958,1000 Gitlitz v. United States.............................. 1038 Gladden; Rose v....................................... 1024 Gladden; Thomaston v.................................. 1038 Glass v. United States................................ 968,1000 Globe-Democrat Publishing Co.; Albrecht v.............. 941 Gobie v. Florida....................................... 937 Goldberg v. United States.............................. 919 Golden State Mutual Life Insurance Co.; Washington v.... 1007 Gomez v. Texas......................................... 937 Gonzales v. Oliver.................................... 1012 Goodpaster v. Illinois................................. 967 Goodspeed v. Beto.................................... 926,969 TABLE OF CASES REPORTED. XXIII Page Goodwin; Sires v.......................................... 935 Gordon; Ali v.................................. 1002,1018,1027 Gordon; Clay v................................. 1002,1018,1027 Gordon v. Massachusetts................................... 905 Government of Guam v. Atkins-Kroll, Ltd................... 993 Government of the Virgin Islands; Collins v............... 958 Governor. See name of State. Grace Line, Inc. v. Kanton............................. 939 Grain Trimmers Assn.; Banks v......................... 1002 Grand v. Boeger...................................... 914,978 Granello v. United States............................. 1019 Grass v. Illinois..................................... 1041 Graves v. Wainwright................................... 935 Gray v. Morgan........................................ 1033 Gray v. North Carolina................................. 911 Grear v. Ohio.......................................... 939 Greason; Zuckerman v................................. 15,969 Great Scot Supermarket v. Labor Board.................. 974 Greene v. United States.............................. 976,1043 Grievance Comm, of Fairfield County Bar; Dacey v........ 683 Grove v. Wilson........................................... 924 Gruss & Son v. United States.............................. 776 Guam v. Atkins-Kroll, Ltd................................. 993 Guarantee Reserve Life Ins. Co.; Bankers Life Co. v..... 913 Gulf-Canal Lines v. United States......................... 348 Haas v. Tahash............................................ 923 Hacker v. Kansas.......................................... 967 Haendiges v. Ford......................................... 264 Hagan v. United States.................................... 945 Haight; Bloomfield Steamship Co. v........................ 913 Halpin v. United States.................................. 1032 Hampson v. Robb.......................................... 1028 Hancock; Nelson v......................................... 984 Hansen v. Wisconsin...................................... 1038 Hanshaw v. Eyman.......................................... 922 Harada; Ellis v........................................... 923 Harbold v. Rundle......................................... 920 Harden v. New York........................................ 976 Hardin v. Kentucky Utilities Co........................... 980 Hare; Prohibition Party of Michigan v..................... 713 Harrah’s Club v. Labor Board.............................. 915 Harrington v. Texas....................................... 944 Harris v. Bishop.......................................... 964 Harris v. United States.............................. 915,1003 XXIV TABLE OF CASES REPORTED. Page Harrison v. Texas.......................................... 938 Harrist; Marion v.......................................... 934 Harshaw v. Michigan........................................ 938 Harvey v. Florida.......................................... 923 Hatter v. Sale............................................ 1011 Hawthorne v. United States................................. 942 Hayden; Warden v........................................... 903 Hayes v. Boslow........................................... 1039 Haynes v. California....................................... 985 Hays v. California Adult Authority......................... 946 Heacock v. Rundle.......................................... 925 Heer; Kimbro v............................................. 128 Heisei; Bauers v.......................................... 1021 Heiland; Sine v............................................ 992 Henderson; Staggs v........................................ 923 Henderson v. United States................................ 1016 Henderson; Wooten v........................................ 923 Hendrick; Gatewood v....................................... 925 Hendricks v. Wainwright................................ 1041 Henry v. United States.................................. 957 Henry Van Hummell, Inc. v. Commissioner................. 956 Herald Co.; Albrecht v.................................. 941 Herold; Conover v....................................... 947 Hertwig; Calhoun v.................................... 966,1033 Hester v. Swenson....................................... 261 Hewitt v. Beto.......................................... 994 Hickey v. Illinois Central R. Co...................... 934,1000 Hicks v. Illinois....................................... 986 Higgerson v. Attorney General.......................... 1026 Highways Director; Sine v............................... 992 Hill; Kilgarlin v..................................... 120,999 Hillery v. California................................. 938,1000 Hilton Hotels Corp.; Surowitz v......................... 901 Hindes v. United States................................. 992 Hing v. Esperdy........................................ 1017 Hinton v. United States................................. 961 Hirshhorn v. New York................................... 984 Hitchcock v. Arizona.................................... 930 Hobbs v. Illinois...................................... 1024 Hobson v. Gasch............................................ 914 Hodes v. United States.................................... 901 Hodge v. Powers............................................ 980 Hodges; Yates v............................................ 912 Hoffa v. United States................................ 940,951 TABLE OF CASES REPORTED. XXV Page Hoffman; Skolnick v............................................. 989 Hofstetter; Brenner v........................................... 990 Hoisting & Portable Engineers; Corvallis Co. v.................. 931 Holland v. Beto................................................ 1041 Hollis v. California............................................ 262 Holman; Thomas v................................................ 965 Holmes v. Peyton................................................ 936 Holmes v. Superior Court of California........................... 13 Holt v. Commissioner............................................ 931 Honda v. Clark.................................................. 484 Honea v. Florida............................................... 1012 Hoover; Schack v................................................ 977 Hoptowit v. Rhay................................................ 923 Hosier; Kalish v................................................ 944 House v. Circuit Court of Howard County......................... 939 House v. Illinois............................................... 964 Housing Authority of Durham; Thorpe v.................... 670 Houston Insulation Contractors Assn. v. Labor Board........... 664 Houston Insulation Contractors Assn.; Labor Board v........... 664 Howard v. Texas................................................. 928 Howard County Circuit Court ; House v........................... 939 Hoy v. Nevada............................................./... 967 Hudgins v. California........................................... 265 Huffman v. Nebraska............................................ 1024 Hulburt Oil & Grease Co. v. Hulburt Oil & Grease Co........... 1032 Hurley v. United States......................................... 967 Hussey v. Petito............................................... 1031 Hutchins v. Florida............................................. 947 Hwa v. Immigration and Naturalization Service.................. 1017 Illinois; Beadle v............................................. 921 Illinois; Bloom v............................................ 1003 Illinois; Booker v............................................. 929 Illinois; Ehrlich v......................................... 938,988 Illinois; Freeman v............................................ 1009 Illinois; Goodpaster v.......................................... 967 Illinois; Grass v............................................ 1041 Illinois; Hicks v............................................. 986 Illinois; Hobbs v............................................ 1024 Illinois; House v............................................. 964 Illinois; Lewis v........................................... 938,988 Illinois; McCray v......................................... 300,1042 Illinois; Milani v........................................... 12,987 Illinois v. Missouri............................................ 902 Illinois; Nettles v............................................ 1008 XXVI TABLE OF CASES REPORTED. Page Illinois; Phelps v.............................................. 937 Illinois; Smith v........................................... 910,953 Illinois; Thomas v.............................................. 936 Illinois; Wallace v............................................. 934 Illinois; Worley v......................................... 972,1042 Illinois Central R. Co.; Hickey v.......................... 934,1000 Illinois Dept, of Revenue; National Bellas Hess v............... 753 Illinois Industrial Comm’n; Stewart v........................... 683 Illinois Revenue Director; Miller Brewing Co. v................. 684 Illinois State Bar Assn.; Mine Workers v........................ 941 Immigration and Naturalization Service. See also Immigration Director. Immigration and Naturalization Service; Ah Chiu Pang v... 1037 Immigration and Naturalization Service; Beltran v............... 991 Immigration and Naturalization Service; Carriaga v....... 942 Immigration and Naturalization Service; Christofalos v... 983 Immigration and Naturalization Service; De Lucia v....... 912 Immigration and Naturalization Service; Magbanua v... 960 Immigration and Naturalization Service; Otten v................. 916 Immigration and Naturalization Service; Woo Cheng Hwa v.. 1017 Immigration Director; Chan Hing v.............................. 1017 Immigration Director; Tai Mui v................................ 1017 Indiana; Durrett v............................................. 1024 Indiana; Macon v............................................... 1038 Industrial Accident Comm’n of California; Smith v.......... 915,1000 Industrial Comm’n of Illinois; Stewart v....................... 683 In re. See name of party. Internal Revenue Service. See Commissioner. International. For labor union, see name of trade. Iowa; Entsminger v.............................................. 748 Iowa; Schmidt v................................................. 965 Irish v. Securities and Exchange Comm’n....................... 911 Irish Investments v. Securities and Exchange Comm’n........... 911 Isaacs v. Virginia.............................................. 965 Jackson v. California........................................... 936 Jackson v. District Court of Appeal of California.............. 1003 Jackson v. Lykes Bros. Steamship Co............................. 731 Jackson v. New York............................................. 925 Jackson v. United States........................................ 997 Jacobs v. United States..................................... 920,969 Jacquez v. Wilson.............................................. 1009 Jaffe; Marx v................................................... 909 Jakob v. United States.......................................... 908 TABLE OF CASES REPORTED. XXVII Page Janousek v. Chatterton................................... 1017 Jantzen, Inc.; Federal Trade Comm’n v..................... 228 Jefferson Construction Co. of Fla. v. United States....... 914 Jesup; Lee v.............................................. 993 Jing-Chau v. A. O. Andersen & Co..................... 933,1000 Johnson; Connor v......................................... 483 Johnson v. Department of Corrections........ 924,969 Johnson v. Florida........................................ 925 Johnson; Ortega v......................................... 986 Johnson; Rundle v.......................................... 14 Johnson v. Schneckloth................................... 1028 Johnson v. Texas......................................... 1013 Johnston v. Dutton........................................ 944 Jones v. California....................................... 936 Jones v. Comstock......................................... 917 Jones; Miller Brewing Co. v.............................. 684 Jones v. Peyton.......................................... 1008 Jones v. United States................................... 1014 Jones v. Wainwright....................................... 953 Jordan v. Colorado........................................ 992 Jordan v. United States.................................. 1033 Juarez v. California...................................... 936 Juneau v. Allgood......................................... 921 Jung v. Wisconsin......................................... 999 Kalish v. Hosier.......................................... 944 Kansas; Hacker v.......................................... 967 Kansas; Lee v......................................... 925,978 Kansas City, Missouri; Kansas City Transit v.............. 969 Kansas City Transit v. Kansas City, Missouri.............. 969 Kanton; Grace Line, Inc. v................................ 939 Kanton v. United States................................... 986 Kaplus v. Americana of Puerto Rico, Inc................... 943 Katz v. Tyler............................................. 942 Katz v. United States..................................... 954 Katzenbach; Schack v...................................... 967 Kaye v. Co-ordinating Committee on Discipline.............. 17 Keco Industries v. United States.......................... 958 Keller v. Simpson......................................... 997 Kelly v. Chabot........................................... 971 Kelly v. Chief of Police of Coffeyville............... 986,1027 Kennedy v. Powell......................................... 910 Kenosha County Court; Wisconsin ex rel. Rizzo v.......... 1035 Kentucky; Austin v........................................ 767 XXVIII TABLE OF CASES REPORTED. Page Kentucky; Bolin v....................................... 946 Kentucky; Burks v....................................... 985 Kentucky; King v........................................ 924 Kentucky; Lynn v....................................... 1012 Kentucky; Messamore v................................... 936 Kentucky; Moore v...................................... 1038 Kentucky; Perry v....................................... 968 Kentucky; Preston v..................................... 920 Kentucky; Reado v...................................... 1024 Kentucky; Willoughby v.................................. 920 Kentucky Utilities Co.; Hardin v.......................... 980 Kentucky Utilities Co.; Powell Valley Electric Coop, v.. 980 Kentucky Utilities Co.; Tennessee Valley Authority v..'.... 980 Kershaw Mfg. Co.; Bryan v................................. 959 Kershaw Mfg. Co.; Trakwork Equipment Co. v................ 959 Key v. United States...................................... 982 Kilgarlin v. Hill..................................... 120,999 Kimbro v. Heer............................................ 128 Kinderman v. Tahash....................................... 929 King v. California..................................... 985 King v. Kentucky...................................... 924 King v. United States................................ 940,951 Kings County District Attorney; Zwickler v................ 906 Kirk v. Dunbar...................................... 1028 Kitzer v. Devitt.......................................... 951 Klatte; Lyons v.......................................... 1011 Klopfer v. North Carolina................................. 213 Knoll v. Socony Mobil Oil Co.................. 977,1043 Knowles v. Alabama....................................... 1011 Koota; Zwickler v......................................... 906 Kopetka v. Tahash......................................... 966 Korn v. United States.................................... 1004 Kraft v. Board of Education of the District of Columbia. 958 Krantz v. Olin....................................... 982,1043 Kreimeyer; Eidinoff v..................................... 905 Krohn v. Chase Manhattan Bank............................ 1023 Krohn v. Richardson-Merrell, Inc.......................... 970 Kropp; Barcley v.......................................... 970 Kuberski v. New York Central R. Co....................... 1036 Kyle v. Wickersham........................................ 925 Labat; Bennett v.......................................... 991 Labor Board v. Allis-Chalmers Mfg. Co..................... 903 Labor Board v. C & C Plywood Corp......................... 939 Labor Board; Conren, Inc. v............................... 974 TABLE OF CASES REPORTED. XXIX Page Labor Board; Earl Latsha Lumber Co. v..................... 1032 Labor Board; Fab’s Famous Foods Co. v...................... 912 Labor Board v. Fleetwood Trailer Co........................ 990 Labor Board; Great Scot Supermarket v...................... 974 Labor Board; Harrah’s Club v............................... 915 Labor Board v. Houston Insulation Contractors Assn....... 664 Labor Board; Houston Insulation Contractors Assn, v...... 664 Labor Board; Longshoremen’s Assn, v....................... 1033 Labor Board; Marbro Food Service v......................... 912 Labor Board; National Maritime Union v..................... 959 Labor Board v. National Woodwork Mfrs. Assn................ 612 Labor Board; National Woodwork Mfrs. Assn, v............. 612 Labor Board; Neuhoff Bros. Packers v....................... 956 Labor Board; Retail Clerks v.............................. 1017 Labor Board; Sheridan Creations v.......................... 969 Labor Union. See name of trade. La Brasca v. California.................................... 996 Lacey v. Wainwright........................................ 965 Lafargue v. Samuel......................................... 915 Langendorf United Bakeries v. Federal Trade Comm’n....... 932 Langlois; Lepper v......................................... 924 Lan Jing-Chau v. A. 0. Andersen & Co............ 933,1000 Latsha Lumber Co. v. Labor Board.......................... 1032 Laughlin v. United States................................. 1041 Laurel Hollow; Laverne v................................... 682 LaVallee; Bjornsen v....................................... 998 Laverne v. Laurel Hollow................................... 682 Laverne v. Piranesi Imports................................ 779 Lawrence v. McMann......................................... 944 Lawrence v. Pate........................................... 938 Lawrence v. Peyton......................................... 968 Leary; Fenster v............................................ 10 Lebron; Nolla, Galib & Co. v.............................. 1033 LeBrun v. Oregon.......................................... 1011 Ledbetter; Warden v........................................ 971 Lee; Columbia Bank for Cooperatives v...................... 992 Lee v. Florida............................................. 983 Lee v. Jesup............................................... 993 Lee v. Kansas.......................................... 925,978 Lee v. Mancusi............................................. 924 Lee v. Washington.......................................... 952 Lepper v. Langlois......................................... 924 Lester v. United States.................................... 938 Levin v. Mississippi River Fuel Corp................. 162 XXX TABLE OF CASES REPORTED. Page Levine v. Colgate-Palmolive Co............................. 998 Lewis v. Illinois..................................... 938,988 Lewis v. Mancusi.......................................... 924 Lewis v. New Jersey....................................... 986 Lewis v. United States................................ 939,945 Liggett & Myers Tobacco Co. v. Pritchard.................. 1009 Limperis v. A. J. Armstrong Co............................ 957 Lindsey v. United States.................................. 1025 Lingo v. Wilson............................................. 936 Littell v. Udall............................................ 939 Lloyd A. Fry Roofing Co. v. Volasco Products Co.......... 1042 Local. For labor union, see name of trade. Locklin v. Switzer Bros., Inc......................... 963,1027 Loftis v. Eyman............................................ 930 Longshoremen v. Philadelphia Marine Trade Assn............. 907 Longshoremen’s Assn. v. Labor Board....................... 1033 Lorenzana v. Puerto Rico.................................. 1040 Lorenzana v. Warden........................................ 905 Los Angeles County; Miller v............................... 990 Los Angeles County v. Montrose Chemical Corp.............. 1004 Losieau v. Nebraska........................................ 967 Lott v. Texas......................................... 928,1027 Louie v. Washington....................................... 1042 Louisiana v. United States................................. 270 Louisiana; United States v............................ 979,1016 Louisiana Power & Light Co.; Soape v....................... 930 Loux v. Washington......................................... 997 Lovejoy v. United States................................... 974 Loving v. Virginia......................................... 952 Lujan v. California........................................ 920 Lupino v. Tahash...................................... 984,1043 Luros v. Superior Court of California..................... 1034 Lykes Bros. Steamship Co.; Jackson v...................... 731 Lyle v. Maroney............................................ 998 Lynn v. Kentucky.......................................... 1012 Lynott v. United States.................................... 917 Lyons v. Klatte........................................... 1011 Mac. See also Me. MacDonald v. California............................... 127,987 MacIntyre v. United States................................. 933 Macon v. Indiana.......................................... 1038 Maddox v. Pate............................................ 1039 Madison v. United States.................................. 1037 TABLE OF CASES REPORTED. XXXI Page Magbanua v. Immigration and Naturalization Service...... 960 Magnus v. United States.............................. 909,978 Maier Brewing Co.; Fleischmann Distilling Corp, v........ 714 Mallory v. United States................................. 991 Mancusi; Brabson v....................................... 930 Mancusi; Furtak v.............................. 989,1013,1039 Mancusi; Lee v........................................... 924 Mancusi; Lewis v......................................... 924 Mancusi; Molinas v....................................... 984 Mancusi; Peterson v..................................... 1037 Maness v. United States.................................. 932 Mangus v. A. C. E. Freight, Inc.......................... 482 Mansfield v. Willingham................................. 1028 Marbro Food Service v. Labor Board....................... 912 Marina Mercante Nicaraguense v. McAllister Bros.......... 929 Marion v. Harrist........................................ 934 Maritime Union v. Labor Board............................ 959 Marks v. United States................................... 933 Maroney; Dorsey v........................................ 945 Maroney; Lyle v.......................................... 998 Maroney; Mayberry v...................................... 933 Maroney; Nowakowski v.................................... 542 Marshall v. Russell...................................... 911 Martin v. Phillips Petroleum Co.......................... 930 Martin K. Eby Construction Co.; Neely v............. 317,1027 Marx v. Jaffe............................................ 909 Maryland; Anglin v....................................... 947 Maryland; Giles v......................................... 66 Maryland; Tucker v...................................... 1024 Maryland University President; Whitehill v............... 906 Masonite Corp.; Wright v................................. 934 Masonite Corp.; Wright’s Grocery v..................... 934 Massachusetts; Gordon v.................................. 905 Massachusetts v. Painten................................. 931 Matanuska Valley Lines v. Molitor........................ 914 Mathiasen’s Tanker Industries; Allen v.............. 932,1000 Mathis v. Alabama........................................ 935 Matthews v. United States................................ 994 Maxwell; Cook v......................................... 1039 Maxwell; Dillenburg v.................................... 998 Maxwell; Naples v........................................ 971 Maxwell; Smith v........................................ 1026 Mayberry v. Maroney...................................... 933 XXXII TABLE OF CASES REPORTED. Page Mayor of Tazewell v. Kentucky Utilities Co................ 980 Maytag v. Commissioner................................... 1034 Me. See also Mac. McAdoo v. New York................................... 1031 McAllister Bros.; Marina Mercante Nicaraguense v........ 929 McAllister Bros.; The El Salvador v.................. 929 McCaulley v. California................................. 921 McClellan v. California.................................. 280 McClellan v. Ohio...................................... 1022 McClindon v. Oliver..................................... 986 McCrary v. South Carolina............................ 1013 McCray v. Illinois................................. 300,1042 McCreary v. Wilson.................................. 922,978 McDaniel; Franklin v.................................. 993 McGee; Ebell v........................................ 929 McGuiness; Arnold v................................... 996 McKendrick; Montgomery v.............................. 987 McKinney v. Rundle................................... 1022 McMann; Lawrence v.................................... 944 McMann; West v..................................... 985,1043 McMillan v. United States............................. 909 Meholchick v. Brierley................................ 986 Meier; Wilcox v....................................... 989 Meikle v. Fay........................................ 1012 Mempa v. Rhay....................................... 907,953 Memphis Light, Gas & Water Div. v. United Pipe Line Co.. 237 Menefield v. United States........................... 1026 Merlands Club v. Messall............................. 1009 Memeigh v. Dutton..................................... 997 Merrill v. Alaska.................................... 1040 Merrill; Brulotte v.................................. 1015 Merrill v. United States.............................. 994 Messall; Merlands Club v............................. 1009 Messamore v. Kentucky................................. 936 Meter v. Nebraska..................................... 989 Metropolitan District Council; Cornelio v............. 975 Meyer, Inc. v. Federal Trade Comm’n........... 908,978 Meyer, Inc.; Federal Trade Comm’n v................... 907 Michael v. California................................. 283 Michigan; Boddie v................................... 1037 Michigan; Harshaw v................................... 938 Michigan v. Ohio.................................... 1001,1029 Michigan Secretary of State; Prohibition Party v...... 713 Middlebrooks; Ames v.................................. 967 TABLE OF CASES REPORTED. XXXIII Page Milani v. Illinois..................................... 12,987 Miller v. California...................................... 966 Miller v. Los Angeles County.............................. 990 Miller v. Pato.............................................. 1 Miller v. Rhay............................................ 936 Miller v. United States.............................. 911,999 Miller; Zschemig v....................................... 1030 Miller Brewing Co. v. Jones............................... 684 Mills; Mitsubishi Shipping Co. v........................ 1036 Mine Workers v. Illinois State Bar Assn................... 941 Mintz; Panning v........................................... 990 Mississippi; Dunning v.................................... 993 Mississippi; Woodruff v................................... 919 Mississippi Governor; Connor v............................ 483 Mississippi River Fuel Corp.; Alleghany Corp, v........... 162 Mississippi River Fuel Corp.; Levin v..................... 162 Missouri; Illinois v...................................... 902 Missouri; Tettamble v..................................... 265 Mitchell v. California.................................... 999 Mitchell v. United States............................ 972,1042 Mitchell v. Wilson........................................ 999 Mitsubishi International Corp. v. A. O. Andersen & Co... 933 Mitsubishi Shipping Co. v. Mills......................... 1036 Moffatt v. Commissioner.................................. 1016 Mohawk Equipment Co.; Pinkowski v.................... 1036 Molinas v. Mancusi........................................ 984 Molitor; Matanuska Valley Lines v......................... 914 Money v. Alabama.......................................... 985 Montgomery v. McKendrick.................................. 987 Montieth v. Oregon........................................ 780 Montrose Chemical Corp.; Los Angeles County v........... 1004 Moody v. United States................................... 1003 Moore v. Florida......................................... 1041 Moore v. Kentucky........................................ 1038 Mooreman v. Mutual Life Insurance Co. of New York....... 959 Moore-McCormack Lines; Waldron v...................... 724 Morgan; Gray v........................................... 1033 Muhammad v. United States................................. 959 Mui v. Esperdy........................................... 1017 Mulkey; Reitman v......................................... 970 Muncy v. General Motors Corp............................. 1037 Munich v. United States................................... 974 Murphy v. New Jersey...................................... 965 Murray v. Wilson.......................................... 920 247-216 0 - 67 -3 XXXIV TABLE OF CASES REPORTED. Page Muth v. Atlass............................................ 1037 Mutual Life Insurance Co. of New York; Mooreman v........ 959 Myers; Ames v............................................... 965 Myers; Chandler v........................................... 986 Myers; Copeland v........................................... 985 Myers; Corbin v........................................... 1013 Myers v. Salt Lake City Court............................. 1040 Myersohn v. United States................................... 991 Myerson v. United States................................. 991 Myles v. Preston......................................... 953 Myricks v. United States.................................. 1015 Nailor v. California...................................... 966 Nance v. New Mexico..................................... 1039 Naples v. Maxwell........................................... 971 Nash v. Florida Industrial Comm’n........................... 990 National Art Academy v. Board of Education of D. C....... 958 National Bellas Hess v. Dept, of Revenue of Illinois..... 753 National Farmers Union Casualty Co.; Colbrese v.......... 991 National Labor Relations Board. See Labor Board. National Maritime Union v. Labor Board..................... 959 National Pneumatic Co. v. United States.................... 942 National Steel Corp.; United States v................. 939,1000 National Surety Corp. v. Rauscher, Pierce & Co............ 1018 National Woodwork Mfrs. Assn. v. Labor Board............... 612 National Woodwork Mfrs. Assn.; Labor Board v............... 612 Nave v. Seattle............................................ 929 Nebraska; Erving v......................................... 998 Nebraska; Huffman v....................................... 1024 Nebraska; Losieau v........................................ 967 Nebraska; Meter v.......................................... 989 Nebraska State Bar Assn.; Nielsen v................... 266,1000 Neely v. Martin K. Eby Construction Co................ 317,1027 Nehring v. DeKalb.......................................... 939 Nelms v. United States..................................... 922 Nelson v. Arkansas........................................ 1039 Nelson v. Hancock.......................................... 984 Nettles v. Illinois....................................... 1008 Neuhoff Bros. Packers v. Labor Board....................... 956 Nevada; Hoy v.............................................. 967 Newell v. Page............................................. 929 New Jersey; Caballero v.................................. 996 New Jersey; Farmer v..................................... 991 New Jersey; Lewis v...................................... 986 New Jersey; Murphy v................................... 965 TABLE OF CASES REPORTED. XXXV Page New Jersey; Pierson v................................. 924,978 New Jersey; Shaw v.................................... 1040 New Jersey; Von Atzinger v................................ 985 New Jersey; Williams v................................. 1038 New Mexico; Deltenre v.................................. 976 New Mexico; Nance v...................................... 1039 New Orleans Terminal Co.; Spencer v....................... 942 Newport News; Patterson v................................. 969 New York; Berger v.................................... 980,989 New York; Berry v......................................... 919 New York; Britton v....................................... 935 New York; Callender v..................................... 779 New York; Chestnut v..................................... 1009 New York; Daniels v....................................... 924 New York; DeClara v...................................... 1025 New York; Dennis v....................................... 1026 New York; Eidenmueller v.................................. 922 New York; Fein v.......................................... 978 New York; Fifth Avenue Coach Lines v...................... 778 New York; Fluellyn v.................................. 1008 New York; Harden v..................................... 976 New York; Hirshhom v................................... 984 New York; Jackson v........................................ 925 New York; McAdoo v..................................... 1031 New York; Peters v...................................... 980 New York; Redrup v...................................... 767 New York; Saunders v................................... 926 New York; Sibron v...................................... 954 New York; Simon v....................................... 986 New York; Stanley v..................................... 926 New York; Torres v.................................... 1014 New York; Turner v................................. 773,1011 New York v. United States................................. 349 New York; Watkins v.................................... 1024 New York; White v...................................... 1008 New York; Wilson v.................................... 1011 New York Central R. Co.; Kuberski v...................... 1036 New York City Bar Association; Felber v.................. 1005 New York City Board of Elections; Berman v................ 481 New York City Police Comm’r; Fenster v..................... 10 New York, N. H. & H. R. Co.; Cragan v.................... 1035 Nez Perce Tribe of Indians v. United States........... 984,1015 Nielsen v. Nebraska State Bar Assn................... 266,1000 Nolla, Galib & Co. v. Lebron............................. 1033 XXXVI TABLE OF CASES REPORTED. Page North Carolina; Bennett v................................. 978 North Carolina; Boulware v................................ 966 North Carolina; Bullard v................................. 917 North Carolina; Gray v.................................... 911 North Carolina; Klopfer v................................. 213 North Carolina; Smith v.................................. 1032 Northwest Holding Co.; Evanson v........................... 1004 Novarro v. Pitchess........................................ 1034 Nowakowski v. Maroney....................................... 542 Noyes v. Washington......................................... 968 O’Brien v. United States.................................... 345 O’Day v. United States.................................. 994,997 Ogletree v. Ohio........................................... 1007 Ohio; Calloway v............................................ 998 Ohio; Clark v............................................... 914 Ohio; Dubin v............................................... 941 Ohio; Duling v............................................. 1024 Ohio; Grear v............................................... 939 Ohio; McClellan v.......................................... 1022 Ohio; Michigan v...................................... 1001,1029 Ohio; Ogletree v........................................... 1007 Ohio; Smith v.............................................. 1008 Ohio ex rel. Sibarco Corp. v. Berea......................... 957 Oklahoma City; Shadid v.................................... 1034 Olin; Krantz v......................................... 982,1043 Oliver; Gonzales v......................................... 1012 Oliver; McClindon v......................................... 986 Oliver; Ponce v............................................ 1012 Oliver; Smith v............................................. 921 Oliver; Van Geldern v....................................... 997 Oliver; Vigil v............................................ 1012 Oliver; Wilson v............................................ 985 Oliver; Zavala v............................................ 946 Olsen Line v. Curry......................................... 971 Oppenheim v. Sterling...................................... 1011 Oregon; Buck v.............................................. 955 Oregon; Cartwright v........................................ 937 Oregon; LeBrun v........................................... 1011 Oregon; Montieth v.......................................... 780 Omales v. Florida........................................... 974 Ortega v. Johnson........................................... 986 Osborn v. United States..................................... 938 Oscar Gruss & Son v. United States.......................... 776 Ostendorff v. United States................................. 982 TABLE OF CASES REPORTED. XXXVII Page Otten v. Immigration and Naturalization Service............ 916 Otwell v. California....................................... 276 Pacific Inland Navigation Co. v. Course.................... 963 Page; Newell v............................................. 929 Painten; Massachusetts v................................... 931 Paley v. Brenner........................................... 963 Palo Alto-Mountain View Municipal Court; Cross v......... 482 Pang v. Immigration and Naturalization Service............ 1037 Parker; Pelletier v........................................ 937 Parker; Pope v............................................. 930 Parker v. Turner........................................... 953 Parker v. United States.................................... 916 Parks v. United States................................. 940,951 Pamess v. United States............................... 919,1012 Parra v. California........................................ 921 Parson v. Delaware......................................... 935 Parsons; Skolnick v.................................... 903,978 Passini v. United States................................... 951 Pate; Bennett v........................................... 1028 Pate; Farmer v............................................. 999 Pate; Lawrence v........................................... 938 Pate; Maddox v............................................ 1039 Pate; Miller v............................................... 1 Patents Commissioner v. Hofstetter......................... 990 Patterson v. Newport News.................................. 969 Patterson; Provident Tradesmens Bank & Trust Co. v....... 940 Patterson; Specht v........................................ 605 Patterson v. United States................................. 932 Paz-Sierra v. United States................................ 935 Pearson v. California..................................... 1010 Pelletier v. Parker........................................ 937 Penn-Olin Chemical Co.; United States v.................. 906 Pennsylvania; D’Amico v...................................... 8 Pennsylvania; Gaito v..................................... 1009 Pennsylvania; Ramey v...................................... 986 Pennsylvania ; Stell v................................... 925, 929 Pennsylvania Pub. Util. Comm’n v. Pennsylvania R. Co.. 982,1043 Pennsylvania R. Co; Pennsylvania Pub. Util. Comm’n v.. 982,1043 Pennsylvania R. Co.-New York Central R. Co. Merger....... 372 Perry v. Kentucky.......................................... 968 Peters v. Bounougias....................................... 983 Peters v. New York......................................... 980 Peterson v. Mancusi....................................... 1037 Peterson v. United States.................................. 945 XXXVIII TABLE OF CASES REPORTED. Page Petite v. United States....................................... 995 Petito; Hussey v............................................ 1031 Peurifoy; Williamson v........................................ 901 Peyton; Holmes v.......................................... 936 Peyton; Jones v............................................ 1008 Peyton; Lawrence v......................................... 968 Peyton; Rees v.............................................. 989 Phelps v. Illinois............................................ 937 Philadelphia Civil Service Comm’n; Wells v................... 1035 Philadelphia Marine Trade Assn.; Longshoremen v............... 907 Phillips v. California................................... 212,1000 Phillips v. Carroll.......................................... 1026 Phillips Petroleum Co.; Martin v............................ 930 Pierce v. Turner.............................................. 947 Pierson v. New Jersey..................................... 924, 978 Pierson v. Ray................................................ 547 Pierson; Ray v................................................ 547 Pinkney v. Florida........................................... 1041 Pinkowski v. Coglay.......................................... 1036 Pinkowski v. Mohawk Equipment Co............................. 1036 Piranesi Imports; Laverne v................................... 779 Pitchess; Novarro v.......................................... 1034 Pitchess; Sartain v.......................................... 1025 Pittman v. United States...................................... 995 Platt v. Texas................................................ 929 Poafpybitty v. Skelly Oil Co................................. 1029 Pohlabel v. United States................................. 916,987 Polisi v. United States....................................... 985 Ponce v. California.......................................... 1026 Ponce v. Oliver.............................................. 1012 Pope v. Parker................................................ 930 Porter v. Porter......................................... 957,1027 Postell v. Wilson............................................ 1041 Powell v. Committee on Admissions and Grievances............. 1035 Powell; Kennedy v............................................. 910 Powell Valley Electric Coop. v. Kentucky Utilities Co....... 980 Power Commission. See Federal Power Comm’n. Powers; Hodge v............................................... 980 Press Publishing Co.; Wright v................................ 911 Preston; Boucher v............................................ 905 Preston v. Kentucky........................................... 920 Preston; Myles v.............................................. 953 Price v. Allgood.............................................. 998 Pridgen v. Wainwright........................................ 1013 TABLE OF CASES REPORTED. XXXIX Page Prima Paint Corp. v. Flood & Conklin Mfg. Co............. 952 Pritchard; Liggett & Myers Tobacco Co. v.................. 1009 Pritchett; Boone v......................................... 946 Pritchett v. Florida....................................... 996 Procter & Gamble Co.; Federal Trade Comm’n v........... 568 Prohibition Party of Michigan v. Hare...................... 713 Propp v. California........................................ 275 Protective Comm, for TMT Trailer Ferry v. Anderson........ 901 Provident National Bank; United States v................... 361 Provident Tradesmens Bank & Trust Co. v. Patterson........ 940 Prudential Insurance Co.; United States v................. 1018 Pshemensky v. California..................................... 958 Public Service Comm’n; Alterman Transport Lines v..... 262,1014 Puerto Rico; Lorenzana v.................................. 1040 Puppe v. California....................................... 1012 Putt v. U. S. District Court............................... 905 Quinault Tribe of Indians v. Gallagher....................... 969 Radiant Color Co. v. Switzer Bros., Inc............... 963,1027 Railroad Trainmen; Denver & R. G. W. R. Co. v............. 1018 Railroad Transfer Service v. Chicago....................... 351 Railway Labor Executives’ Assn. v. United States........... 544 Ramey v. Pennsylvania...................................... 986 Randall v. California..................................... 1039 Rands; United States v..................................... 989 Rasmussen v. Willingham.................................... 919 Rauscher, Pierce & Co.; National Surety Corp, v........... 1018 Rawdon v. United States............................... 909,1043 Ray v. Pierson............................................. 547 Ray; Pierson v............................................. 547 Ray v. United States....................................... 913 Reading Co.; Albergo v..................................... 983 Reado v. Kentucky......................................... 1024 Reagan; Bogart v......................................... 211 Redrup v. New York......................................... 767 Reed v. Beto............................................. 969 Reed v. California................................... 923,969 Reed v. United States...................................... 918 Reef Corp. v. Commissioner................................ 1018 Rees v. Peyton............................................. 989 Reese v. United States..................................... 976 Reitman v. Mulkey.......................................... 970 Rekeweg, In re............................................. 905 Retail Clerks v. Labor Board.............................. 1017 Reuland; Borrowdale v...................................... 959 XL TABLE OF CASES REPORTED. Page Rhay; Bright v........................................... 995 Rhay; Hoptowit v........................................ 923 Rhay; Mempa v........................................ 907,953 Rhay; Miller v........................................... 936 Rhay; Schruder v........................................ 1014 Rhay; Stiltner v............................... 922,1025,1026 Rhay; Walkling v.................................... 907,953 Rhodes, In re.............................................. 999 Rich v. Atlantic C. L. R. Co.............................. 1032 Richardson v. Secretary of Health, Education and Welfare.. 921 Richardson-Merrell, Inc.; Krohn v......................... 970 Ricks v. California........................................ 263 Ring v. Superintendent of California Medical Facility.... 905 Ringo v. Wingo............................................. 946 Risch v. Risch........................................... 10,969 Rivas v. United States..................................... 945 Rizzo v. Kenosha County Court.............................. 1035 Rizzo v. United States.................................... 1004 Robb; Hampson v........................................... 1028 Robbins v. Small......................................... 1033 Roberts v. California.................................... 1026 Roberts v. United California Bank......................... 977 Roberts v. United States................................. 1041 Roberts v. Wilson........................................ 1001 Robinson v. The Atlantic Starling.......................... 993 Robson; Skolnick v........................................ 1002 Rogers v. Denver......,............................... 480,1042 Rogers v. United States.................................... 943 Rollins v. Virginia....................................... 1026 Roofire Alarm Co. v. Underwriters’ Laboratories............ 913 Root v. United States...................................... 912 Rosado v. United States................................... 1010 Rose v. Gladden........................................... 1024 Roseman v. United States................................... 918 Ross v. Beto............................................... 948 Ross v. Texas.............................................. 938 Ross v. Wainwright......................................... 953 Rowell v. United States................................... 1009 Roy v. California.......................................... 279 Ruby v. Secretary of Navy................................. 1011 Ruby v. Texas.............................................. 930 Ruckle v. Warden........................................... 919 Rundle; Dickerson v........................................ 916 Rundle; Harbold v.......................................... 920 TABLE OF CASES REPORTED. XLI Page Rundle; Heacock v............................................ 925 Rundle v. Johnson............................................. 14 Rundle; McKinney v.......................................... 1022 Rundle; Sliva v.............................................. 905 Russell; Marshall v.......................................... 911 Russell L. Irish Inv. v. Securities and Exch. Comm’n....... 911 Russo v. Virginia............................................ 909 Ruth v. Blue River Constructors.............................. 929 Safeway Stores v. Federal Trade Comm’n....................... 932 Saf-T-Boom Corp.; Crane Boom Life Guard Co. v................ 908 St. Louis S. W. R. Co.; Seiferth v........................... 983 Sale; Hatter v.............................................. 1011 Salt Lake City Court; Myers v............................... 1040 Samuel; Lafargue v........................................... 915 Sandoval v. California................................ 948,1000 Sands v. Wainwright....................................... 1042 Santos v. Wilson............................................ 968 Sartain v. Pitchess......................................... 1025 Saunders v. New York....................................... 926 Schack v. Attorney General................................ 1042 Schack v. Clark........................................... 1042 Schack v. Florida..................................... 904,1027 Schack v. Hoover............................................. 977 Schack v. Katzenbach....................................... 967 Schildkraut v. Commissioner................................... 959 Schmidt v. Iowa............................................... 965 Schneckloth; Fontana v........................................ 938 Schneckloth; Johnson v...................................... 1028 Schruder v. Rhay............................................ 1014 Scranton v. United States.................................. 372 Sealy, Inc.; United States v................................ 989 Seattle; Nave v.............................................. 929 Secretary of Agriculture; Borden Co. v........................ 992 Secretary of Health, Education and Welfare; Richardson v.. 921 Secretary of Health, Education and Welfare; Weiss v........ 9 Secretary of Interior v. Federal Power Comm’n................ 902 Secretary of Interior; Littell v............................. 939 Secretary of Labor; Stein v.................................. 996 Secretary of Navy; Ruby v................................... 1011 Secretary of State of Michigan; Prohibition Party v........ 713 Secretary of State of Texas; Kilgarlin v................. 120,999 Securities and Exch. Comm’n; Irish v......................... 911 Securities and Exch. Comm’n; Russell L. Irish Inv. v....... 911 Seiferth v. St. Louis S. W. R. Co............................ 983 XLII TABLE OF CASES REPORTED. Page Sequeechi; Shannon v....................................481,1014 Seymour v. United States.................................... 987 Shadid v. Oklahoma City.................................... 1034 Shannon v. Chief of Police of Coffeyville.............. 986,1027 Shannon v. Sequeechi................................... 481,1014 Shapp v. United States...................................... 372 Shaw v. California.......................................... 277 Shaw v. New Jersey......................................... 1040 Shehab; Demers v............................................ 966 Shell Oil Cd. v. State Board of Equalization of Calif..... 211 Sheppard v. United States................................... 982 Sheridan Creations v. Labor Board........................... 969 Sibarco Corp. v. Berea...................................... 957 Sibron v. New York.......................................... 954 Simon v. New York........................................... 986 Simon v. Texas.............................................. 968 Simon v. Wharton .......................................... 1030 Simons v. United States.................................... 1025 Simpson; Keller v........................................... 997 Simpson v. Wisconsin........................................ 965 Sinclair Refining Co.; Bragg v.............................. 946 Sine v. Helland............................................. 992 Sipes; Vaca v............................................... 171 Sires v. Goodwin............................................ 935 Skelly Oil Co.; Poafpybitty v............................ 1029 Skibs A/S Hilda Knudsen; Daniel v........................... 990 Skolnick v. Campbell....................................... 904 Skolnick v. Hoffman........................................ 989 Skolnick v. Parsons.................................... 903,978 Skolnick v. Robson........................................ 1002 Sleeping Car Porters v. Thompson............................ 960 Sligh v. Columbia, N. & L. R. Co........................... 1007 Sliva v. Rundle............................................. 905 Small; Robbins v........................................... 1033 Smallwood; Warden v........................................ 1022 Smith v. Beto............................................ 904 Smith v. California.................................. 924,958 Smith v. Illinois.................................... 910,953 Smith v. Industrial Accident Comm’n of California.. 915,1000 Smith v. Maxwell........................................ 1026 Smith v. North Carolina................................. 1032 Smith v. Ohio........................................... 1008 Smith v. Oliver.......................................... 921 Smith v. United States................................ 1008,1010 TABLE OF CASES REPORTED. XLIII Page Smith; Von Clemm v......................................... 1014 Smith v. Wilson............................................ 1002 Snyder Bros. Co. v. United States........................... 956 Soape v. Louisiana Power & Light Co......................... 930 Socony Mobil Oil Co.; Knoll v.......................... 977,1043 Sondern; Urbano v.......................................... 1034 Soots v. Attorney General............................... 905,988 South Carolina; Bostick v................................... 479 South Carolina; McCrary v.................................. 1013 Southern Brokerage Co. v. Cannarsa......................... 1004 Southern California Edison Co. v. El Paso Nat. Gas Co.... 129 Southern Pacific Co.; Bafico v.............................. 939 Southern Pacific Co. v. Dupont.............................. 958 Southern Pacific Land Co. v. United States................. 1030 Southern R. Co. v. United States........................... 1031 Southern R. Co.; Walker v................................... 988 Southern Railway System v. United States.................... 544 South Texas Rice Warehouse Co. v. Commissioner............. 1016 Specht v. Patterson......................................... 605 Spencer v. New Orleans Terminal Co.......................... 942 Spencer v. Texas........................................... 969 Spigner v. United States.............................. 971,1027 Staggs v. Henderson......................................... 923 Stamford Zoning Board of Appeals; Daddona v................. 972 Stanley v. New York........................................ 926 State. See also name of State. State Board of Education; Viveiros v........................ 918 State Board of Equalization of Calif.; Shell Oil Co. v.... 211 State Dept, of Agriculture; Arden Farms Co. v.......... 350,1014 State Farm Fire & Casualty Co. v. Tashire........... 523,903,952 State Farm Mutual Automobile Ins. Co.; Broussard v........ 909 Stein v. Wirtz.............................................. 996 Steinberg Estate v. Commissioner........................ 941,988 Stell v. Pennsylvania................................... 925,969 Stephens v. Beto............................................ 904 Steppe v. Florida........................................... 929 Sterling; Oppenheim v...................................... 1011 Sterling v. United States................................... 975 Sterling Aluminum Products; Brown v................ 957,1027 Sterling Aluminum Products; Woody v................ 957,1027 Stewart v. Arkansas......................................... 946 Stewart v. California....................................... 905 Stewart v. Industrial Comm’n of Illinois.................... 683 Stickler v. Tehan........................................... 992 XLIV TABLE OF CASES REPORTED. Page Stidger; Commissioner v.................................... 287 Stiltner v. Rhay................................. 922,1025,1026 Stiltner v. Washington..................................... 997 Stockton Port District v. Federal Maritime Comm’n......... 1031 Stockwell v. Beto.......................................... 927 Stoneham v. Texas....................................... 11,928 Strauss; Gaito v........................................... 977 Stucker v. College Life Insurance Co. of America........... 934 Sturm v. California Adult Authority........................ 977 Superintendent of California Medical Facility; Ring v..... 905 Superior Court of California; Brasch v................ 943,1000 Superior Court of California; Holmes v...................... 13 Superior Court of California; Luros v..................... 1034 Supreme Court of Washington; Wilson v...................... 954 Surowitz v. Hilton Hotels Corp............................. 901 Swenson v. Bosler.......................................... 258 Swenson; Hester v.......................................... 261 Switzer Bros., Inc.; Locklin v....................... 963,1027 Switzer Bros., Inc.; Radiant Color Co. v.............. 963,1027 Sykes v. United States..................................... 977 Symons v. Field........................................... 1040 Taft; Catlino v........................................... 1029 Tahash; Azzone v...................................... 980,1043 Tahash; Haas v............................................. 923 Tahash; Kinderman v........................................ 929 Tahash; Kopetka. v......................................... 966 Tahash; Lupino v...................................... 984,1043 Tai Mui v. Esperdy........................................ 1017 Tampa v. United States..................................... 544 Tanenbaum Textile Co.; Brownwood Mfg. Co. v................ 944 Tashire; State Farm Fire & Casualty Co. v.......... 523,903,952 Taylor v. Texas.................................... 904,927,969 Taylor v. United States.................................... 988 Tazewell Mayor v. Kentucky Utilities Co.................... 980 Tehan; Stickler v.......................................... 992 Temple v. United States.................................... 961 Tennessee; English v...................................... 1037 Tennessee Public Service Comm’n; Alterman Lines v.... 262,1014 Tennessee Supreme Court Chief Justice; Boles v............ 1002 Tennessee Valley Authority v. Kentucky Utilities Co....... 980 Tettamble v. Missouri...................................... 265 Texas; Abel v.............................................. 928 Texas; Acosta v........................................... 1008 Texas; Barlow v............................................. 16 TABLE OF CASES REPORTED. XLV Page Texas; Bell v............................................. 969 Texas; Bryan v........................................... 1023 Texas; Burgett v...................................... 931,953 Texas; Capuchino v.................................... 928,987 Texas; Chevallier v...................................... 1027 Texas; Clewis v........................................... 707 Texas; Clifton v......................................... 1008 Texas v. Colorado......................................... 901 Texas; Ferrell v.......................................... 936 Texas; Fletcher v......................................... 928 Texas; Gamez v........................................ 929,988 Texas; Gomez v............................................ 937 Texas; Harrington v....................................... 944 Texas; Harrison v......................................... 938 Texas; Howard v........................................... 928 Texas; Johnson v......................................... 1013 Texas; Lott v........................................ 928,1027 Texas; Platt v............................................ 929 Texas; Ross v............................................. 938 Texas; Ruby v............................................. 930 Texas; Simon v............................................ 968 Texas; Spencer v.......................................... 969 Texas; Stoneham v...................................... 11,928 Texas; Taylor v................................... 904,927,969 Texas; Williams v......................................... 904 Texas Comptroller of Public Accts.; Young & Co. v....... 914 Texas Secretary of State; Kilgarlin v................. 120,999 Tharaud v. Chauncey Real Estate Co....................... 1035 Thomas v. Holman..................,....................... 965 Thomas v. Illinois........................................ 936 Thomas v. United States................................... 975 Thomas v. Wilson..................................... 924,1025 Thomaston v. Gladden..................................... 1038 Thompson; Sleeping Car Porters v.......................... 960 Thompson v. United States................................. 945 Thorpe v. Housing Authority of Durham..................... 670 Tkaczyk v. Gallagher..................................... 1013 TMT Trailer Ferry Protective Committee v. Anderson...... 901 Todd v. United States..................................... 929 Torres v. New York........................................ 1014 Trade Commission. See Federal Trade Comm’n. Trakwork Equipment Co. v. Kershaw Mfg. Co................. 959 Transpacific Carriers Corp.; Tsakonites v................ 1007 Travel Consultants v. Travel Management Corp.............. 912 XLVI TABLE OF CASES REPORTED. Page Travel Management Corp.; Travel Consultants v................ 912 Traynor; Bogart v............................................ 939 Treasurer of Arizona v. Powell............................... 910 Treasurer of the United States; Von Clemm v................. 1014 Trotter v. Bishop............................................ 964 Tsakonites v. Transpacific Carriers Corp.................... 1007 Tubbs; Davis v............................................... 934 Tucker v. Maryland.......................................... 1024 Tug Russell, The; Marina Mercante Nicaraguense v........... 929 Turner; Allen v............................................. 1011 Turner v. New York...................................... 773,1011 Turner; Parker v............................................. 953 Turner; Pierce v............................................. 947 Tyler; Katz v................................................ 942 Udall v. Federal Power Comm’n................................ 902 Udall; Littell v............................................. 939 Umans v. United States....................................... 940 Underwater Storage; United States Rubber Co. v............... 911 Underwriters’ Laboratories; Roofire Alarm Co. v.............. 913 Union. For labor union, see name of trade. Union Carbide Corp. v. E. I. du Pont de Nemours & Co. ... 982 United. For labor union, see name of trade. United California Bank; Roberts v............................ 977 United Gas Pipe Line Co.; Federal Power Comm’n v........... 237 United Gas Pipe Line Co.; Memphis Light & Gas Co. v. ... 237 United States; Aadal v....................................... 970 United States; Acosta v...................................... 921 United States; Alire v....................................... 984 United States; Alley v...................................... 1023 United States; Allison v...................................... 13 United States; Anderson v............................... 976,1025 United States; Armored Carrier Corp, v....................... 778 United States v. Arnold, Schwinn & Co........................ 978 United States v. Atchison, T. & S. F. R. Co................. 1002 United States; Atchison, T. & S. F. R. Co. v................. 269 United States; Baltimore & O. R. Co. v....................... 372 United States; Banks v....................................... 997 United States; Bell v....................................... 1040 United States; Bennett v................................. 917,919 United States; Bethlehem Steel Co. v..................... 912,987 United States; Black v.................................. 920,932 United States; Botsch v.................................. 937,987 United States; Brokaw v...................................... 996 United States; Brown v.................................. 965,1039 TABLE OF CASES REPORTED. XLVII Page United States; Bruce v........................................ 1030 United States; Bryans v........................................ 930 United States; Buckley v...................................... 1010 United States; Buonomo v....................................... 981 United States; Burrup v....................................... 1034 United States; Butterwood v.................................... 937 United States; Caddo Parish School Board v.................... 1001 United States; Campbell v.................................. 940,951 United States; Carrier v...................................... 1027 United States; CBN Corp, v..................................... 981 United States; Central Illinois Public Service Co. v......... 908 United States; Chicago & E. I. R. Co. v........................ 372 United States; Clemons v................................... 921,978 United States; Clifton v....................................... 995 United States; Coke v.......................................... 918 United States; Cole v.......................................... 951 United States; Coleman v....................................... 945 United States; Collier v....................................... 969 United States; Colonial Refrigerated Transportation v........ 480 United States; Colozzo v....................................... 956 United States; Columbian Carbon Co. v.......................... 981 United States; Copley v........................................ 918 United States; Couture v...................................... 1040 United States; Crown Coat Front Co. v...................... 503,903 United States; Daniels v.................................. 968,1027 United States; Davis v................................ 909,965,1024 United States; Deaton v........................................ 977 United States; Delaware & Hudson R. Corp, v.............. 372 United States; DeMaro v........................................ 951 United States; Dubin v......................................... 956 United States; Duke v..................................... 934,1000 United States; Dukes v..................................... 946,988 United States; Edwards v....................................... 966 United States; Elbel v......................................... 939 United States; Ellenbogen v.................................... 923 United States v. Equitable Life Assurance Society............. 1021 United States; Erie-Lackawanna R. Co. v........................ 372 United States; Everett v...................................... 1013 United States; Exchange & Savings Bank of Berlin v.................. 971 United States; Fenix & Scisson v.............................. 1036 United States v. First City National Bank of Houston.............. 361 United States; Florida E. C. R. Co. v........................ 8 544 United States; Floyd v......................................... 920 XLVIII TABLE OF CASES REPORTED. Page United States; Forrest v..................................... 995 United States; Francolino v.................................. 960 United States; Frazier v..................................... 971 United States; Friedman v.................................... 913 United States; Gajewski v.................................... 913 United States; Galveston v.................................. 269 United States; Ginsberg v............................... 958,1000 United States; Gitlitz v.................................... 1038 United States; Glass v.................................. 968,1000 United States; Goldberg v.................................... 919 United States; Granello v................................... 1019 United States; Greene v.................................. 976,1043 United States; Gruss & Son v................................. 776 United States; Gulf-Canal Lines v............................ 348 United States; Hagan v....................................... 945 United States; Halpin v..................................... 1032 United States; Harris v................................. 915,1003 United States; Hawthorne v................................. 942 United States; Henderson v................................. 1016 United States; Henry v....................................... 957 United States; Hindes v....................................... 992 United States; Hinton v...................................... 961 United States; Hodes v....................................... 901 United States; Hoffa v................................... 940,951 United States; Hurley v........................................ 967 United States; Jackson v............................ 997 United States; Jacobs v.................................... 920,969 United States; Jakob v......................................... 908 United States; Jefferson Construction Co. v.................... 914 United States; Jones v........................................ 1014 United States; Jordan v....................................... 1033 United States; Kanton v............................ 986 United States; Katz v.......................................... 954 United States; Keco Industries v............................... 958 United States; Key v........................................... 982 United States; King v.................................. 940,951 United States; Korn v..................................... 1004 United States; Laughlin v................................. 1041 United States; Lester v...................................... 938 United States; Lewis v................................. 939,945 United States; Lindsey v................................. 1025 United States v. Louisiana................................ 979,1016 United States; Louisiana v..................................... 270 TABLE OF CASES REPORTED. XLIX Page United States; Lovejoy v................................... 974 United States; Lynott v.................................... 917 United States; MacIntyre v.................................. 933 United States; Madison v.................................. 1037 United States; Magnus v............................... 909,978 United States; Mallory v.................................. 991 United States; Maness v................................... 932 United States; Marks v...................................... 933 United States; Matthews v................................ 994 United States; McMillan v.................................. 909 United States; Menefield v................................ 1026 United States; Merrill v................................... 994 United States; Miller v................................ 911,999 United States; Mitchell v............................. 972,1042 United States; Moody v.................................... 1003 United States; Muhammad v.................................. 959 United States; Munich v.................................... 974 United States; Myersohn v................................ 991 United States; Myerson v.................................... 991 United States; Myricks v.................................... 1015 United States; National Pneumatic Co. v................... 942 United States v. National Steel Corp.............. 939,1000 United States; Nelms v....................................... 922 United States; New York v................................ 349 United States; Nez Perce Tribe of Indians v.......... 984,1015 United States; O’Brien v..................................... 345 United States; O’Day v................................... 994,997 United States; Osborn v...................................... 938 United States; Oscar Gruss & Son v........................... 776 United States; Ostendorff v................................ 982 United States; Parker v...................................... 916 United States; Parks v................................... 940,951 United States; Pamess v................................. 919,1012 United States; Passini v..................................... 951 United States; Patterson v................................... 932 United States; Paz-Sierra v................................ 935 United States v. Penn-Olin Chemical Co....................... 906 United States; Peterson v.................................... 945 United States; Petite v...................................... 995 United States; Pittman v..................................... 995 United States; Pohlabel v................................ 916,987 United States ; Polisi v..................................... 985 United States v. Provident National Bank..................... 361 247-216 0 - 67 -4 l TABLE OF CASES REPORTED. Page United States v. Prudential Insurance Co.................. 1018 United States; Railway Labor Executives’ Assn, v...... 544 United States v. Rands...................................... 989 United States; Rawdon v................................ 909,1043 United States; Ray v.................................... 913 United States; Reed v................................... 918 United States; Reese v.................................. 976 United States; Rivas v.................................. 945 United States; Rizzo v.................................... 1004 United States; Roberts v................................... 1041 United States; Rogers v..................................... 943 United States; Root v....................................... 912 United States; Rosado v.................................... 1010 United States; Roseman v................................. 918 United States; Rowell v.................................... 1009 United States; Scranton v.................................. 372 United States v. Sealy, Inc................................. 989 United States; Seymour v................................... 987 United States; Shapp v..................................... 372 United States; Sheppard v.................................. 982 United States; Simons v................................... 1025 United States; Smith v............................... 1008,1010 United States; Snyder Bros. Co. v.......................... 956 United States; Southern Pacific Land Co. v................ 1030 United States; Southern R. Co. v.......................... 1031 United States; Southern Railway System v................... 544 United States; Spigner v.............................. 971,1027 United States; Sterling v.................................. 975 United States; Sykes v..................................... 977 United States; Tampa v..................................... 544 United States; Taylor v.................................... 988 United States; Temple v................................... 961 United States; Thomas v.................................... 975 United States; Thompson v.................................. 945 United States; Todd v................................... 929 United States; Umans v..................................... 940 United States; Valrie v.................................... 915 United States; Vanderpool v................................ 941 United States; Vanella v................................... 920 United States; Van Norman Industries v..................... 981 United States; Wakaksan v.................................. 994 United States; Walker v.................................... 922 United States; Wallace v................................... 976 TABLE OF CASES REPORTED. LI Page United States; Watkins v................................ 944,960 United States; Weathers v................................... 966 United States; Will v......................................... 955 United States; Williams v....................... 951,997,1010,1038 United States; Wissner v...................................... 981 United States; Wood v........................................ 1041 United States; Worley v....................................... 943 United States; Wright v....................................... 918 United States; Wyandotte Transportation Co. v................. 906 United States; Zamora v.................................... 913 United States; Zurita v.................................... 1023 U. S. Board of Parole; Esteban v.......................... 936 U. S. Board of Parole; Young v................................ 261 U. S. Bureau of Prisons Director; Young v............ 546 U. S. Circuit Judges; Brulotte v............................. 1015 U. S. Civil Service Comm’rs; Foster v........................ 1038 U. S. Court of Appeals; Bivens v................... 1029 U. S. Court of Appeals; Campbell v.................. 905 U. S. District Court; Carter v............................... 1028 U. S. District Court; Putt v.................................. 905 U. S. District Court Chief Judge v. Yax....................... 916 U. S. District Court Clerk; Hampson v........................ 1028 U. S. District Judge; Ali v....................... 1002,1018,1027 U. S. District Judge; Clay v..................... 1002,1018,1027 U. S. District Judge; Hobson v.............................. 914 U. S. District Judge; Katz v................................. 942 U. S. District Judge; Kitzer v............................... 951 U. S. District Judge; Sires v................................ 935 U. S. District Judge; Skolnick v................. 903,904,978,1002 U. S. District Judge v. United States......................... 955 U. S. District Judge; Wilson v............................... 1038 U. S. ex rel. See name of real party in interest. U. S. Rubber Co. v. Underwater Storage........................ 911 U. S. Treasurer; Von Clemm v................................. 1014 University of Maryland President; Whitehill v................. 906 Urbano v. Federal Bureau of Investigation...................... 935 Urbano v. Sondern............................................ 1034 Utah; Dodge v.................................................. 939 Utah Pie Co. v. Continental Baking Co......................... 685 Vaca v. Sipes.................................................. 171 Valrie v. United States........................................ 915 Vanderpool v. United States.................................... 941 Vanella v. United States....................................... 920 lii TABLE OF CASES REPORTED. Page Van Geldem v. Oliver...................................... 997 Van Hummell, Inc. v. Commissioner......................... 956 Van Norman Industries v. United States................... 981 Vigil v. Oliver.......................................... 1012 Village. See name of village. Villarino v. California.................................... 968 Virginia; Arnold v........................................ 713 Virginia; Ashby v........................................ 1014 Virginia; Downey v........................................ 976 Virginia; Isaacs v........................................ 965 Virginia; Loving v........................................ 952 Virginia; Rollins v...................................... 1026 Virginia; Russo v......................................... 909 Virgin Islands; Collins v................................. 958 Visidor Corp. v. Cliffside Park........................... 972 Viveiros v. State Board of Education...................... 918 Volasco Products Co.; Lloyd A. Fry Roofing Co. v........ 1042 Von Atzinger v. New Jersey................................ 985 Von Clemm v. Smith....................................... 1014 Voter Registration Supervisor; Fair v..................... 996 Wackenhut Corp. v. Aponte................................. 268 Wagoner v. Beto........................................... 926 Wainwright; Bashlor v.................................. 1022 Wainwright; Brown v.................................... 1022 Wainwright; Coleman v................................... 924 Wainwright; Graves v.................................... 935 Wainwright; Hendricks v.................................. 1041 Wainwright; Jones v..................................... 953 Wainwright; Lacey v..................................... 965 Wainwright; Pridgen v.................................. 1013 Wainwright; Ross v...................................... 953 Wainwright; Sands v.................................... 1042 Wainwright; Webster v.................................. 1040 Wainwright; Wright v.................................... 931 Wakaksan v. United States................................. 994 Waldron v. Cities Service Co............................. 1015 Waldron v. Moore-McCormack Lines.......................... 724 Walker v. Arkansas........................................ 682 Walker v. Southern R. Co.................................. 988 Walker v. United States................................... 922 Walker v. Wingo........................................... 947 Walkling v. Rhay...................................... 907,953 Wallace v. Illinois....................................... 934 Wallace v. United States.................................. 976 TABLE OF CASES REPORTED. LIU Page Wallerstein v. Federal Com. Comm’n.................. 908,999 Warden. See also name of warden. Warden; Bellam v........................................ 922 Warden v. Beto.......................................... 927 Warden; Davis v......................................... 996 Warden; Deckard v....................................... 284 Warden; Forcella v..................................... 1035 Warden v. Hayden........................................ 903 Warden v. Ledbetter..................................... 971 Warden; Loren zana v.................................... 905 Warden; Ruckle v........................................ 919 Warden v. Smallwood.................................... 1022 Warriner v. Doug Tower, Inc............................. 999 Washington; Ashley v................................... 1023 Washington; Foster v................................... 1023 Washington v. Golden State Mutual Life Insurance Co.... 1007 Washington; Lee v....................................... 952 Washington; Louie v.................................... 1042 Washington; Loux v...................................... 997 Washington; Noyes v..................................... 968 Washington; Stiltner v.................................. 997 Washington Supreme Court; Wilson v...................... 954 Watkins v. New York.................................... 1024 Watkins v. United States............................ 944,960 Weathers v. United States............................... 966 Webb v. Beto............................................ 930 Weber; Wilson v........................................ 1038 Webster v. Wainwright.................................. 1040 Weiss v. Gardner.......................................... 9 Wells v. Civil Service Comm’n of Philadelphia.......... 1035 Wells v. Willingham.................................... 1023 Werner v. California Dept, of Corrections............... 938 West v. Me Mann.................................... 985,1043 Western Natural Gas Co. v. Cities Service Gas Co.... 964,1028 Wharton; Simon v....................................... 1030 Wheaton v. California................................... 267 White v. California................................ 922,946 White v. Crist........................................ 1028 White v. Georgia...................................... 1039 White v. New York..................................... 1008 Whitehill v. Elkins..................................... 906 Whitney v. Florida...................................... 970 Wickersham; Kyle v...................................... 925 Wilcox v. Meier......................................... 989 LIV TABLE OF CASES REPORTED. Page Will v. United States...................................... 955 Williams v. California Dept, of Corrections................ 978 Williams v. Donovan........................................ 977 Williams v. Florida....................................... 1013 Williams v. New Jersey.................................... 1038 Williams v. Texas.......................................... 904 Williams v. United States.................... 951,997,1010,1038 Williamson v. Gilmer...................................... 1015 Williamson v. Peurifoy..................................... 901 Willingham; Mansfield v................................... 1028 Willingham; Rasmussen v.................................... 919 Willingham; Wells v....................................... 1023 Willoughby v. Kentucky..................................... 920 Wilson; Belvin v........................................... 996 Wilson; Carter v........................................... 926 Wilson; Collins v.......................................... 969 Wilson; Conway v........................................... 925 Wilson; Ferro v............................................ 967 Wilson; Ford v............................................. 924 Wilson; Grove v............................................ 924 Wilson; Jacquez v......................................... 1009 Wilson; Lingo v............................................ 936 Wilson; McCreary v..................................... 922,978 Wilson; Mitchell v......................................... 999 Wilson; Murray v........................................... 920 Wilson v. New York........................................ 1011 Wilson v. Oliver........................................... 985 Wilson; Postell v......................................... 1041 Wilson; Roberts v......................................... 1001 Wilson; Santos v........................................... 968 Wilson; Smith v........................................... 1002 Wilson v. Supreme Court of Washington...................... 954 Wilson; Thomas v...................................... 924,1025 Wilson v. Weber........................................... 1038 Wilson; Zaleck v.......................................... 1011 Wingo; Ringo v............................................. 946 Wingo; Walker v............................................ 947 Wirtz; Stein v............................................. 996 Wisconsin; Burnett v....................................... 917 Wisconsin; Gaertner v...................................... 986 Wisconsin; Hansen v....................................... 1038 Wisconsin; Jung v.......................................... 999 Wisconsin; Simpson v....................................... 965 Wisconsin; Woodington v...................................... 9 TABLE OF CASES REPORTED. lv Page Wisconsin Commissioner of Taxation; Gray v............... 1033 Wisconsin ex rel. Rizzo v. Kenosha County Court.......... 1035 Wissner v. United States.................................. 981 Woll v. Florida........................................... 989 Woo Cheng Hwa v. Immigration and Naturalization Service.. 1017 Wood v. United States.................................... 1041 Woodington v. Wisconsin..................................... 9 Woodruff v. Mississippi................................... 919 Woods v. Georgia.......................................... 994 Woody v. Sterling Aluminum Products.................. 957,1027 Wooten v. Henderson....................................... 923 Worley v. Illinois................................... 972,1042 Worley v. United States................................... 943 Wright v. Dickson........................................ 1012 Wright v. Masonite Corp................................... 934 Wright v. Press Publishing Co............................. 911 Wright v. United States................................... 918 Wright v. Wainwright...................................... 931 Wright’s Grocery v. Masonite Corp......................... 934 WWIZ, Inc. v. Federal Com. Comm’n........................ 1017 Wyandotte Transportation Co. v. United States............. 906 Yates v. Hodges........................................... 912 Yax; Clarke v.......................................... 916 Young v. Director, U. S. Bureau of Prisons................ 546 Young v. U. S. Board of Parole............................ 261 Young & Co. of Houston v. Calvert......................... 914 Zaleck v. Wilson......................................... 1011 Zamora v. United States................................... 913 Zavala v. Oliver......................................... 946 Zoning Board of Appeals of Stamford; Daddona v................. 972 Zschemig v. Miller....................................... 1030 Zucker v. California...................................... 921 Zuckerman v. Greason................................... 15,969 Zurica v. California...................................... 937 Zurita v. United States.................................. 1023 Zwickler v. Koota......................................... 906 TABLE OF CASES CITED Page Adams Express v. New York, 232 U. S. 14 360 Admiral Corp. v. Penco, Inc., 203 F. 2d 517 716 Aetna Ins. Co. v. Kennedy, 301 U. S.389 321 Agnello v. United States, 269 U. S. 20 949 Aguilar v. Texas, 378 U. S. 108 304,315 Aktiebolaget Bofors v. United States, 139 Ct. Cl. 642 516 Alabama - Tennessee Nat. Gas Co. v. FPC, 359 F. 2d 318 245 Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F. 2d 708 716,722,723 Alaska S. S. Co. v. Petter- son, 347 U. S. 396 728 Alcorta v. Texas, 355 U. S. 28 7, 73,101,112,116 Alleghany Corp. v. Kirby, 344 F. 2d 571 156 Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797 618,620, 628-630, 649, 653-657 Allen-Bradley Local v. Wis- consin Bd, 315 U. S. 740 180 Allen Calculators v. National Cash Register, 322 U. S. 137 151,159 Almeida v. Baldi, 195 F. 2d 815 73 American Fire & Cas. Co. v. Finn, 341 U. S. 6 531 American Indemnity Co. v. Hale, 71 F. Supp. 529 529 American Louisiana Pipe Line Co. v. Gulf Oil Corp., 158 F. Supp. 13 148 American Oil Co. v. Neill, 380 U. S. 451 757 Page American President Lines v. Redfern, 345 F. 2d 629 724 American Trucking Assns. v. Frisco Co., 358 U. S. 133 429 American Trucking Assns. v. United States, 355 U. S. 141 ’ 429 Amerocean S. S. Co. v. Copp, 245 F. 2d 291 734 Anders v. California, 386 U. S. 738 749, 752 Anheuser-Busch v. FTC, 289 F. 2d 835 696, 704 Appalachian Coals v. United States, 288 U. S. 344 696 Aratani v. Kennedy, 115 U. S. App. D. C. 97 494 Arcambel v. Wiseman, 3 Dall. 306 717 Arlene Coats v. United States, 371 U. S. 818 516 Art Center School v. United States, 136 Ct. Cl. 218 516 Ashton v. Kentucky, 384 U. S. 195 774, 775 A/'S Krediit Pank v. Chase Manhattan Bk., 155 F. Supp. 30 529 A. Smith Bowman Distillery v. Schenley Distillers, 204 F. Supp.374 723 Association. For labor union, see name of trade. Atlantic Ref. Co. v. Public Serv. Comm’n, 360 U. S. 378 407 Atlantic Ref. Co. v. Standard Oil Co, 113 U. S. App. D. C. 20 158 Atlas Building Prods, v. Diamond Block & Gravel, 269 F. 2d 950 696 Austin Eng. Co. v. United States, 88 Ct. Cl. 559 516 Lvn LVIII TABLE OF CASES CITED. Page Automobile Workers v. Russell, 356 U. S. 634 174,180 Automotive Petroleum Employees v. NLRB, 249 F. 2d 332 626 Bailey v. Slentz, 189 F. 2d 406 323 Baker v. Carr, 369 U. S. 186 565 Baker v. Simmons Co., 325 F. 2d 580 715 Baker v. State, 150 So. 2d 729 305 Balian Ice Cream Co. v. Arden Farms, 231 F. 2d 356 696,697 Ball v. United States, 338 U. S. 802 152 Baltimore & Carolina Line v. Redman, 295 U. S. 654 321,322 Baltimore & O. R. Co. v. United States, 386 U. S. 372 777 Banco Mexicano v. Deutsche Bk., 263 U. S. 591 501 Barbee v. Warden, 331 F. 2d 842 73 Bardy v. United States, 371 U. S. 576 151 Barnes v. Alexander, 232 U. S. 117 146 Barney v. Latham, 103 U. S. 205 531 Barrett v. State, 155 Md. 636 219,221 Bates v. Little Rock, 361 U. S. 516 679 Bauers v. Heisei, 361 F. 2d 581 555 Baxstrom v. Herold, 383 U. S. 107 608 Beck v. Ohio, 379 U. S. 89 304,315 Bedford Cut Stone Co. v. Journeymen Stone Cutters, 274 U. S. 37 621,632,652 Bell v. Maryland, 378 U. S. 226 80,113 Ben Hur Coal Co. v. Wells, 242 F. 2d 481 697 Page Bercaw v. Commissioner, 165 F. 2d 521 289,291,293,294 Berger v. United States, 295 U. S. 78 52 Berman v. United States, 378 U. S. 530 963 Berry v. United States, 312 U. S. 450 331 Betts v. Brady, 316 U. S. 455 43 Bieski v. Eastern Auto. Forwarding Co., 231 F. Supp. 710 186 Black v. United States, 385 U. S. 26 345-347,1021 Blassingill v. Waterman S. S. Corp., 336 F. 2d 367 724 Board of Comm’rs v. Bernardin, 74 F. 2d 809 133 Bollenbach v. United States, 326 U. S. 607 44,52 Borden Co. v. FTC, 339 F. 2d 953 704 Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336 727 Bowman Distillery v. Schen-ley Distillers, 204 F. Supp. 374 723 Boynton v. Virginia, 364 U. S. 454 332,550 Bradley v. Fisher, 13 Wall. 335 554,563 Brady v. Maryland, 373 U. S. 83 73,100-102,116,117 Breard v. Alexandria, 341 U. S. 622 769 Brennan v. Baltimore & 0. R. Co., 115 F. 2d 555 326 Brotherhood. For labor union, see name of trade. Brown v. Sterling Alum. Prods., 365 F. 2d 651 200 Brown v. United States, 356 U. S. 148 961 Brown Shoe Co. v. United States, 370 U. S. 294 577, 580,584, 587,597 Bryan v. United States, 338 U. S. 552 322 Buckeye Coal & R. Co. v. Hocking Valley R. Co., 269 U. S. 42 149 TABLE OF CASES CITED. LIX Page Burnett v. New York Central R. Co., 380 U. S. 424 501 Burns v. Gray, 287 F. 2d 698 " 291 Bums v. Ohio, 360 U. S. 252 751 Burns v. Richardson, 384 U. S. 73 125 Butler v. Michigan, 352 U. S. 380 769 Butterworth v. Dempsey, 229 F. Supp. 754 150 California v. FPC, 366 U. S. 912 245 California v. FPC, 369 U. S. 482 131,368 California v. Taylor, 353 U. S. 553 330 Cammer v. United States, 350 U. S. 399 961 Capital Transit Co. v. Gamble, 82 U. S. App. D. C. 57 326 Carnley v. Cochran, 369 U. S. 506 260 Carpenters v. NLRB, 357 U. S. 93 619, 628, 634, 660 Carpenters v. United States, 330 U. S. 395 332 Carroll v. Commissioner, 20 T. C. 382 291 Case v. New York Central R. Co., 15 N. Y. 2d 150 252 253 Case Co. v. Borak, 377 U. S. 426 330 Case Co. v. NLRB, 321 U. S. 332 182 Castle v. Hayes Freight Lines, 348 U. S. 61 360 Central R. & Banking Co. v. Pettus, 113 U. S. 116 719 Central R. Co. v. Pennsylvania, 370 U. S. 607 756 Central Trust Co. v. Chicago, R. I. & P. R. Co., 218 F. 336 134 Century Distilling v. Continental Distilling, 205 F. 2d 140 715 Chandler v. Fretag, 348 U. S.3 610 Page Chapman v. California, 386 U. S. 18 59,212,262-267, 271-283,285,286, 740 Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77 353,357-360 Chicago Bd. of Trade v. United States, 246 U. S. 231 369 Cicenia v. Lagay, 357 U. S. 504 712 City. See name of city. Claflin v. Houseman, 93 U. S. 130 736 Clifton Products v. United States, 144 Ct. Cl. 806 516 Cochran v. United States, 291 F. 2d 633 311 Cockrell v. Commissioner, 321 F. 2d 504 291 Coerver v. Commissioner, 297 F. 2d 837 291 Cole v. Arkansas, 333 U. S. 196 774 Collett, Ex parte, 337 U. S. 55 532 Colorado Interstate Gas Co. v. FPC, 324 U. S. 581 242,244-246,254,257 Commercial Union Ins. Co. v. Adams, 231 F. Supp. 860 529,530,536 Commissioner v. Flowers, 326 U. S. 465 290,297,298 Commissioner of Internal Revenue. See Commis- sioner. Commonwealth. See also name of Commonwealth. Commonwealth v. Dowdi-can’s Bail, 115 Mass. 133 221 Commonwealth v. Hanley, 337 Mass. 384 ‘ 226 Commonwealth v. McLaughlin, 293 Pa. 218 221 Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F. 2d 564 148 Cone v. West Va. Pulp & Paper, 330 U. S. 212 321,324, 326,328, 336-338,341 Connecticut Light & Power Co. v. FPC, 324 U. S. 515 257 LX TABLE OF CASES CITED. Page Page Connecticut Mut. Life Ins. Co. v. Lanahan, 113 F. 2d 935 326 Construction Laborers v. Curry, 371 U. S. 542 199 Conway v. O’Brien, 312 U. S. 492 331 Cooke v. United States, 267 U. S. 517 161 Cooper v. California, 386 U. S. 58 313 Cosmopolitan Mfg. Co. v. United States, 156 Ct. Cl. 142 516 County. See name of county. Cox v. Louisiana, 379 U. S. 536 775 Cramer v. Phoenix Mut. Life Ins. Co., 91 F. 2d 141 530 Crawford v. Pope & Talbot, 206 F. 2d 784 734 Credits Commutation Co. v. United States, 177 U. S. 311 134,144 Crown Coat Front Co. v. United States, 386 U. S. 503 501 Crumady v. The J. H. Fisser, 358 U. S. 423 726,727,729 Cuthill v. Ortman-Miller Machine Co., 216 F. 2d 336 156 Davis v. North Carolina, 384 U. S. 737 708,709,711 Dawkins v. Lord Paulet, L. R. 5 Q. B. 94 566 Day v. Woodworth, 13 How. 363 718,720 De Jonge v. Oregon, 299 U. S. 353 775 DeLima v. Trinidad Corp., 302 F. 2d 585 727 Dennis v. United States, 384 U. S. 855 316,712,1021 Detroit v. FPC, 97 U. S. App. D. C. 260 249 Deutsche Bank v. Humphrey, 272 U. S. 517 488 Di Giorgio Fruit Corp. v. NLRB, 89 U. S. App. D. C. 155 626 Donnelly v. United Fruit Co., 40 N. J. 61 190 Dorchy v. Kansas, 264 U. S. 286 113 Douds v. Metropolitan Fed. of Architects, 75 F. Supp. 672 627 Douglas v. California, 372 U. S. 353 12, 258,259,740,741,751 Dowdy v. Hawfield, 88 U. S. App. D. C. 241 133,145 Drake Bakeries v. Bakery Workers, 370 U. S. 254 185 Draper v. United States, 358 U. S. 307 304 Drivers’ Union v. Lake Valley Co., 311 U. S. 91 652 Drum v. Seawell, 383 U. S. 831 121 Dudley v. State, 55 W. Va. 472 221 Duplex Printing Press v. Deering, 254 U. S. 443 620-622,632,652 Durham v. United States, 214 F. 2d 862 948 Eastern-Central Motor Carriers v. United States, 321 U. S. 194 430 Edwards v. South Carolina, 372 U. S. 229 775 Ekco Products v. FTC, 347 F. 2d 745 582,598 Electrical Contractors v. Ordman, 366 F. 2d 776 182 Electrical Workers v. NLRB, 181 F. 2d 34 626 Electrical Workers v. NLRB, 366 U. S. 667 620, 627,633,645,652,659 Electric Boat Co. v. United States, 81 Ct. Cl. 361 516 Ellis v. United States, 356 U. S. 674 741,743,751 El Paso Nat. Gas Co. v. FPC, 281 F. 2d 567 245,250,255 Empire Institute of Tailoring v. United States, 142 Ct. Cl. 165 516 Engelhard & Sons Co., In re, 231 U. S. 646 150 TABLE OF CASES CITED. LXI Page England v. United States, 345 F. 2d 414 291 Erie-Lackawanna R. Co. v. United States, 259 F. Supp. 964 378 Eskridge v. Washington Bd., 357 U. S. 214 261,284, 742 Essex County Carpenters v. NLRB, 332 F. 2d 636 639 Estes v. Texas, 381 U.S. 532 44 Ex parte. See name of party. Ex rei. See name of real party in interest. Ezekiel v. Volusia S. S. Co., 297 F. 2d 215 729 Fahy v. Connecticut, 375 U. S. 85 23,24,44,46, 51-53 Fairmount Glass Works v. Cub Fork Coal Co., 287 U. S. 474 338 Fallen v. United States, 378 U. S. 139 963 Farmer v. Arabian American Oil, 379 U. S. 227 718 FPC v. Hope Nat. Gas Co., 320 U. S. 591 246,249 Federal Sav. & Loan Ins. Corp. v. Kearney Tr. Co., 151 F. 2d 720 326 FTC v. Anheuser-Busch, 363 U. S. 536 696,697 FTC v. Consolidated Foods, 380 U. S. 592 587,592 FTC v. Henry Broch & Co., 368 U. S. 360 234 FTC v. Morton Salt, 334 U. S. 37 366, 694 FTC v. Nash-Finch Co., 110 U. S. App. D. C. 5 232 FTC v. Ruberoid Co., 343 U. S. 470 231 FTC v. Standard Motor Prods., 371 F. 2d 613 236 Feinman v. A. H. Bull S. S. Co., 216 F. 2d 393 734 Felt & Tarrant Co. v. Gallagher, 306 U. S. 62 757 Ferguson v. Skrupa, 372 U. S. 726 438 Ferrante v. Swedish American Lines, 331 F. 2d 571 724 Page Ferro Concrete Constr. Co. v. United States, 112 F. 2d 488 326 Fibreboard Corp. v. NLRB, 379 U. S. 203 202, 640, 642, 662, 663 Fikes v. Alabama, 352 U. S. 191 708 Fiore v. Associated Transport, 255 F. Supp.596 186 Fiswick v. United States, 329 U. S. 211 53 Fleming v. Aetna Ins. Co., 358 U. S. 879 530 Floyd & Barker, 12 Co. Rep. 23 565 Ford v. Jackson, 153 Miss. 616 306 Ford Motor Co. v. Bisanz Bros., 249 F. 2d 22 156 Ford Motor Co. v. Huffman, 345 U. S. 330 177,181,190,194 Formulabs, Inc. v. Hartley Pen Co., 275 F. 2d 52 146,154 Fountain v. Filson, 336 U. S. 681 337 Francis H. Leggett & Co. v. Premier Packing Co., 140 F. Supp. 328 716 Freeman v. Hewit, 329 U. S. 249 756 Friedman v. Commissioner, 37 T. C. 539 291 Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583 679 Gaines v. Clark, 51 App. D. C. 71 146 Gamer v. Teamsters, 346 U. S. 485 179,199 Garrett v. Moore-McCormack Co., 317 U. S. 239 736 Garrity v. New Jersey, 385 U. S. 493 15,17 General Trading Co. v. Tax Comm’n, 322 U. S. 335 757 Gerchman v. Maroney, 355 F. 2d 302 610 Gideon v. Wainwright, 372 U. S. 335 23, 43,52,222, 542, 742 LXII TABLE OF CASES CITED. Page Giles v. State, 229 Md. 370 67, 70, 76,112 Giles v. State, 231 Md. 387 67 Ginzburg v. United States, 383 U. S. 463 769,770 Giordenello v. United States, 357 U. S. 480 315 Glasser v. United States, 315 U. S. 60 43 Globe Liquor Co. v. San Roman, 332 U. S. 571 321,324,327,337 Golden v. Thompson, 194 Miss. 241 555 Golib, In re, 99 Ohio App. 88 221 Gordon v. State, 127 Miss. 396 221 Gradsky v. United States, 342 F. 2d 147 1020 Graham v. West Virginia, 224 U. S. 616 610 Greenwood v. Peacock, 384 U. S. 808 567 Gregoire v. Biddle, 177 F. 2d 579 564 Greyhound Lines v. Mealey, 334 U. S. 653 756 Griffin v. California, 380 U. S. 609 19,45, 47,55,741,743, 746 Griffin v. Illinois, 351 U. S. 12 741,751 Griffin v. United States, 87 U. S. App. D. C. 172 98,112 Griffin v. United States, 110 Ct. Cl. 330 516 Griffin v. United States, 336 U. S. 704 98 Gross v. Missouri & A. R. Co., 74 F. Supp. 242 145,150 Guaranty Trust Co. v. Blodgett, 287 U. S. 509 64 Guss v. Utah Labor Bd., 353 U. S. 1 180,199 Gutierrez v. Waterman S. S. Corp, 373 U. S. 206 728 Haines v. United States, 188 F. 2d 546 50 Halliday v. United States, 315 U. S. 94 331 Hamilton v. Alabama, 368 U. S. 52 43 Page Hamm v. Rock Hill, 379 U. S.306 217 Hanna Mining Co. v. Marine Engineers, 382 U. S. 181 180 Hardcastle v. Western Greyhound Lines, 303 F. 2d 182 186 Harris v. United States, 331 U. S. 145 949,950 Hauenstein v. Lynham, 100 U. S. 483 718 Hawkins v. United States, 358 U. S. 74 309 Haynes v. Felder, 239 F. 2d 868 530,531 Haynes v. Washington, 373 U. S. 503 43,708 Hazel v. State, 221 Md. 464 70 Helvering v. Winmill, 305 U. S. 79 292 Henry v. Mississippi, 379 U. S. 443 81 Heydon’s Case, 3 Co. Rep. 7 a 561 Hicks v. Recorder’s Court, 236 Mich. 689 219 Hiller v. Liquor Salesmen, 338 F. 2d 778 186 Hobbs v. Murrell, 170 Tenn. 152 221 Holcomb v. Aetna Ins. Co, 255 F. 2d 577 530 Holton, Seelye & Co. v. United States, 106 Ct. Cl. 477 516 Holy Trinity Church v. United States, 143 U. S. 457 619 Horn v. Volcano Water Co, 13 Cal. 62 145 Houston Insulation Contractors v. NLRB, 386 U. S. 664 629,653 Hroncich v. American President Lines, 334 F. 2d 282 724 Hudgings, Ex parte, 249 U. S. 378 961 Humphrey v. Moore, 375 U. S. 335 177,187,190,194,197 Humphreys v. State, 227 Md. 115 76,112 TABLE OF CASES CITED. LXIII Page Hunt v. Warden, 335 F. 2d 936 81 Illinois C. R. Co. v. Norfolk & W. R. Co., 385 U. S. 57 475 In re. See name of party. Internal Revenue Service. See Commissioner. International. For labor union, see name of trade. International Potato Corp. v. United States, 142 Ct. Cl. 604 516 ICC v. Chicago, R. I. & P. R. Co., 218 U. S. 88 437 Iron Workers v. Perko, 373 U. S. 701 199, 203 Isbell, Ex parte, 48 Tex. Cr. R. 252 221 Jackson v. Denno, 378 U. S. 368 43 Jacobellis v. Ohio, 378 U. S. 184 770 Jacobson v. Winter, 415 P. 2d 297 219 Jenkins v. Wm. Schluder- berg-T. J. Kurdle Co., 217 Md. 556 186 J. G. Roy & Sons Co. v. NLRB, 251 F. 2d 771 626 J. I. Case Co. v. Borak, 377 U. S. 426 330 J. I. Case Co. v. NLRB, 321 U. S. 332 182 Johnson v. New Jersey, 384 U. S. 719 709 Johnson v. New York, N. H. & H. R. Co., 344 U. S. 48 324,337-339 Johnson v. United States, 163 F. 30 235 Johnson v. United States, 124 U. S. App. D. C. 29 744 Johnson v. United States, 352 U. S. 565 741 Joliet Contractors v. NLRB, 202 F. 2d 606 645, 658 Jones v. Commonwealth, 114 Ky. 599 219 Jones v. Newell, 117 So. 2d 752 220 Jones v. United States, 326 F. 2d 124 311 Page Jones v. United States, 362 U.S. 257 311,951 June T., Inc. v. King, 290 F. 2d 404 725,727 Keller Prods, v. Rubber Lin- ings Corp., 213 F. 2d 382 715 Kendall v. United States, 107 U. S. 123 501 Kistler v. State, 64 Ind. 371 219 Klaber v. Maryland Cas. Co., 69 F. 2d 934 532 Klapprott v. United States, 335 U. S. 601 153, 673 Klein v. Nu-Way Shoe Co., 136 F. 2d 986 156 Koleris v. S. S. Good Hope, 241 F. Supp. 967 724 Konigsberg v. State Bar, 353 U. S. 252 1006 Kotteakos v. United States, 328 U. S. 750 49 Krippendorf v. Hyde, 110 U. S. 276 146 Labor Board. See NLRB. Labor union. See name of trade. Lane v. Brown, 372 U. S. 477 743,752 Lappin v. Baltimore & O. R. Co., 337 F. 2d 399 326 Lawson v. People, 63 Colo. 270 220 Leaf Tobacco Bd., Ex parte, 222 U. S. 578 151 Leggett & Co. v. Premier Packing Co., 140 F. Supp. 328 716 Leland v. Oregon, 343 U. S. 790 712 Lenox, In re, 2 F. 2d 92 496 Levine v. United States, 380 U. S. 915, 383 U. S. 265 1020 Lewis v. United States, 385 U. S. 206 312 Lifshutz v. State, 236 Md. 428 221 Lind v. Schenley Industries, 278 F. 2d 79 323 Liner v. Jafco, Inc., 375 U. S. 301 199 Linn v. Plant Guard Workers, 383 U. S. 53 180,203 LXIV TABLE OF CASES CITED. Page Local. For labor union, see name of trade. Loewe v. Lawlor, 208 U. S. 274 620 Louisiana v. NAACP, 366 U. S. 293 679 Louisville R. Co. v. Letson, 2 How. 497 531 Lynumn v. Illinois, 372 U. S. 528 42 Mac. See also Me. MacDonald v. United States, 119 F. 2d 821 150,158 Machinists v. Gonzales, 356 U. S. 617 174,180 Mack v. Passaic Nat. Bk., 150 F. 2d 474 155 Magdapur, The, 3 F. Supp. 971 724 Mahnich v. Southern S. S. Co., 321 U. S. 96 726, 727 Maintenance of Way Em- ployees v. United States, 221 F. Supp. 19 383,387,397,461 Malinski v. New York, 324 U. S. 401 43 Malloy v. Hogan, 378 U. S. 1 ‘ 20,47, 65 Mapp v. Ohio, 367 U. S. 643 65,301,314,315 Marbury v. Madison, 1 Cranch 137 47 Marin County v. United States, 356 U. S. 412 387,439 Markham v. Cabell, 326 U. S. 404 487 Maryland Baking Co. v. FTC, 243 F. 2d 716 696 Massachusetts Mut. Life Ins. Co. v. Pistolesi, 160 F. 2d 668 326 Massiah v. United States, 377 U. S. 201 707 Mastro Plastics v. NLRB, 350 U. S. 270 619, 626, 639, 640, 643 Me. See also Mac. McConnell, In re, 370 U. S. 230 961 McLean Trucking Co. v. United States, 321 U. S. 67 386,402,403,458,461 Page McMahon v. United States, 342 U. S. 25 508,516 McNabb v. United States, 318 U. S. 332 47 Meat Cutters v. Jewel Tea Co., 381 U. S. 676 654 Memoirs v. Massachusetts, 383 U. S. 413 770,771 Michael, In re, 326 U. S. 224 961,962 Michigan Consolidated Gas Co. v. FPC, 108 U. S. App. D. C. 409 154 Midgett v. Warden, 329 F. 2d 185 81 Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356 501 Miller, In re, 66 Colo. 261 220 Miller v. Pate, 300 F. 2d 414 2 Miller v. Pate, 386 U. S. 1 73,100,116 Miller v. Stinnett, 257 F. 2d 910 555 Miller Bros. Co. v. Maryland, 347 U. S. 340 756-759,762, 765 Mills v. Mitsubishi Shipping Co., 358 F. 2d 609 326 Mine Workers v. Pennington, 381 U. S. 657 631,654 Minnesota v. Probate Ct., 309 U. S. 270 610 Miranda v. Arizona, 384 U.S. 436 709,711 Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502 134,135,144,151 Missouri Pac. R. Co., In re, 129 F. Supp. 392 165 Missouri Pac. R. Co. v. Thompson, 225 F. 2d 761 165 Mitchell v. Trawler Racer, 362 U. S. 539 726, 727,729 Moist Cold Refrig. Co. v. Lou Johnson Co., 249 F. 2d 246 323 Molybdenum Corp. v. Int’l Mining Corp., 32 F. R. D. 415 156 Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1 736 TABLE OF CASES CITED. LXV Page Monroe v. Pape, 365 U. S. 167 550,555,556,565 Montgomery Ward v. Dun- can, 311 U. S. 243 321,335,336,338 Mooney v. Holohan, 294 U. S. 103 7,73,101,116-118 Moore v. Illinois Central R. Co., 312 U. S. 630 206 Moore v. Mead’s Fine Bread, 348 U. S. 115 696 Motes v. United States, 178 U. S. 458 50 Nager Elec. Co. v. United States, 177 Ct. Cl. 234 509,515,519,520 Napue v. Illinois, 360 U. S. 264 7,73, 74, 82,101,111,112,116 Nash, In re, 61 Cal. 2d 491 740, 745 Nassau Works v. Brightwood Co., 265 U. S. 269 497 NAACP v. Alabama, 357 U. S. 449 679 NAACP v. Button, 371 U. S. 415 679 National Casualty Co. v. Insurance Co. of North America, 230 F. Supp. 617 529 National Labor Relations Board. See NLRB. NLRB v. Acme Industrial Co., 385 U. S. 432 192 NLRB v. Business Machine Mechanics, 228 F. 2d 553 627 NLRB v. Carpenters, 242 F. 2d 932 645, 658 NLRB v. Denver Bldg. Trades Council, 341 U. S. 675 627,643, 651 NLRB v. Drivers Union, 362 U. S. 274 619,624, 643 NLRB v. Fruit ■& Veg. Packers, 377 U. S. 58 619,640 NLRB v. General Drivers, 225 F. 2d 205 626 NLRB v. Insurance Agents, 361 U. S. 477 617, 644 NLRB v. Int’l Rice Milling Co., 341 U. S. 665 620, 627, 632,643, 659 Page NLRB V. Lion Oil Co., 352 U. S. 282 620, 626 NLRB v. Local Union No. 55, 218 F. 2d 226 626 NLRB v. Miranda Fuel Co., 326 F. 2d 172 198 NLRB v. Operating Engineers, 326 F. 2d 218 645 NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503 668 NLRB v. Radio Engineers, 364 U. S. 573 202 NLRB v. Servette, Inc., 377 U. S. 46 619, 633, 659 NLRB v. Teamsters, 338 F. 2d 23 645 National Woodwork Mfrs. v. NLRB, 386 U. S. 612 667-669 Nelson v. Montgomery Ward, 312 U. S. 373 757, 763 Nelson v. Sears, Roebuck, 312 U. S. 359 757, 758, 763-765 New York v. Consolidated Gas Co., 253 U. S. 219 150 New York v. New York Tel. Co., 261 U. S. 312 150 New York Central Securities Corp. v. United States, 287 U. S. 12 403 New York, C. & St. L. R. Co. v. United States, 95 F. Supp. 811 402 New York, N. H. & H. R. Co. v. Henagan, 364 U. S. 441 326,338 Northern Metal Co. v. United States, 350 F. 2d 833 509,520 N orthern Securities v. United States, 193 U. S. 197 442 Northwestern Cement Co. v. Minnesota, 358 U. S. 450 756 O’Brien v. United States, 386 U. S.345 1021 Occidental Petroleum Corp. v. Chandler, 303 F. 2d 55 143,161 O’Connell v. Pacific Gas & Elec., 19 F. 2d 460 150 247-216 0-67-5 LXVI TABLE OF CASES CITED. Page O’Connor v. Ohio, 385 U. S. 92 45,746 Oelrichs v. Spain, 15 Wall. 211 718 Offutt v. United States, 348 U. S.11 160 Ohio Bell Tel. Co. v. Public Util. Comm’n, 301 U. S. 292 678 Oliver v. United States, 156 F. 2d 281 146 Olmstead v. United States, 277 U. S. 438 1021 Onyx Ref. Co. v. Evans Production Corp., 182 F. Supp. 253 529 Orange Belt Council v. NLRB, 117 U. S. App. D. C. 233 203, 645 Osborne & Co. v. Barge, 30 F. 805 146 Ostrofsky v. Steelworkers, 171 F. Supp. 782 186 O’Toole v. Commissioner, 243 F. 2d 302 291 Ott v. Mississippi Barge Line, 336 U. S. 169 756 Oyler v. Boles, 368 U. S. 448 610 Painters Dist. Council v. United States, 284 U. S. 582 622,652 Palko v. Connecticut, 302 U.S. 319 47,51 Pan American Fire & Cas. Co. v. Revere, 188 F. Supp. 474 529,536,539 Panhandle Eastern Pipe Line Co. v. FPC, 324 U. S. 635 242,244,245 Paramount Pictures v. Sparling, 93 Cal. App. 2d 768 486 Park & Tilford v. Schulte, 160 F. 2d 984 156 Partmar Corp. v. United States, 338 U. S. 804 151 Patterson v. Alabama, 294 U. S. 600 80,113,673 Payne v. Arkansas, 356 U.S. 560 23,26,43,52 Peckham v. Family Loan Co., 212 F. 2d 10Ö 146 Page Pellegrino v. Nesbit, 203 F. 2d 463 155 Pence v. United States, 316 U. S. 332 326,338 Pennock v. Coe, 23 How. 117 145 People v. Anders, 167 Cal. App. 2d 65 740 People v. Bastian, 330 Mich. 457 84 People v. Bryarly, 23 Ill. 2d 313 219,221 People v. Cahan, 44 Cal. 2d 434 50 People v. Coffey, 12 N. Y. 2d 443 305 People v. Connie, 34 Ill. 2d 353 305 People v. Dorado, 62 Cal. 2d 338 50,52 People v. Durr, 28 Ill. 2d 308 305,315 People v. Fewkes, 214 Cal. 142 221 People v. Freeman, 34 Ill. 2d 362 305 People v. Jacobson, 63 Cal. 2d 319 53 People v. Keller, 234 Cal. App. 2d 395 54 People v. Kidd, 357 Ill. 133 221 People v. Mahoney, 201 Cal. 618 ‘ 52 People v. Malinsky, 15 N. Y. 2d 86 305 People v. Miller, 34 Ill. 2d 527 305 People v. Nettles, 34 Ill. 2d 52 305 People v. Parren, 24 Ill. 2d 572 305 People v. Patubo, 9 Cal. 2d 537 52 People v. Pitts, 26 Ill. 2d 395 305 People v. Prosser, 309 N. Y. 353 219 People v. Sarazzawski, 27 Cal. 2d 7 52 People v. Sears, 62 Cal. 2d 737 52 People v. Sigal, 235 Cal. App. 2d 449 54 TABLE OF CASES CITED. LXVII Page People v. Watson, 46 Cal. 2d 818 53 People v. Watson, 394 Ill. 177 220 Peurifoy v. Commissioner, 358 U. S. 59 290 Phelps Dodge Corp. v. NLRB, 313 U. S. 177 183 Philadelphia Elec. Co. v. Westinghouse Corp., 308 F. 2d 856 148 Philp v. Nock, 17 Wall. 460 720 Pierson, In re, 174 F. 160 497 Piezonki v. NLRB, 219 F. 2d 879 626 Pines v. District Court, 233 Iowa 1284 220 Pinto v. States Marine Corp., 296 F. 2d 1 729 Plitt v. Stonebraker, 90 U. S. App. D. C. 256 146 Plumbers v. Borden, 373 U. S. 690 199,203 Pointer v. Texas, 380 U. S. 400 222,226,313,611 Pope & Talbot v. Hawn, 346 U. S. 406 734 Power Commission. See FPC. Preston v. United States, 376 U. S. 364 59,61,63-65 Price v. Cobb, 60 Ga. App. 59 220 Priestly v. Superior Ct., 50 Cal. 2d 812 306,316 Prince v. Massachusetts, 321 U. S. 158 769 Public Util. Comm’n v. Pollak, 343 U. S. 451 769 Pure Oil Co. v. Ross, 170 F. 2d 651 145 Pyle v. Kansas, 317 U. S. 213 7,73 Pyle-National Co. v. Amos, 172 F. 2d 425 155 Quarles & Butler, In re, 158 U. S. 532 309 Rabouin v. NLRB, 195 F. 2d 906 626 Radford Iron Co. v. Appalachian Power Co., 62 F. 2d 940 145,150 Page Randall v. Brigham, 7 Wall. 523 565 Ran v. State, 133 Md. 613 75,112 Read v. United States, 201 F. 2d 758 734 Reading Co. v. Koons, 271 U. S. 58 517 Reck v. Pate, 367 U. S. 433 710 Reed v. The Yaka, 373 U. S. 410 728,732,733,735, 736 Reich v. Webb, 336 F. 2d 153 150,158 Republic Steel v. Maddox, 379 U. S. 650 184,196,200,205-207 Retail Clerks v. Lion Dry Goods, 341 F. 2d 715 184 Retail Clerks v. NLRB, 111 U. S. App. D. C. 246 645 Reynolds v. Sims, 377 U. S. 533 48,121-124 Reynolds v. State Election Bd., 233 F. Supp. 323 48 Richardson v. Texas & N. O. R. Co., 242 F. 2d 230 186 Richmond TV Corp. v. United States, 354 F. 2d 410 326 Rideau v. Louisiana, 373 U. S. 723 44 Rochin v. California, 342 U. S. 165 302 Rogers v. Missouri Pac. R. Co., 352 U. S. 500 983 Rogers v. United States, 334 F. 2d 83 1020 Rost v. Municipal Court, 184 Cal. App. 2d 507 219 Roth v. United States, 354 U. S. 476 770 Roviaro v. United States, 353 U. S. 53 309,311,312,315 Royall, Ex parte, 117 U. S. 241 80 Roy & Sons Co. v. NLRB, 251 F. 2d 771 626 Rudder v. United States, 96 U. S. App. D. C. 329 678 Rugendorf v. United States, 376 U. S. 528 311 Rush v. State, 254 Miss. 641 221 LXVIII TABLE OF CASES CITED. Page Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 734 St. Joe Paper Co. v. Atlantic C. L. R. Co., 347 U. S. 298 439,460 Sam Fox Pub. Co. v. United States, 366 U. S. 683 144, 149,151,153,158,159 Sampsell v. California, 191 F. 2d 721 54 San Diego Council v. Garmon, 359 U. S. 236 176,179,180,188,199 Scenic Hudson Preservation Conf. v. FPC, 354 F. 2d 608 437 Scher v. United States, 305 U.S. 251 309,312 Schipani v. United States, 385 U. S. 372 347,1021 Schwabacher v. United States, 334 U. S. 182 439 Schwegmann Bros. v. Calvert Distillers, 341 U. S. 384 640 Scott v. Isbrandtsen Co., 327 F. 2d 113 724 Scott v. Stansfield, L. R. 3 Ex. 220 554 Scripto, Inc. v. Carson, 362 U. S. 207 756,757,764, 765 Seaboard Air Line R. Co. v. United States, 382 U. S. 154 461 Seas Shipping Co. v. Sie-racki, 328 U. S. 85 728, 733 SEC v. Chenery Corp., 318 U. S. 80 257,458 Shartzer v. State, 63 Md. 149 112 Shelton v. Tucker, 364 U. S. 479 679 Sheppard v. Maxwell, 384 U. S. 333 44 Sherbert v. Verner, 374 U. S. 398 679 Sheremet v. Chrysler Corp., 372 Mich. 626 190 Shuttlesworth v. Birmingham, 382 U. S. 87 774 Silber v. United States, 370 U. S. 717 332 Page Silk, In re, 55 F. 2d 917 497 Simmons v. State, 198 Tenn. 587 305 Singer Mfg. Co. v. Singer Upholstering & Sewing Co., 130 F. Supp. 205 716 Slochower v. Bd. of Education, 350 U. S. 551 678,679 Slocum v. New York Life Ins. Co., 228 U. S. 364 321 Smith v. Bennett, 365 U. S. 708 751 Smith v. California, 361 U. S. 147 771 Smith v. Evening News Assn., 371 U. S. 195 180,184,196,201 Smith v. Gale, 144 U. S. 509 145 Smith v. Patterson, 409 Pa. 500 220 Smith v. United States, 123 U. S. App. D. C. 202 311 Snyder v. Massachusetts, 291 U. S. 97 50 Soriano v. United States, 352 U. S. 270 501,516,519 Spano v. New York, 360 U. S. 315 43 Speiser v. Randall, 357 U. S. 513 678,679 Spencer v. Texas, 385 U. S. 554 11,14,16,47,313,938 Sperry Rand v. FTC, 110 U. S. App. D. C. 1 232,234 Spevack v. Klein, 385 U. S. 511 15,17,679 Sprague v. Ticonic Nat. Bk., 307 U. S. 161 719,720 Stadin v. Union Elec. Co., 309 F. 2d 912 156 Standard Oil Co. v. Peck, 342 U. S. 382 756 Standard Power & Light Corp., In re, 48 F. Supp. 716 155 State. See also name of State. State v. Artz, 154 Minn. 290 219 State v. Boles, 246 N. C. 83 305 State v. Burnett, 42 N. J. 377 306 State v. Cookson, 361 S. W. 2d 683 305 TABLE OF CASES CITED. LXIX Page State v. Couture, 156 Me. 231 219 State v. Davis, 251 S. W. 2d 610 259 State v. Dix, 18 Ind. App. 472 221 State v. Driver, 78 N. C. 423 217 State v. Entsminger, 137 N. W. 2d 381 750 State v. Farrington, 141 N. C. 844 217 State v. Giles, 239 Md. 458 68 State v. Keefe, 17 Wyo. 227 219 State v. Klopfer, 266 N. C. 349 214 State v. Lane Bryant, Inc., 277 Ala. 385 759 State v. Mallory, 336 S. W. 2d 383 258 State v. Mathis, 7 Utah 2d 100 220 State v. Montgomery, 276 S. W. 2d 166 ' 221 State v. Moody, 69 N. C. 529 215 State v. Smith, 129 N. C. 546 215 State v. Smith, 170 N. C. 742 216 State v. Thompson, 10 N. C. 613 216 State v. Thornton, 35 N. C. 256 215,216 State v. Williams, 151 N. C. 660 214 State v. Wong, 47 Haw. 361 220 States Marine Corp. v. United States, 283 F. 2d 776 509 Steele v. Louisville & N. R. Co., 323 U. S. 192 177 Steel Imp. & Forge Co. v. United States, 174 Ct. Cl. 24 516 Steelworkers v. American Mfg. Co., 363 U. S. 564 184 Steinhort v. Commissioner, 335 F. 2d 496 291 Stelloh v. Liban, 21 Wis. 2d 119 305 Stewart v. Sonneborn, 98 U. S. 187 718 Page Stopper v. Manhattan Life Ins. Co., 241 F. 2d 465 326 Strawbridge v. Curtiss, 3 Cranch 267 530,531 Stromberg v. California, 283 U. S. 359 44, 775 Sullivan v. Heinze, 250 F. 2d 427 543 Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 531 Sutphen Estates v. United States, 342 U. S. 19 144,147,159 Swann v. Adams, 385 U. S. 440 122,126 Swenson v. Bosler, 386 U. S. 258 261, 265,284 Swift & Co. v. United States, 276 U. S. 311 157 Syres v. Oil Workers, 350 U. S. 892 177,181 Tate v. United States, 123 U. S. App. D. C. 261 744 Teamsters v. Oliver, 358 U. S. 283 643 Teese v. Huntingdon, 23 How. 2 720 Tehan v. Shott, 382 U. S. 406 45,261,284, 746 Tennessee Gas Transmission Co. v. FPC, 293 F. 2d 761 249 Tenney v. Brandhove, 341 U. S. 367 554,555,559 Terre Haute & I. R. Co. v. Indiana ex rel. Ketcham, 194 U. S. 579 51 Testa v. Katt, 330 U. S. 386 736 Texaco, Inc. v. Chandler, 354 F. 2d 655 143 Thomas v. Mississippi, 380 U. S.524 550,557 Thompson v. Calmar S. S. Corp., 331 F. 2d 657 724 Thompson v. Dye, 221 F. 2d 763 73 Thompson v. Louisville, 362 U. S. 199 51,962,1006 Todd v. Commissioner, 10 T. C. 655 291 Todd Shipyards v. Marine Shipbldg. Workers, 344 F. 2d 107 645 LXX TABLE OF CASES CITED. Page Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399 718 Toombs v. Fortson, 384 U. S. 210 121 Torres v. The Kastor, 227 F. 2d 664 734 Townsend v. Sain, 372 U. S. 293 81,128 Trade Commission. See FTC. Transcontinental & Western Air v. Koppal, 345 U. S. 653 206 Travelers Indemnity Co. v. Greyhound Lines, 260 F. Supp. 530 529,537 Treinies v. Sunshine Mining Co., 308 U. S. 66 530 Tribble v. Bruin, 279 F. 2d 424 323 Truax v. Corrigan, 257 U. S. 312 622 Trustees v. Greenough, 105 U. S. 527 719 Tumey v. Ohio, 273 U. S. 510 23,43,52 Tunstall v. Locomotive Firemen, 323 U. S. 210 177 Twentieth Century-Fox v. Jenkins, 7 F. R. D. 197 156 Twentieth Century-Fox v. Taylor, 239 F. Supp. 913 531 Underwriters at Lloyd’s v. Nichols, 363 F. 2d 357 529 Unexcelled Chemical Corp, v. United States, 345 U. S. 59 510,516,519 Union. For labor union, see name of trade. United. For labor union, see name of trade. United Gas Improvement Co. v. FPC, 290 F. 2d 133 249 United States v. Aluminum Co. of America, 377 U. S. 271 583 United States v. ASCAP, 202 F. Supp. 340 156 United States v. ASCAP, 341 F. 2d 1003 151 United States v. Baltimore & O. R. Co., 293 U. S. 454 443 Page United States v. Bayer, 331 U. S. 532 710 United States v. Bendix Appliances, 10 F. R. D. 73 148 United States v. Blair, 321 U. S. 730 512 United States v. Borden Co., 347 U. S. 514 148,149 United States v. Borden Co., 370 U. S. 460 694 United States v. Brown, 79 F. 2d 321 54 United States v. Brown, 381 U. S. 437 609 United States v. Callahan Walker Co., 317 U. S. 56 512 United States v. Carlo Bi- anchi & Co., 373 U. S. 709 513 United States v. Carolina Carriers, 315 U. S. 475 444, 458 United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311 679 United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499 443 United States v. Continental Can Co., 378 U. S. 441 583 United States v. Dickinson, 331 U. S. 745 517 United States v. Diebold, Inc., 369 U. S. 654 369 United States v. Donnelly, 179 F. 2d 227 50 United States v. Du Pont & Co., 366 U. S. 316 136,157,160 United States v. El Paso Nat. Gas Co., 376 U. S. 651 131,367, 586 United States v. Ewell, 383 U. S. 116 222 United States v. Feinberg, 140 F. 2d 592 54 United States v. First Nat. Bk., 376 U. S. 665 367 United States v. General Elec. Co., 95 F. Supp. 165 158 United States v. Hatahley, 257 F. 2d 920 143 United States v. Holpuch Co., 328 U. S. 234 512 TABLE OF CASES CITED. LXXI Page United States v. Hutcheson, 312 U. S. 219 622,623,628, 653 United States v. Jeffers, 342 U. S. 48 950 United States v. Jones, 336 U. S. 641 516 United States v. Le Blanc, 278 F. 2d 571 291 United States v. Lefkowitz, 285 U. S. 452 949 United States v. McMaster, 343 F. 2d 176 54 United States v. One 1957 Ford Ranchero, 265 F. 2d 21 311 United States v. Painters’ Dist. Council, 44 F. 2d 58 652 United States v. Pearce, 275 F. 2d 318 316 United States v. Penn-Olin Chemical Co., 378 U. S. 158 577,586 United States v. Phila. Nat. Bk., 374 U. S. 321 367- 369,577, 587,594, 600 United States v. Rabinowitz, 339 U. S. 56 62,949,950 United States v. Radice, 40 F. 2d 445 146 United States v. RCA, 358 U. S. 334 367 United States v. Ritter, 273 F. 2d 30 143 United States v. Robinson, 325 F. 2d 391 311 United States v. Rock Island Motor Transit, 340 U. S. 419 429,470, 471 United States v. Rundle, 243 F. Supp. 695, 349 F. 2d 416 14 United States v. St. Louis Terminal, 236 U. S. 194 151 United States v. Sherwood, 312 U. S. 584 501 United States v. Standard Oil Co., 384 U. S. 224 235 United States v. Utah Constr. Co., 384 U. S. 394 506, 513 United States v. Ventresca, 380 U. S. 102 304,311,315 Page United States v. Von’s Grocery, 384 U. S. 270 596,598, 602 U. S. ex rel. See name of real party in interest. Universal Camera Corp. v. NLRB, 340 U. S. 474 667 Vaca v. Sipes, 386 U. S. 171 482 Vanderhoof v. People, 152 Colo. 147 608 Vaughan v. Atkinson, 369 U. S. 527 718 Vaughan v. Dickinson, 19 F. R. D. 323 146 Viator v. Stone, 336 U. S. 948 46 Virginia, Ex parte, 100 U. S. 339 563, 564, 567 Vogel v. Gruaz, 110 U. S. 311 309 Wabash R. Co. v. Pub. Serv. Comm’n, 273 U. S. 126 673 Walker v. Southern R. Co., 385 U. S. 196 ' 206,207 Ward v. Fidelity & Deposit Co., 179 F. 2d 327 555 Weade v. Dichmann, Wright & Pugh, 337 U. S. 801 321,325,329, 337, 343 Weaver v. Herrick, 140 N. W. 2d 178 751 Western Pacific Railroad Case, 345 U. S. 247 255 Westinghouse Broadc. Co. v. United States, 364 U. S. 518 151 White v. Maryland, 373 U. S. 59 43 Whitus v. Georgia, 385 U. S. 545 44,479 Wichita R. R. & Light Co. v. Public Util. Comm’n, 260 U. S. 48 531 Wilkinson v. Wilkinson, 159 N. C. 265 214 Williams v. New York, 337 U. S. 241 606-608 Williams v. North Carolina, 317 U. S. 287 44 Williams v. Rice, 30 F. 2d 814 497 Williamson-Dickie Mfg. Co. v. Davis Mfg. Co., 149 F. Supp. 852 716 Lxxii TABLE OF CASES CITED. Page Wilson v. United States, 59 F. 2d 390 311 Wisconsin v. J. C. Penney Co., 311 U. S. 435 756, 765 Wolfe V. National Lead Co., 272 F. 2d 867 715 Wometco TV & Theatre Co. v. United States, 355 U. S. 40 151,158 Wong Sun v. United States, 371 U. S. 471 711 Woodby v. Immigration and Naturalization Service, 385 U. S. 276 24 Woods, In re, 249 F. 2d 614 543 Page Woodworth v. Mills, 61 Wis. 44 221 Woody v. Sterling Alum. Prods., 365 F. 2d 448 199 Wright v. Hartsell, 305 F. 2d 221 291 Yick Wo v. Hopkins, 118 U. S. 356 678 York v. Commissioner, 82 U. S. App. D. C. 63 291 Youthform Co. v. R. H. Macy & Co., 153 F. Supp. 87 716 Zimmermann v. Sutherland, 274 U. S. 253 488 TABLE OF STATUTES CITED (A) Statutes of the United States. Page 1853, Feb. 26, c. 80, 10 Stat. 161...................... 714 1871, Apr. 20, c. 22, § 1, 17 Stat. 13........... 547 1875, Mar. 1, c. 114, 18 Stat. 335 ..................... 547 1887, Feb. 4, c. 104, §§ 1, 3, 24 Stat. 379, as amended............ 351 §5 162,372 §13 ........... 372 §15 ........... 351 § 16 ...... 372,714 §17 ........... 372 §20a ............ 162 §§202, 204........ 351 §216 547 Mar. 3, c. 359, 24 Stat. 505 ............... 503 1890, July 2, c. 647, 26 Stat. 209, as amended... 612 §1 685 §2 361,685 §4 129 1898, July 1, c. 541, §57, 30 Stat. 544, as amended............ 484 §77 .... 162,372,776 1903, Feb. 11, c. 544, 32 Stat. 823................ 361 §§ 1, 2........... 129 1906, June 29, c. 3591, § 5, 34 Stat. 584....... 714 1914, Sept. 26, c. 311, 38 Stat. 717.......... 228 Oct. 15, c. 323, §2, 38 Stat. 730, as amended........ 228, 685 §4 ...... 129,685,714 § 4A............. 129 §7 ...... 129,361,568 §11 ............. 228 §15 ........... 129 § 16 ...... 129,685 §20 ........... 612 Page 1917, Feb. 22, c. 113, 39 Stat. 929................. 523 Oct. 6, c. 106, §§ 1, 9, 34, 39, 40 Stat. 411, as amended..........484 1920, Feb. 28, c. 91, §407, 41 Stat. 456.............. 372 Mar. 9, c. 95, 41 Stat. 525, as amended.... 503 1921, Aug. 15, c. 64, §309, 42 Stat. 159.............. 714 Nov. 23, c. 136, § 214, 42 Stat. 227......... 287 1926, May 8, c. 273, 44 Stat. 416 ............... 523 May 20, c. 347, §3 First, 44 Stat. 577, as amended........... 714 1927, Mar. 4, c. 509, §§ 4, 5, 9, 33, 44 Stat. 1424. 731 1930, June 10, c. 436, § 7, 46 Stat. 531.......... 714 1932, Mar. 23, c. 90, § 13, 47 Stat. 70........... 612 1933, Mar. 3, c. 204, § 1, 47 Stat. 1467................ 372 May 27, c. 38, §§ 11, 323, 48 Stat. 74, as amended.............. 714 1934, June 6, c. 404, §§ 9, 18, 206, 48 Stat. 881... 714 June 19, c. 652, § 206, 48 Stat. 1064........ 714 June 21, c. 691, § 3, 48 Stat. 1185......... 714 1935, July 5, c. 372, §1, 49 Stat. 449, as amended............ 171 §§7,8.... 171,612,664 §10 171 §13 612 §14 171 1936, Jan. 20, c. 13, 49 Stat. 1096 .............. 523 LXXIII LXXIV TABLE OF STATUTES CITED. Page 1936, June 19, c. 592, § 1, 49 Stat. 1526................. 685 June 30, c. 881, 49 Stat. 2036............ 503 1937, Sept. 1, c. 896, §8, 50 Stat. 888, as amended.................... 670 1938, Mar. 21, c. 49, § 5, 52 Stat. Ill......... 228 June 21, c. 556, 52 Stat. 821.......... 129 §4 ............ 237 June 25, c. 676, § 16, 52 Stat. 1060......... 714 1939, Aug. 3, c. 411, 53 Stat. 1149 ............... 714 1940, Sept. 18, c. 722, § 7, 54 Stat. 898.............. 162,372 1943, Mar. 24, c. 26, 57 Stat. 45 ........................ 503 1945, Aug. 8, 59 Stat. 1544. 972 1946, July 5, c. 540, 60 Stat. 427 ................ 714 Aug. 1, c. 726, 60 Stat. 778 ................ 714 1947, June 23, c. 120, § 101, 61 Stat. 136.............. 171, 612, 664 §§203, 301, 303... 171 1948, July 2, c. 814, § 1, 62 Stat. 1231................. 484 July 3, c. 826, §§12, 13, 62 Stat. 1240... 484 1949, Oct. 12, c. 681, 63 Stat. 802 ................ 287 1950, Sept. 21, c. 967, §2 [18], 64 Stat. 873.. 361, 568 Dec. 29, c. 1184, 64 Stat. 1125....... 361,568 1952, July 9, c. 598, 66 Stat. 464 ............... 287 July 19, c. 950, 66 Stat. 792 .................... 714 1954, May 11, c. 199, §§ 1, 2, 68 Stat. 81........... 503 1955, July 7, c. 283, § 1, 69 Stat. 282............. 129 1956, July 9, c. 531, § 1, 70 Stat. 513..................... 484 1959, July 23, Pub. L. 86- 107, §§ 1, 2, 73 Stat. 243 .................. 228 Page 1959, Sept. 14, Pub. L. 86-257, § 701, 73 Stat. 519 ............... 171 §704 ........ 612,664 Sept. 14, Pub. L. 86-272, Title II, 73 Stat. 555............ 753 1961, Apr. 7, Pub. L. 87-17, 75 Stat. 41........ 753 1962, Mar. 15, Pub. L. 87- 415, § 102, 76 Stat. 23 612 1966, Feb. 21, Pub. L. 89- 356, 80 Stat. 7.. 361,568 July 18, Pub. L. 89- 505, 80 Stat. 304... 503 Revised Statutes. § 1979 ............... 547 U. S. Code. Title 7, §§210, 499g... 714 Title 11, §93 .............. 484 §205 .... 162,372,776 Title 12, § 1828.... 361,568 Title 15, §§ 1, 2............ 685 §4 129 §13 ............ 685 § 15 .. 129,685,714 § 15a ......... 129 § 18 .. 129,361,568 §21 (1958 ed.)... 228 §21 ............ 228 §25 ............ 129 §26 ........ 129,685 §28 ............ 129 §29 ........ 129,361 §§ 77k, 77www, 78i, 78r..............714 § 717c ........... 237 §§ 1051-1127 ...... 714 Title 17, § 116.......714 Title 18, §401 ............. 961 §549 ............. 345 Title 26, § 162 (1958 ed.).. 287 §§ 162, 262........ 287 §§ 1501-1505, 1552.. 237 Title 28, §332 .............. 129 § 1292 ... 162,523,714 § 1335 ........... 523 TABLE OF STATUTES CITED. LXXV Page U. S. Code—Continued. Title 28—Continued. § 1336 .......... 372 § 1346 .......... 503 §§ 1391, 1397, 1441. 523 §§ 1920, 1923..... 714 §2106 ............ 317 §2111 ............. 18 §2253 ............ 542 § 2254 ............ 66 §2284 ............ 372 §2361 ............ 523 §§2401, 2415, 2501. 503 Title 29, §151 ................. 171 §158 ......... 171,612 §§ 160, 164, 173, 185, 187 ............ 171 §216 ............. 714 Title 33, §§904, 905, 909, 933............ 731 Title 35, §285........ 714 Title 37, §§ 402-412, 427 287 Title 38, § 1822.... 714 Title 41, §§321, 322... 503 Title 42, § 1983 ............... 547 § 1408 670 Title 45, § 153 First... 714 Title 47, §206........ 714 Title 49, §§1, 3............. 351 §5 162,372 §13 ............ 372 §15 ............ 351 § 16 ....... 372,714 §17 ............ 372 § 20a .......... 162 §§302, 304......... 351 Title 50 App., §§ 1, 9, 34, 39.... 484 § 1291 ........... 503 §§ 1981, 2012...... 484 Bank Merger Act....... 361,568 Bankruptcy Act........... 162, 372,484,776 Career Compensation Act of 1949 ..................... 287 Celler-Kefauver Act......... 568 Civil Rights Act of 1871... 547 Civil Rights Act of 1875... 547 Clarification Act........... 503 Page Clayton Act.......... 129, 228, 361,568,612,685,714 Communications Act........ 714 Copyright Act............ 714 Fair Labor Standards Act of 1938 .................. 714 Federal Trade Commission Act ................... 228 Internal Revenue Code of 1954. §§ 162, 262.............. 287 §§ 1501-1505, 1552.... 237 Interstate Commerce Act. 162, 351,372,547,714 Judicial Code (see also Title 28, U. S. C.).......... 523 Ku Klux Klan Act.......... 547 Labor Management Rela- tions Act, 1947.. 171,612,664 Labor-Management Reporting and Disclosure Act of 1959 ............ 171,612,664 Landrum-Griffin Act....... 612 Lanham Act............... 714 Longshoremen’s and Harbor Workers’ Compensation Act ................... 731 Manpower Development and Training Act of 1962.... 612 National Labor Relations Act ........... 171,612,664 National Transportation Policy ................ 372 Natural Gas Act. 129,237 Norris-LaGuardia Act... 612 Packers and Stockyards Act, 1921 .................... 714 Perishable Agricultural Commodities Act, 1930....... 714 Railway Labor Act......... 714 Revenue Act of 1921...... 287 Robinson-Patman Act....... 685 Securities Act of 1933... 714 Securities Exchange Act of 1934 .................. 714 Servicemen’s Readjustment Act of 1944............ 714 Sherman Act....... 361,612,685 Suits in Admiralty Act.... 503 Taft-Hartley Act......... 612 Trading with the Enemy Act ................... 484 Transportation Act of 1920. 372 LXXVI TABLE OF STATUTES CITED. Page Transportation Act of 1940. 372 Trust Indenture Act of 1939. 714 Tucker Act.............. 503 United States Housing Act of 1937 ................ 670 (B) Constitutions and Alabama. Code, Tit. 15, § 251 (Supp. 1965)....... 213 Arizona. Rules Crim. Proc. 236. 213 Arkansas. Stat. Ann. §§ 41-2713— 41-2728 ............ 767 California. Const., Art. I, § 13.. 18,738 Const., Art. VI, § 4^. 18,58 Evidence Code § 1042.. 300 Health & Safety Code §§11610, 11611...... 58 Insurance Code § 11580. 523 Penal Code § 1258..... 18 Penal Code § 1382.... 213 Colorado. Rev. Stat. Ann. §§ 39-19-1 to 39-19-10, 40-2-32 ............. 605 Sex Offenders Act..... 605 Delaware. Const. 1792, Art. I, § 7. 213 Georgia. Code Ann. §27-1901... 213 Idaho. Code Ann. § 19-3501.. 213 Illinois. Rev. Stat., c. 120, §§ 439.2, 439.3, 439.5, 439.8, 439.9, 439.11, 439.12a, 439.14.... 753 Iowa. Code §793.6 ......... 748 Code § 795.2 (Supp. 1966) ............. 213 Supreme Court Rules 15, 16............. 748 Kentucky. Const. 1792, Art. XII, §10 ................. 213 Rev. Stat. §436.100... 767 Page Wagner Act.............. 612 Walsh-Healey Act......... 503 War Claims Act of 1948... 484 Wheeler-Lea Act......... 228 Wunderlich Act.......... 503 Statutes of the States. Louisiana. Rev. Stat. §§15:7.8-15:7.11 (Supp. 1962), 15:328 .............. 213 Maine. Rev. Stat. Ann., Tit. 15, §1201 ............... 213 Maryland. Declaration of Rights, 1776, Art. XIX....... 213 Ann. Code Art. 27, §§ 461, 463, 645A (Supp. 1966).......... 66 Ann. Code, c. 900, Rule 922 .................. 66 Post-Conviction Procedure Act.............. 66 Massachusetts. Const. 1780, Part I, Art. XI ................ 213 Minnesota. Laws 1939, c. 369.... 605 Stat., c. 74, §8992-176 (Supp. 1938)....... 605 Mississippi. Code Ann. § 2087.5.... 547 Missouri. Rev. Stat. §§351.055, 351.270, 351.425..... 162 Sup. Ct. Rules Crim. Proc. 27.20, 29.01.... 258 Montana. Rev. Codes Ann. § 94-9501 ............... 213 Nevada. Rev. Stat. § 178.495... 213 New Hampshire. Const. 1784, Part I, Art. XIV............ 213 New Jersey. Rev. Rules Crim. Proc. 3:11-3 (Supp. 1966). 213 TABLE OF STATUTES CITED. LXXVII Page New York. Penal Law § 1141...... 767 North Carolina. Const. 1868, Art. I, § 14. 213 Gen. Stat. §§14-134, 15-153, 15-155, 15-175 ................. 213 Gen. Stat. § 157-1 et seq.................. 670 Housing Authorities Law.................. 670 North Dakota. Cent. Code § 29-18-01. 213 Oklahoma. Stat., Tit. 22, §812.... 213 Oregon. Rev. Stat. § 23.230.... 523 Rev. Stat. § 134.120... 213 Pennsylvania. Declaration of Rights, 1776, Art. IX........ 213 Stat, Tit. 19, §§ 1166-1174 ................ 605 Stat. Ann, Tit. 72, §3403-201 ........... 753 Rules Crim. Proc. 316.. 213 Page South Dakota. Code §34.2203 (Supp. 1960)............... 213 Tennessee. Const. 1796, Art. XI, §9 ................... 213 Texas. Rev. Civ. Stat. Ann, Arts. 193a, 195a.... 120 Code Crim. Proc. Arts. 14.06, 15.17, 39.14; 217 (1925).......... 707 Utah. Code Ann. § 77-51-1.. 213 Vermont. Const, 1786, c. I, Art. XIV ................ 213 Virginia. Declaration of Rights, 1776, §8.............. 213 Washington. Rev. Code § 10.46.010.. 213 Rev. Code §82.12.020 (Supp. 1965).......... 753 West Virginia. Code Ann. §°6210...... 213 (C) Treaty. 1945, Aug. 8, 59 Stat. 1544 (Treaty of London).............. 972 (D) Foreign Statutes. England. Magna Carta, cc. 29, 40................................. 213 6 Edw. 1, c. 1.......................................... 714 4 Jac. 1, c. 3.......................................... 714 Statute of Gloucester, 1278............................. 714 Statute of Westminster, 1607............................ 714 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1966. MILLER v. PATE, WARDEN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 250. Argued January 11-12, 1967.—Decided February 13, 1967. Petitioner was tried and convicted for rape-murder. A crucial element of the circumstantial evidence against him was a pair of men’s underwear shorts, allegedly petitioner’s, bearing stains identified by prosecution testimony as blood of the victim’s blood type. The judgment of conviction was upheld on appeal. In a subsequent habeas corpus proceeding petitioner was first allowed to have the shorts subjected to chemical analysis, which revealed that the stains were not blood, but paint. It was further established that the prosecution knew of the paint stains at the time of trial. The District Court, for another reason, ordered petitioner’s release or prompt retrial. The Court of Appeals reversed. Held: The Fourteenth Amendment cannot tolerate a state criminal conviction secured by the knowing use of false evidence. Mooney v. Holohan, 294 U. S. 103, followed. Pp. 2-7. 342 F. 2d 646, reversed and remanded. Willard J. Lassers argued the cause for petitioner. With him on the briefs were Arthur G. Greenberg and Harry Goiter. Richard A. Michael, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief was William G. Clark, Attorney General. 1 2 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. Maurice Rosenfield argued the cause for Radio Station WAIT (Chicago) et al., as amici curiae. With him on the briefs was William R. Ming, Jr. Mr. Justice Stewart delivered the opinion of the Court. On November 26, 1955, in Canton, Illinois, an eightyear-old girl died as the result of a brutal sexual attack. The petitioner was charged with her murder. Prior to his trial in an Illinois court, his counsel filed a motion for an order permitting a scientific inspection of the physical evidence the prosecution intended to introduce.1 The motion was resisted by the prosecution and denied by the court. The jury trial ended in a verdict of guilty and a sentence of death. On appeal the judgment was affirmed by the Supreme Court of Illinois.1 2 On the basis of leads developed at a subsequent unsuccessful state clemency hearing, the petitioner applied to a federal district court for a writ of habeas corpus.3 After a hearing, the court granted the writ and ordered the petitioner’s release or prompt retrial.4 The Court of Ap 1 “Comes now the defendant, Lloyd Eldon Miller Junior, by William H. Malmgren, his attorney, and hereby moves the Court to enter an order permitting defendant to make, or cause to be made, upon such terms and conditions as to the court seems necessary to adequately insure the interests of the parties, a scientifice [sic] examination of the physical evidence to be introduced by the People in this cause and, to that end, enter an order requiring the People, by their attorney, to produce and make available all of said evidence for such an examination. “For cause, movant says that such an examination is necessary to adequately prepare the defense herein.” 213 Ill. 2d 84, 148 N. E. 2d 455. 3 An earlier federal habeas corpus application had been unsuccessful. Miller v. Pate, 300 F. 2d 414. 4 226 F. Supp. 541. MILLER v. PATE. 3 1 Opinion of the Court. peals reversed,5 6 and we granted certiorari to consider whether the trial that led to the petitioner’s conviction was constitutionally valid.0 We have concluded that it was not.7 There were no eyewitnesses to the brutal crime which the petitioner was charged with perpetrating. A vital component of the case against him was a pair of men’s underwear shorts covered with large, dark, reddish-brown stains—People’s Exhibit 3 in the trial record. These shorts had been found by a Canton policeman in a place known as the Van Buren Flats three days after the murder. The Van Buren Flats were about a mile from the scene of the crime. It was the prosecution’s theory that the petitioner had been wearing these shorts when he committed the murder, and that he had afterwards removed and discarded them at the Van Buren Flats. During the presentation of the prosecution’s case, People’s Exhibit 3 was variously described by witnesses in such terms as the “bloody shorts”, and “a pair of jockey shorts stained with blood.” Early in the trial the victim’s mother testified that her daughter “had type ‘A’ positive blood.” Evidence was later introduced to show that the petitioner’s blood “was of group ‘0.’ ” Against this background the jury heard the testimony of a chemist for the State Bureau of Crime Identification. The prosecution established his qualifications as an expert, whose “duties include blood identification, grouping and typing both dry and fresh stains,” and who had “made approximately one thousand blood typing analyses 5 342 F. 2d 646. 6 384 U. S. 998. 7 The petitioner has relied upon several different grounds for reversal of the judgment of the Court of Appeals. In deciding the case upon only one of those grounds, we intimate no view as to the merits of the others. 247-216 0-67-6 4 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. while at the State Bureau.” His crucial testimony was as follows: “I examined and tested ‘People’s Exhibit 3’ to determine the nature of the staining material upon it. The result of the first test was that this material upon the shorts is blood. I made a second examination which disclosed that the blood is of human origin. I made a further examination which disclosed that the blood is of group ‘A.’ ” The petitioner, testifying in his own behalf, denied that he had ever owned or worn the shorts in evidence as People’s Exhibit 3. He himself referred to the shorts as having “dried blood on them.” In argument to the jury the prosecutor made the most of People’s Exhibit 3: “Those shorts were found in the Van Buren Flats, with blood. What type blood? Not ‘O’ blood as the defendant has, but ‘A’—type ‘A.’ ” And later in his argument he said to the jury: “And, if you will recall, it has never been contradicted the blood type of Janice May was blood type ‘A’ positive. Blood type ‘A.’ Blood type ‘A’ on these shorts. It wasn’t ‘O’ type as the defendant has. It is ‘A’ type, what the little girl had.” Such was the state of the evidence with respect to People’s Exhibit 3 as the case went to the jury. And such was the state of the record as the judgment of conviction was reviewed by the Supreme Court of Illinois. The “blood stained shorts” clearly played a vital part in the case for the prosecution. They were an important link in the chain of circumstantial evidence against the petitioner,8 and, in the context of the revolting crime with 8 In affirming the petitioner’s conviction, the Supreme Court of Illinois stated that “it was determined” that the shorts “were stained MILLER v. PATE. 5 1 Opinion of the Court. which he was charged, their gruesomely emotional impact upon the jury was incalculable.9 So matters stood with respect to People’s Exhibit 3, until the present habeas corpus proceeding in the Federal District Court.10 11 In this proceeding the State was ordered to produce the stained shorts, and they were admitted in evidence. It was established that their appearance was the same as when they had been introduced at the trial as People’s Exhibit 3. The petitioner was permitted to have the shorts examined by a chemical microanalyst. What the microanalyst found cast an extraordinary new light on People’s Exhibit 3. The reddish-brown stains on the shorts were not blood, but paint. The witness said that he had tested threads from each of the 10 reddish-brown stained areas on the shorts, and that he had found that all of them were encrusted with mineral pigments . which one commonly uses in the preparation of paints.” He found “no traces of human blood.” 11 The State did not dispute this testimony, its counsel contenting himself with prevailing upon the witness to concede on cross-examination that he could not swear that there had never been any blood on the shorts.12 with human blood from group A,” and referred to the petitioner’s “bloody shorts.” 13 Ill. 2d, at 89 and 106, 148 N. E. 2d, at 458 and 467. 9 People’s Exhibit 3 was forwarded here as part of the record, and we have accordingly had an opportunity to see it with our own eyes. 10 At the state clemency hearing, some additional evidence was adduced to show that the shorts had not belonged to the petitioner. 11 There were two other discolored areas on the shorts, one black and the other “a kind of yellowish color.” A thread from the first of these areas contained material “similar to a particle of carbon.” “[N]o particulates showed up” on the thread taken from the other. 12 The witness pointed out, however, that “blood substances are detectable over prolonged periods. That is, there are records of researches in which substances extracted from Egyptian mummies have been identified as blood.” 6 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. It was further established that counsel for the prosecution had known at the time of the trial that the shorts were stained with paint. The prosecutor even admitted that the Canton police had prepared a memorandum attempting to explain “how this exhibit contains all the paint on it.” In argument at the close of the habeas corpus hearing, counsel for the State contended that “[e]verybody” at the trial had known that the shorts were stained with paint.13 That contention is totally belied by the record. The microanalyst correctly described the appearance of the shorts when he said, “I assumed I was dealing . . . with a pair of shorts which was heavily stained with blood. ... [I]t would appear to a layman . . . that what I see before me is a garment heavily stained with blood.” 14 The record of the petitioner’s trial reflects the prosecution’s consistent and repeated misrepresentation that People’s Exhibit 3 was, indeed, “a garment heavily stained with blood.” The prosecution’s whole theory with respect to the exhibit depended upon that misrepresentation. For the theory was that the victim’s assailant had discarded the shorts because they were stained with blood. A pair of paint-stained shorts, found in an abandoned building a mile away from the scene of the crime, was virtually valueless as evidence against the petitioner.15 The prosecution deliberately misrepresented the truth. 13 “Now, then, concerning the paint on the shorts, the petitioner yesterday introduced scientific evidence to prove that there was paint on the shorts, a fact that they knew without scientific evidence. Everybody knew, in connection with the case, whoever looked at the shorts, and I think that the Court can look at them now and know there is paint on them. This is not anything that was not disclosed to anybody. It is very obvious by merely looking at them . . . .” 14 See n. 9, supra. 15 The petitioner was not a painter but a taxi driver. 7 MILLER V. PATE. Opinion of the Court. 1 More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v. Holohan, 294 U. S. 103. There has been no deviation from that established principle. Napue v. Illinois, 360 U. S. 264; Pyle v. Kansas, 317 U. S. 213; cf. Alcorta v. Texas, 355 U. S. 28. There can be no retreat from that principle here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 8 OCTOBER TERM, 1966. February 13, 1967. 386 U. S. FLORIDA EAST COAST RAILWAY CO. v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA. No. 715. Decided February 13, 1967. 256 F. Supp. 986, affirmed. A. Alvis Layne for appellant. Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Raymond M. Zimmet for the United States et al.; Richard A. Hollander for Seaboard Air Line Railroad Co.; and Thomas C. Britton and St. Julien P. Rosemond for Dade County et al., appellees. Per Curiam. The motion of Dade County et al. to join Seaboard Air Line Railroad Company in its motion to affirm is granted. The motions to affirm are granted and the judgment is affirmed. D’AMICO v. PENNSYLVANIA et al. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 858. Decided February 13, 1967. Appeal dismissed and certiorari denied. Per Curiam. The motion to dispense with printing the jurisdictional statement is granted. 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. DECISIONS PER CURIAM. 9 386 U. S. February 13, 1967. WOODINGTON v. WISCONSIN. APPEAL FROM THE SUPREME COURT OF WISCONSIN. No. 801. Decided February 13, 1967. 31 Wis. 2d 151, 142 N. W. 2d 810, 143 N. W. 2d 753, appeal dismissed and certiorari denied. Jack R. De Witt for appellant. Bronson C. La Follette, Attorney General of Wisconsin, 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. WEISS et al. v. GARDNER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 904. Decided February 13, 1967. 263 F. Supp. 184, vacated and remanded. William D. Zabel and Melvin L. Wulf for appellants. Solicitor General Marshall for appellees. Per Curiam. The judgment of the court below is vacated and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the complaint as moot. 10 OCTOBER TERM, 1966. February 13, 1967. 386 U. S. FENSTER v. LEARY, COMMISSIONER OF POLICE OF THE CITY OF NEW YORK, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 905. Decided February 13, 1967. 264 F. Supp. 153, affirmed. Emanuel Redfield for appellant. J. Lee Rankin for Leary, and Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Joel Lewittes, Assistant Attorney General, for Koota, appellees. Per Curiam. The motions to affirm are granted and the judgment is affirmed. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. RISCH v. RISCH. APPEAL FROM THE SUPREME COURT OF TEXAS. No. 963, Mise. Decided February 13, 1967. 395 S. W. 2d 709, appeal dismissed and certiorari denied. Ted Musick 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. DECISIONS PER CURIAM. 11 386 U. S. February 13, 1967. STONEHAM v. TEXAS. APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. No. 18, Mise. Decided February 13,1967. 389 S. W. 2d 468, appeal dismissed. Charles E. Benson for appellant. Per Curiam. The appeal is dismissed. The Chief Justice, Mr. Justice Douglas, and Mr. Justice Fortas would reverse the judgment of the court below for the reasons stated in the opinion of The Chief Justice in Spencer v. Texas, 385 U. S. 554, 569. BEER v. ATTORNEY GENERAL OF CALIFORNIA. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 858, Mise. Decided February 13, 1967. Affirmed. Per Curiam. An application for a stay addressed to Mr. Justice Douglas, and by him referred to the Court, is denied. The judgment is affirmed. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. 12 OCTOBER TERM, 1966. February 13, 1967. 386 U. S. MILANI v. ILLINOIS. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS. No. 414, Mise. Decided February 13, 1967. Certiorari granted; 34 Ill. 2d 524, 216 N. E. 2d 816, reversed. Petitioner pro se. William G. Clark, Attorney General of Illinois, and Richard A. Michael, Assistant Attorney General, for respondent. Per Curiam. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Illinois is reversed. Douglas v. California, 372 U. S. 353. DALE v. CALIFORNIA. APPEAL FROM THE SUPREME COURT OF CALIFORNIA. No. 1030, Mise. Decided February 13, 1967. Appeal dismissed and certiorari denied. Peter D. Bogart 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. DECISIONS PER CURIAM. 13 386 U. S. February 13, 1967. ALLISON v. UNITED STATES. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 454, Mise. Decided February 13, 1967. Certiorari granted; 358 F. 2d 60, vacated and remanded. Petitioner pro se. Solicitor General Marshall for the United States. Per Curiam. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Seventh Circuit with instructions to grant the petitioner an appeal with counsel. HOLMES v. SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO. APPEAL FROM THE SUPREME COURT OF CALIFORNIA. No. 1063, Mise. Decided February 13, 1967. Appeal dismissed and certiorari denied. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. 14 OCTOBER TERM, 1966. February 13, 1967. 386 U. S. RUNDLE, CORRECTIONAL SUPERINTENDENT v. JOHNSON. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 14. Decided February 13, 1967. Certiorari granted; 349 F. 2d 416, reversed and remanded. Frank P. Lawley, Jr., for petitioner. Leonard J. D. Myers for respondent. Per Curiam. The motion of respondent for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the United States Court of Appeals for the Third Circuit is reversed, Spencer v. Texas, 385 U. S. 554, and the case is remanded to that court for consideration of the unresolved issues. Mr. Justice Douglas dissents from the reversal of the Court of Appeals in United States v. Rundle, 349 F. 2d 416, which affirmed United States v. Rundle, 243 F. Supp. 695, 700, where the District Court granted the petition for habeas corpus since the introduction of the accused’s “prior criminal record for obstructing a railroad was so fundamentally unfair as to deny him due process of law.” DECISIONS PER CURIAM. 15 386 U. S. February 13, 1967. ZUCKERMAN et al. v. GREASON. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENT. No. 71. Decided February 13, 1967. Certiorari granted; 23 App. Div. 2d 825, 259 N. Y. S. 2d 963, vacated and remanded. Leonard Feldman for petitioners. Samuel Greason, respondent, pro se. Per Curiam. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Appellate Division of the Supreme Court of New York, Second Judicial Department, for reconsideration in light of Spevack v. Klein, 385 U. S. 511. Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice Stewart would affirm the judgment below for the reasons set forth in Mr. Justice Harlan’s dissenting opinion in Spevack v. Klein, 385 U. S., at 520. Mr. Justice White dissents for the reasons stated in his dissenting opinion in Garrity v. New Jersey, and Spevack v. Klein, 385 U. S., at 530. 16 OCTOBER TERM, 1966. February 13, 1967. 386 U.S. BARLOW v. TEXAS. APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. No. 109. Decided February 13, 1967. 398 S. W. 2d 933, appeal dismissed. Alto B. Cervin for appellant. Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, T. B. Wright, Executive Assistant Attorney General, and Howard M. Fender and Charles B. Swanner, Assistant Attorneys General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed. The Chief Justice, Mr. Justice Douglas, and Mr. Justice Fortas would reverse the judgment of the court below for the reasons stated in the opinion of The Chief Justice in Spencer v. Texas, 385 U. S. 554, 569. DECISIONS PER CURIAM. 17 386 U. S. February 13, 1967. KAYE v. CO-ORDINATING COMMITTEE ON DISCIPLINE OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DIVISION OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. No. 300. Decided February 13, 1967. Certiorari granted; 24 App. Div. 2d 345, 266 N. Y. S. 2d 69, vacated and remanded. Morton Liftin for petitioner. Angelo T. Cometa for respondent. Per Curiam. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Appellate Division of the Supreme Court of New York, First Judicial Department, for reconsideration in light of Spevack v. Klein, 385 U. S. 511. Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice Stewart would affirm the judgment below for the reasons stated in the dissenting opinions of Mr. Justice Harlan in Spevack v. Klein, 385 U. S., at 520, and Garrity v. New Jersey, 385 U. S. 493, 500. Mr. Justice White dissents for the reasons stated in his dissenting opinion in Garrity v. New Jersey, and Spevack v. Klein, 385 U. S., at 530. 18 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. CHAPMAN et al. v. CALIFORNIA. CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. No. 95. Argued December 7-8, 1966.—Decided February 20, 1967. Petitioners were convicted following a California state criminal trial during which the prosecutor, as then permitted by a state constitutional provision, extensively commented on their failure to testify. The trial judge also charged the jury that it could draw adverse inferences from such failure. After the trial, but before petitioners’ appeal was considered, the state constitutional provision was invalidated by Griffin v. California, 380 U. S. 609. Though admitting that petitioners had been denied a federal constitutional right, the California Supreme Court, applying the State Constitution’s harmless-error provision, upheld the convictions. Held: 1. This Court has jurisdiction to formulate a harmless-error rule that will protect a defendant’s federal right under the Fifth and Fourteenth Amendments to be free from state penalties for not testifying in his criminal trial. Pp. 20-21. 2. Before a constitutional error can be held to be harmless the court must be able to declare its belief that it was harmless beyond a reasonable doubt. Pp. 21-24. 3. The State in this case did not demonstrate beyond a reasonable doubt that the prosecutor’s repetitive comments to the jury, and the trial court’s instruction concerning the petitioners’ failure to testify did not contribute to their convictions. Pp. 24-26. 63 Cal. 2d 178, 404 P. 2d 209, reversed. Morris Lavine argued the cause and filed briefs for petitioners. Arlo E. Smith, Chief Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General. Mr. Justice Black delivered the opinion of the Court. Petitioners, Ruth Elizabeth Chapman and Thomas LeRoy Teale, were convicted in a California state court CHAPMAN v. CALIFORNIA. 19 18 Opinion of the Court. upon a charge that they robbed, kidnaped, and murdered a bartender. She was sentenced to life imprisonment and he to death. At the time of the trial, Art. I, § 13, of the State’s Constitution provided that “in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.” Both petitioners in this case chose not to testify at their trial, and the State’s attorney prosecuting them took full advantage of his right under the State Constitution to comment upon their failure to testify, filling his argument to the jury from beginning to end with numerous references to their silence and inferences of their guilt resulting therefrom.1 The trial court also charged the jury that it could draw adverse inferences from petitioners’ failure to testify.1 2 Shortly after the trial, but before petitioners’ cases had been considered on appeal by the California Supreme Court, this Court decided Griffin v. California, 380 U. S. 609, in which we held California’s constitutional provision and practice invalid on the ground that they put a penalty on the exercise of a person’s right not to be compelled to be a witness against himself, guaranteed by the Fifth Amendment to the 1 Excerpts of the prosecutor’s argument are reproduced in the Appendix to this opinion. 2 The trial judge charged the jury: “It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely on his own decision. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. . . .” 247-216 0-67-7 20 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. United States Constitution and made applicable to California and the other States by the Fourteenth Amendment. See Malloy v. Hogan, 378 U. S. 1. On appeal, the State Supreme Court, 63 Cal. 2d 178, 404 P. 2d 209, admitting that petitioners had been denied a federal constitutional right by the comments on their silence, nevertheless affirmed, applying the State Constitution’s harmless-error provision, which forbids reversal unless “the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” 3 We granted certiorari limited to these questions: “Where there is a violation of the rule of Griffin v. California, 380 U. S. 609, (1) can the error be held to be harmless, and (2) if so, was the error harmless in this case?” 383 U. S. 956-957. In this Court petitioners contend that both these questions are federal ones to be decided under federal law; that under federal law we should hold that denial of a federal constitutional right, no matter how unimportant, should automatically result in reversal of a conviction, without regard to whether the error is considered harmless; and that, if wrong in this, the various comments on petitioners’ silence cannot, applying a federal standard, be considered harmless here. I. Before deciding the two questions here—whether there can ever be harmless constitutional error and whether the error here was harmless—we must first decide whether 3 Cal. Const., Art. VI, §4y2: “No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” CHAPMAN v. CALIFORNIA. 21 18 Opinion of the Court. state or federal law governs. The application of a state harmless-error rule is, of course, a state question where it involves only errors of state procedure or state law. But the error from which these petitioners suffered was a denial of rights guaranteed against invasion by the Fifth and Fourteenth Amendments, rights rooted in the Bill of Rights, offered and championed in the Congress by James Madison, who told the Congress that the “independent” federal courts would be the “guardians of those rights.” 4 Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied. With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights. We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment right to be silent—expressly created by the Federal Constitution itself—is a federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule. II. We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a hold- 4 “If they [the first ten amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” 1 Annals of Cong. 439 (1789). 22 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. ing, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for “errors or defects which do not affect the substantial rights of the parties.” 28 U. S. C. § 2111.5 None of these rules on its face distinguishes between federal constitutional errors and errors of state law or federal statutes and rules. All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction. III. In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one. What 528 U. S. C. §2111 provides: “On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” Fed. Rule Crim. Proc. 52 (a) provides: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” See also Fed. Rule Civ. Proc. 61. CHAPMAN v. CALIFORNIA. 23 18 Opinion of the Court. harmless-error rules all aim at is a rule that will save the good in harmless-error practices while avoiding the bad, so far as possible. The federal rule emphasizes “substantial rights” as do most others. The California constitutional rule emphasizes “a miscarriage of justice,” 6 but the California courts have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court’s view of “overwhelming evidence.” 7 We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U. S. 85. There we said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Id., at 86-87. Although our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,8 this statement in Fahy itself belies any belief that all trial errors which violate the Constitution automatically call for reversal. At the same time, however, like the federal harmless-error statute, it emphasizes an intention not to treat as harmless those constitutional errors that “affect substantial rights” of a party. An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived 6 The California statutory rule, like the federal rule, provides that “[a]fter hearing the appeal, the Court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.” Cal. Pen. Code § 1258. 7 The California Supreme Court in this case did not find a “miscarriage of justice” as to petitioner Teale, because it found from “other substantial evidence, [that] the proof of his guilt must be deemed overwhelming.” 63 Cal. 2d, at 197, 404 P. 2d, at 220. 8 See, e. g., Payne v. Arkansas, 356 U. S. 560 (coerced confession); Gideon v. Wainwright, 372 U. S. 335 (right to counsel); Tumey v. Ghia, 273 U. S. 510 (impartial judge). 24 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. of as harmless. Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.9 There is little, if any, difference between our statement in Fahy v. Connecticut about “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test,10 it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case. IV. Applying the foregoing standard, we have no doubt that the error in these cases was not harmless to petitioners. To reach this conclusion one need only glance at the prosecutorial comments compiled from the record by petitioners’ counsel and (with minor omissions) set forth in the Appendix. The California Supreme Court 9 See generally 1 Wigmore, Evidence § 21 (3d ed. 1940). 10 Cf. Woodby v. Immigration Service, 385 U. S. 276. CHAPMAN v. CALIFORNIA. 25 18 Opinion of the Court. fairly summarized the extent of these comments as follows: “Such comments went to the motives for the procurement and handling of guns purchased by Mrs. Chapman, funds or the lack thereof in Mr. Teale’s possession immediately prior to the killing, the amount of intoxicating liquors consumed by defendants at the Spot Club and other taverns, the circumstances of the shooting in the automobile and the removal of the victim’s body therefrom, who fired the fatal shots, why defendants used a false registration at a motel shortly after the killing, the meaning of a letter written by Mrs. Chapman several days after the killing, why Teale had a loaded weapon in his possession when apprehended, the meaning of statements made by Teale after his apprehension, why certain clothing and articles of personal property were shipped by defendants to Missouri, what clothing Mrs. Chapman wore at the time of the killing, conflicting statements as to Mrs. Chapman’s whereabouts immediately preceding the killing and, generally, the overall commission of the crime.” 63 Cal. 2d, at 196, 404 P. 2d, at 220. Thus, the state prosecutor’s argument and the trial judge’s instruction to the jury continuously and repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes, the inferences from the facts in evidence had to be drawn in favor of the State—in short, that by their silence petitioners had served as irrefutable witnesses against themselves. And though the case in which this occurred presented a reasonably strong “circumstantial web of evidence” against petitioners, 63 Cal. 2d, at 197, 404 P. 2d, at 220, it was also a case in which, absent the constitu- 26 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U. S. tionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s instruction did not contribute to petitioners’ convictions. Such a machine-gun repetition of a denial of constitutional rights, designed and calculated to make petitioners’ version of the evidence worthless, can no more be considered harmless than the introduction against a defendant of a coerced confession. See, e. g., Payne v. Arkansas, 356 U. S. 560. Petitioners are entitled to a trial free from the pressure of unconstitutional inferences. Reversed and remanded. APPENDIX TO OPINION OF THE COURT. Argument and Comments by the Prosecutor on the Failure of the Defendants to Take the Witness Stand “Now, ladies and gentlemen, I don’t know which one of these weapons was purchased first, I don’t know that it particularly makes any difference, but as you know, we have had no testimony at all in that regard, in fact, I might add that the only person or persons that could give testimony in that regard would be, of course, the defendants themselves. “Now, this, there’s no question about what this represents, or for the record here, no question in your minds, this is not the weapon that Ruth Elizabeth Chapman purchased in Reno, Nevada, on October the 12th, 1962. I don’t know where that weapon is, ladies and gentlemen, and you don’t know where it is, you’ve heard no testimony from the stand at all, and once again, the only CHAPMAN v. CALIFORNIA. 27 18 Appendix to opinion of the Court. person or persons that could tell us about where the original .22 caliber Vestpocket is today would be one or the other of the defendants or both. “This would indicate that there was no small struggle—it would indicate that the body, almost lifeless, was dragged or left in some fashion which would cause a shirt or an article of clothing to tear, one or the other. Once again, ladies and gentlemen, I don’t know, I wasn’t out there, you were not out there. You heard no testimony on the stand. The only individuals that could give you that information would be the defendants, either one or both of them, Thomas Leroy Teale and Ruth Elizabeth Chapman. And of course you know that you have not heard from them. “Now, I will comment throughout my entire opening argument to you in reference to the fact that neither one of these defendants has seen fit to go up, raise their right hand, take that witness stand, tell you ladies and gentlemen of the jury exactly what did occur, explain to you any facts or details within their knowledge so that you would know. You would not have to—by His Honor’s instructions you can draw an adverse inference to any fact within their knowledge that they couldn’t testify to, and they have not subjected themselves, either one or both, to cross-examination. Now, that is—so there is no question in your mind, once again with reference to a defendant taking the stand, none—you are—you or I or anyone else is not required under our legal system in these United States and under the Constitution, you can not be made to testify against yourself or for yourself, as far as that goes. “So, it is a Constitutional right, and both of these defendants have seen fit to avail themselves of that Constitutional right, but I say to you ladies and gentlemen, there are many things in this case, and I will try to point 28 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U. S. them out to you, at least some, probably not all, that these defendants are in a position to take that stand and to testify under oath and give you facts concerning. They have not seen fit to avail themselves of that opportunity. “Now whether or not Mr. Teale had any other money at the time or was in the habit of concealing his money in different departments, I don’t know, and ladies and gentlemen, you don’t know, because you have not had any testimony from that witness stand, and the only person that could clear this up for us ladies and gentlemen is the defendant Thomas Leroy Teale. Ladies and gentlemen, he has not seen fit to tell you about that. But certainly we know that bogus checks are being written, and as I recall we know that—I don’t—we may infer, if you wish to believe there is an inference which Mr. Teale could have cleared up, that that was all the money that he had, and he didn’t clear it up, so you may draw an adverse inference from that, that that was all the money he had, or in fact that he—at that time he was in desperate need of funds, and you know that through some kind of a discussion between these two defendants in regard to Mr. Teale shooting dice, that this was all he had. “Now, ladies and gentlemen, in reference to the weapons being purchased in Reno, Nevada on October 12th, you have heard, ladies and gentlemen, no testimony, and you will recall clearly, you are going to have some difficulty, you really are in reference to what is and what isn’t evidence in this case, and believe me I have a few comments to say on that a little later on, but if you will recall as far as evidence is concerned of the truth of anything at all, you don’t have any evidence on why CHAPMAN v. CALIFORNIA. 29 18 Appendix to opinion of the Court. these—why these pistols were purchased. Why did Ruth Elizabeth Chapman buy two weapons? Well, you do recall that she told on one occasion that she had had a pistol stolen from her vehicle, her automobile, when she was taking a little trip across country, you remember that testimony, and you can rely on the testimony that you actually hear, ladies and gentlemen, from the stand. She told that, and of course you can only rely that she told the gentleman that, that she had had another one stolen, and so that she needed one to replace it. But why two, ladies and gentlemen? You don’t need two. If she is going to be attacked she wasn’t going to use one in each hand I assume to defend herself, and there is another area, ladies and gentlemen, besides this that I mentioned to you before, that since you have no testimony from the stand, you must surmise from all facts and circumstances as to the exact reason why they were purchased, because the only one in this room that could tell you why these guns were purchased is either one or both of the defendants. Certainly the defendant Ruth Elizabeth Chapman could tell you, she could tell you under oath, she could subject herself to cross-examination, and she could tell you then and it would be evidence before you. Once again she has not chosen to do this. So any inference you may draw therefrom will be an adverse inference under the circumstances, and under the instructions of the Court. . . . “So, we know, ladies and gentlemen, that they had the motive, we know that they had the means, we know that they had the opportunity. We also know that they were at that scene, ladies and gentlemen, they were with that man just a matter of minutes before he was shot in the head three times with a gun similar to People’s Exhibit No. 12. Now, if they weren’t there, and I think the evidence clearly shows they were, scientific evidence, 30 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U.S. that we’ll talk about a little later. Once again, why don’t they come up and raise their right hand and tell you about it? “To me they are charged with serious crimes, ladies and gentlemen. They can come up and testify and then it will be evidence for you to consider in this case. If they had just come up and told you about this, because they were there. If they left the Spot Club and just went on their way, well, of course they didn’t, the evidence clearly shows they didn’t, but you may draw the adverse inference from their refusal to come before you and raise that right hand and incidentally, of course, subject themselves to cross-examination. “I think it is not an unreasonable inference to infer at this time if the defendants were drinking beer earlier in the evening in Croce’s, it’s not unreasonable to infer they continued drinking the same thing, therefore the two glasses remaining that had been washed, but not put up were the defendants’. I don’t know, it is an inference, I wasn’t there, we have had no testimony whatsoever as to what they were drinking at the Spot Club, once again, neither one of the defendants have seen their way clear to come up and tell you what they were drinking if it was beer. “So you can see that whichever one of these defendants shot him, and once again, ladies and gentlemen, here is an area that I don’t know who shot him, and you don’t know who shot him, because we have had no testimony from that witness stand to tell you who shot him, and the only two persons in this courtroom that could tell you which one of them it was that shot him are the two defendants; but once again, they have both decided that they will not get up and raise their right CHAPMAN v. CALIFORNIA. 31 18 Appendix to opinion of the Court. hand and testify in this regard and subject themselves to cross-examination, so all we know is that one of them shot him. “We don’t know the time here, it doesn’t say. We don’t have any testimony, ladies and gentlemen, in this regard, and I might say once again in reference to this last, the use of the name, T. L. Rosenthal, Mr. and Mrs., we don’t know why, ladies and gentlemen, that name was used. We don’t know why, ladies and gentlemen, that UZV 155—was 156 originally on here. You don’t know that, and I don’t, because we haven’t had the testimony from the witness stand on it. Now we know it is in the handwriting of Ruth Elizabeth Chapman, and there is no question about that. She wrote it. It could be evidence, ladies and gentlemen, for you. It could be evidence as to why she wrote that name, and why that five was changed to a six. We could have it. But we don’t, because either one or both of the defendants, neither one, have even seen fit to take the stand and to testify in that regard. Then this would be evidence that you can consider. But also ladies and gentlemen, subject to taking the oath and subject to cross-examination. “We see it here in Mountain View, the Mountain View Motel, the name of Teale, but we don’t have the testimony of the defendants and ladies and gentlemen they are the only ones here in this case that could get up there and tell you why they used a phony name two hours after the crime and why they didn’t put the correct license down and whatever inference you draw you are permitted to draw since they do not choose to tell you an adverse interest, and I would say, ladies and gentlemen, that it is an adverse interest to the defendants. It shows a consciousness of guilt. 32 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U. S. “Now, ladies and gentlemen, what is this—first of all, T thought I’d better let you know that Tom arrived here today and we’re going south tomorrow’? Now, what does that mean? Well, I think without saying a great deal more about it that each one of you can certainly infer as to what it very readily could mean, especially if one has in fact committed a robbery and kidnapped someone from the premises and that individual has ended up dead, shot three times in the head. And further, ladies and gentlemen, the only other thing I can say about it is this, who can really tell you and who could have told you from evidence, from the witness stand, what that letter meant? Well, the only one is Ruth Elizabeth Chapman, ladies and gentlemen. If it didn’t mean what you can reasonably infer that it means, then I say, ladies and gentlemen, she could have come up here and testified, gotten on the witness chair. We have had many witnesses in this case, no one I would assume more interested than Ruth Elizabeth Chapman, or the co-defendant, neither one took the stand. She in no way, nor has there been any way, ladies and gentlemen, any kind of evidence that has actually been admitted for the truth of the evidence, in no way is there any evidence as to why she wrote that letter, and what she meant by ‘Tom is arriving today and we’re going south.’ Once again, she did not choose to tell you. So, we may only infer, and this will be, of course, you will have to in your final analysis draw any inferences from that that you feel are appropriate and are proper— “He was a fugitive from justice, and he knew he was a fugitive from justice, and he never—let’s face it, there were four F.B.I. agents and these fellows are professional and they know what they are doing and one of them had a gun out and he never had an opportunity CHAPMAN v. CALIFORNIA. 33 18 Appendix to opinion of the Court. to use it, and none of us here will ever know from all the testimony, from the actual testimony on the stand why he had the weapon with him fully loaded, because Mr. Teale has never taken the stand in this case and testified for you. These things are things only within his knowledge, ladies and gentlemen. If there is any fact in this case of any relevancy of any importance it is within the knowledge of a defendant, and they chose not to take the stand and tell you about it, where incidentally they are under oath and can be cross-examined. You may draw an adverse inference from the fact that they do not take it. I think the inference is very clear, too, why they had this weapon here and why he never—why it was fully loaded. Remember there was never an opportunity to use it. The weapon was purchased by Ruth Elizabeth Chapman. Now when he is apprehended and fleeing from the State he had it with him and it was fully loaded. Once again, I don’t know where the original is here, and you know the only two that can tell us where that is. “Now, you recall also that when Mr. Basham took him back in, was fingerprinting him, etc., he told him he was wanted in California and no one mentioned anything about Lodi, and he said that he would waive extradition, and he also did say he said, ‘They will have a hard time proving I was there.’ And Teale himself did mention Lodi. Well, I don’t know what he meant by that statement. I certainly can draw my own conclusion, and you sure will draw yours as the triers of the facts and the judges of the facts, ladies and gentlemen, but once again Mr. Teale did not take the stand and testify under oath in this case, and Mr. Teale has not desired to take the stand and explain what he meant by it. He didn’t have to, of course, but once again you can draw whatever inferences you may feel, and the law is clear that 34 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U. S. you may draw an adverse—where a defendant does not explain and he does not choose to take the stand and explain it to you you can draw an adverse inference. “Photographs. You’ve seen them, ladies and gentlemen, but as you recall the doctor now is pointing, and this is the picture of the deceased, the back of his head, as to where he was shot in the back of the head, you recall the other one as to where he was shot in the side of the head, right here on the left in the general area of where the glasses would be, I think it’s a most reasonable inference, ladies and gentlemen. Now, once again we have had no testimony except what would seem clearly logical from the experts, the way the body was found, where he’d been shot, what he’d been shot with, and the position of the glasses in relation to the body at the death scene, we had no other testimony. Certainly none from the defendants in this case. “. . . Agent Gilmore has drawn and made some notations in reference to where that blood was located, blood found on these shoes. Now, all we know, ladies and gentlemen, as far as evidence in this case is concerned, is that these shoes belonged to Ruth Elizabeth Chapman and they were in her possession when she was apprehended in St. Joseph, Missouri, and why do I say that’s all you know? That’s all you may take into consideration, ladies and gentlemen, because we have no other testimony on this witness stand in relation to any of these articles of clothing that are actually admitted into evidence. “You have two box lids, two of them, and you’ve heard the questions concerning them, they would indicate that they were sent to a Mrs. Howard Smith at 2206 Castle Avenue, St. Joseph, Missouri, and I believe it was on CHAPMAN v. CALIFORNIA. 35 18 Appendix to opinion of the Court. the 11th of October, says from Thomas Teale, 1105 Del Norte, Eureka, California, they both say essentially the same thing, 10-11, there’s no year, but I think we can surely infer it was in 1962, and apparently from Reno. “Now, ladies and gentlemen, there’s been a lot of talk, suggestion, and whatever you want to call it, I’ll call it a smoke screen, in reference to these two lids that came off, and we’ll assume there was a box underneath them, I don’t think there’s any question about that. Where have you ever heard from that witness stand, ladies and gentlemen, what was ever in those boxes? Now, you’ve heard some self-serving declarations that are not admitted into evidence because they come through someone else who in some fashion gets testimony before you, but no cross-examination of the original party who is giving that kind of testimony, and you can’t consider it. “Thank you, Your Honor. Counsel has interjected himself into this, and he’ll have every opportunity to make his own comments, and I’m sure he’ll most adequately express himself when the time comes. I’m telling you, ladies and gentlemen, that the only evidence that you have is that you have two box tops. Now, he’s just suggested to you, so I’ll answer this ahead of time, but the evidence is clear that Mr. Sperling packed these boxes, but you will recall Mr. Sperling was not at the original scene when they were taken. Maybe it isn’t unusual to infer there may have been clothes, but what I’m getting at is this is what clothing? You don’t even know there was clothing in them when they were shipped. It could have been other household articles. And even if we assume it was clothing, and that’s not unreasonable because basically these are the items we found and brought back with us to Lodi, we don’t know which clothing she shipped at this time. Couldn’t this be cleared up for us, though? It could be cleared up so 247-216 0 - 67 -8 36 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U.S. easily. Ruth Elizabeth Chapman is sitting right over here, she is one of the defendants in this case and she is the one certainly if anyone, if anyone in this room, or in this state knows what was in those boxes she is the one, but once again she did not take the stand, raise her right hand, and tell you about that. She didn’t take the stand at all, ladies and gentlemen, she could have come up and told us exactly what articles were sent, so you may draw any inferences from that that you wish to, as long as they are reasonable. “Now, anything that—is clearly, and I’m sure you know by now and I don’t have to repeat it too often, anything in this case that Mr. Teale could get up here now, he don’t have to get up here, but all of the things that have been said in this trial and all of the physical evidence and the testimony, he’s right here in Court and could he not get up and if there is anything to be said he has the opportunity to say it. Otherwise, you may draw the adverse inference from the fact that he doesn’t get up there and tell you about it, and that, ladies and gentlemen, is his defense. Mr. Fransen said in the beginning that what happened in this case is not as the prosecution described it. That the facts will show an entirely different version. Well, I haven’t heard any facts, ladies and gentlemen, that show an entirely different version. “We went through a business with a—dress. We held it up, and then we pointed out the one that she’s wearing now, and frankly, ladies and gentlemen, the only one in the Court room that can tell you whether or not it is the same dress is Ruth Elizabeth Chapman, because you know from the evidence no one has ever had an opportunity to examine that dress to see whether it has been dry cleaned, whether or not it was purchased—when CHAPMAN v. CALIFORNIA. 37 18 Appendix to opinion of the Court. it was purchased or the labels on it or anything else. All that has been done in this thing is to wear a blue knit dress, ladies and gentlemen, which is similar to the one that—she in fact apparently wore on that night. “So, I suppose that just through the wearing of it, having it in Court, it is hoped that you will draw something from it, which I have heard no testimony on the stand, except that it looks like or is similar to it. . . . “But what she told that doctor is not evidence in this case, and yet you know that repeatedly and over and over and over again Mr. Johnson in every way that he could, he would get the story again before you. Now, why? You know why. He did it because he hopes that you wouldn’t forget it, although he could put it and make it evidence in this case, which it is not, and if you put Ruth Elizabeth Chapman up on that stand to testify, so it is one way of doing, ladies and gentlemen, if you are going to be taken in by it, indirectly what you can’t do directly, because there is no other way that he can get that thing before you without putting her up on that stand. “But she gave a story on the night of the 17th and early hours of the 18th. She was in San Francisco. Now, why pick on that date so specifically if you are not—if not to beware of that date, that you want to beware. Well, he says, ‘You have given two different stories. Do you have problems with blackouts or excessive drinking’, and she says ‘No.’ And I tell you, ladies and gentlemen, that anybody, and there is no evidence to the contrary in this case, if you don’t honestly remember what occurred and you know, you are in a situation where there is a fugitive warrant and you have just been arrested and you in all honesty don’t remember where you were, that is the first thing that you are going to say. You’re not going to sit up and trump up excuses 38 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U.S. and make out a story which you know to be a lie about specific dates and times. And, ladies and gentlemen, there is no legal evidence before you that it is anything to the contrary, because the only one now that can come up and tell you has not seen fit to do so. . . Mr. Johnson would have you believe that everything she said was the truth. I think there are some instances that indicate already—I have indicated some, the purpose of the guns, two different ideas there as to why they were purchased, but that is the only legal purpose for that. So it’s not evidence, although Mr. Johnson again I say argued and referred to it as though it was. We have no evidence from the lips of Mrs. Chapman. Now, as Mr. Ferguson told you, it is their constitutional right, and I won’t go into that again, because I think he handled it very clearly as well as the others, but that is within her right to do as she sees fit. But, you can consider it for the purposes and under the circumstances that Mr. Ferguson indicated a number of times. “Originally when Dr. Winkler examined her on the 31st, I believe it was, of October, 1962, she told him that she had forgotten after the first shot was fired, after the first shot was fired. Since that time what has happened? The amnesia, or disassociative state, or disasso-ciative reaction, which ever way you want to look at it, psychiatrically or otherwise, seems to have backed up from Dillard Road back up to the Spot Club, back up down Highway 99 south to just outside of Croce’s, and by the time we get through cross-examining Dr. Sheuer-man it even backed in to Croce’s. A vague area. Very interesting. We could have put it on, put the statement in. It’s evidence? It’s not. Again, the sanctity and CHAPMAN v. CALIFORNIA. 39 18 Appendix to opinion of the Court. worthiness of evidence would have to come from her lips, hers on the stand here. Why? Here again, because witnesses would be under oath again, and I repeat, and I repeat for emphasis, they would have to be under oath subject to cross-examination before your very eyes so that you could evaluate it. Oh yes. She said this and she said that. Who said it? Who said it? Ruth Elizabeth Chapman on the stand? No. Dr. Sheuerman said that she said it. Dr. Winkler said that she said. Mr. Johnson said that she said. Well, it’s an interesting thing that the only witnesses who weren’t here, or weren’t on the stand to be cross-examined, the only witnesses who are alive today to the perpetration of these offenses, are these two defendants. That’s all. They don’t have to take the stand. That’s been gone over many times, but you know it would be a fine thing, very fine deed if persons who perpetrated offenses gave a story, put a story on by somebody else, have somebody else speak for you—wouldn’t it? It would be a very interesting thing. You would never have the benefit of evaluating their credibility. This is what Mr. Johnson would have you believe that we should have done. Monday morning quarterbacking. And I submit to you—you know, you— you have heard much about lawyers being referred to as ‘mouthpieces.’ It’s actually a very rare thing, really, that that type of appellation is applicable to lawyers really. But, I think you have seen a demonstration here, and I’m not saying it in rancor, not anything of it at all, because this is a demonstration where actually Ruth Elizabeth Chapman is speaking through Mr. Johnson. A ‘mouthpiece.’ “Maybe there is another reasonable one, other than the fact that it was Adcock’s blood, because all three who were in the car had type A. Maybe there is, but 40 OCTOBER TERM, 1966. Appendix to opinion of the Court. 386 U.S. you haven’t heard it. You haven’t heard any reasonable explanation of that. So, you can draw an adverse inference that it was Billy Dean Adcock’s blood. . . . “Mr. Johnson said these several things which I will go over again. The evidence showed here that she bought two guns for Teale. What evidence? No witness on the stand got up there and said specifically under oath, and the only one that could do it would be Elizabeth Chapman herself. This is hearsay, what she told somebody else for the sole purpose of determining what her state of mind was at the time. It’s not evidence. There’s some evidence from her own lips through Dennis Mack as to the reason she bought the gun, which is different than what she said otherwise. Mr. Johnson said the evidence shows there was an argument in Fresno. Here again I would say, ‘What evidence?’ The next one—there are only two people there to that argument, and the only way it would be evidence, or testimony in this case, would be if either one or both of them got up there and said there was an argument. They chose not to do it. You can draw an adverse inference that that being within their knowledge, that they could explain, whether it was or not. You can draw an inference that it wasn’t the type of argument that Mr. Johnson claims the evidence shows, because the evidence doesn’t show that at all. “So far as the motive is concerned for the murder in a perpetration of a robbery, the motive was set, to gain for their own desires and lusts and so forth, to gain from it. It was a crime of gain, and perhaps another thing too, in deciding—we don’t know who pulled the trigger— we may never know. The defendants haven’t indicated it, except through Teale in one—Mr. Vowell’s testimony, as to what Mr. Teale said, but that is not admissible CHAPMAN v. CALIFORNIA. 41 18 Appendix to opinion of the Court. against, and you shouldn’t consider it against, Ruth Elizabeth Chapman, but maybe the circumstances of who pulled the trigger might have been a factor that might have been important to you. Only two people know. They didn’t tell you. That is the way they want to proceed. But nonetheless, you can consider that too. • • • • • “So, in considering what happened here as to why this person was killed, you see you can weigh these things and decide what the motive was. You might have had some help in deciding this very difficult task from the very only two people remaining who were at the scene, but in their best judgment they didn’t choose to get up and tell you about it, which you certainly can consider that fact that they did not in the light of using your reason as I have indicated here too. “You know that somebody shot Billy Dean Adcock, and you know that it was either—it was one or even both of these defendants, in view of your verdict, but which one you don’t know. Now, this is something that perhaps might have been of help to you in deciding what punishment to mete out, whether both should be punished equally in this case, or whether there should be some distinction between the two. It might have been helpful to know who pulled that trigger, for if it was Ruth Elizabeth Chapman you could well deduce that it was either her intoxication or emotional stress or a jealousy of Teale, or anger, and a lot of things other than the motive to destroy a witness; whereas, with respect to Mr. Teale it would seem to be a logical thing to conclude that he wanted to get rid of the only eyewitness. Differences there, you see. But you don’t know. You don’t know whether they did it in consort [sic]. You don’t know that as far as pulling the trigger. But, this is 42 OCTOBER TERM, 1966. Stewart, J., concurring in result. 386 U.S. a factor which has not been brought to light, and you can consider that factor which has not been, from the standpoint there have been two people that might have explained that. “I have gone into the statement here and why it hasn’t been presented. If you are going to decide things such as character and sympathy, the law says you may take into consideration, how can you do it by a statement? Now, we are talking about this phase of the case. This now. You like to know that persons get—if there is something about their character that they can tell you, or something about their background that they can tell you, you like to hear it from them, because you have a very serious and difficult task, and the fact that they chose to rest upon whatever evidence there is here in the case in chief is something that you can consider in deciding whether or not they had been fair with you. “This is the chance that they take by not having taken the stand.” Mr. Justice Stewart, concurring in the result. In devising a harmless-error rule for violations of federal constitutional rights, both the Court and the dissent proceed as if the question were one of first impression. But in a long line of cases, involving a variety of constitutional claims in both state and federal prosecutions, this Court has steadfastly rejected any notion that constitutional violations might be disregarded on the ground that they were “harmless.” Illustrations of the principle are legion. When involuntary confessions have been introduced at trial, the Court has always reversed convictions regardless of other evidence of guilt. As we stated in Lynumn v. Illinois, 372 U. S. 528, 537, the argument that the error in admitting such a confession “was a harmless one ... is an impermissible doctrine.” That conclu- CHAPMAN v. CALIFORNIA. 43 18 Stewart, J., concurring in result. sion has been accorded consistent recognition by this Court. Malinski v. New York, 324 U. S. 401, 404; Payne v. Arkansas, 356 U. S. 560, 568; Spano v. New York, 360 U. S. 315, 324; Haynes v. Washington, 373 U. S. 503, 518-519; Jackson v. Denno, 378 U. S. 368, 376-377. Even when the confession is completely “unnecessary” to the conviction, the defendant is entitled to “a new trial free of constitutional infirmity.” Haynes v. Washington, supra, at 518-519.1 When a defendant has been denied counsel at trial, we have refused to consider claims that this constitutional error might have been harmless. “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U. S. 60, 76. That, indeed, was the whole point of Gideon v. Wainwright, 372 U. S. 335, overruling Betts v. Brady, 316 U. S. 455. Even before trial, when counsel has not been provided at a critical stage, “we do not stop to determine whether prejudice resulted.” Hamilton v. Alabama, 368 U. S. 52, 55; White v. Maryland, 373 U. S. 59, 60. A conviction must be reversed if the trial judge’s remuneration is based on a scheme giving him a financial interest in the result, even if no particular prejudice is shown and even if the defendant was clearly guilty. Tumey v. Ohio, 273 U. S. 510, 535. To try a defendant in a community that has been exposed to publicity highly 1 None of these decisions suggests that the rejection of a harmless-error rule turns on any unique evidentiary impact that confessions may have. Haynes v. Washington, 373 U. S. 503, specifically contradicts that notion. In addition to the confession found inadmissible by this Court, the defendant in Haynes had given two prior confessions, the admissibility of which was not disputed, and “substantial independent evidence” of guilt existed. The Court accepted the prosecution’s contention that the inadmissible confession played little if any role in the conviction. 44 OCTOBER TERM, 1966. Stewart, J., concurring in result. 386 U.S. adverse to the defendant is per se ground for reversal of his conviction; no showing need be made that the jurors were in fact prejudiced against him. Sheppard v. Maxwell, 384 U. S. 333, 351-352; cf. Rideau v. Louisiana, 373 U. S. 723, 727. See also Estes v. Texas, 381 U. S. 532, 542-544; 562-564 (Warren, C. J., concurring); 593-594 (Harlan, J., concurring). When a jury is instructed in an unconstitutional presumption, the conviction must be overturned, though there was ample evidence apart from the presumption to sustain the verdict. Bottenbach v. United States, 326 U. S. 607, 614-615. Reversal is required when a conviction may have been rested on a constitutionally impermissible ground, despite the fact that there was a valid alternative ground on which the conviction could have been sustained. Stromberg v. California, 283 U. S. 359, 367-368; Williams v. North Carolina, 317 U. S. 287, 292. In a long line of cases leading up to and including Whitus v. Georgia, 385 U. S. 545, it has never been suggested that reversal of convictions because of purposeful discrimination in the selection of grand and petit jurors turns on any showing of prejudice to the defendant. To be sure, constitutional rights are not fungible goods. The differing values which they represent and protect may make a harmless-error rule appropriate for one type of constitutional error and not for another. I would not foreclose the possibility that a harmless-error rule might appropriately be applied to some constitutional violations.2 Indeed, one source of my disagreement with the 2 For example, quite different considerations are involved when evidence is introduced which was obtained in violation of the Fourth and Fourteenth Amendments. The exclusionary rule in that context balances the desirability of deterring objectionable police conduct against the undesirability of excluding relevant and reliable evidence. The resolution of these values with interests of judicial economy might well dictate a harmless-error rule for such violations. Cf. Fahy v. Connecticut, 375 U. S. 85, 92 (dissenting opinion). CHAPMAN v. CALIFORNIA. 45 18 Harlan, J., dissenting. Court’s opinion is its implicit assumption that the same harmless-error rule should apply indiscriminately to all constitutional violations. But I see no reason to break with settled precedent in this case, and promulgate a novel rule of harmless error applicable to clear violations of Griffin v. California, 380 U. S. 609.3 The adoption of any harmless-error rule, whether the one proposed by the Court, or by the dissent, or some other rule, commits this Court to a case-by-case examination to determine the extent to which we think unconstitutional comment on a defendant’s failure to testify influenced the outcome of a particular trial. This burdensome obligation is one that we here are hardly qualified to discharge. A rule of automatic reversal would seem best calculated to prevent clear violations of Griffin v. California. This case is one in which the trial occurred before the Griffin decision but which was not final on appeal until afterwards, so the doctrine of prospectivity announced in Tehan v. Shott, 382 U. S. 406, does not reach it. But the number of such cases is strictly limited. Prosecutors are unlikely to indulge in clear violations of Griffin in the future, and if they do I see no reason why the sanction of reversal should not be the result. For these reasons I believe it inappropriate to inquire whether the violation of Griffin v. California that occurred in this case was harmless by any standard, and accordingly I concur in the reversal of the judgment. Mr. Justice Harlan, dissenting. The Court today holds that the harmlessness of a trial error in a state criminal prosecution, such error 3 Earlier this Term, in O’Connor v. Ohio, 385 U. S. 92, we reversed a conviction on the basis of Griffin v. California, 380 U. S. 609, without pausing to consider whether the comment on the defendant’s silence might have been harmless error under the rule the Court announces today, or any other harmless-error rule. 46 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U.S. resulting from the allowance of prosecutorial comment barred by the Fourteenth Amendment, must be determined under a “necessary rule” of federal law. The Court imposes a revised version of the standard utilized in Fahy v. Connecticut, 375 U. S. 85, on state appellate courts, not because the Constitution requires that particular standard, but because the Court prefers it. My understanding of our federal system, and my view of the rationale and function of harmless-error rules and their status under the Fourteenth Amendment, lead me to a very different conclusion. I would hold that a state appellate court’s reasonable application of a constitutionally proper state harmless-error rule to sustain a state conviction constitutes an independent and adequate state ground of judgment. Believing this to be the situation here, I would dismiss the writ. Viator v. Stone, 336 U. S. 948. I. The key to the Court’s opinion can, I think, be found in its statement that it cannot “leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights,” and that “in the absence of appropriate congressional action” the Court must fashion protective rules. The harmless-error rule now established flows from what is seemingly regarded as a power inherent in the Court’s constitutional responsibilities rather than from the Constitution itself. The Court appears to acknowledge that other harmless-error formulations would be constitutionally permissible. It certainly indicates that Congress, for example, could impose a different formulation.1 I regard the Court’s assumption of what amounts to a general supervisory power over the trial of federal 1 For myself, I intimate no view on congressional power with respect to state courts in this regard. CHAPMAN v. CALIFORNIA. 47 18 Harlan, J., dissenting. constitutional issues in state courts as a startling constitutional development that is wholly out of keeping with our federal system and completely unsupported by the Fourteenth Amendment where the source of such a power must be found. The Fourteenth Amendment guarantees individuals against invasions by the States of fundamental rights, Palko v. Connecticut, 302 U. S. 319, and under more recent decisions of this Court some of the specifics of the Bill of Rights as well. See, e. g., in the context of this case, Malloy v. Hogan, 378 U. S. 1; Griffin v. California, 380 U. S. 609. It thus serves as a limitation on the actions of the States, and lodges in this Court the same power over state “laws, rules, and remedies” as the Court has always had over the “laws, rules, and remedies” created by Congress. This power was classically described by Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 178: “So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. . ..” Nothing in the Fourteenth Amendment purports to give federal courts supervisory powers, in the affirmative sense of McNabb v. United States, 318 U. S. 332, over state courts. See id., at 340-341. Moreover, where the constitutional power described by Marshall has been invoked, the Court has always been especially reluctant to interfere with state procedural practices. See Spencer v. Texas, 385 U. S. 554. From the beginning of the federal Union, state courts have had power to decide issues of federal law and to formulate “authoritative laws, rules, and remedies” for the trial of those issues. The primary responsibility for the trial of state criminal cases still rests 48 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U.S. upon the States, and the only constitutional limitation upon these trials is that the laws, rules, and remedies applied must meet constitutional requirements. If they do not, this Court may hold them invalid. The Court has no power, however, to declare which of many admittedly constitutional alternatives a State may choose.2 To impose uniform national requirements when alternatives are constitutionally permissible would destroy that opportunity for broad experimentation which is the genius of our federal system. Even assuming that the Court has the power to fashion remedies and procedures binding on state courts for the protection of particular constitutional rights, I could not agree that a general harmless-error rule falls into that category. The harmless-error rules now utilized by all the States and in the federal judicial system are the product of judicial reform early in this century. Previously most American appellate courts, concerned about the harshness of criminal penalties, followed the rule imposed on English courts through the efforts of Baron Parke, and held that any error of substance required a reversal of conviction. See Orfield, Criminal Appeals in America 190. The reform movement, led by authorities like Roscoe Pound and Learned Hand, resulted in allowing courts to discon- 2 Cases in which lower federal courts, acting under the authority of the Fourteenth Amendment, as expanded by this Court’s decision in Reynolds v. Sims, 377 U. S. 533, have promulgated their own reapportionment plans may superficially be thought to support such a power. E. g., Reynolds v. State Election Board, 233 F. Supp. 323. But such cases are quite apart from the present one because they arise from a situation where some positive constitutional action is a necessity and thus require the exercise of special equity powers. Here the ordinary remedy of striking down unconstitutional harmless-error rules and applications is sufficient to deal with any problem that may arise. There is no necessity for a State to have a harmless-error rule at all. CHAPMAN v. CALIFORNIA. 49 18 Harlan, J., dissenting. tinue using reversal as a “necessary” remedy for particular errors and “to substitute judgment for the automatic application of rules . . ..” 4 Barron, Federal Practice and Procedure § 2571, at 438. This Court summarized the need for that development in the leading case of Kot-teakos v. United States, 328 U. S. 750, 759: “§ 269 [a federal harmless error provision] and similar state legislation grew out of widespread and deep conviction over the general course of appellate review in American criminal causes. This was shortly, as one trial judge put it after § 269 had become law, that courts of review ‘tower above the trials of criminal cases as impregnable citadels of technicality.’ . . . [C]riminal trial became a game for sowing reversible error in the record.” Holding, as is done today, that a special harmless-error rule is a necessary remedy for a particular kind of error revives the unfortunate idea that appellate courts must act on particular errors rather than decide on reversal by an evaluation of the entire proceeding to determine whether the cause as a whole has been determined according to properly applicable law. In this case, California has recognized the impropriety of the trial comment here involved, and has given clear direction to state trial courts for the future. Certainly this is the appropriate remedy for the constitutional error committed. The challenged decision has no direct relation to federal constitutional provisions, rather it is an analysis of the question whether this admittedly improper comment had any significant impact on the outcome of the trial. In Kotteakos, supra, this Court described the “material factors” in harmless-error determinations as “the character of the proceeding, what is at stake upon its outcome, and the relation of the error asserted to casting the balance for decision on the case as a whole . . . .” Id., 50 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U.S. at 762. None of these factors has any relation to substantive constitutional provisions, and I think the Court errs in conceiving of an application of harmless-error rules as a remedy designed to safeguard particular constitutional rights.3 It seems clear to me that harmless-error rules concern, instead, the fundamental integrity of the judicial proceedings as a whole. As indicated above, I am of the opinion that the validity of a challenged state harmless-error rule itself is a federal constitutional question. Harmless-error rules may, as the Court says, “work very unfair and mischievous results.” And just concern can be expressed over the possibility that state harmless-error decisions may result in the dilution of new constitutional doctrines because of state hostility to them. However, the record is barren of any showing that the California courts, which have been in the vanguard in the development of individual safeguards in criminal trials,4 are using their harmless-error rule to destroy or dilute constitutional guarantees. If the contrary were the case and the harmless-error rule itself were shown to have resulted in a course of convictions significantly influenced by constitutionally impermissible factors, I think it clear that constitutional due process could not countenance the continued application 3 The Court indeed recognizes, as does my Brother Stewart in his concurring opinion, that errors of constitutional dimension can be harmless, a proposition supported by ample precedent. See Snyder v. Massachusetts, 291 U. S. 97; Motes v. United States, 178 U. S. 458; Haines v. United States, 188 F. 2d 546; United States v. Donnelly, 179 F. 2d 227. Presumably all errors in the federal courts will continue to be evaluated under the single standard of 28 U. S. C. §2111 as interpreted today. Certainly there is nothing in the substantive provisions of the Bill of Rights which suggests any standard for assessing the impact of their violation. 4 See, e. g., People v. Cahan, 44 Cal. 2d 434, 282 P. 2d 905; People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361. CHAPMAN v. CALIFORNIA. 51 18 Harlan, J., dissenting. of the rule.5 6 And individual applications of a permissible rule would still be subject to scrutiny as to the tenability of the independent and adequate state ground. See Thompson v. Louisville, 362 U. S. 199; Terre Haute & Indianapolis Railroad Co. v. Indiana ex rel. Ketcham, 194 U. S. 579; Note, The Untenable Nonfederal Ground in the Supreme Court, 74 Harv. L. Rev. 1375. I thus see no need for this new constitutional doctrine.8 Decision of this case should turn instead on the answers to two questions: Is the California harmless-error provision consistent with the guarantee of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment? See Palko v. Connecticut, supra. Was its application in this instance by the California Supreme Court a reasonable one or was the rule applied arbitrarily to evade the underlying constitutional mandate of fundamental fairness? These issues will now be considered. II. The California harmless-error rule is incorporated in that State’s constitution. It was first adopted by a vote of the people in 1911 and readopted as part of the revised constitution in 1966. While its language allows reversal only where there has been a “miscarriage of justice,” a long course of judicial decisions has shaped the rule in a manner which cannot be ignored. California courts 5 It is clear enough that this is not the rationale that the Court is employing. The Court would leave California free to apply its harmless-error rule to errors of state law and must thus consider the rule itself consistent with constitutional due process. This leaves the anomalous situation where the impact of a particular piece of evidence is to be assessed by a different “constitutional” standard depending only on whether state law or federal constitutional law barred its admittance. 6 Fahy v. Connecticut, 375 U. S. 85, should not be deemed dispositive on such a far-reaching matter, which was entirely passed over in the Court’s opinion in that case. 247-216 0-67-9 52 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U.S. will not allow a conviction based upon an improperly obtained confession to stand. See, e. g., People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361; People v. Sears, 62 Cal. 2d 737, 401 P. 2d 938. Nor will the fact that sufficient evidence to support the conviction is present absent the tainted evidence preclude a reversal. See, e. g., People v. Patubo, 9 Cal. 2d 537, 71 P. 2d 270; People v. Mahoney, 201 Cal. 618, 258 P. 607. And reversal will be required when the tainted evidence is introduced in intentional violation of constitutional standards. See People v. Sarazzawski, 27 Cal. 2d 7, 161 P. 2d 934. Thus the California rule and the “federal rule’’ today declared applicable to state adjudication are parallel in these special instances7 and their divergence, if any, 7 Some special limitations on harmless error have always been respected by this Court and seem to me essential to the fundamental fairness guaranteed by the Due Process Clauses of the Fifth and Fourteenth Amendments. These limitations stem from what I perceive as two distinct considerations. The first is a recognition that particular types of error have an effect which is so devastating or inherently indeterminate that as a matter of law they cannot reasonably be found harmless. E. g., Payne v. Arkansas, 356 U. S. 560 (confessions); see Fahy v. Connecticut, supra, at 95 (dissenting opinion of Harlan, J.); cf. Bollenbach v. United States, 326 U. S. 607 (independently sufficient evidence). The second is a recognition that certain types of official misbehavior require reversal simply because society cannot tolerate giving final effect to a judgment tainted with such intentional misconduct. E. g., Berger v. United States, 295 U. S. 78 (prosecutorial misconduct). Although they have never been viewed in this light, I would see violations of Gideon v. Wainwright, 372 U. S. 335, as falling in the first category, and violations of Tumey v. Ohio, 273 U. S. 510, as falling in the second. However, as I understand my Brother Stewart’s opinion concurring in the result, he would read all such limitations into the content of the Due Process Clause and limit the application of harmless-error rules with respect to constitutional errors to an undefined category of instances. I think it preferable to resolve these special problems from an analysis of the nature of the error involved rather than by an attempt to discover limitations in CHAPMAN v. CALIFORNIA. 53 18 Harlan, J., dissenting. arises from the general formulation found in the opinions of the California Supreme Court. In People v. Watson, 46 Cal. 2d 818, 299 P. 2d 243, the California Supreme Court undertook a general discussion of the application of the state harmless-error rule. It declared that the “final test” was “the ‘opinion’ of the reviewing court, in the sense of its belief or conviction, as to the effect of the error; and that ordinarily where the result appears just, and it further appears that such result would have been reached if the error had not been committed, a reversal will not be ordered.” Reversal would be required only when “it is reasonably probable that a result more favorable to the appealing party would have been reached,” and this judgment “must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.” 46.Cal. 2d, at 835-837, 299 P. 2d, at 254-255. This formulation may sound somewhat different from that announced today, but on closer analysis the distinction between probability and possibility becomes essentially esoteric. In fact, California courts have at times equated the California standard with the standard utilized by this Court in Fahy v. Connecticut, supra. See, e. g., People v. Jacobson, 63 Cal. 2d 319, 331, 405 P. 2d 555, 563. Similarly, members of this Court have used a variety of verbal formulae in deciding questions of harmless error in federal cases, ranging from today’s “reasonable doubt” standard to the ability to “say with fair assurance . . . that the jury was not substantially swayed .. . .” Fiswick v. United States, 329 U. S. 211, 218. And the circuit courts have been equally varied in their expres- the policy underlying the substantive constitutional provisions. The latter course seems to me to blur analysis and lead to distinction by fiat among equally specific constitutional guarantees. 54 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U.S. sions. See United States v. Brown, 79 F. 2d 321; United States v. Feinberg, 140 F. 2d 592; United States v. McMaster, 343 F. 2d 176. Against this background the California rule can hardly be said to be out of keeping with fundamental fairness, and I see no reason for striking it down on its face as a violation of the guarantee of “due process.” 8 III. A summary of the evidence introduced against the petitioners and the events of the trial will make it apparent that the application of the California rule in this case was not an unreasonable one. California courts have not hesitated to declare that comment has caused a miscarriage of justice when that conclusion has been warranted by the circumstances, see, e. g., People v. Keller, 234 Cal. App. 2d 395, 44 Cal. Rptr. 432; People v. Sigal, 235 Cal. App. 2d 449, 45 Cal. Rptr. 481, but the posture of this case minimized the possible impact of the comment. Petitioners were tried for the murder of a night club bartender in the course of a robbery of the club. The State established that petitioners were the last customers remaining in the club on the night of the murder. Three people with descriptions matching those of Chapman, Teale, and the victim were seen leaving the club together. The club had been ransacked and its condition indicated that the victim had been forced out of it. He was later shot from close range with a .22-caliber weapon and left beside a country road. It was shown that Chapman had purchased a similar weapon five days before the murder and this weapon was in Teale’s possession when he was arrested. Blood matching the type of the victim was found on the floormat of the vehicle in which Chapman and Teale had been traveling. Other scientific testimony 8 The rule was upheld by the Ninth Circuit in Sampsell v. Cali-jornia, 191 F. 2d 721, against an attack on its constitutionality. CHAPMAN v. CALIFORNIA. 55 18 Harlan, J., dissenting. established that the victim had been in petitioners’ car. Blood (untypable) was found on Chapman’s clothes, and blood matching the victim’s was found on her shoes. Similar evidence connected Teale with the murder. After his arrest Teale made admissions, amounting almost to a full confession, to a fellow prisoner and these were introduced against him. The jury was cautioned to disregard them as against Chapman. Petitioners pleaded not guilty, but offered no defense on the merits. The only defense witness was a Dr. Sheuerman who was called by Chapman in an effort to establish a defense of lack of capacity to form the requisite intent because of “disassociative reaction.” The prosecutor’s comment on petitioners’ failure to explain away or challenge the evidence presented against them was admittedly extensive.9 The California Supreme Court found it harmless error for a number of reasons. First the court noted the convincing and unchallenged evidence presented by the State. It next observed that the jurors were certain to take notice of petitioners’ silence whether or not there was comment since the evidence itself cried for an explanation. I think this point crucial, since it seems to me that this Court has confused the impact of petitioners’ silence on the jury with the impact of the prosecution’s comment upon that silence. The added impact of that comment would seem marginal in a case of this type where the jury must inevitably look to petitioners for an explanation of the innuendo of the real evidence and in Teale’s case of his damaging admissions. Finally the California Supreme Court noted that Chapman, against whom the 9 The decision in Griffin v. California, 380 U. S. 609, was not announced until after the trial of the case. Hence the trial was conducted according to what was, at the time, constitutional California law. No implication of prosecutorial misconduct can be drawn from these circumstances. 56 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U.S. evidence was less strong, had keyed her defense to evidence of her mental defect, a subject upon which the comment had not touched. From this discriminating analysis it was concluded that another result was not “reasonably probable” absent the erroneous comments. I cannot see how this resolution can be thought other than a reasonable, and therefore constitutional, application of the California harmless-error rule. IV. When we consider how little is empirically known about the workings of a jury, see Kalven & Zeisel, The American Jury, passim, it seems to me highly inappropriate for this Court to presume to take upon itself the power to pass directly on the correctness of impact evaluations coming from 50 different jurisdictions. Juries must invariably react differently to particular items of evidence because of local predispositions and experience factors. The state courts, manned by local judges aware of and in touch with the special factors affecting local criminal trials, seem the best, and the constitutionally required, final authority for ruling on the effect of the admission of inadmissible evidence in state criminal proceedings, absent the application of a fundamentally unfair rule, or any unreasonable application of a proper rule manifesting a purpose to defeat federal constitutional rights. Once it appears that neither of these factors is present in a state harmless-constitutional-error decision, federal judicial responsibility should be at an end. This decision, however, encompasses much more. It imposes on this Court, in cases coming here directly from state courts, and on the lower federal courts, in cases arising on habeas corpus, the duty of determining for themselves whether a constitutional error was harmless. In all but insubstantial instances, this will entail a de novo assessment of the entire state trial record. CHAPMAN v. CALIFORNIA. 57 18 Harlan, J., dissenting. For one who believes that among the constitutional values which contribute to the preservation of our free society none ranks higher than the principles of federalism, and that this Court’s responsibility for keeping such principles intact is no less than its responsibility for maintaining particular constitutional rights, the doctrine announced today is a most disturbing one. It cuts sharply into the finality of state criminal processes; it bids fair to place an unnecessary substantial burden of work on the federal courts; and it opens the door to further excursions by the federal judiciary into state judicial domains. I venture to hope that as time goes on this new doctrine, even in its present manifestation, will be found to have been strictly contained, still more that it will not be pushed to its logical extremes. I respectfully dissent. 58 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. COOPER v. CALIFORNIA. CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. No. 103. Argued December 8, 1966.—Decided February 20, 1967. Petitioner was convicted of a narcotics violation in a California state court partly through evidence which the police seized in a warrantless search of his car a week after his arrest. Pending forfeiture proceedings the car had been impounded “as evidence” pursuant to a statutory provision for the seizure and forfeiture of vehicles used in violation of the narcotics laws. The state appellate court, in a decision which the supreme court declined to review, held the search and seizure unconstitutional under Preston v. United States, 376 U. S. 364, but held the evidentiary error harmless under the State Constitution’s harmless-error provision. Held: Under the circumstances of this case, the police did not violate the Fourth Amendment by making a search, closely related to the reason petitioner was arrested, of a car which they validly held for use as evidence in a forfeiture proceeding. Preston, supra, distinguished. Pp. 59-62. 234 Cal. App. 2d 587, 44 Cal. Rptr. 483, affirmed. Michael Traynor, by appointment of the Court, 384 U. S. 948, argued the cause and filed briefs for petitioner. Albert W. Harris, Jr., Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and Edward P. O’Brien, Deputy Attorney General. Mr. Justice Black delivered the opinion of the Court. Petitioner was convicted in a California state court of selling heroin to a police informer. The conviction rested in part on the introduction in evidence of a small piece of a brown paper sack seized by police without a warrant from the glove compartment of an automobile which police, upon petitioner’s arrest, had impounded and were holding in a garage. The search occurred a week after the arrest of petitioner. Petitioner appealed his convic- COOPER v. CALIFORNIA. 59 58 Opinion of the Court. tion to the California District Court of Appeal which, considering itself bound by our holding and opinion in Preston v. United States, 376 U. S. 364, held that the search and seizure violated the Fourth Amendment’s ban of unreasonable searches and seizures. That court went on, however, to determine that this was harmless error under Art. VI, § 4^, of California’s Constitution which provides that judgments should not be set aside or reversed unless the court is of the opinion that the error “resulted in a miscarriage of justice.” 234 Cal. App. 2d 587, 44 Cal. Rptr. 483. The California Supreme Court declined to hear the case. We granted certiorari along with Chapman v. California, ante, p. 18, to consider whether the California harmless-error constitutional provision could be used in this way to ignore the alleged federal constitutional error. 384 U. S. 904. We have today passed upon the question in Chapman, but do not reach it in this case because we are satisfied that the lower court erroneously decided that our Preston case required that this search be held an unreasonable one within the meaning of the Fourth Amendment. We made it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property. 376 U. S., at 366-367. In Preston the search was sought to be justified primarily on the ground that it was incidental to and part of a lawful arrest. There we said that “[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Id., at 367. In the Preston case, it was alternatively argued that the warrantless 60 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. search, after the arrest was over and while Preston’s car was being held for him by the police, was justified because the officers had probable cause to believe the car was stolen. But the police arrested Preston for vagrancy, not theft, and no claim was made that the police had authority to hold his car on that charge. The search was therefore to be treated as though his car was in his own or his agent’s possession, safe from intrusions by the police or anyone else. The situation involving petitioner’s car is quite different. Here, California’s Attorney General concedes that the search was not incident to an arrest. It is argued, however, that the search was reasonable on other grounds. Section 11611 of the California Health & Safety Code provides that any officer making an arrest for a narcotics violation shall seize and deliver to the State Division of Narcotic Enforcement any vehicle used to store, conceal, transport, sell or facilitate the possession of narcotics, such vehicle “to be held as evidence until a forfeiture has been declared or a release ordered.” 1 (Emphasis supplied.) Petitioner’s vehicle, which evidence showed had been used to carry on his narcotics possession and transportation, was impounded by the officers and their duty required that it be kept “as evidence” until forfeiture proceedings were carried to a conclusion. The lower court concluded, as a matter of state law, that the state forfeiture statute did not by “clear and express language” 1 Cal. Health & Safety Code §11610 provides: “The interest of any registered owner of a vehicle used to unlawfully transport or facilitate the unlawful transportation of any narcotic, or in which any narcotic is unlawfully kept, deposited, or concealed or which is used to facilitate the unlawful keeping, depositing or concealment of any narcotic, or in which any narcotic is unlawfully possessed by an occupant thereof or which is used to facilitate the unlawful possession of any narcotic by an occupant thereof, shall be forfeited to the State.” COOPER v. CALIFORNIA. 61 58 Opinion of the Court. authorize the officers to search petitioner’s car. 234 Cal. App. 2d, at 598, 44 Cal. Rptr., at 491. But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. While it is true, as the lower court said, that “lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,” ibid., the reason for and nature of the custody may constitutionally justify the search. Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston’s convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston’s car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car. This case is not Preston, nor is it controlled by it. Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car—whether the State had “legal title” to it or not— was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own 62 OCTOBER TERM, 1966. Douglas, J., dissenting. 386 U.S. protection, to search it. It is no answer to say that the police could have obtained a search warrant, for “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” United States v. Rabinowitz, 339 U. S. 56, 66. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding. Our holding, of course, does not affect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. And when such state standards alone have been violated, the State is free, without review by us, to apply its own state harmless-error rule to such errors of state law. There being no federal constitutional error here, there is no need for us to determine whether the lower court properly applied its state harmless-error rule? Affirmed. Mr. Justice Douglas, with whom The Chief Justice, Mr. Justice Brennan and Mr. Justice Fortas concur, dissenting. When petitioner was arrested, his auto was seized by officers, pursuant to the California Health & Safety Code, § 11611. That section authorizes a state officer making an arrest for violation of the narcotics laws to seize a “vehicle used to unlawfully transport any narcotic or to facilitate the unlawful transportation of any narcotic, or in which any narcotic is unlawfully kept,” and directs the officer to deliver the vehicle to the Division of Narcotic Enforcement “to be held as evidence until 2 Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit. COOPER v. CALIFORNIA. 63 58 Douglas, J., dissenting. a forfeiture has been declared or a release ordered.” About a week after petitioner’s arrest, a state agent searched the car, which was stored at a towing service, and discovered a piece of brown paper which appeared to have been torn from a grocery bag. This piece of paper was introduced at the trial, along with two bundles of heroin, which petitioner allegedly sold an informer, and the brown paper in which the heroin had been wrapped.1 Petitioner was indicted and convicted of selling heroin. A judgment of forfeiture of petitioner’s car was entered the day after the termination of his trial. The California District Court of Appeal held that the piece of paper bag was the product of an illegal search, 234 Cal. App. 2d 587, 44 Cal. Rptr. 483. First, the state court held that the State could not rely on the subsequent forfeiture to justify the search. It realistically noted that the State’s title could not relate back to the time of the seizure until after a judicial declaration of forfeiture. Since the forfeiture judgment was not entered until after petitioner’s trial, the State could not rely on it to justify the search. Id., at 596-597, 44 Cal. Rptr., at 489^190. Second, the court held that although the automobile was in the lawful custody of the officers at the time of the search, § 11611 of the Health & Safety Code did not authorize the officers to search the car. Id., at 597, 44 Cal. Rptr., at 490. Since the search was not pursuant to a warrant, and since it was not incidental to petitioner’s arrest, it was illegal. Hence the fact that the car was being held “as evidence” did not as a matter of state law give the officers more dominion over it than the officers in Preston v. 1 About four months after the arrest, another agent searched the car and found a marijuana seed, which was introduced at trial. There is no objection to this evidence since there was no jury and the trial judge indicated that the marijuana seed was irrelevant to the charge for which petitioner was being tried. 64 OCTOBER TERM, 1966. Douglas, J., dissenting. 386 U. S. United States, 376 U. S. 364, had over the car in their custody. In Preston, petitioner and others were arrested for vagrancy after they failed to give an acceptable explanation of their presence in a parked car late at night. They were taken to the police station, and the car was taken first to the station and then to a garage. After the men were booked, police officers went to the garage, searched the car without a warrant, and found evidence incriminating petitioner and the others of conspiracy to rob a federally insured bank. In the instant case petitioner was arrested, his car taken to a garage and searched a week after his arrest, likewise without a warrant. As in Preston, the search cannot be justified as incidental to a lawful arrest. Nor can this case be distinguished from Preston on the ground that one car was lawfully in police custody and the other not. In Preston, the fact that the car was in lawful police custody did not legalize the search without a warrant. Since the California court held that the Health & Safety Code did not authorize a search of a car impounded under its provisions, the case is on all fours with Preston so far as police custody is concerned. If custody of the car is relevant at all, it militates against the reasonableness of the search. As the Court said in Preston: “[S]ince the men were under arrest at the police station and the car was in police custody at a garage, [there was no] danger that the car would be moved out of the locality or jurisdiction.” 376 U. 8., at 368. Moreover, the claim that the search was not illegal because the car had been forfeited to the State is foreclosed by the state court’s holding that, under the circumstances, the forfeiture could not relate back to the date of the seizure. The state court’s interpretation of its own statute will not be upset by this Court. Guaranty Trust Co. v. Blodgett, 287 U. S. 509. COOPER v. CALIFORNIA. 65 58 Douglas, J., dissenting. To repeat, this case is on all fours with Preston. For in each the search was of a car “validly” held by officers, to use the Court’s expression. Preston, of course, was a federal case, while this is a state case. But the Fourth Amendment with all its sanctions applies to the States as well as to the Federal Government. Mapp v. Ohio, 367 U. S. 643. I see only two ways to explain the Court’s opinion. One is that it overrules Preston sub silentio. There are those who do not like Preston. I think, however, it states a healthy rule, protecting the zone of privacy of the individual as prescribed by the Fourth Amendment. These days police often take possession of cars, towing them away when improperly parked. Those cars are “validly” held by the police. Yet if they can be searched without a warrant, the precincts of the individual are invaded and the barriers to privacy breached. Unless the search is incident to an arrest, I would insist that the police obtain a warrant to search a man’s car just as they must do when they search his home. If the present decision does not overrule Preston, it can perhaps be rationalized on one other ground. There is the view that when the Bill of Rights is applied to the States by reason of the Fourteenth Amendment, a watered-down version is used. In that view “due process” qualifies all provisions of the Bill of Rights. Today’s decision is perhaps explicable in those terms. But I also reject that view. “Unreasonable searches and seizures” as used in the Fourth Amendment, “selfincrimination” as used with reference to the Fifth, “freedom of speech” as used in the First, and the like, mean the same in a state as in a federal case.2 2 That view was expressly approved by the Court in Malloy v. Hogan, 378 U. S. 1, 10-11. 66 OCTOBER TERM, 1966. Syllabus. 386 U. S. GILES ET AL. V. MARYLAND. CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. No. 27. Argued October 12, 1966.—Decided February 20, 1967. Petitioners, who were convicted of rape and given death sentences which were later commuted to life imprisonment, brought this proceeding under Maryland’s Post-Conviction Procedure Act alleging that they were denied due process of law by the prosecution’s suppression of evidence favorable to them and by knowing use of perjured testimony. The evidence allegedly suppressed concerned (1) a proceeding in Prince George’s County Juvenile Court pending prior to the alleged rape, in which a caseworker recommended probation for the complaining witness because she was beyond parental control, (2) an occurrence five weeks after the alleged rape, in which the girl had sexual relations with two men at a party and that night took an overdose of pills resulting in hospitalization in a psychiatric ward for nine days as an attempted suicide, and (3) a hearing in the Montgomery County Juvenile Court on the day of her release from the psychiatric ward which resulted in her commitment to a School for Girls. The Montgomery County Circuit Court, ordered a new trial, holding that the proof did establish suppression of evidence which, although not in bad faith, constituted a denial of due process. The Maryland Court of Appeals reversed, holding that “for the nondisclosure of evidence to amount to a denial of due process it must be such as is material and capable of clearing or tending to clear the accused of guilt or of substantially affecting the punishment to be imposed in addition to being such as could reasonably be considered admissible and useful to the defense.” Held: The judgment is vacated and the case is remanded to the Maryland Court of Appeals for further proceedings. Pp. 67-102. 239 Md. 458, 212 A. 2d 101, vacated and remanded. Mr. Justice Brennan, joined by The Chief Justice and Mr. Justice Douglas, without reaching the question of the extent of the prosecution’s duty of disclosure, concluded that evidence of two police reports which were submitted to this Court but were not considered by the courts below in the post-conviction proceeding justifies a remand to the Court of Appeals for it to consider whether an inquiry should be ordered to determine the applica GILES v. MARYLAND. 67 66 Opinion of Brennan, J. bility of the rule of Napue v. Illinois, 360 U. S. 264, where it was held that a conviction must fall when the prosecution, “although not soliciting false evidence, allows it to go uncorrected when it appears,” even though the testimony may be relevant only to the credibility of a witness. Pp. 73-82. Mr. Justice White concluded that the case should be remanded to the Court of Appeals to obtain its views as to whether petitioners have been afforded a full and fair hearing on the issue of suppression of evidence concerning the mental condition of the complaining witness and the interrelated issues of her consent and credibility. Pp. 82-96. Mr. Justice Fortas concluded that the judgment should be vacated because the State did not carry out its obligation to disclose all information which was specific and concrete, which was not merely cumulative or embellishing, and which might have exonerated the defendants or been of material importance to the defense. Pp. 96-102. Joseph Forer argued the cause for petitioners. With him on the briefs was Hal Witt. Donald Needle, Assistant Attorney General of Maryland, and Robert C. Murphy, Deputy Attorney General, argued the cause for respondent. With them on the brief was Thomas B. Finan, Attorney General. Mr. Justice Brennan announced the judgment of the Court and an opinion in which The Chief Justice and Mr. Justice Douglas join. In December 1961, petitioners, who are brothers, were convicted of rape of a 16-year-old girl after trial by jury in the Circuit Court for Montgomery County, Maryland. In May 1964, petitioners brought this proceeding under Maryland’s Post-Conviction Procedure Act, Md. Ann. Code Art. 27, § 645A (1966 Supp.).1 Their peti- 1 Petitioners had previously appealed unsuccessfully from the convictions, Giles v. State, 229 Md. 370, 183 A. 2d 359, appeal dismissed, 372 U. S. 767, and from the denial of a new trial, Giles v. State, 231 Md. 387, 190 A. 2d 627. 247-216 0 - 67 - 10 68 OCTOBER TERM, 1966. Opinion of Brennan, J. 386 U. S. tion alleged that the prosecution denied them due process of law in violation of the Fourteenth Amendment by suppressing evidence favorable to them, and by the knowing use of perjured testimony against them. An evidentiary hearing was had before Montgomery Circuit Judge Moorman who, in an unreported opinion, ruled that the proofs did not sustain the allegation of bad faith or knowing use of perjured testimony by the prosecution, but did establish the suppression of evidence which, although not in bad faith, constituted a denial of due process. He therefore ordered a new trial. The Court of Appeals of Maryland, sitting en banc, reversed, two judges dissenting. State v. Giles, 239 Md. 458, 212 A. 2d 101. We granted certiorari. 383 U. S. 941. We would vacate the judgment of the Maryland Court of Appeals and remand to that court for further proceedings. The rape allegedly occurred about midnight, July 20, 1961, near Rocky Gorge, a swimming and fishing spot on the Patuxent River, in a secluded, wooded area of Montgomery County. The petitioners swam and fished there from early evening with Joseph Johnson 2 and John Bowie. The prosecutrix came there by automobile shortly before midnight with her date, Stewart Foster, and two other young men. Their car ran out of gasoline near Bowie’s parked car. The girl and Foster remained in the car while the other young men went for gasoline. The girl and Foster were the State’s principal witnesses. They testified that they had been sitting in the back seat of the car for some 15 minutes after the two young men left when a noise near Bowie’s car attracted 2 Johnson was tried and convicted of rape of the girl at a separate trial in the Circuit Court for Anne Arundel County. His application for post-conviction relief is being held in abeyance pending disposition of this case. GILES v. MARYLAND. 69 66 Opinion of Brennan, J. their attention. They saw petitioners and their companions loading something into Bowie’s car. Bowie drove away and petitioners and Johnson approached the stranded car. Foster rolled up the windows and locked the doors. The girl and Foster testified that the three demanded his money and his girl and smashed the car windows with rocks to open the car doors. Foster unlocked the door on his side and told the girl to get out her side and run while he held off the three. Foster was knocked unconscious when he left the car. The girl ran into the woods followed by John Giles who caught up with her when she tripped and fell. Petitioner James Giles and Johnson joined them a few minutes later. She testified that, when one of the trio attempted to remove her clothes, she disrobed herself below the waist and submitted to all three youths without resistance because of fear. Both petitioners testified in their own defense. Their version of the events was that the three young men approached the car and asked Foster for a cigarette, that Foster responded with epithets and reached down as if to pick up a gun or other weapon, and that they broke the windows to prevent his getting it. They said that they did not know it was a girl who fled into the woods. Petitioner John Giles testified that when he caught up with her, she offered to submit to him if he would help her escape from the others but that he declined. Petitioner James Giles testified that when he and Johnson joined the couple, the girl told the three that she had had relations with 16 or 17 boys that week and two or three more wouldn’t make any difference, that she disrobed herself and invited all three of them to have relations w’ith her, and that he and Johnson, but not petitioner John Giles, had relations with her. Both petitioners testified that the girl said that if they were 70 OCTOBER TERM, 1966. Opinion of Brennan, J. 386 U. S. caught in the woods she would have to say she had been raped because “she was on a year’s probation” and “was in trouble.” The credibility of the witnesses was thus important to the outcome of the case. The Court of Appeals recognized this in affirming the convictions on direct review: “There was some evidence tending to indicate consent on the part of the prosecuting witness, which, if believed by the trier of facts, would have been a complete defense to the charge of rape.” Giles v. State, 229 Md., at 381, 183 A. 2d, at 364.3 Credibility was also critical on the issue whether, in any event, petitioner John Giles had relations with her, as she testified, or had not, as the petitioners testified. The evidence allegedly suppressed consisted first, of the fact that in a proceeding pending on June 20 in the Juvenile Court for Prince George’s County, a caseworker had recommended probation for the girl because she was beyond parental control. Also allegedly suppressed were the facts concerning an occurrence in Prince George’s County at a party on the night of August 26, 1961, five weeks after the alleged rape, and over three months before the trial. The girl had sexual relations with two men at the party, and later that night took an overdose of pills and was hospitalized in a psychiatric ward of Prince George’s General Hospital for nine days as an attempted suicide. She told a friend who visited her at the hospital that the two men had raped her. The friend told her parents who reported this to Montgomery County Police Lieutenant Whalen, head of the investigation for the State’s Attorney into the charge against 3 “With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character.” Hazel v. State, 221 Md. 464, 469, 157 A. 2d 922, 925. GILES v. MARYLAND. 71 66 Opinion of Brennan, J. petitioners. Lieutenant Whalen advised the mother that he had no jurisdiction of Prince George’s County offenses, after which the girl’s father filed a formal charge of rape against the two men with the Prince George’s County authorities. A Prince George’s County police officer, Sergeant Wheeler, interviewed the girl at the hospital. She refused to say she had been raped. She told the officer she had previously had relations with one of the men and also that in the previous two years she had had sexual relations with numerous boys and men, some of whom she did not know. Finally, the prosecution allegedly suppressed facts concerning a hearing conducted in the Montgomery County Juvenile Court on September 5, 1961, apparently the day after the girl’s release from her nine-day confinement in the psychiatric ward at Prince George’s General Hospital, and three months before the trial. The hearing resulted in the commitment of the girl to the Montrose School for Girls where she remained for some time. Lieutenant Whalen testified that he had arranged this hearing with the Montgomery County Juvenile Court authorities, although the girl was a resident of Prince George’s County. He testified that the girl’s mother had complained to him that “the boys in Prince George’s County were harassing the girl, driving back and forth past the house all hours,” and that he arranged the proceeding “to place the girl in some place for protective custody.” The Montgomery Juvenile Court record discloses, however, that the hearing also inquired into the necessity for the girl’s confinement as a juvenile “out of parental control and living in circumstances endangering her wellbeing.” The girl testified at the hearing that she had taken pills because she felt that “she wanted to die and there was nothing to live for.” The petitioners’ contention was that all of this evidence tended to support their testimony and discredit 72 OCTOBER TERM, 1966. Opinion of Brennan, J. 386 U. S. that of the girl and Foster and might, therefore, have produced an acquittal or, at least, a reduction of penalty.4 They also argued that knowledge of it by the defense would have provided valuable leads to evidence supporting a conclusion that the girl testified falsely in denying that she consented to relations. The petitioners were represented at the trial by appointed counsel.5 He testified at the post-conviction proceeding that he knew nothing before the trial of the incidents of August 26, the girl’s suicide attempt, her confinement in the hospital, the psychiatrist’s diagnosis of her mental illness, or of her commitment to the Montrose School for Girls. He testified that he had tried, before August 26, to interview the girl at her home but that her mother told him “she talked to Lt. Whalen and he told her not to discuss the case with us.” He also testified that, based on petitioners’ story to him that the girl had told them she was on probation, he inquired of the Juvenile Courts of both Prince George’s County and Montgomery County whether there were any proceedings in those courts concerning the girl and was told records of such proceedings were not released. Judge Moorman found “that the State withheld from the defense and suppressed both the evidence concerning 4 If the jury which finds an accused guilty of rape adds to its verdict the words “without capital punishment,” the court may not impose the death penalty but only imprisonment for not exceeding 20 years in the penitentiary. Md. Ann. Code Art. 27, § 463 (1957). If the jury does not add such words to its verdict, the court, at its discretion, may impose the death sentence, a life sentence, or a sentence in the penitentiary for not less than 18 months nor more than 21 years. Md. Ann. Code Art. 27, §461 (1957). The jury did not add to its verdict the words “without capital punishment,” and the trial judge imposed death sentences. Governor Tawes subsequently commuted the sentences to life imprisonment. 5 Other counsel are representing them in the post-conviction proceedings. GILES v. MARYLAND. 73 66 Opinion of Brennan, J. the second rape complaint of the prosecutrix and the evidence relative to her alleged attempted suicide and emotional disturbance.” He ordered a new trial, despite the absence of a pretrial request by defense counsel for disclosure of the evidence suppressed. See Brady v. Maryland, 373 U. S. 83, 87. The Court of Appeals read Judge Moorman’s opinion to hold that nondisclosure of evidence by the prosecution denies the accused due process if the evidence could reasonably be considered admissible and useful to the defense. The Court of Appeals viewed that formulation to be incomplete, holding that “for the nondisclosure of evidence to amount to a denial of due process it must be such as is material and capable of clearing or tending to clear the accused of guilt or of substantially affecting the punishment to be imposed in addition to being such as could reasonably be considered admissible and useful to the defense.” 239 Md., at 469-470, 212 A. 2d, at 108. The court found the evidence allegedly suppressed did not meet that test and held that in any event “the failure of the prosecution to disclose the information relating to the alleged rape of August 26th and the subsequent suicidal attempt was not prejudicial to . . . [petitioners] and did not therefore warrant the granting of a new trial on the basis of the denial of due process.” 239 Md., at 471, 212 A. 2d, at 109. The facts found by Judge Moorman do not include elements present in earlier decisions which determined that the suppression of evidence constituted the denial of due process of law. See Mooney v. Holohan, 294 U. S. 103; Pyle v. Kansas, 317 U. S. 213; Alcorta v. Texas, 355 U. S. 28; Napue v. Illinois, 360 U. S. 264; Miller v. Pate, ante, p. 1; compare United States ex rel. Almeida v. Baldi, 195 F. 2d 815; United States ex rel. Thompson v. Dye, 221 F. 2d 763; Barbee v. Warden, 331 F. 2d 842. Thus the case presents the broad ques- 74 OCTOBER TERM, 1966. Opinion of Brennan, J. 386 U. S. tions whether the prosecution’s constitutional duty to disclose extends to all evidence admissible and useful to the defense, and the degree of prejudice which must be shown to make necessary a new trial. We find, however, that it is unnecessary, and therefore inappropriate, to examine those questions. In Napue v. Illinois, supra, 360 U. S., at 269, we held that a conviction must fall under the Fourteenth Amendment when the prosecution “although not soliciting false evidence, allows it to go uncorrected when it appears,” even though the testimony may be relevant only to the credibility of a witness. We now have evidence before us, which neither Judge Moorman nor the Court of Appeals considered, which in our view justifies a remand to the Court of Appeals for its consideration whether that court should order an inquiry to determine whether such a situation arose at petitioners’ trial. The evidence consists of two police reports, not part of the record, which came to our attention when the State at our request supplied the material considered by the trial judge in imposing sentence. On the morning after the alleged rape, July 21, 1961, Montgomery County police officers, including Lieutenant Whalen and Detective Collins, conducted interviews with the girl and Foster. The interviews were written up in one of the police reports. In an effort to prove the allegations of the petition, defense counsel moved during the post-conviction proceedings that Lieutenant Whalen be directed to produce the report for inspection. The motion was denied; Judge Moorman ruled the report was a police “work product” and therefore not producible under Maryland’s Rules of Procedure. There can be little doubt that the defense might have made effective use of the report at the trial or in obtaining further evidence. In the first place, the report attributes statements to the girl and Foster that appear inconsistent with their trial testimony. The report quotes GILES v. MARYLAND. 75 66 Opinion of Brennan, J. both as stating they were engaged in sexual relations when they were distracted by the noise at Bowie’s car, and that the girl dressed before petitioners and Johnson approached. They testified at trial, however, that they were merely “sitting” in the back seat of the car from the time their companions left until their attention was drawn to the presence of the four men at Bowie’s car, and Foster buttressed this testimony on cross-examination by answering “No” to the question whether he “didn’t take her out there to have sexual relations with her, yourself . . . ?” Finally, neither Lieutenant Whalen nor Detective Collins mentioned, in their summaries at trial of what each person involved in the incident had told them, the fact that the girl and Foster had stated they were engaged in sexual relations when they heard the three men. The testimony of the girl and Foster is open to the construction that these key witnesses deliberately concealed from the judge, jury, and defense counsel evidence of the girl’s promiscuity.6 While under the law of Maryland specific acts of misconduct are inadmissible to impeach a witness’ credibility, Rau v. State, 133 Md. 613, 6 The dissenting judges in the Court of Appeals were of the view that the extensive evidence of the girl’s reputation for unchastity presented in the post-conviction record, added to the evidence of her emotional instability, might support a defense that she suffered from an uncontrollable weakness that petitioners might reasonably have mistaken for consent. The majority apparently were also of the view that under some circumstances suppression of evidence pertaining to a witness’ mental condition might amount to a deprivation of due process. If this is so, the conclusion of the majority that no such evidence existed or was suppressed in this case is open to question, since the post-conviction court prevented all attempts of counsel to introduce evidence of the girl’s condition (including a psychiatric diagnosis and evidence presented at a juvenile proceeding) or of the fact that Montgomery County police officials knew of such evidence. If a new hearing is held in the state courts, an inquiry into these matters might be deemed appropriate. 76 OCTOBER TERM, 1966. Opinion of Brennan, J. 386 U. S. 105 A. 867, and specific acts of intercourse are inadmissible to establish the prosecutrix’ consent, Humphreys n. State, 227 Md. 115, 175 A. 2d 777, prior inconsistent statements and evidence of general reputation for unchastity are admissible to impeach a witness’ credibility, see Giles v. State, 229 Md. 370, 183 A. 2d 359. And to the extent credibility could have been effectively attacked in this case, resolution of the issue of consent necessarily would have been affected since it turned wholly on credibility. The report could also have been used in connection with an issue which has been in this case from its inception. At the original trial, counsel sought in numerous ways to establish that John Giles had not had intercourse with the victim. At the trial the girl said all three had raped her. She admitted, however, that she had testified at the preliminary hearing and had told the police immediately after being attacked that only two of the three had intercourse with her. Detective Collins testified, on the other hand, that he “questioned the girl at the station and she said all three of the boys had intercourse with her.” With specific reference to John Giles, Collins stated that the girl “was asked if she knew anybody in this line-up and she walked over and pointed to the defendant, John Giles, and stated to us, in his presence, that he was the first . . . that had intercourse with her . . . .” Lieutenant Whalen denied that the girl had told him “that only two of these boys had intercourse with her on that evening . . . .” Counsel at the post-conviction proceedings continued to attempt to prove John Giles was innocent of rape. He introduced newspaper articles from the Washington Evening Star and the Washington Post attributing to Lieutenant Whalen a story that the girl had said only two men had raped her. When Whalen said these stories were incorrect, counsel asked: “would your interview GILES v. MARYLAND. 77 66 Opinion of Brennan, J. report of this interview show what . . . [she] said about the number of men who attacked her?” Whalen answered that it would. Counsel thereupon moved for the production of the report, but the court refused to allow him to see it because of the work-product rule. Counsel also asked the girl how many men she originally claimed had raped her and, unlike her testimony at trial, she said she had told the police all three had raped her. In contrast to much of this testimony the police report states that, both when interviewed and at a police lineup later that day, the girl identified petitioner John Giles not as the first to have intercourse with her, as Detective Collins testified, but as “the one that tried to have intercourse with her but was unable to do so,” “the man that tried to rape her . . . .” The contents of the report thus go, not only to the credibility of the State’s witnesses, but also to the issue at trial whether John Giles had raped the girl. Yet nothing appears in the trial transcript to show what, if any, action was taken by the prosecution to correct or explain the inconsistencies between the testimony of the state witnesses and the report.7 Only the most strained reading of the materials before us can explain away the questions raised by the report without the aid of further inquiry. A second report, filed by Sergeant Duvall who was first at the scene of the incident, far from proves that John Giles penetrated the girl. His report recites that the girl “stated that two of the . . . males had entered her and that the third had tried but gave up when he saw lights coming.” 7 The record before us affirmatively demonstrates that both Detective Collins and Mr. Kardy, who supervised the prosecution, had read the report before trial. Collins testified at the trial that he wrote up the report and had read it the night before. At the postconviction hearing Kardy was asked: “[Y]ou saw the police report prior to trial, of course? A. Yes.” 78 OCTOBER TERM, 1966. Opinion of Brennan, J. 386 U. S. While this statement would seem to indicate that John Giles, who was the first to attempt intercourse, penetrated the girl, it must be read in light of the fact that Duvall’s report is a two-page, third-person summary, representing what had transpired during the tense and hectic moments immediately after the incident, when the girl was nearly hysterical according to police testimony. The other report, in contrast, is 22 pages long, was put together over at least a three-day period, and contains extensive quotations of the girl’s story taken down in the relative calm of the police station after the girl had been treated and fed, including her reaction in personally identifying John Giles as the one who failed to have intercourse. Moreover, Duvall’s report does state that the girl told him that only two of the men entered her, and therefore provides no explanation for the officers’ testimony that she had said all three had entered her. In fact, far from explaining the police testimony, the report raises a serious question as to the accuracy of Sergeant Duvall’s testimony at the original trial that he never discussed with the girl the number of boys who had had intercourse with her.8 The State attempted in the post-conviction proceedings to explain the girl’s inconsistent statement at the preliminary hearing by contending that she was unaware of the difference between the meaning of intercourse and emission, which caused her to testify at first that only two of the men had had intercourse with her. The state 8 The testimony was as follows: “Q. Did you have a discussion with this girl about how many boys had had intercourse with her? . . . “A. No. “Q. You say you did not? “A. No, sir. “Q. You never did discuss that with her? “A. No, sir.” GILES v. MARYLAND. 79 66 Opinion of Brennan, J. witness who propounded this theory did not offer it at the original trial, in which he participated, although the girl’s explanation then was that she was confused about the names of the defendants, not about the difference between intercourse and emission.9 And the report reveals no confusion on the latter point. She spoke there of intercourse as a “process,” and at one point stated that the second of the youths “had intercourse for about ten minutes and reached a climax.” 10 11 She said of John Giles, not that he failed to reach a climax, but that he failed to “insert” because he “could not get” an erection. Of course it is possible that she was confused despite this evidence, and that John Giles achieved penetration. But it is not our place to decide these issues, either for or against petitioners; we need only determine that the evidence raises an issue of sufficient substance to justify remanding this case for reconsideration rather than deciding the broader constitutional question.11 Original trial counsel testified at the post-conviction proceeding that he had seen the prosecution’s file before 9“Q. Why are you telling a different story today than the story you told the police immediately after this happened, and the story you told at the preliminary hearing? “A. Because I have thought about it. “Q. What do you mean you have thought about it? “A. Well at the time I was confused—people were giving names, and I had no idea of what the boys’ names were. “Q. Who was given names? “A. After the line-ups; after I had identified all three of the men.” 10 The report recites that she was asked the following questions, apparently by Lieutenant Whalen, and gave the following answers: “Q-W. How many of them had intercourse with you? “A. The bigger one [John] tried first, then the other two. “Q-W. Did any of them have an emission? “A. Yes, the second one and maybe the third.” 11 Certainly the test cannot be, as is suggested, that a remand would be justified only if the evidence presented “necessarily excludes the conclusion that John Giles achieved penetration, however slight.” 80 OCTOBER TERM, 1966. Opinion of Brennan, J. 386 U. S. trial, including the police reports. Since the reports were not produced, it is pure speculation to conclude that trial counsel had in fact seen the reports now before us. And if it were proper to resolve this question against petitioners, the Court of Appeals might nevertheless regard an inquiry to be in order to ascertain trial counsel’s reasons for not making use of the reports in support of the defense he was directing on behalf of petitioners. Finally, the determination of these questions against petitioners would still leave open the question whether the Court of Appeals might regard the situation as one in which the prosecution was under a duty to disclose the discrepancies to the trial judge; the court stated in its opinion that, where there is doubt as to what should be disclosed, “the trial court should decide whether or not a duty to disclose exists.” 239 Md., at 471, 212 A. 2d, at 109. In relying upon material not part of the record as a reason for remand, we follow our practice of noticing supervening matter in order to avoid deciding constitutional questions by allowing state courts to take action which might dispose of the case. See for example, Patterson v. Alabama, 294 U. S. 600; Bell v. Maryland, 378 U. S. 226. We follow this practice under varying circumstances, but the principle behind it has always been the same. This Court has “discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.” Ex parte Royall, 117 U. S. 241, 251. GILES v. MARYLAND. 81 66 Opinion of Brennan, J. It is not for us to direct what the Maryland courts will do in this case. The Court of Appeals may, for all we know, determine that the additional evidence demonstrates prejudice to the degree necessary under its previously applied standard to warrant a new trial. It may remand for a hearing free of the “work product” rule. It may reaffirm its judgment of reversal. Although relief may ultimately be denied, affording the state courts the opportunity to decide in the first instance is a course consistent with comity, cf. 28 U. S. C. § 2254, and a full and fair hearing in the state courts would make unnecessary further evidentiary proceedings in the federal courts. See Townsend v. Sain, 372 U. S. 293. We would remand because of our conclusion that the police reports, considered in the context of the record before us, raise questions sufficient to justify avoiding decision of the broad constitutional issues presented by affording the opportunity to the Maryland Court of Appeals to decide whether a further hearing should be directed. See Henry v. Mississippi, 379 U. S. 443. The truism that our federal system entrusts the States with primary responsibility in the criminal area means more than merely “hands off.” The States are bound by the Constitution’s relevant commands but they are not limited by them. We therefore should not operate upon the assumption—especially inappropriate in Maryland’s case in light of its demonstrated concern to afford post-conviction relief paralleling that which may be afforded by federal courts in habeas corpus proceedings 12— that state courts would not be concerned to reconsider a case in light of evidence such as we have here, particu- 12 See Hunt v. Warden, 335 F. 2d 936, 941-943 (C. A. 4th Cir., 1964); Midgett v. Warden, 329 F. 2d 185 (C. A. 4th Cir., 1964), and the other cases discussed in Note, 40 N. Y. U. L. Rev. 154, 193-195 (1965). 82 OCTOBER TERM, 1966. White, J., concurring in judgment. 38G U. S. larly where the result may avoid unnecessary constitutional adjudication and minimize federal-state tensions. We would therefore vacate the judgment of the Court of Appeals and remand to that court for further proceedings. Mr. Justice White, concurring in the judgment. I concur in the judgment of the Court, although I am unable to join the opinion of my Brother Brennan. In my view, there was no violation of the rule of Napue v. Illinois, 360 U. S. 264. The argument is that at the trial the police officers testified that the complaining witness had said, all along, that three men had raped her, whereas the police reports supplied to the Court after oral argument clearly indicate that the complaining witness had told the officers at one point that only two men had raped her. Although the fact misstated by the police at trial bears primarily upon the credibility of the officers who testified, it might be argued that in addition the false testimony bore some relationship to the credibility of the prosecuting witness and to the question whether both of the petitioners had in fact committed rape. But these issues were not overlooked by petitioners’ counsel at trial, who then confronted the complaining witness with the inconsistency in her allegations. Had petitioners’ counsel been less diligent, the false testimony might rise to the level of a Napue violation.1 1 The fact that petitioners’ counsel at trial had knowledge of the police reports is of course relevant. At the post-conviction hearing the trial counsel, Mr. Prescott, was questioned concerning his knowledge of the police reports. “Q- Mr. Prescott, after your appointment as counsel for the Giles boys in this case, did you come to see me, as State’s Attorney, to discuss the case? “A. I did. “Q. And would you relate to His Honor what that discussion GILES v. MARYLAND. 83 66 White, J., concurring in judgment. Concerning the testimony given by Foster as to why he was with the complaining witness on the evening of the alleged rape there can be no argument under Napue, a point made clear by the opinion of my Brother Harlan. Nevertheless, for the reasons wrhich follow I concur in the judgment remanding the case to the Maryland Court of Appeals for further consideration. Petitioners here were appellees in the Maryland Court of Appeals, having prevailed in the trial court in their post-conviction attempt to win a new trial. In the Maryland appellate court, they sought to sustain the judgment not only on the grounds stated by the Circuit Court—suppression of evidence with respect to an alleged false rape claim and a suicide attempt—but on the additional ground that the State had suppressed other evidence, including evidence with respect to the rape victim’s reputation for promiscuity and evidence with respect to her mental condition. The Maryland Court of Appeals apparently considered it appropriate and important to dispose of these additional suppression claims. With respect to reputation for unchastity the court acknowl- consisted of and what, if anything, I let you see and have in the case? “A. You let me have your entire file as I recall. . . . “Q. And by the entire file, did I let you read the police report in its entirety, sir? “A. You did. “The Court: Mr. Prescott, I understood you to say that Mr. Kardy, while you were preparing for the trial and before trial, let you see his complete file, including the police reports? “The Witness: That is correct, Your Honor. “The Court: And you are satisfied that Mr. Kardy did show you the police reports, which he didn’t have to do? “The Witness: Well, I am not sure he didn’t have to, but he did show them to me, Your Honor.” Transcript of Post-Conviction Hearing, Vol. II, 11, 13. 247-216 0 - 67 - 11 84 OCTOBER TERM, 1966. White, J., concurring in judgment. 386 U.S. edged the admissibility of such evidence where consent is an issue. The court held, however, that the prosecution could not be charged with withholding reputation evidence since the defense itself had ample knowledge of the promiscuous conduct of the prosecuting witness. As to her mental condition, the court cited with approval People v. Bastian, 330 Mich. 457, 47 N. W. 2d 692 (1951), apparently conceding that evidence of “nymphomania”—which the court referred to as a “type of mental illness”—was admissible in a case such as this. But the court held (1) that the prosecution could be charged only with the knowledge that the mother of the victim had at one time taken her to a psychiatrist; (2) that there was nothing in the record to show that the victim was suffering from nymphomania; and (3) that even if she was so afflicted, “there is nothing to show that this made her incompetent as a witness or that she consented to the acts for which the appellees were convicted.” Of course, the court’s ultimate result unavoidably followed from these factual determinations and it would appear that the evidence now in the record is consistent with these conclusions. But this does not end the matter in my view, if the inquiry permitted the petitioners in the trial court was not all that the Maryland law allows or that the constitution requires. And based on the record as it comes here, I am not at all sure that there has been a full airing of the suppression issue or that the petitioners are responsible for the obvious shortcomings in the evidence with respect to the mental condition of the rape victim and the prosecution’s knowledge with respect to this matter. I am sufficiently unsure that I would remand for further consideration by the Maryland Court of Appeals. To set in perspective those parts of the record which concern me, a brief summary of the facts is necessary. GILES v. MARYLAND. 85 66 White, J., concurring in judgment. In chronological order, this case involves the alleged rape by petitioners, a subsequent occasion upon which the complaining witness experienced sexual intercourse with two young men (which led to the so-called false rape claim), a suicide attempt by the complaining witness followed by temporary hospitalization in a psychiatric ward, a juvenile court proceeding as a result of which the complaining witness was sent away from her home, and finally the trial at which the petitioners were convicted. While the complaining witness was hospitalized, she was subjected to a psychiatric examination by Dr. Doudoumopoulis, who related his opinion to Dr. Connor, who in turn spoke with the parents of the complaining witness. In addition, and highly relevant to the issue of suppression, the record of the juvenile court proceedings reflects the fact that Lieutenant Whalen of the Montgomery County Police Department had discussed the matter of confinement of the complaining witness with Dr. Connor and had arranged for and participated in the juvenile court hearing. The following excerpts from the post-conviction hearing transcript are the source of my concern with the record as it comes to us. Dr. Connor testified that he had seen the complaining witness daily during her hospitalization following the suicide attempt. “Q. And on the subsequent days could you tell us what part of the hospital you saw her, which ward? “A. I saw her on A Wing, which is the psychiatric ward. “Q- Did you request Dr. Doudoumopoulis to make a psychiatric evaluation of Miss Roberts? “A. Yes, I did. “Q. And did he report to you his evaluation or diagnosis of her case? “A. Yes, he did. 86 OCTOBER TERM, 1966. White, J., concurring in judgment. 386 U. S. “Q. Did you concur with him? “A. Yes, I did. “Q. Could you tell us what that diagnosis or evaluation was? "Mr. Kardy: Just a minute, doctor. Object, Your Honor. “The Court: Objection sustained.” Subsequently, Dr. Connor, who had not performed the psychiatric examination, was allowed to testify concerning his nonpsychiatric diagnosis of the patient, and his conclusion was “adolescent reaction.” The failure of the hearing to produce, through Dr. Connor, any meaningful testimony regarding the psychiatric condition of the complaining witness might have been presaged by the testimony the same Doctor was allowed to give on deposition2 prior to the post-conviction hearing, the contents of which follow: “Q. Did you see [Joyce Carol Roberts] during the hospitalization? “A. During the hospitalization, yes. “Q. At that time did you have occasion to speak to Lieutenant Whalen of the Montgomery County Police Department about Joyce? “A. I spoke to someone from the Montgomery County Police Department during that period. I don’t know just exactly who it was or the exact date, but I do recall talking to someone about her. “Q. And where did that conversation take place? “A. I believe it was in my office at 4713 Berwyn Road, in College Park. My office was there. “Q. Will you state the substance of that conversation? “Mr. Kardy: I object. 2 The deposition was conducted by the same judge who presided at the post-conviction hearing. GILES v. MARYLAND. 87 66 White, J., concurring in judgment. “The Court: The objection is sustained. “Mr. Witt: Your Honor, we are seeking to find out what information was given to the State about the credibility of this witness. “The Court: He has not testified that he talked to anyone from the State; he said he talked to someone in Montgomery County. “Mr. Witt: Montgomery County Police Department, Your Honor. “The Court: He said, To someone,’ as I heard his answer. “Mr. Witt: Can we have the answer read back? “The Court: Doctor, can you identify the person to whom you talked? “The Witness: No, sir; I cannot. I recall there was someone from the police department. “Mr. Kardy: Of Montgomery County? “The Witness: Of Montgomery County. “The Court: Counsel, do you proffer to show that from that conversation the State’s Attorney had knowledge that there was evidence suppressed which would have been a defense to the crime? “Mr. Witt: Yes, Your Honor. “The Court: What specifically do you proffer to show? “Mr. Witt: We proffer to show that the State had knowledge of this girl’s psychiatric condition at the time. “The Court: What difference would that make? “Mr. Witt: It is under Napue against Illinois. Evidence respecting the credibility of a witness which is in the possession of the State at the time of the trial and which is suppressed by State is a violation of due process. “The Court: I will sustain the objection. 88 OCTOBER TERM, 1966. White, J., concurring in judgment. 386 U.S. “Q. Did you at that time have occasion to speak to either or both of Joyce’s parents? “A. Well, I was speaking to her mother on frequent occasions, and I spoke to her father on one or more occasions, I don’t recall how often. “Q. And did you discuss with them what should be done for Joyce? “A. Yes. “Q. Will you state what was said? “Mr. Kardy: Just a minute, Doctor. I object. “The Court: Objection is sustained. “Q. Did either of them tell you about any other alleged rape of Joyce? “Mr. Kardy: I object. “The Court: Sustained. “Q. Did any member of Joyce’s family tell you about any other alleged rape of Joyce? “Mr. Kardy: I object. “The Court: Sustained. “Q. In the course of your treatment of Joyce during this period, did you have occasion to call in another doctor? “A. Are you referring to hospitalization? “Q. Yes. “A. Yes, I did. “Q. And who was that doctor? “A. Dr. Doudoumopoulis. “Q. Did you discuss Joyce with him after he had seen her? “A. Yes, I did. “Q. Did he diagnose her as a juvenile schizophrenic? “Mr. Kardy: Just a minute; don’t answer that. I object. “The Court: The objection is sustained. GILES v. MARYLAND. 89 66 White, J., concurring in judgment. “Q. Did you discuss with Dr. Doudoumopoulis what treatment Joyce should receive? “Mr. Kardy: I object. . . . “The Court: I think it is immaterial. I will sustain the objection.” Immediately after Dr. Connor’s deposition was taken, Lieutenant Whalen of the Montgomery County Police Department was put under oath. Lieutenant Whalen testified that he had contacted Mr. Kardy, the prosecutor, and that they arranged for a hearing in the juvenile court in Montgomery County on September 5, 1961. The reason for seeking protective custody for the girl was that, in Whalen’s words: “[T]he boys in the area were harassing the girl so bad that she [the mother] would like to get some help for the girl. . . .” “Q. Were you present throughout that juvenile court hearing of September 5, 1961? “A. I was in and out of the courtroom. I was not there every second. “Q. Let me go back a minute; isn’t it a fact that prior to this hearing you had talked to Dr. Connor with respect to Joyce Roberts’ mental condition? “Mr. Kardy: I object. “Mr. Forer: . . . Your Honor, we had Dr. Connor on the stand earlier today, and Dr. Doudoumopoulis; we were trying to lay a foundation by showing that the girl’s condition was such that it would have affected her credibility. Dr. Doudoumopoulis actually was qualified, as a qualified psychiatric expert, to say if it would have affected her credibility. It would have been relevant to whether or not she invited this intercourse or rejected it.3 And with 3 In the course of the post-conviction hearing, the defendants also attempted to probe the relationship between the mental condition 90 OCTOBER TERM, 1966. White, J., concurring in judgment. 386 U. S. Dr. Connor we also brought out whatever the doctors discovered he had told some representatives from the Montgomery County police. But Your Honor excluded our questioning designed to go into the mental condition of the girl. Now, Your Honor is excluding my asking him whether he knew about it on the grounds that we have not established the significance of the mental condition. “The Court: I will sustain the objection. I do not think it is proper in this procedure. “Q. Now let us go back to this juvenile court hearing in Montgomery County, September 5, 1961. Was anything said at the juvenile court hearing about the fact that Joyce Roberts had attempted to commit suicide shortly before that date? “Mr. Kardy: I object. “The Court: I will sustain the objection.” of the complaining witness and her credibility through questions put to Dr. Frederic Solomon, a qualified psychiatrist. “Q. Doctor, do you have an opinion about how the mental illness, which you have described, would affect the credibility of a witness about the kind of circumstances which I described, that is, an intensely personal situation in which personal motivations were involved ? “Mr. Kardy: Object. “The Court: You can answer it merely yes or no. “The Witness: Yes. “Mr. Witt: What is that opinion? “Mr. Kardy: Object. “The Court: Sustained. “Mr. Witt: Your Honor, I offer to prove that his opinion would be that the mental illness which he has described would substantially affect the credibility of such a person about such an incident. “The Court: Well, I never heard of such a rule. I sustained the objection. It’s up to a jury to determine the credibility. How can we take and let a man, after a trial has occurred, come in and say the credibility was no good?” Transcript of Post-Conviction Hearing, Vol. II, 64. GILES v. MARYLAND. 91 66 White, J., concurring in judgment. The day before the post-conviction hearing began, Dr. Doudoumopoulis, although subject to a bench warrant, had “left for Maine” for two weeks. In all fairness to the presiding judge, it should be noted that he offered to continue the hearing until the Doctor could be reached for his testimony. But on the other hand, the counsel for petitioners perhaps had no reason to expect that the course of the post-conviction hearing would run any differently from that at the deposition proceeding in advance of the hearing,4 where Dr. Doudoumopoulis, and the petitioners’ counsel, could achieve only the following interchange. “Q. Dr. Doudoumopoulis, on or about August 26, 1961, in the course of your practice, did you have occasion to see a girl by the name of Joyce Carol Roberts? “A. I saw her on the 28th of August, 1961. “Q. Where did you see her? “A. At Prince George’s Hospital. “Q. What caused you to see her? “Mr. Kardy: I object. “The Court : I will overrule it. I will permit that. “Q. You may answer. “A. Dr. Charles D. Connor had asked me to make a psychiatric evaluation of her. “Q. Did you interview her? “A. Yes, I did. “Q. Did you reach any conclusions about her condition? “Mr. Kardy: Just a minute, Doctor. I object. 4 This deposition proceeding was also conducted by the same judge who presided at the post-conviction hearing. 92 OCTOBER TERM, 1966. White, J., concurring in judgment. 386 U. S. “Mr. Witt: Your Honor, we are seeking to discover what the doctor’s diagnosis was, and then to link it up with the knowledge of the State with respect to that condition. That is the purpose. “The Court: The objection is sustained. “Q. Do you know Dr. Charles Connor? “A. Yes. “Q. Did you discuss Joyce with him? “A. Yes. “Q. Did you tell him your conclusions— “Mr. Kardy: I object. “Q. —in respect to Joyce’s condition? “Mr. Kardy: I object. “The Court: He can answer it yes or no. “The Witness: Yes. “Q. Did you discuss with him what should be done for Joyce? “A. Yes. “Q. Will you tell us the discussion with respect to what should be done with Joyce at that time? “Mr. Kardy: I object. “The Court: Sustained. “Q. Did you talk to Joyce’s parents? “A. I think it was the mother that I talked to. “Q. Did you have any discussion with her with respect to what should be done for Joyce? . . . Did you discuss a hospitalization of Joyce? “Mr. Kardy: I object. “The Court: The objection is sustained.” Because the record of the juvenile court proceeding clearly indicated that psychiatric evidence concerning GILES v. MARYLAND. 93 66 White, J., concurring in judgment. the complaining witness had flowed from the doctors into that hearing, the record of which also reflected the presence of Lieutenant Whalen, the petitioners’ counsel sought to pursue their inquiry through Mr. Lynn Adams, an officer of the juvenile court who had been instrumental in the juvenile court proceedings. This inquiry was likewise cut short: “Q. Now, it is a fact, is it not, a Lieutenant Detective Whalen of the Montgomery County Police Department was also present at that hearing? “A. Yes, according to my information it was. “Q. It is a fact, is it not, that the charge against Joyce Roberts was that she was out of parental control and living in circumstances endangering her well-being? “Mr. Kardy: Object. “The Court: Sustained. “Q. Was it brought out at this hearing that Joyce Roberts had attempted to commit suicide shortly before the hearing? “Mr. Kardy: Just a minute, Mr. Adams. Object. “The Court: Sustained. “Q. Was it brought out at this hearing that in late August of 1961 Joyce Roberts had accused two men of raping her? “Mr. Kardy (To the Witness): Just a minute. Object. “The Court: Sustained. “Q. Did you speak, by telephone or otherwise, with a psychiatrist by the name of Dr. Alexander Doudoumopoulis ? “A. Yes. 94 OCTOBER TERM, 1966. White, J., concurring in judgment. 386 U. S. “Q. Did he give you any information regarding the mental condition or mental health of Joyce Roberts in this conversation that you had with him? “A. Did he—yes, regarding the mental health, yes. “Q. What was the information that he gave you regarding Joyce Roberts’ mental health in this conversation? “Mr. Kardy: Just a minute. Object, Your Honor. “The Court: Sustained.” The presiding judge seems to have closed off Mr. Adams as a source of information on the ground that he had no other choice under Rule 922 of the Maryland Rules of Procedure governing juvenile causes. The rule specifies that: “A person having a direct interest in a case may examine any part of the record thereof, except medical and case histories and other reports which the court may designate confidential. Such a person may also examine such histories and confidential reports with prior written permission of the court. The court may, however, from time to time, designate by general orders persons or agencies who may inspect any record, or specific classes of records, without additional written permission. Except as provided herein, no other person may examine any juvenile record, including the docket, without prior written permission of the court.” Md. Ann. Code, c. 900, Rule 922. At the post-conviction hearing, the petitioners held an authorization of the juvenile court to examine the records concerning the September 5, 1961, hearing. The authorization included permission to “make available said records for use, including introduction into evidence . . . and to any persons with knowledge thereof to testify about any aspect of the proceedings ... in- GILES v. MARYLAND. 95 66 White, J., concurring in judgment. volving said Joyce Carol Roberts.” 5 The presiding judge in the post-conviction hearing was of the view that Rule 922 allowed the juvenile court only the power to make the record available for examination, not to “put it in evidence.” See Vol. I, Post-Conviction Hearing Transcript, at 66. This, of course, does not explain why the judge himself did not examine the record, as he had expressly been authorized to do by the juvenile court. Had the judge made such an examination, he might have concluded that his decision regarding the admissibility of the record and of testimony by witnesses who had attended the hearing would require a more complete consideration of the purpose of and policies served by Rule 922. And in any event—although this is a matter of Maryland law about which I am not at all sure—the Rule would not seem to be a bar to testimony by those who had attended the juvenile court hearing when asked questions concerning information obtained outside the juvenile court hearing. If I am correct in this regard, the Rule could not stand in the way of testimony by Dr. Connor as to his conversations with Dr. Doudoumopoulis, or as to his conversations with the Montgomery County police officer, or as to any conversations either of the doctors might have had with Mr. Lynn Adams outside the juvenile court hearing. An additional matter raises my doubts further about the force which Rule 922 should have had at the post-conviction hearing. The State has since supplied this Court with what is apparently the complete file and record of the September 5, 1961, juvenile court proceedings involving the complaining witness. The State apparently no longer considers Rule 922 a bar to judicial consideration of these items. I do not wish to suggest that the presiding judge’s exclusion of the juve- 5 This document is included in the record at page 274. 96 OCTOBER TERM, 1966. Fortas, J., concurring in judgment. 386 U. S. nile court record, and of possible testimony of Adams, Whalen, Connor, and Doudoumopoulis was necessarily incorrect. But the duty to make that decision and the right to make it in the first instance belongs to the Maryland court, and my point simply is that the circumstances of the post-conviction hearing in this case compel a more complete consideration of the issue. There is another matter for the consideration of the Maryland court: the prosecuting attorney of Montgomery County was not charged with the knowledge of Prince George’s County officers but he was charged with what the police officers of Montgomery County knew. Was he also charged with the knowledge of other Montgomery County officials such as Lynn Adams, and, to the extent of their involvement with Montgomery County agencies, Dr. Connor and Dr. Doudoumopoulis? In the end, any allegation of suppression boils down to an assessment of what the State knows at trial in comparison to the knowledge held by the defense. It would seem that the Maryland Court of Appeals would reverse as unconstitutional a conviction in a trial that included suppression of evidence tending to prove nymphomania, or more comprehensively, suppression of evidence concerning the mental condition of the complaining witness and the interrelated issues of her consent and credibility. If such is the case, it would be helpful to have the Maryland Court of Appeals’ views as to whether on this record the petitioners have been afforded a full and fair hearing on this issue. Mr. Justice Fortas, concurring in the judgment. I concur in the Court’s judgment in this immensely troubling case, but I do so for the reasons which led the Montgomery County Circuit Court to order a new trial. On petitioners’ motion for post-conviction relief, Judge Moorman of the Circuit Court sustained the claim that GILES v. MARYLAND. 97 66 Fortas, J., concurring in judgment. the prosecution had violated their federally protected right to due process of law when it failed to disclose to defense counsel evidence, known to the prosecution, concerning two incidents which occurred about one month after the crime charged to them and four months prior to trial. These incidents were: (1) the prosecutrix’ sexual encounter with two boys at a party, followed by the filing and eventual dropping of a rape charge; and (2) her attempted suicide within hours of the foregoing incident and her ensuing hospitalization for psychiatric examination. The Circuit Court ruled that this information could “be reasonably considered admissible and useful to the defense,” that in consequence the prosecution was under a duty to disclose, and that its omission to do so required a new trial. The Maryland Court of Appeals reversed. It held that, even if admissible, the evidence in question was insufficiently “exculpatory” to warrant a new trial. The attempted suicide was shunted aside on the ground that its “probative value” was not such as to affect either the competence or credibility of the prosecutrix as a witness. Both it and the rape claim were disposed of on the assertion that “specific acts of misconduct” are not admissible to impeach credibility, and that “the only possible use of the facts surrounding the alleged rape claim would be for purposes of showing the unchastity of the prosecutrix, a fact that was already known to the defense at the time of the rape trial.” Judges Oppenheimer and Hammond dissented. They noted that the alleged rape claim and its abandonment might well have been useful in corroborating the petitioners’ account of what happened, that no Maryland evidentiary rule rendered inadmissible in a rape prosecution evidence that the prosecutrix suffered from a mental or emotional disturbance short of “insanity,” and that in any event these bits of information might have fur- 98 OCTOBER TERM, 1966. Fortas, J., concurring in judgment. 386 U. S. nished the defense with important leads to other and more potent evidence. The dissenters asserted that the majority erroneously substituted its appraisal of the weight to be attached to the suppressed evidence for a jury’s possible evaluation, and that it erred in applying too stringent a test of admissibility. I do not agree that the State may be excused from its duty to disclose material facts known to it prior to trial solely because of a conclusion that they would not be admissible at trial.1 The State’s obligation is not to convict, but to see that, so far as possible, truth emerges. This is also the ultimate statement of its responsibility to provide a fair trial under the Due Process Clause of the Fourteenth Amendment. No respectable interest of the State is served by its concealment of information which is material, generously conceived, to the case, including all possible defenses. This is not to say that convictions ought to be reversed on the ground that information merely repetitious, cumulative, or embellishing of facts otherwise known to the defense or presented to the court, or without importance to the defense for purposes of the preparation of the case or for trial was not disclosed to defense counsel. It is not to say that the State has an obligation to communicate preliminary, challenged, or speculative information. But this is not that case. Petitioners were on trial for their lives. The information was specific, factual, and concrete, although its implications may be highly debatable. The charge was rape, and, although the circumstances of this case seem to negate the possibility of * xIn Griffin v. United States, 336 U. S. 704, 707-709 (1949), this Court remanded a case for reconsideration of a ruling that certain evidence withheld by the prosecution was inadmissible. On remand, a new rule of admissibility was formulated and a new trial ordered. Griffin v. United States, 87 U. S. App. D. C. 172, 183 F 2d 990 (1950). GILES v. MARYLAND. 99 66 Fortas, J., concurring in judgment. consent, the information which the State withheld was directly related to that defense. Petitioners’ fate turned on whether the jury believed their story that the prosecutrix had consented, rather than her claim that she had been raped. In this context, it was a violation of due process of law for the prosecution to withhold evidence that a month after the crime of which petitioners were accused the prosecutrix had intercourse with two men in circumstances suggesting consent on her part, and that she told a policeman—but later retracted the charge—that they had raped her. The defense should have been advised of her suicide attempt and commitment for psychiatric observation, for even if these should be construed as merely products of the savage mistreatment of the girl by petitioners, rather than as indicating a question as to the girl’s credibility, the defense was entitled to know. The story of the prosecutrix is a tragic one. But our total lack of sympathy for the kind of physical assault which is involved here may not lead us to condone state suppression of information which might be useful to the defense. With regret but under compulsion of the nature and impact of the error committed, I would vacate the judgment of conviction and require the case to be retried. In view of the conclusions of my Brethren, however, I concur in the judgment of the Court sending this case back to the Court of Appeals for reconsideration. Addendum: My Brother Harlan has addressed a section of his dissent to my concurring opinion. This discloses a basic difference between us with respect to the State’s responsibility under the fair-trial requirement of the Fourteenth Amendment. I believe that deliberate concealment and nondisclosure by the State are not to be distinguished in principle from misrepresentation. 247-216 0 - 67 - 12 100 OCTOBER TERM, 1966. Fortas, J., concurring in judgment. 386 U. S. This Court so held in Brady v. Maryland, 373 U. S. 83 (1963). Mr. Justice Harlan concedes that the State may not knowingly use perjured testimony or allow it to remain uncorrected. He asserts that this satisfies “in full” the requirements of the Fourteenth Amendment, and suggests that an extension of these principles is neither necessary nor advisable. This suggests that the State is never obligated to take the initiative to disclose evidence unless its nature is such as to impeach evidence that the State has offered. I assume that Mr. Justice Harlan would apply this principle, even though the information might, in the hands of defense counsel, spell the difference between death and exoneration of the defendant. I cannot subscribe to this. A criminal trial is not a game in which the State’s function is to outwit and entrap its quarry. The State’s pursuit is justice, not a victim. If it has in its exclusive possession specific, concrete evidence which is not merely cumulative or embellishing and which may exonerate the defendant or be of material importance to the defense—regardless of whether it relates to testimony which the State has caused to be given at the trial—the State is obliged to bring it to the attention of the court and the defense. For example, let us assume that the State possesses information that blood was found on the victim, and that this blood is of a type which does not match that of the accused or of the victim. Let us assume that no related testimony was offered by the State. I understand my Brother Harlan’s comments to mean that he would not require the State to disclose this information. He would apparently regard Miller v. Pate, ante, p. 1, as the outer limit of the State’s duty. There the prosecution dramatically used a pair of shorts, misrepresented as saturated with blood, to secure a conviction. I cannot acquiesce that this is the end of the State’s duty under the Constitution. Nondisclosure—deliberate withhold- GILES v. MARYLAND. 101 66 Fortas, J., concurring in judgment. ing—of important information of the type described, which is in the exclusive possession of the State is, in my judgment, not reconcilable with the concept of a fair trial and with the Due Process Clause. I can readily see that differences of opinion might exist as to whether the nature of particular evidence is such that nondisclosure of it should result in setting aside a conviction. But I do not accept the notion that only where the effect of withholding evidence is to allow perjured testimony to stand uncorrected is there a duty to disclose. In my view, a supportable conviction requires something more than that the State did not lie. It implies that the prosecution has been fair and honest and that the State has disclosed all information known to it which may have a crucial or important effect on the outcome. The newly amended Rule 16 of the Federal Rules of Criminal Procedure has little to do with the matter now before the Court. On its face, the Rule is directed to the relatively limited problem of pretrial discovery and inspection in the federal courts. Whether Rule 16 is adequate even for its purposes is the subject of differences of opinion. But it does not purport to exhaust the prosecution’s duty. Mr. Justice Harlan apparently finds no inconsistency between proscription of the prosecution’s knowing use or acquiescence in the use of perjured testimony2 and Rule 16’s silence on that subject. I find none in the requirement, recognized by this Court in Brady v. Maryland, supra, that the State apprise the defendant of information of the sort described herein, and the Rule’s omission of such a requirement. My point relates, not to the defendant’s discovery of the prosecution’s case for purposes of preparation or avoidance of surprise, which is dealt with in Rule 16, but with the State’s constitutional duty, as I see it, voluntarily to 2 Alcorta v. Texas, 355 U. S. 28 (1957); Napue v. Illinois, 360 U. S. 264 (1959); Mooney v. Holohan, 294 U. S. 103 (1935). 102 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. disclose material in its exclusive possession which is exonerative or helpful to the defense—which the State will not affirmatively use to prove guilt—and which it should not conceal. Brady involved neither the knowing use of perjured testimony nor acquiescence in its use. Nevertheless, both the Maryland Court of Appeals and this Court concluded that the prosecutor’s conduct in withholding information material to guilt or punishment, information which defense counsel had unsuccessfully requested, violated due process. Although this Court included in its statement of the controlling principle a reference to counsel’s request—“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. ...”3—I see no reason to make the result turn on the adventitious circumstance of a request. If the defense does not know of the existence of the evidence, it may not be able to request its production. A murder trial—indeed any criminal proceeding—is not a sporting event. Mr. Justice Harlan, whom Mr. Justice Black, Mr. Justice Clark and Mr. Justice Stewart join, dissenting. The disposition of this case, the product of three opinions, none of which commands the votes of a majority of the Court, is wholly out of keeping with the constitutional limitations upon this Court’s role in the review of state criminal cases. For reasons that follow, I dissent. On the basis of the trial record, it would be difficult to imagine charges more convincingly proved than were those against these three youths for raping this teenage 3 373 U. S., at 87. GILES v. MARYLAND. 103 66 Harlan, J., dissenting. girl.1 Following conviction, information came to light which seriously reflected on the sexual habits of the girl and on the stability of her character. These revelations were made the basis of a state post-conviction proceeding, premised on the claim that in failing to disclose these data at the time of trial the prosecution had been guilty of a deliberate suppression of material evidence and the knowing use of perjured testimony. The postconviction judge found against those claims, but nonetheless ordered a new trial, holding that the data, which he deemed would have been admissible and useful to the defense, should have been disclosed by the authorities. The Court of Appeals of Maryland, holding as a matter of state law that this material was not such as to justify a new trial, reversed. This Court, without finding any constitutional flaw in the state proceedings, and indeed expressly recognizing that upon the facts as found by the state courts, petitioners’ nondisclosure claim gives rise to no federal question under existing law, now returns the case to the Maryland Court of Appeals for what amounts to nothing more than reconsideration. The plurality and one of the concurring opinions urge entirely different reasons for remanding the case in this fashion, and will thus oblige the courts of Maryland to reconsider a series of wholly unrelated issues. The plurality opinion and my Brother White’s concurring opinion have only two common denominators: neither can identify any federal basis for this disposition, and both 1 “Consent” is of course the conventional defense in rape cases. In light of the forcible entry into the car occupied by the victim, the assault upon her companion, and her flight into the woods, it would have been extraordinary for the jury to have believed that this girl freely invited these youths to have sexual relations with her, still more that the petitioner John Giles, who was the first to pursue her into the woods (albeit allegedly not knowing that he was pursuing a female), refused the “invitation.” 104 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. are concerned with questions which have been repeatedly considered by the state courts. Each of the three opinions requires discrete treatment, but I have concluded, for the reasons which follow, that none of them offers any basis on which the Court may properly return this case to the Maryland courts. I. I turn first to the reasons advanced by the plurality opinion. The unusual disposition made of this case by the plurality is bottomed upon materials entirely outside the record before us, furnished to this Court after the case was submitted, under the leverage of inquiries put from the bench during the argument. The materials are two pre-indictment police reports, the Montgomery County Officers’ Report and the Supplementary Offense Report. It seems to me entirely improper for this Court to “retry” state criminal cases in its own courtroom, and then to return them for reconsideration in light of materials “discovered” outside the record during that process. Even apart from that regrettable practice, the remand of this case is the more remarkable because the materials on which the plurality relies are not in any sense newly discovered. The fact is that these police reports have played a significant role throughout the state court proceedings. They were made available to defense counsel at the original trial stage. They were given to and considered by the trial judge at the time of sentence. And although demanded by the new defense counsel in the post-conviction proceeding, their production was denied under a state procedural rule which apparently was not contested in the state appeal, and which is in no way now questioned by this Court from a federal standpoint. In consequence, the ultimate rationale for the plurality’s disposition of the case is itself specious. GILES v. MARYLAND. 105 66 Harlan, J., dissenting. The use now made of these police reports is equally unsatisfactory. The discrepancies which the plurality finds between these reports and the trial testimony relate to two episodes. First, the girl, Joyce, and her companion, Foster, apparently initially told the police that they were having sexual intercourse in their car when they noticed the presence of the other car, whereas at trial Foster intimated that he and the girl were simply sitting in the rear seat. He denied elsewhere that he and his friends had brought Joyce out to the spot to have sexual relations with her. Second, one of the police reports is construed to suggest that Joyce had said that John Giles did not penetrate her, whereas her trial testimony was that all three men had raped her. The plurality argues that these discrepancies, if known to the defense, might have been used to establish the girl’s reputation for promiscuity, to attack the credibility of prosecution witnesses, and possibly to exonerate petitioner John Giles entirely. It even suggests that the defense might have shown a deliberate suppression of evidence or a conscious failure to correct perjured testimony. The short answer to all this is, of course, that the record makes plain that defense counsel at the trial was given access to these police reports 2 and thus must be taken to have been aware of the very discrepancies of which the plurality now undertakes to make so much. There is no basis whatever in the evidence before us for the plurality’s intimation that the reports seen by counsel may not have been those given to this Court or for its thinly veiled suggestion that in not making use of the supplementary report counsel may have been incompetent or worse. 2 Counsel so stated three times at the post-conviction proceeding, twice under the judge’s questioning. This colloquy has been reprinted in my Brother White’s opinion, ante, p. 82. 106 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. Beyond this, a more careful examination than the plurality has given these reports and the record will itself dissipate the aura of suspicion and conjecture with which this case has now been surrounded. The plurality first suggests that perjured testimony may have been knowingly utilized by the prosecution to establish penetration of the girl by John Giles. Joyce initially testified at a pretrial hearing that only Johnson and James Giles had intercourse with her.3 Later in the same hearing she included John Giles, apparently with the explanation that she had first believed that rape requires emission as well as penetration. At trial she testified very specifically that John Giles had effected penetration. On cross-examination, she conceded that her first accounts both to the police and at the preliminary hearing indicated that only two men had intercourse with her. She again suggested that she had been confused. In contrast, the police officers testified at trial that Joyce had said in questioning on July 21 that John Giles had intercourse with her. The supposed inconsistencies among all these accounts were plain both to defense counsel and to the jury.4 Petitioners argued at the post-conviction proceeding that the police testimony was perjured, and that Joyce had initially said that John Giles did not attack her. They offered, in addition to Joyce’s own admissions at trial, statements from petitioners’ father, mother, and sister that a policeman had first mentioned only two assailants to them. In a deposition hearing, Joyce said that she did not recall ever conceding at trial that only two men had intercourse with her. Judge Moorman con- 3 We do not have before us the transcript of the preliminary hearing. An uncontested account of Joyce’s testimony was however given at the post-conviction proceeding. See Transcript of Record 270-272. 4 Counsel made an extended effort to discredit Joyce’s testimony based on the alleged inconsistencies in her various accounts. See Transcript of Record 62-64. GILES v. MARYLAND. 107 66 Harlan, J., dissenting. eluded that Joyce’s terminological confusion adequately explained the supposed discrepancies with the police testimony. Although petitioners have not argued this issue here, the plurality now points to the supplementary report to suggest again that the police evidence might have been perjured, and remands for what it quite evidently hopes will result in another hearing on that issue. It seems apparent that the references to this issue in the supplementary report are entirely equivocal. The report contains only three references to Joyce’s statements on this question. First, Joyce is reported to have replied, when asked how many had intercourse with her, that “The bigger one [John] tried first, then the other two.” Again, the statement is attributed to her, in the third person, that John “tried to have intercourse with her but was unable to do so.” Finally, she is reported to have said that John Giles “tried to insert” but “could not get” an erection. The report indicates that John Giles was the first to begin to remove Joyce’s clothing, that he kissed her, and that he “tried” for some 10 minutes.5 It must first be plain that although these references are brief and imprecise, nothing in them necessarily excludes the conclusion that John Giles achieved penetration, however slight. Further, it must be recognized that the form and language of the supplementary report indicate quite clearly that it was prepared rapidly, under the urgency of the events, and without any expectation that its every word would now be weighed and balanced. Little wonder that the plurality’s diligent pursuit of uncertainty has unearthed phrases which, so it supposes, permit some room for ambiguity. Finally, it must be remembered that in the report, at the pretrial hearing, and at the trial itself, the police, 5 It is important to note that the supplementary report does not, contrary to the apparent suggestion in the plurality opinion, state that John Giles “failed to ‘insert.’ ” 108 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. the witnesses, and even counsel employed interchangeably various terms of very dissimilar meaning to describe the acts committed upon the girl by the defendants. The post-conviction proceeding court expressly found that Joyce for one was confused by this elusive terminology, and that this confusion explained any discrepancies in her various accounts of these events. This finding was not disturbed or even questioned by the Maryland Court of Appeals. Nonetheless, the plurality attempts to escape it with the suggestion, surrounded by cautious disclaimers, that it may possibly have been mistaken. The plurality offers three reasons for this suggestion. It first intimates that the finding may be mistaken because the State proffered this explanation only at the postconviction proceeding. This is entirely unpersuasive; Joyce’s confusion was apparent at least as early as the original preliminary hearing, and was not there offered by the State as an explanation, but instead became obvious to those present simply from the terms of Joyce’s testimony. The plurality next suggests that Joyce at trial expressed confusion only as to the names of her assailants, and not about this terminology. This is twice deficient: it ignores that the terms of Joyce’s testimony were perfectly well known to the state courts which made and accepted the finding, and it is bottomed on an unreasonable construction of the testimony.6 Lastly, the plurality contends that Joyce is not shown by the supplementary report to have been confused. There are two obvious answers. First, this assumes that the report precisely reproduces the words used by Joyce herself to describe these events, and that these words 6 Joyce did not simply suggest that she had been confused about the names of her assailants. Under defense counsel’s persistent cross-examination she repeatedly affirmed that she was telling the full truth, and that she did not know “what I thought” at the time of her earlier accounts. Given her age and circumstances, this is scarcely improbable. GILES v. MARYLAND. 109 66 Harlan, J., dissenting. may therefore be sifted and weighed to establish Joyce’s familiarity with this terminology. This is unsupported by the report itself, which contains no formal statements, and is instead an informal jumble of undigested information collected by the police as they conducted their investigation. At no point can the reader be entirely certain whether its words are the witness’ or those selected by the police interrogators to digest the information given them. Finally, the plurality overlooks that there is uncontested testimony that Joyce was plainly and pertinently confused at the preliminary hearing. The plurality’s speculation that she may or may not have been confused at one stage of this lengthy proceeding can scarcely vitiate the firm finding of the Maryland courts that she was confused at another and more crucial stage, and that this confusion explained any discrepancies in her accounts of these events. In sum, I find the plurality’s oblique efforts to cast doubt on the finding of the state courts entirely unpersuasive. Moreover, these references in the supplementary report must be viewed in light of the other police report furnished this Court, the Montgomery County Officers’ Report. That report makes quite clear that Joyce indicated at the scene that John Giles “had entered her.” 7 The plurality seeks to explain the terms of this report with two suggestions. First, it intimates that the report may be unreliable because it is a summary of Joyce’s statements “immediately after the incident.” I should have thought that it would therefore be all the more important. At most, the plurality’s intimation is an acknowledgment of the weaknesses of both reports. Neither report was intended to serve as a formal and precise record; it is there- 7 Montgomery County Officers’ Report 1. The report indicates that Joyce said “two of the . . . males had entered her and . . . the third had tried but gave up when he saw lights coming.” In the context of the other evidence the third man could only have been James Giles. 110 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. fore extraordinarily hazardous to pyramid, as the plurality has done, hypotheses upon strained constructions of the reports’ most abbreviated references. This simply re-emphasizes the wisdom of the State’s exclusionary rule, and the corresponding impropriety of the plurality’s circumvention of that rule. Second, the plurality suggests that the report leaves unexplained the police testimony that Joyce had said that all three men had intercourse with her. This assumes first that the words “gave up” in the report indicate that Joyce meant that James Giles did not penetrate, when in light of the other accounts given by both James Giles and Joyce, it could only have meant that he did not reach emission. More important, the plurality overlooks that the only questions which have ever been even intimated about whether any of the three youths failed to penetrate the girl center entirely on John Giles, and this is a plain statement in the police reports that Joyce had informed the police at least once that John Giles penetrated her. The plurality opinion cannot, and does not, deny that this is the most unequivocal reference in either report to John’s actions, and that it makes plain that Joyce reported that John had penetrated her. Given the ambiguity of the references to John Giles in the supplementary report, Joyce’s clear statement in the Officers’ Report that John Giles had penetrated, and the no less plain statements in the supplementary report from Joyce, James Giles and Johnson that James and Johnson also penetrated, I am again unable to understand how it can be thought that there might be some basis for the attribution of perjury on this score to the police witnesses.8 8 The plurality’s diversionary suggestion that Sergeant Duvall’s testimony presents difficulties is wholly unpersuasive. His inexplicable failure to describe Joyce’s statements to him served only to weaken the State’s case, and certainly did not in any fashion prejudice petitioners. It offers no basis on which they would be entitled to relief. GILES v. MARYLAND. Ill 66 Harlan, J., dissenting. The asserted discrepancies among the various accounts given of John Giles’ participation by Joyce and the other prosecution witnesses have been forcefully argued at each stage of this case, they have been painstakingly considered by the state courts, and I can see no warrant for inviting those courts to examine the issue anew. The plurality next suggests that the prosecution may also have been privy to the use of perjured testimony or guilty of a deliberate suppression of evidence in relation to what the girl and Foster were doing in the car just before their assailants came upon them. This is entirely insubstantial. Foster and the girl were never directly asked at trial, and did not volunteer, to describe what they had done while awaiting the return of their friends. They were not asked if they had intercourse. The question was only once even inferentially suggested. Foster was first asked “What did you three boys take Joyce out there for that night?” and replied “I told you we were going to meet some friends up there and go swimming.” The next question was “You didn’t take her out there to have sexual relations with her, yourself, did you?” and Foster replied “No.” It would doubtless have been more forthright had Foster interjected that, whatever his original expectations, they had in fact had relations; nonetheless, his explanation was an adequate response to the precise question asked. In short, although the evidence was as to this point incomplete, it was, so far as it went, consistent with the police report. I do not see how it can be suggested that the prosecutor’s conduct in this instance was constitutionally vulnerable. First and foremost, the contents of the police reports on this episode were made available to the defense, and counsel elected to make nothing of them. Second, the omitted fact in Foster’s testimony could not have had “an effect on the outcome of the trial.” Napue v. Illinois, 360 U. S. 264, 272. Initially, it is very doubt- 112 OCTOBER TERM, 1966. 386 U. S. Harlan, J., dissenting. ful that this evidence would have been admissible at trial. Under the law of Maryland, specific acts of misconduct are not admissible to impeach a witness’ credibility. Rau v. State, 133 Md. 613, 105 A. 867. Further, since the evidence at trial was merely silent on these issues, and did not include inconsistent statements, this evidence presumably would not have been admissible on that basis to impeach the credibility of these witnesses. Finally, although Maryland permits the admission of evidence of a prosecutrix’ general reputation for immorality, it does not permit evidence of specific acts of intercourse. Shartzer v. State, 63 Md. 149; Humphreys v. State, 227 Md. 115, 175 A. 2d 777. The Court of Appeals of Maryland has in this very case plainly said that “a prosecutrix cannot be asked whether she had previously had intercourse with a person other than the accused.” Giles v. State, 229 Md. 370, 380,183 A. 2d 359, 363. The evidence with which the plurality is concerned therefore cannot “reasonably be considered admissible,” Griffin v. United States, 87 U. S. App. D. C. 172, 175, 183 F. 2d 990, 993, under the law of Maryland. Far more important from a federal standpoint, evidence of Foster’s relations with the girl, even if admissible, could not have been substantially relevant to the principal factual issues at the trial. Its omission did not discolor the meaning of controlling facts, as did the episode involved in Alcorta v. Texas, 355 U. S. 28; nor did it measurably strengthen a witness’ credibility, as did the one involved in Napue v. Illinois, 360 U. S. 264. It would at most have given the defense another inconclusive intimation of Joyce’s promiscuity, and this could scarcely have sufficed to change the trial’s outcome. The plurality ultimately seeks to justify its disposition of this case in terms of the rules by which this Court has given recognition to the different roles played under the Constitution by federal and state courts. These efforts GILES v. MARYLAND. 113 66 Harlan, J., dissenting. arc entirely unpersuasive. In essence, the plurality has first brought these police reports into the case through an informal discovery rule of its own creation which flies into the face of an unassailed state rule which excluded the reports, and now has invited the state courts to reconsider the case unrestricted by the local rule and not confined to the “Constitution’s relevant commands.” This scarcely fits the plurality’s professed objective to “minimize federal-state tensions.” And plainly this course finds no support in cases in which the Court has remanded for further consideration in light of a supervening event. Nothing here is remotely analogous to the change in state law that occurred in Bell v. Maryland, 378 U. S. 226, or to the intervening judgments of this Court that took place in Patterson v. Alabama, 294 U. S. 600, and in Dorchy v. Kansas, 264 U. S. 286. What is now done is explicable only on the premise that this Court possesses some sort of supervisory power over state courts, a premise which of course traverses the most fundamental axioms of our federal system. II. The rationale offered for remand by my Brother White’s opinion is equally unsatisfactory. At bottom, that rationale consists of the supposition that the presiding judge at the state post-conviction proceeding may possibly have misconstrued applicable Maryland law, and may therefore have improperly excluded testimony relevant to the mental condition of the prosecuting witness. My Brother White does not suggest, as I think he cannot, that any of the rulings which he suspects to have been erroneous were deficient under any known federal standard. All of them at most involve, even under his premises, misapplications of Maryland law. Each of these rulings was plain on the face of the record presented to, and carefully considered by, the Maryland 114 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. Court of Appeals; all the materials pertinent to the evaluation of these rulings were before that court at the time of its review. The court did not, of course, explicitly determine the various questions now posed, but it did, as my Brother White acknowledges, examine the record to decide whether Joyce might have been suffering from mental illness, or whether she was otherwise incompetent as a witness. Such an examination must inevitably have obliged the court to assess the very rulings and restrictions which it must now reassess upon remand. Despite this, neither the majority nor the dissenting opinion below expressed any doubt that these rulings were entirely correct. At a minimum, a remand thus needlessly prolongs an already protracted case; unfortunately, it may also appear to endorse the substitution of the speculations of this Court on the content of state law for the conclusions of the State’s highest court, as basis for the return of a case to the state courts for reconsideration. In any event, the hesitations expressed by Mr. Justice White’s opinion about the scope of the evidence concerning Joyce’s mental condition appear unwarranted on the record before us. The record makes plain that the court at the post-conviction proceeding permitted the admission of substantially more evidence on this issue than that opinion might be taken to suggest. First, the presiding judge permitted Dr. Connor, the attending physician, to state his diagnosis of Joyce’s mental condition. In addition, Dr. Connor was allowed to indicate that he agreed with the diagnosis described to him by the consulting physician, Dr. Doudoumopoulis. Dr. Connor was not, as that opinion notes, permitted to describe that diagnosis, but the court supplemented its ruling with the statement to defense counsel that “I would admit it if you put it in the right manner.” Both Dr. Connor and Dr. Doudoumopoulis were allowed in GILES v. MARYLAND. 115 66 Harlan, J., dissenting. a deposition hearing to state whether they had discussed Joyce’s condition with various officials of Prince George’s and Montgomery Counties. Further, the court permitted another psychiatrist, Dr. Solomon, to state, in reply to a hypothetical question asked by defense counsel, his opinion of the mental condition of a girl in Joyce’s circumstances. In addition, Dr. Solomon was permitted to describe the basis for his views, to offer his opinion as to what her mental condition might have been some three months later (the interval before the trial in this case), and to state that a girl in these circumstances warranted a psychiatric examination. Dr. Solomon was prevented from speculating only whether this condition might have affected the girl’s credibility as a witness, an issue, the court noted, which is for the jury, and not an expert witness, to determine. Finally, petitioners adduced very substantial evidence of Joyce’s sexual history, all of which was pertinent to the court’s determination whether she might have been suffering from mental illness. Perhaps more evidence of Joyce’s mental condition, and of the knowledge of Montgomery County authorities of that condition, could conceivably have been introduced; but it is true of all criminal prosecutions, federal and state, that some fragments of fact broadly pertinent to the issues of the trial do not reach the record. In any event, the petitioners themselves have apparently never challenged any of these rulings either before the Maryland Court of Appeals or in this Court. I can find no basis on the record before us for remanding this case simply in the hope that rulings of state law may now be held to have been improper, and thus that unknown additional evidence, which may or may not be pertinent and substantial, may then be admitted. This practice is warranted neither by the facts of this case nor by the role given to this Court by the Constitution in the review of state criminal convictions. 247-216 0 - 67 - 13 116 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. III. My Brother Portas' proposed resolution of the case is, with great respect, no more satisfactory, although he would, to be sure, base its disposition upon an asserted federal question. JJis reasoning, as I see it, rests at bottom upon quite fundamental objections to the character and balance of our adversary system of criminal justice. Neither those objections nor the conclusions which stem from them form any part of the disposition made of this case, in which he joins; it would accordingly be inappropriate for me to respond in more than relatively summary fashion. I content myself, therefore, with outlining the reasons why I cannot subscribe to my Brother Fortas’ approach. As I understand him, my Brother Fortas believes that state prosecuting officials are compelled by the Fourteenth Amendment to disclose to defense counsel any information “which is material, generously conceived, to the case, including all possible defenses.” This would include all information which is “exonerative or helpful.” This standard would demand markedly broader disclosures than this Court has ever held the Fourteenth Amendment to require. The Court has held since Mooney v. Holohan, 294 U. S. 103, that a State’s knowing use of perjured testimony denies a fair trial to the accused. Mooney has been understood to include cases in which a State knowingly permits false testimony to remain uncorrected. Alcorta v. Texas, 355 U. S. 28; Napue v. Illinois, 360 U. S. 264. The standard applied in such cases has been whether the testimony “may have had an effect on the outcome of the trial.” Napue v. Illinois, supra, at 272. These cases were very recently followed and applied in Miller v. Pate, ante, p. 1. Apart from dicta in Brady v. Maryland, 373 GILES v. MARYLAND. 117 66 Harlan, J., dissenting. U. S. 83, the Court has never gone further.9 Nor, in my view, does the Constitution demand more. This standard is well calculated to prevent the kinds of prosecutorial misconduct which vitiate the very basis of our adversary system, and yet to provide a firm line which halts short of broad, constitutionally required, discovery rules. It both guarantees the fundamental fairness of state criminal trials, thereby satisfying in full the requirements of the Fourteenth Amendment, and preserves intact the States’ ultimate authority for the conduct of their systems of criminal justice. None of these advantages adheres to the standard suggested by my Brother Fortas. His reasoning must inevitably result in the imposition upon the States through the Constitution of broad discovery rules. Those rules would entirely alter the character and balance of our present systems of criminal justice. The extraordinary breadth of the standard apparently urged by Mr. Justice Fortas becomes more plain when that standard is measured against Rule 16 of the Federal Rules of Criminal Procedure, applicable in federal criminal trials.10 Discovery under Rule 16, even as now 91 cannot agree that this Court in Brady extended Mooney in any fashion. The language in Brady upon which my Brother Fortas relies was quite plainly “wholly advisory.” Bradxj v. Maryland, supra, at 92 (separate opinion of White, J.). 10 In substance, Rule 16 provides that upon the motion of a defendant a court may permit the defendant to inspect and copy “statements or confessions made by the defendant,” the results of physical or mental examinations and of “scientific tests or experiments,” and the defendant’s testimony before a grand jury. Further, the court may, upon a defendant’s motion and upon a showing of materiality and reasonableness, permit the defendant to inspect and copy or photograph “books, papers, documents, tangible objects, buildings or places, or copies or portions thereof . . . .” The Rule expressly does not authorize the discovery or inspection of “internal 118 OCTOBER TERM, 1966. Harlan, J., dissenting. 386 U. S. amended, is restricted by a number of carefully drawn limitations, each intended to “guard against possible abuses.” Notes of the Advisory Committee on Rules, 39 F. R. D. 176. The defendant is permitted only to obtain certain categories of materials, and he must in each case first move the court for their production. These limitations fall far short of the standard urged by my Brother Fortas. Under his view the information obtainable by the defendant could not be restricted by its character or source; failure to disclose could be justified, post hoc, only if the information cannot be deemed “material,” generously judged. Nor could the defendant be obliged to demand disclosure; as my Brother Fortas' opinion emphasizes, the burden must instead be placed upon the prosecutor, on threat of subsequent reversal of any conviction, spontaneously to proffer all that might prove “helpful” to the defense. The effect which the rule urged here would thus have on this federal and similar state discovery rules would be entirely unlike that of Mooney and the cases which stem from it. Mooney simply imposes sanctions upon specified forms of prosecutorial misconduct; Mr. Justice Fortas’ rule would in contrast create wide constitutional obligations to disclose which, whether operative before or during trial, would entirely swallow the more narrow discovery rules which now prevail even in federal criminal trials. government documents made by government agents” in connection with the case, or of statements “made by government witnesses or prospective government witnesses ... to agents of the government . . . .” Other portions of Rule 16 permit a court to make such disclosures conditional upon disclosures by the defendant to the Government, to prescribe the time, place, and manner of discovery, and to make suitable protective orders. Finally, the Rule creates a continuing duty to disclose additional similar materials obtained after compliance with an order issued under the Rule, and permits the imposition of sanctions for failure to satisfy that duty. GILES v. MARYLAND. 119 66 Harlan, J., dissenting. Issues of the obligatory disclosure of information ultimately raise fundamental questions of the proper nature and characteristics of the criminal trial. These questions surely are entirely too important for this Court to implant in our laws by constitutional decree answers which, without full study, might appear warranted in a particular case. There are few areas which call more for prudent experimentation and continuing study. I can find nothing either in the Constitution or in this case which would compel, or justify, the imposition upon the States of the very broad disclosure rule now proposed. IV. The unarticulated basis of today’s disposition, and of the disparate reasons which accompany it, is quite evidently nothing more than the Court’s uneasiness with these convictions, engendered by post-trial indications of the promiscuity of this unfortunate girl. Unable to discover a constitutional infirmity and unwilling to affirm the convictions, the Court simply returns the case to the Maryland Court of Appeals, in hopes that, despite the plurality’s repeated disclaimers, that court will share the Court’s discomfort and discover a formula under which these convictions can be reversed. The Court is unable even to agree upon a state law basis with which to explain its remand. I cannot join such a disposition. We on this bench are not free to disturb a state conviction simply for reasons that might be permissible were we sitting on the state court of last resort. Nor are we free to interject our individual sympathies into the administration of state criminal justice. We are instead constrained to remain within the perimeter drawn for this Court by the Constitution. I cannot find a tenable constitutional ground on which these convictions could be disturbed, and would therefore affirm the judgment of the Court of Appeals of Maryland. 120 OCTOBER TERM, 1966. Per Curiam. 386 U. S. KILGARLIN et al. v. HILL, SECRETARY OF STATE OF TEXAS, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS. No. 235. Decided February 20, 1967. Appellants challenge the 1965 legislative reapportionment of the Texas House of Representatives in a plan which combined singlemember, multi-member, and floterial districts. The District Court sustained the plan except for the floterial districts, which were found to violate the principles of Reynolds v. Sims, 377 U. S. 533, and permitted the 1966 election to proceed under the plan. Despite population variances among the remaining districts resulting in a 1.31 to 1 ratio between the largest and smallest districts, the District Court approved the plan, holding that appellants had not sustained their burden of negating the existence of any state of facts which would sustain the legislation and that the deviations were justified by the state policy of respecting county lines wherever possible. Held: Population variances of the size evident here invoke the rule of Swann v. Adams, 385 U. S. 440, and, notwithstanding the District Court’s view that the deviations here were generally justified by the state policy of respecting county lines, the judgment is reversed in part and the case is remanded for further proceedings to determine whether the state policy necessitates the range of deviations evident here. 252 F. Supp. 404, reversed in part and remanded. William E. Wright for appellants. Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, and Mary K. Wall, Assistant Attorney General, for appellees. Per Curiam. Following judicial invalidation of the constitutional and statutory provisions governing the apportionment of the Texas State Legislature, the State Legislature reapportioned both the House and the Senate. Appel- KILGARLIN v. HILL. 121 120 Per Curiam. lants promptly challenged on various grounds the constitutionality of H. B. 1951 which reapportioned the House of Representatives in a combination of singlemember, multi-member and floterial districts. The District Court sustained all aspects of the plan except those provisions respecting the counties included in 11 floterial districts, 252 F. Supp. 404, which were found violative of the equality principles announced in Reynolds v. Sims, 377 U. S. 533. The court did, however, over appellants’ objections, permit the 1966 election to proceed under H. B. 195 with a proviso to the effect that if the legislature did not adopt corrective legislation by August 1, 1967, the counties in the floterial districts would be reconstituted as multi-member districts and all the representatives assigned to those counties would be elected at large. We affirm the District Court’s action in permitting the 1966 election to proceed under H. B. 195 although constitutionally infirm in certain respects. In the particular circumstances of this case there is ample precedent for the court’s action. See Drum v. Seawell, 383 U. S. 831 ; Toombs v. Fortson, 384 U. S. 210. We also affirm the court’s judgment insofar as it held that appellants had not proved their allegations that H. B. 195 was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of singlemember, multi-member and floterial districts it was an unconstitutional “crazy quilt.” In another respect, however, the District Court committed reversible error. Appellants alleged that in addition to the inequalities inherent in the floterial districts, 1Tex. Rev. Civ. Stat. Ann., Art. 195a contains House Bill 195. The Senate reapportionment of 1965, Tex. Rev. Civ. Stat. Ann., Art. 193a, is not here in issue. 122 OCTOBER TERM, 1966. Per Curiam. 386 U. S. H. B. 195 also infringed Fourteenth Amendment rights because in the remaining legislative districts of the State there were unacceptable variations from the principle of Reynolds v. Sims that among legislative districts the population per representative should be substantially equal. Appellants’ proof showed that in these other districts the population per representative varies from 54,385 to 71,301, or from 14.84%. overrepresented to 11.64% underrepresented. The ratio between the largest and the smallest district is thus 1.31 to 1. The deviation from the average population per representative is greater than 10% in 12 single-member districts, and a total of 55 representatives would be elected from eight multi-member districts in which the population per representative varies from the ideal by more than 6%. The District Court sustained the constitutionality of H. B. 195 on two grounds. First, it held that appellants had the burden not only of demonstrating the degree of variance from the equality principle but also of “negating] the existence of any state of facts which would sustain the constitutionality of the legislation.” 252 F. Supp. 404, 414. This, the court held, appellants had not done. At that time, of course, Swann v. Adams, 385 U. S. 440, had not been announced. Under that case it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here are sufficient to invalidate an apportionment plan. Without such justification, appellants’ analysis of H. B. 195 made out a sufficient case under the Fourteenth Amendment. Second, the District Court, not resting exclusively on its burden of proof ruling, found that the deviations from the equal population principle were amply justified here because they resulted from a bona fide attempt to conform to the state policy requiring legislative apportion KILGARLIN v. HILL. 123 120 Per Curiam. ment plans to respect county boundaries wherever possible. We are doubtful, however, that the deviations evident here are the kind of “minor” variations which Reynolds v. Sims indicated might be justified by local policies counseling the maintenance of established political subdivisions in apportionment plans. 377 U. S. 533, 578-579. But we need not reach that constitutional question, for we are not convinced that the announced policy of the State of Texas necessitated the range of deviations between legislative districts which is evident here. In the first place, Texas policy, as elaborated by the Attorney General and concurred in by the District Court,2 2 The Attorney General expressed the state policy in a letter to the Speaker of the House, included as Appendix “D” in the opinion below, 252 F. Supp. 404, 455-456. May 19, 1965 Honorable Ben Barnes Speaker of the House Austin, Texas Dear Mr. Speaker: As a result of the analyzing and briefing of Section 26, Article HI of the Texas Constitution of 1876 and the recent decisions of the U. S. Supreme Court on the subject of state reapportionment, this office has reached the following legal conclusions. 1. Whenever a single county has sufficient population to be entitled to more than one representative, all the representatives to which it is entitled shall be apportioned to that county. 2. Multi-representative counties may be apportioned so that the representatives can run at-large within the county or from individual districts within the county or, a combination of any of these methods. 3. If a single county does not have sufficient population to entitle it to one representative, such county shall be joined with one or more contiguous counties until the proper population ratio is achieved. The above cited provision of the Texas Constitution requires that counties be kept intact and their boundaries not be violated. 4. Should the keeping of counties intact result in a violation of the Supreme Court “one man, one vote” rule, then the county lines must be violated but only to the extent necessary to carry out the mandate 124 OCTOBER TERM, 1966. Per Curiam. 386 U. S. permits the formation of multi-member and floterial districts and even, where necessary, the violation of county lines in order to surmount undue population variations. In the second place, the District Court did not relate its declared justification to any specific inequalities among the districts, nor demonstrate why or how respect for the integrity of county lines required the particular deviations called for by H. B. 195. Nor did the District Court articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations from the principles of Reynolds v. Sims. Similar fault can be found in accepting a general county-line justification for the population deviations that would occur should the present floterial districts be reconstituted as multi-member districts. The ratio between the largest reconstituted district and the smallest district created by H. B. 195 would be 1.21 to 1, and seven representatives would be elected from districts overrepresented by 13% or more. Another five representatives would be elected from districts overrepresented by 8% or more. Appellants also raise specific challenges to the provisions of H. B. 195 with respect to Dallas, Bexar, and Harris Counties. Dallas and Bexar Counties are rel oj the Supreme Court. In all other instances, county lines must remain intact and multi-county districts or flotorial districts be formed by the joining of complete and contiguous counties. The above legal conclusions have been set out as clearly and concisely as possible. These conclusions have been reached by a thorough analysis of the Texas constitutional provisions as well as recent federal court decisions. Our research has also thoroughly developed the legislative history and legislative interpretation of the legislative sessions immediately prior to and immediately subsequent to the adoption of the constitutional provisions involved. Yours very truly, s/Waggoner Carr KILGARLIN v. HILL. 125 120 Per Curiam. atively densely populated multi-member districts. Measured by population alone, each county could support one more representative than is allocated to it under H. B. 195, and thus more nearly approximate the arithmetic ideal. Giving each of them one more representative would not, of course, violate their county lines; and we cannot be sure, at least on this record and in view of the 150-member limit on the House of Representatives, that Dallas and Bexar Counties must be denied additional representation in order to adhere to county lines in other districts throughout the State. If other districts cannot be re-formed within county lines in such a way as to afford Dallas and Bexar Counties another representative and at the same time to afford the re-formed districts constitutional representation, we would have to meet the question whether the state policy advanced here justifies the seeming 3 underrepresentation in Dallas and Bexar Counties, which is 6.42% and 7.59,% respectively. But on the record that is now before us we do not reach this issue and believe that the District Court should give further consideration to these counties. Appellants complain that district 24 in Harris County is assigned only six representatives whereas district 22 in the same county with a slightly smaller population is assigned seven representatives. The court found the record to establish that the population in district 22 was growing rapidly as compared with district 24 and would soon justify the extra representative. This factual de- 3 Our cases do not foreclose attempts to show that in the particular circumstances of a given case multi-member districts are invidiously discriminatory. See Burns v. Richardson, 384 U. S. 73, 88-89. It has recently been suggested that multi-member districts such as Dallas and Bexar are adequately represented, if not over-represented. See Banzhaf, Multi-member Electoral Districts—Do They Violate the “One Man, One Vote” Principle, 75 Yale L J 1309 (1966). 126 OCTOBER TERM, 1966. Douglas, J., concurring. 386 U. S. termination not being challenged here, we accept the ruling of the District Court regarding these districts. The judgment is reversed in part and the case remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Douglas, concurring. While I join the opinion of the Court, I reserve decision on one aspect of the problem concerning multimember districts. Under the present regime each voter in the district has one vote for each office to be filled. This allows the majority to defeat the minority on all fronts. It is suggested that in multi-member districts each person be able to vote for only one legislator, the theory being that in that way a minority, either political or otherwise, would have a chance to elect at least one representative. I am not sure in my own mind how this problem should be resolved. But in view of the fact that appellants claim that multi-member districts of Texas are constructed in such a manner that Negroes are effectively disenfranchised, I would reserve that question for consideration when the case is once again before the District Court. Mr. Justice Clark would affirm the judgment of the District Court. Mr. Justice Harlan and Mr. Justice Stewart would affirm the judgment of the District Court in its entirety, on the basis of the reasoning contained in Mr. Justice Harlan’s dissenting opinion in Swann v. Adams, 385 U. S. 440, 447. DECISIONS PER CURIAM. 127 386 U. S. February 20, 1967. Macdonald v. California. APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE. No. 503, Mise. Decided February 20, 1967. Appeal dismissed and certiorari denied. Vasken Minasian for appellant. 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. 128 OCTOBER TERM, 1966. February 20, 1967. 386 U. S. KIMBRO v. HEER, WARDEN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 751, Mise. Decided February 20, 1967. I Certiorari granted; 364 F. 2d 116, vacated and remanded. Petitioner pro se. George F. McCanless, Attorney General of Tennessee, and Henry C. Foutch and Paul E. Jennings, Assistant Attorneys General, for respondent. Per Curiam. The motion for leave to proceed in jorma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the Middle District of Tennessee, for a hearing. Townsend v. Sain, 372 U. S. 293. Mr. Justice Stewart is of the opinion that certiorari should be denied. CASCADE NAT. GAS v. EL PASO NAT. GAS. 129 Syllabus. CASCADE NATURAL GAS CORP. v. EL PASO NATURAL GAS CO. et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. No. 4. Argued January 12, 1967.—Decided February 27, 1967* Almost three years ago this Court directed the District Court to order “without delay” that appellee El Paso Natural Gas Co. divest itself of the Pacific Northwest Pipeline Corp., whose acquisition by El Paso was found to have violated § 7 of the Clayton Act. United States v. El Paso Natural Gas Co., 376 U. S. 651, 662. Following remand, leave was unsuccessfully sought under Rule 24 (a) of the Federal Rules of Civil Procedure to intervene in the divestiture proceedings by various parties, including appellants, the State of California, where El Paso sells most of its gas; Southern California Edison, a large industrial natural gas user in California; and Cascade Natural Gas, a distributor in Oregon and Washington, whose sole supplier of natural gas was Pacific Northwest. Rule 24 (a) (3) then provided for intervention of right when the applicant is “so situated” as to be “adversely affected by . . . disposition of property” under court control. Amended Rule 24(a)(2), which became effective after the intervention motions were denied, provides for intervention of right “when the applicant claims an interest relating to the property . . . and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest” unless it is adequately represented by existing parties. The District Court thereafter approved a divestiture plan whereby a New Company would be formed by El Paso to receive the properties and assets which El Paso received from Pacific Northwest. Appellants, claiming that the conditions under which the New Company would be established would fail to create a competitive pipeline in keeping with this Court’s mandate, appealed from the District Court’s denial of their motions to intervene. Held: 1. The District Court erred in denying appellants the right to intervene in the divestiture proceedings. Pp. 133-136. *Together with No. 5, California v. El Paso Natural Gas Co. et al., and No. 24, Southern California Edison Co. v. El Paso Natural Gas Co. et al., also on appeal from the same court. 130 OCTOBER TERM, 1966. Syllabus. 386 U.S. (a) The category under old Rule 24 (a) (3) of “so situated” as to be “adversely affected” by disposition of property was not limited exclusively to those with an interest in property. Pp. 133-135. (b) Protection of California interests in a competitive system was “at the heart of our mandate” directing divestiture (cf. Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, 506). Both the State of California and Southern California Edison qualified as intervenors of right under old Rule 24 (a) (3). P. 135. (c) Since the entire merits of the case must be reopened to give those parties an opportunity to be heard as of right as intervenors, the new Rule 24(a)(2), which is applicable to “further proceedings” in pending actions, is broad enough to include Cascade as an intervenor as of right since it has “an interest,” not otherwise adequately represented, in the “transaction which is the subject of this action.” Pp. 135-136. 2. Though the Attorney General has the right to settle litigation, such “settlement” cannot circumscribe the execution of this Court’s mandate. P. 136. 3. The following guidelines are suggested for the new decree: (a) The New Company’s gas reserves must not be proportionately less to the existing reserves than those which Pacific Northwest had when it was independent; and reserves developed after the merger must, after thorough hearings, be equitably divided between El Paso and the New Company. Pp. 136-137. (b) The terms of gas-acquisition contracts should be negotiated by the New Company, after full opportunity to evaluate their advisability, under such restrictions as the Natural Gas Act may impose. Pp. 137-138. (c) The competitive position of the New Company and its financial viability must be comparable to that which Pacific Northwest enjoyed before the illegal merger obliterated it. P. 138. (d) The severance of the illegal combination, whether by sale to outside interests or otherwise, must be swiftly made and effected in such a manner as to ensure that the New Company’s stock does not end up under control of El Paso interests. Pp. 138-142. 4. A District Judge different from the one who heard the case before shall be assigned to hear the case on remand. Pp. 142-143. Reversed and remanded. CASCADE NAT. GAS v. EL PASO NAT. GAS. 131 129 Opinion of the Court. Richard B. Hooper argued the cause for appellant in No. 4. With him on the brief were H. B. Jones, Jr., and Wilbert Carl Anderson. William M. Bennett argued the cause and filed a brief for appellant in No. 5. Rollin E. Woodbury argued the cause for appellant in No. 24. With him on the brief were Harry W. Sturges, Jr., and William E. Marx. Gregory A. Harrison argued the cause and filed a brief for appellee El Paso Natural Gas Co. in all cases. Daniel M. Friedman argued the cause for the United States in all cases. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Richard A. Posner and Milton J. Grossman. Richard W. Sabin, Assistant Attorney General of Oregon, by special leave of Court, argued the cause for the State of Oregon, as amicus curiae. With him on the brief was Robert Y. Thornton, Attorney General. Mr. Justice Douglas delivered the opinion of the Court. When this case was here the last time,1 we held that the acquisition of Pacific Northwest Pipeline Corporation by El Paso Natural Gas Company violated § 7 of the Clayton Act; and we directed the District Court “to order divestiture without delay.” United States v. El Paso Natural Gas Co., 376 U. S. 651, 662. That was on April 6, 1964. It is now nearly three years later and, as we shall see, no divestiture in any meaningful sense has been directed. The United States, now an appellee, maintains that the issues respecting divestiture are not 1 California v. Federal Power Commission, 369 U. S. 482, involved another aspect of the same merger; and we held that the Commission should not have approved it until the District Court decided whether it violated § 7 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 18. 247-216 0 - 67 - 14 132 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. before us. The threshold question does indeed involve another matter. Appellants were denied intervention by the District Court and came here by way of appeal, 32 Stat. 823, 15 U. S. C. § 29. We noted probable jurisdiction. 382 U. S. 970. I. The initial question concerning intervention turns on a construction of Rule 24 (a) of the Federal Rules of Civil Procedure entitled “Intervention of Right.” At the time the District Court ruled on the motions that Rule provided in relevant part, “Upon timely application anyone shall be permitted to intervene in an action ... (3) when the applicant is so situated as to be adversely affected by . . . disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.” As amended effective July 1, 1966, subsequent to the time these motions to intervene were denied, Rule 24 (a)(2) provides that there may be intervention of right, “when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” California, one of the appellants, is a State where El Paso sells most of its gas and its purpose in intervening was to assure that Pacific Northwest, illegally merged with El Paso, or its successor, would be restored as an effective competitor in California. As we noted in the prior opinion, Pacific Northwest had been “a substantial factor in the California market at the time it was acquired by El Paso.” 376 U. S., at 658. It was to restore that “competitive factor” that divestiture was ordered. Id., at 658—662. Southern California Edison, another CASCADE NAT. GAS v. EL PASO NAT. GAS. 133 129 Opinion of the Court. appellant, is a large industrial user of natural gas purchasing from El Paso sources and desirous of retaining competition in California. Cascade Natural Gas is a distributor in Oregon and Washington, and its sole supplier of natural gas was Pacific Northwest and will be the New Company created under the divestiture plan. Cascade maintains that there has been a grossly unfair division of gas reserves between El Paso and the New Company, particularly in the southwest field known as the San Juan Basin. Moreover, the District Court approved contracts between El Paso and the New Company for delivery of gas both from Canada and from the San Juan Basin, and allowed El Paso unilaterally and without application to the Federal Power Commission, to saddle new and allegedly onerous prices and other conditions on the New Company. Moreover, the stock of West Coast Transmission Co., Ltd., was ordered sold for the benefit of El Paso. Pacific Northwest had owned about a fourth of West Coast Transmission’s stock and that ownership gave Pacific Northwest, it is said, special insight into and access to the Canadian gas supply. These factors, implicating the ability of Pacific Northwest to perform in the future, give Cascade, it is argued, standing to intervene. Under old Rule 24(a)(3) those “adversely affected” by a disposition of property would usually be those who have an interest in the property.2 But we cannot read it to mean exclusively that group. Rule 24 (a)(3) was not merely a restatement of existing federal practice at law and in equity. If it had been, there would be force in the argument that the rigidity of the older cases remains unaltered, restricting intervention as of right very narrowly, as for example where there is a fund in court to which a third party asserts 2 See Board of Comm’rs v. Bernardin, 74 F. 2d 809, 816; Dowdy v. Hawfield, 88 U. S. App. D. C. 241, 242, 189 F. 2d 637, 638. 134 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. a right that would be lost absent intervention. Credits Commutation Co. v. United States, 177 U. S. 311, 316; Central Trust Co. v. Chicago, R. I. & P. R. Co., 218 F. 336, 339. But the Advisory Committee stated that Rule 24 “amplifies and restates the present federal practice at law and in equity.” We therefore know that some elasticity was injected; 3 and the question is, how much. As stated by the Court of Appeals for the Second Circuit in the Central Trust Co. case, “It is not always easy to draw the line.” Ibid. In Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, a consent decree was entered in an antitrust suit, designed to protect Panhandle from Columbia which had acquired domination of the former to stifle 3 In 1966 the Advisory Committee when making a revision of Rule 24 (a) said: “Rule 24(a)(3) as amended in 1948 provided for intervention of right where the applicant established that he would be adversely affected by the distribution or disposition of property involved in an action to which he had not been made a party. Significantly, some decided cases virtually disregarded the language of this provision. Thus Professor Moore states: ‘The concept of a fund has been applied so loosely that it is possible for a court to find a fund in almost any in personam action.’ 4 Moore’s Federal Practice 124.09[3], at 55 (2d ed. 1962), and see, e. g., Formulabs, Inc. v. Hartley Pen Co., 275 F. 2d 52 (9th Cir. 1960). This development was quite natural, for Rule 24 (a)(3) was unduly restricted. If an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene, and his right to do so should not depend on whether there is a fund to be distributed or otherwise disposed of. Intervention of right is here seen to be a kind of counterpart to Rule 19 (a)(2)(i) on joinder of persons needed for a just adjudication: where, upon motion of a party in an action, an absentee should be joined so that he may protect his interest which as a practical matter may be substantially impaired by the disposition of the action, he ought to have a right to intervene in the action on his own motion. See Louisell & Hazard, Pleading and Procedure: State and Federal 749-50 (1962).” 4 Moore, Federal Practice (1966 Spec. Supp.), c. 24, pp. 1-2. (Emphasis supplied.) CASCADE NAT. GAS v. EL PASO NAT. GAS. 135 129 Opinion of the Court. its competition. The decree sought to assure opportunities for competition by Panhandle. A security holder of Panhandle sought to intervene on Panhandle’s behalf when the consent decree was reopened and was denied that right. We reversed, noting at the outset that “the circumstances under which interested outsiders should be allowed to become participants in a litigation is, barring very special circumstances, a matter for the nisi prius court. But where the enforcement of a public law also demands distinct safeguarding of private interests by giving them a formal status in the decree, the power to enforce rights thus sanctioned is not left to the public authorities nor put in the keeping of the district court’s discretion.” Id., at 506. We noted that Panhandle’s economic independence was “at the heart of the controversy.” Ibid. In the present case protection of California interests in a competitive system was at the heart of our mandate directing divestiture. For it was the absorption of Pacific Northwest by El Paso that stifled that competition and disadvantaged the California interests. It was indeed their interests, as part of the public interest in a competitive system, that our mandate was designed to protect. In that sense the present case is very close to Pipe Line Co. Apart from that but in the spirit of Pipe Line Co. we think that California and Southern California Edison qualify as intervenors under Rule 24 (a)(3). Certainly these two appellants are “so situated” geographically as to be “adversely affected” within the meaning of Rule 24 (a)(3) by a merger that reduces the competitive factor in natural gas available to Californians. We conclude that it was error to deny them intervention. We need not decide whether Cascade could have intervened as of right under that Rule. For there is now in effect a new version of Rule 24 (a) which in subsection (2) recognizes as a proper element in intervention “an interest” in the “transaction which is the subject of the action.” This Rule applies to 136 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. “further proceedings” in pending actions. 383 U. S. 1031. Since the entire merits of the case must be reopened to give California and Southern California Edison an opportunity to be heard as of right as intervenors, we conclude that the new Rule 24 (a)(2) is broad enough to include Cascade also; and as we shall see the “existing parties” have fallen far short of representing its interests. We therefore reverse the District Court in each of these appeals and remand with directions to allow each appellant to intervene as of right, to vacate the order of divestiture and to have de novo hearings on the type of divestiture we envisioned and made plain in our opinion in 376 U. S. 651. II. The necessity for new hearings needs a word of explanation. The United States on oral argument stated that the decree to which it agreed and which it urges us to approve was made in “settlement” of the litigation. We do not question the authority of the Attorney General to settle suits after, as well as before, they reach here. The Department of Justice, however, by stipulation or otherwise has no authority to circumscribe the power of the courts to see that our mandate is carried out. No one, except this Court, has authority to alter or modify our mandate. United States v. du Pont de Co., 366 U. S. 316, 325. Our direction was that the District Court provide for “divestiture without delay.” That mandate in the context of the opinion plainly meant that Pacific Northwest or a new company be at once restored to a position where it could compete with El Paso in the California market. We do not undertake to write the decree. But we do suggest guidelines that should be followed: (1) Gas Reserves. The gas reserves granted the New Company must be no less in relation to present existing CASCADE NAT. GAS v. EL PASO NAT. GAS. 137 129 Opinion of the Court. reserves than Pacific Northwest had when it was independent; and the new gas reserves developed since the merger must be equitably divided between El Paso and the New Company. We are told by the intervenors that El Paso gets the new reserves in the San Juan Basin— which due to their geographical propinquity to California are critical to competition in that market. But the merged company, which discovered them, represented the interests both of El Paso and of Pacific Northwest. We do not know what an equitable division would require. Hearings are necessary, followed by meticulous findings made in light of the competitive requirements to which we have adverted. As already indicated, the proposed decree provides the terms of contracts4 imposed on the New Company respecting the purchase and gathering of gas from various sources. It is urged that these contracts are onerous, detrimental to the New Company, and partial to El Paso interests. We do not pass upon the wisdom or desirability of the proposed contracts. It is enough to note that they were proposed by El Paso, that the changes, reluctantly acceded to by the Government, will redound to the substantial benefit of El Paso, and that the New Company has had no opportunity to evaluate the advisability of the terms or to negotiate for better terms. Nor has the Federal Power Commission had the opportunity to pass 4 For example, one contract relates to reciprocal gas gathering between the New Company and El Paso in the San Juan Basin. Prior to the merger El Paso and Pacific Northwest entered into a contract providing that they would develop gathering lines in the basin cooperatively, and that whichever company made greater use of the other’s gathering lines would pay a gathering charge of 1.375^ per Mcf. of extra gas. El Paso did much more gathering for Pacific Northwest than Pacific Northwest did for El Paso. The proposed agreement increases the gathering charge to 4.5^. The intervenors claim that the increased rate will substantially increase the New Company’s costs and impair its ability to compete. 138 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. upon the contracts. The terms of these contracts should be negotiated by the New Company under such restrictions as the Natural Gas Act may impose. (2) Financial Aspects. As noted, El Paso is allowed to sell the stock of West Coast Transmission Co., Ltd., brought into the merger by Pacific Northwest, and keep the proceeds, which if stock prices at the time of the proposed divestiture are considered might result, it is alleged, in a profit of $10,000,000 or more, while the New Company gets the stock of Northwest Production Co. which from 1960-1963 showed heavy losses. It is charged that by the proposed decree El Paso is saving the cream for itself and foisting the “cats and dogs” on the New Company. It is also earnestly argued that the New Company will sorely need the valuable and fairly liquid stock of West Coast Transmission if it is to have the working capital necessary to restore the competitive balance that the merger destroyed. These are highly relevant arguments. Certainly a plan of divestiture of the kind we envisaged must establish a New Company in the same or comparable competitive position that Pacific Northwest was in when the illegal merger obliterated it. It is also pointed out that some $53,000,000 of taxable losses which Pacific Northwest had were utilized by El Paso during the years following the ill-starred merger. It is argued that since these tax loss carry-overs were in a real sense an asset of Pacific Northwest utilized by El Paso, the New Company should receive other assets or a reduction in debt of equivalent value. These allegations, if proven, require remuneration of some kind to the New Company. For it must be a viable, healthy unit, as able to compete as Pacific Northwest was when it was acquired by El Paso. (3) Control of El Paso. The divestiture decree provides that El Paso is to cause the formation of the New Company, whose chief executive shall be approved by CASCADE NAT. GAS v. EL PASO NAT. GAS. 139 129 Opinion of the Court. El Paso, the Government, and the court. The new company is to file an application with the Federal Power Commission “at the earliest practicable date” requesting the issuance of a certificate of public convenience and necessity authorizing it to acquire, own, and operate the properties to be received from El Paso.5 When the necessary certificates, authorizations, and orders are obtained from the FPC, El Paso is to transfer to the New Company the properties and assets set forth in the plan of divestiture, generally those which El Paso received from Pacific Northwest. In return, the New Company is to assume certain of El Paso’s indebtedness and issue to El Paso all its common stock. El Paso is to transfer the New Company stock to the New Company’s chief executive, as voting trustee. The New Company’s chief executive shall release the stock only in accordance with the plan for divestment of El Paso’s interest in the stock. Under the plan, El Paso is ordered completely to divest itself of all interest in the New Company stock within three years after the transfer of the assets to the New Company. Alternate methods of divestment are provided. (1) El Paso may, within 18 months of the transfer, distribute at least 80% of the shares to holders of El Paso common stock who are willing to exchange their El Paso shares for New Company shares, and who shall own no other El Paso shares immediately after the exchange. The remainder of New Company stock would be disposed of by a public offering. (2) If El Paso does not dispose of the New Company stock under the first alternative, it is to dispose of the New Company stock “by one or more sales to the public.” At such public offering no El Paso officer or director and no owner of El Paso’s capital stock, 5 We are informed that the New Company’s chief executive has been approved and that the New Company has applied to the Federal Power Commission for certification. The FPC proceedings have been continued until this Court has decided this appeal. 140 OCTOBER TERM,. 1966. Opinion of the Court. 386 U. S. in excess of one-half of one percent of the total shares outstanding, shall be permitted to purchase New Company stock.6 Thus the El Paso-Pacific Northwest combination will not begin to be severed until the regulatory approvals have been obtained. Complete divestiture is not required until three years after the transfer of assets. An earlier divestiture is permissible, but divestiture is mandatory only after three years. During the interregnum between the entry of the decree and the regulatory approvals, and between the transfer of assets and El Paso’s eventual disposition of the New Company stock, El Paso will continue to reap the benefits of the illegal combination. Moreover, prior to the eventual disposition of the New Company stock, all the stock is to be voted by the New Company’s chief executive. The chief executive is to be approved by El Paso, and El Paso is the beneficial owner of the stock to be voted by him. Even though the chief executive is subject to the ultimate control and supervision of the District Court, there is danger that he may vote the New Company stock in a manner calculated to perpetuate the very conditions which led us to order severance of the illegal combination. Even after the mandatory disposition of the new company stock there is considerable danger that El Paso interests may end up controlling the New Company. The decree, to be sure, provides that neither El Paso officers and directors nor owners of more than one-half of one percent of El Paso stock shall purchase New Company stock at a public offering. But the decree does not pro- 6 El Paso is also enjoined from having as an officer or director any person who is also an officer, director, or employee of the New Company or who owns any capital stock of the New Company or whose immediate family owns more than one-tenth of one percent of the stock of the New Company. CASCADE NAT. GAS v. EL PASO NAT. GAS. 141 129 Opinion of the Court. hibit members of the families of such prohibited purchasers from obtaining New Company stock. Further, under the terms of the decree, it would be possible for a group of El Paso stockholders, each with less than one-half of one percent of El Paso stock, to acquire at the initial public offering enough New Company stock substantially to influence or even to dominate the New Company. Or, such a group could combine with the families of prohibited purchasers in order to control the New Company. After the exchange or public offering, there is no restriction on the number of New Company shares El Paso shareholders may acquire. Thus, there is a danger that major El Paso stockholders may, subsequent to the exchange or public offering, purchase large blocks of New Company stock and obtain effective control. Thus, there has been no studied attempt to ensure the swift severance of the illegal combination or to make sure that the New Company’s stock does not end up controlled by El Paso interests. Disposition of all of the stock with all convenient speed is necessary and conditions must be imposed to make sure that El Paso interests do not acquire a controlling interest. For if they do, the New Company might well be only El Paso under the masquerade of a beard. The proposed decree bypasses completely the prospect of an outright purchase of the assets of the New Company or its stock by outside interests. Two purchasers apparently are anxious and eager; and before the United States knuckled under to El Paso and “settled” this litigation, it represented to the District Court that a “sale to a third party is both a desirable and possible alternative to the El Paso plan.” No alternative of that kind was chosen. El Paso carried the day, obtained a decree that promises to perpetuate rather than terminate this unlawful merger, and that threatens to turn loose on the 142 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. public a New Company unable to maintain the competitive role that Pacific Northwest filled before this illegal transaction took place. The convenience of El Paso would be the easier choice. The enforcement of our mandate and § 7 of the Clayton Act is the harder one; but that is the criterion we follow. The evil with which the proposed decree is permeated reflects the attitude or philosophy of the District Court which was frankly stated after our remand as follows: “The Court: You see, what this plan proposes is a division of the country, a division of the market, a division of the reserves, one area to New Company and another area to El Paso. That’s what the root of this plan is. “Now, if you’re going to get New Company down here in competition in Southern California from the San Juan Basin, you’d upset the whole scheme. To even that situation up, you’re going to have to put El Paso up in the Northwest in competition there; and that’s a kind of ridiculous thing—long pipelines from these various sources. “It seems to me to make a lot of sense that New Company operating in the Northwest from very much closer Canadian reserves, and Northwest reserves, and El Paso down in the Southwest, with reserves in the San Juan Basin, serving the Southern California area, among some other areas. That seems to me to make a lot of sense.” The proposed decree in its various ramifications does precisely that. It therefore does the opposite of what our prior opinion and mandate commanded. Once more, and nearly three years after we first spoke, we reverse and remand, with directions that there be divestiture without delay and that the Chief Judge of the Circuit or the Judicial Council of the Circuit (28 U. S. C. § 332) CASCADE NAT. GAS v. EL PASO NAT. GAS. 143 129 Stewart, J., dissenting. assign a different District Judge to hear the case. Cf. United States v. Hatahley, 257 F. 2d 920, 926, and its sequel, United States v. Ritter, 273 F. 2d 30, 32; Occidental Petroleum Corp. v. Chandler, 303 F. 2d 55, 57; Texaco, Inc. v. Chandler, 354 F. 2d 655, 657. Reversed. Mr. Justice White and Mr. Justice Fortas took no part in the consideration or decision of these cases. Mr. Justice Stewart, whom Mr. Justice Harlan joins, dissenting. The question presented by these appeals, and the only question, is whether the District Court erred in denying the appellants’ motions to intervene as parties. Because I think the Court’s answer to that question is wrong, and because I think the Court has gone further astray in undertaking to address itself to issues which are not here for adjudication, I respectfully dissent. Intervention of right is governed by Federal Rule of Civil Procedure 24 (a). At the time the District Court passed on appellants’ motions to intervene,1 that Rule provided as follows: “Rule 24. Intervention “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or 1 The Rule has since been amended. See p. 153, infra. 144 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U.S. subject to the control or disposition of the court or an officer thereof.” I gather it is common ground that neither 24 (a)(1) nor 24(a)(2) applies to these cases. No appellant claims any statutory right to intervene under 24 (a)(1). And it is clear that no appellant has any right to intervene under 24(a)(2), for in order to intervene under that provision, the applicant for intervention must show that he “may be bound” by the judgment in the Government’s action in a res judicata sense. Sam Fox Publishing Co. v. United States, 366 U. S. 683; Sutphen Estates, Inc. v. United States, 342 U. S. 19. See Credits Commutation Co. v. United States, 177 U. S. 311. And it is settled that the judgment in a government suit has no res judicata effect on private antitrust claims. Sam Fox Publishing Co. v. United States, supra. The Court, however, finds that the State of California and Southern California Edison Co. have an absolute right to intervene under 24 (a) (3). I disagree for several reasons. Analysis of the Rule’s proper scope must begin with an historical examination of intervention practice, for, as the Court has stated, the Rule constitutes a “codification of general doctrines of intervention.” Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, 508.2 Intervention to assert an interest in property within the court’s control or custody derives from the English doctrine of appearance pro interesse suo. When a court acquired in rem jurisdiction over property, by admiralty libel, sequestration, receivership, or other process, a person claiming title or some other legal or equitable interest 2 This statement is confirmed by the Rules Advisory Committee, which observed that the Rule “amplifies and restates the present federal practice at law and in equity.” Advisory Committee on Rules for Civil Procedure, Notes, 25 (March 1938). CASCADE NAT. GAS v. EL PASO NAT. GAS. 145 129 Stewart, J., dissenting. was allowed to come in to assert his claim to the property. Otherwise, he would have been subjected to the obvious injustice of having his claim erased or impaired by the court’s adjudication without ever being heard. Elements of this procedure were gradually assimilated in this country, e. g., Pennock v. Coe, 23 How. 117, and provided the foundation for intervention doctrine in the federal courts.3 Various generalizations about the nature of the property interest that will support intervention of right under this doctrine have been attempted. This Court has stated that the requisite interest must be “of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.” Smith v. Gale, 144 U. S. 509, 518.4 Other courts have spoken of “a legal interest as distinguished from interests of a general and indefinite character,” Radford Iron Co. v. Appalachian Electric Power Co., 62 F. 2d 940, 942 (C. A. 4th Cir.), cert, denied, 289 U. S. 748, or “one that is known and protected by the law, sufficient and of the type to be denominated a lien, legal or equitable,” Gross v. Missouri & A. Ry. Co., 74 F. Supp. 242, 249 (D. C. V. D. Ark.). These formulations are of limited use in deciding particular cases. More illuminating are examples of particular interests which have been held to support intervention of right under the established practice. These have included the 3 For a discussion of the English and early American practice, see 4 Moore, Federal Practice 124.03; 2 Street, Federal Equity Practice §§ 1364-1370 (1909). 4 Quoting with approval Horn v. Volcano Water Co., 13 Cal. 62, 69. Subsequent federal decisions following this formulation include Pure Oil Co. v. Ross, 170 F. 2d 651, 653 (C. A. 7th Cir.); Dowdy v. Hawfield, 88 U. S. App. D. C. 241, 242, 189 F. 2d 637, 638, cert, denied, 342 U. S. 830. 146 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U. S. claim of ownership in attached property,5 the claim of a part owner to personal property being foreclosed under a mortgage,6 a mortgage lien on a leasehold interest subjected to forfeiture,7 and the claim of the purchaser of land involved in foreclosure proceedings against the seller.8 Interests like these have continued to provide a familiar basis for intervention of right since the promulgation of Rule 24 (a)(3).9 The other traditional basis for intervention under 24(a)(3) derives from interpleader practice; when a number of persons possess claims to a fund which are or may be mutually exclusive, intervention is allowed a claimant. Thus, in Oliver v. United States, 156 F. 2d 281 (C. A. 8th Cir.), the United States had acquired certain land and deposited the purchase price in court to be divided among the various owners. A title insurance company which asserted a claim to the proceeds, based on services rendered to the sellers, was allowed to intervene.10 Under Rule 24 (a)(3) the federal courts have sometimes allowed intervention even though the interest likely to be “adversely affected” was not one that would be recognized under traditional interpretations of the pro interesse suo or interpleader types of intervention. A representative case is Formulabs, Inc. v. Hartley Pen Co., 275 F. 2d 52 (C. A. 9th Cir.), cert, denied, 363 U. S. 5 Krippendorj v. Hyde, 110 U. S. 276. G Osborne & Co. v. Barge, 30 F. 805 (C. C. N. D. Iowa). 7 See United States v. Radice, 40 F. 2d 445 (C. A. 2d Cir.). 8 Gaines v. Clark, 51 App. D. C. 71, 275 F. 1017. 9 E. g., Plitt v. Stonebraker, 90 U. S. App. D. C. 256, 195 F. 2d 39 (intervention granted to creditor asserting security interest in goods seized by marshal). 10 For expansive interpretations of interpleader-type intervention, see Barnes v. Alexander, 232 U. S. 117; Peckham v. Family Loan Co., 212 F. 2d 100 (C. A. 5th Cir.). But see Vaughan v. Dickinson, 19 F. R. D. 323 (D. C. W. D. Mich.), aff’d, 237 F. 2d 168 (C. A. 6th Cir.). CASCADE NAT. GAS v. EL PASO NAT. GAS. 147 129 Stewart, J., dissenting. 830. The applicant for intervention had licensed a secret manufacturing process to one of the parties, and the other party was seeking to apply discovery to the process. Finding that the trade secret was “property” subject to the court’s control and that the secrecy which was the heart of the applicant’s interest in that property might be totally destroyed, the court allowed intervention under 24 (a) (3). But the claims of California and the Southern California Edison Co. in these cases lie far beyond the reach of even the most imaginable construction of 24 (a)(3). To be sure, the assets of El Paso are “property which is in the custody or subject to the control or disposition of the court” for purposes of the Rule. Sutphen Estates, Inc. v. United States, 342 U. S. 19. But the “interest” in these assets relied upon by the appellants to justify intervention is merely their preference that certain of the assets, particularly the San Juan Basin reserves, end up in the hands of New Company rather than El Paso, on the theory that such an allocation may be conducive to greater gas competition in California. These general and indefinite interests do not even remotely resemble the direct and concrete stake in litigation required for intervention of right. The Court’s decision not only overturns established general principles of intervention, but, as will be shown below in detail, also repudiates a large and long-established body of decisions specifically, and correctly, denying intervention in government antitrust litigation. This Court is all too familiar with the fact that antitrust litigation is inherently protracted. Indeed, it is just such delay which seems to so concern the Court in this case. But nothing could be better calculated to confuse and prolong antitrust litigation than the rule which the Court today announces. The entrance of additional parties into antitrust suits can only serve 247-216 0 - 67 - 15 148 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U.S. to multiply trial exhibits and testimony, and further confound the attempt to bring order out of complicated economic issues. For these reasons, federal courts have been most reluctant to grant intervention under 24 (a)(3) even in private antitrust litigation. For example, in Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F. 2d 564 (C. A. 7th Cir.), cert, denied, 375 U. S. 834, the State of Illinois, representing consumers’ interests in a possible rate rebate, was denied intervention in a suit brought by a utility charging equipment manufacturers with price fixing.11 The reasons for denying intervention are even stronger when intervention is sought in an antitrust suit brought by the Government. To the extent that the would-be intervenor seeks to press his own private antitrust claims against the defendant, intervention must be denied because Congress has carefully provided separate statutory procedures for private and public antitrust litigation.11 12 As the Court observed in United States v. Borden Co., 347 U. S. 514, 518-519, the thrust of the Clayton Act “is sharply to distinguish between Government suits, either criminal or civil, and private suits for injunctive relief or for treble damages. Different policy considerations govern each of these. They may proceed simultaneously or in disregard of each other.” 13 The Court has accordingly approved the “unquestionably sound policy of not 11 Cf. American Louisiana Pipe Line Co. v. Gulf Oil Corp., 158 F. Supp. 13 (D. C. E. D. Mich.) (county not allowed to intervene on behalf of consumers in private gas contract dispute). See also Philadelphia Electric Co. v. Westinghouse Electric Corp., 308 F. 2d 856 (C. A. 3d Cir.), cert, denied, 372 U. S. 936. 12 See 26 Stat. 209 (1890), as amended, 15 U. S. C. §4; 38 Stat. 731 (1914), 15 U. S. C. § 15; 69 Stat. 282 (1955), 15 U. S. C. § 15a; 38 Stat. 736, as amended, 737, 15 U. S. C. §§25, 26; 32 Stat. 823 (1903), as amended, 15 U. S. C. §§28, 29. 13 Quoting with approval United States v. Bendix Home Appliances 10 F. R. D. 73, 77 (D. C. S. D. N. Y.). CASCADE NAT. GAS v. EL PASO NAT. GAS. 149 129 Stewart, J., dissenting. permitting private antitrust plaintiffs to press their claims against alleged violators in the same suit as the Government.” Sam Fox Publishing Co. v. United States, 366 U. S. 683, at 693. A fortiori, intervention is improper when a private party appears in order to vindicate his theory of the public interest in an action brought by the Government. For as the Court has consistently recognized, it is the “United States, which must alone speak for the public interest” in antitrust litigation. Buckeye Coal & Ry. Co. v. Hocking Valley Ry. Co., 269 U. S. 42, 49.14 The appellants here seek intervention to press their own version of what the public interest in gas competition in California requires. But the determination of what the public interest requires is the statutory duty and responsibility of the Government. The law explicitly requires that suits brought by the Government for injunctive relief shall be “under the direction of the Attorney General.” 15 U. S. C. §§ 4 and 25. That statutory command is violated when private parties are allowed to intervene and control public suits. The Government’s discharge of its duties would be completely undermined if its antitrust litigation were cluttered with a myriad of private volunteers, all pressing their own particular interpretations of the “public interest” against the defendant, the Government, and each other. It has been the consistent policy of this Court to deny intervention to a person seeking to assert some general 14 In United States v. Borden Co., 347 U. S. 514, 518, the Court stated: “The private-injunction action, like the treble-damage action under § 4 of the Act, supplements government enforcement of the antitrust laws; but it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws. The Government seeks its injunctive remedies on behalf of the general public; the private plaintiff, though his remedy is made available pursuant to public policy as determined by Congress, may be expected to exercise it only when his personal interest will be served.” 150 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U. S. public interest in a suit in which a public authority charged with the vindication of that interest is already a party. Thus, in In re Engelhard & Sons Co., 231 U. S. 646, intervention was denied to a subscriber seeking to enter a suit between a municipality and a telephone utility involving the validity of the city’s rate ordinance and the disposition of rate overcharges. Similarly, in City of New York v. Consolidated. Gas Co. of New York, 253 U. S. 219, and City of New York v. New York Telephone Co., 261 U. S. 312, the City of New York was not allowed to intervene on behalf of consumer residents of the city in litigation between state authorities and public utilities over the validity of state rate regulation. The wise principle of those decisions is reflected in many other federal cases decided both before and after the adoption of Rule 24 (a)(3).15 The applicability of this principle to intervention in antitrust suits brought by the Government was early 15 O’Connell v. Pacific Gas & Electric Co., 19 F. 2d 460 (C. A. 9th Cir.) (intervention denied to ratepayer protesting proposed settlement of litigation between utility and municipality); Radford Iron Co. v. Appalachian Electric Power Co., 62 F. 2d 940 (C. A. 4th Cir.), cert, denied, 289 U. S. 748 (business injured by utility’s proposed dam denied intervention in suit between utility and FPC); MacDonald v. United States, 119 F. 2d 821 (C. A. 9th Cir.), aff’d as modified, 315 U. S. 262 (intervention under Rule 24 denied in suit over mineral rights between United States and railroad to one claiming such rights under patent from United States); Reich v. Webb, 336 F. 2d 153 (C. A. 9th Cir.), cert, denied, 380 U. S. 915 (depositors denied 24 (a)(3) intervention in proceeding by Federal Home Loan Bank Board against savings and loan association officers); Gross v. Missouri & A. Ry. Co., 74 F. Supp. 242 (D. C. W. D. Ark.) (24(a)(3) intervention denied municipalities served by railroad involved in reorganization proceedings to which State was a party); Butterworth v. Dempsey, 229 F. Supp. 754, 798-799 (D. C. Conn.), aff’d, 378 U. S. 562 (intervention under 24(a)(3) denied overrepresented towns in reapportionment suit brought against state authorities). CASCADE NAT. GAS v. EL PASO NAT. GAS. 151 129 Stewart, J., dissenting. recognized by this Court. Ex parte Leaf Tobacco Board, 222 U. S. 578, denied intervention to enterprises that sold tobacco to defendants in an antitrust suit brought by the Government. From that time since, we have consistently refused to recognize the right to intervene in government antitrust suits.10 Allen Calculators, Inc. v. National Cash Register Co., 322 U. S. 137; Partmar Corp. v. United States, 338 U. S. 804; Wometco Television & Theatre Co. v. United States, 355 U. S. 40; Westinghouse Broadcasting Co. v. United States, 364 U. S. 518, dismissing appeal from 186 F. Supp. 776; Sam Fox Publishing Co. v. United States, supra; Bardy v. United States, 371 U. S. 576.16 17 And we have upheld 16 Intervention in this Court was allowed in United States v. St. Louis Terminal, 236 U. S. 194, but there the “intervenors” were in the practical status of defendants. Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, relied upon by the Court, is completely inapposite. Panhandle Eastern Pipe Line Co. was a competitor of defendants charged by the Government with improperly exercising control over Panhandle to weaken its threat as a competitor. A consent decree was negotiated to protect Panhandle’s independence. The decree provided for retention of jurisdiction by the court to enter such “further orders and decrees” as were necessary to carry out its purpose, and stated that “Panhandle Eastern, upon proper application, may become a party hereto” to protect its rights under the decree. When the Government later sought modifications of the decree, we held that the decree gave Panhandle the right to intervene. The Court carefully noted that this right to intervene was bottomed solely on the specific provisions of the decree and not general principles of intervention: “Its foundation is the consent decree. We are not here dealing with a conventional form of intervention . . . .” 312 U. 8., at 506. The Court concluded, “Therefore, the codification of general doctrines of intervention contained in Rule 24 (a) does not touch our problem.” 312 U. 8., at 508. 17 The policy behind these decisions was stated in United States v. American Society of Composers, Authors and Publishers, 341 F. 2d 1003 (C. A. 2d Cir.), cert, denied, 382 U. S. 877, in which ASCAP licensees were denied intervention to assert that ASCAP had violated 152 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U. S. denial of intervention to a private party who claimed that a decree negotiated between the Government and an antitrust defendant failed to carry out the mandate of this Court. Ball v. United States, 338 U. S. 802. The results which follow from the Court’s rejection of the practical wisdom embodied in these decisions are apparent. There were over 20 applications to intervene in the decree proceedings below. The Court’s construction of 24 (a)(3) would require the District Court to grant most if not all of them. El Paso gas goes to millions of consumers, and under the Court’s decision any or all of them are entitled to intervene as of right. And there is nothing in the Court’s opinion which suggests that this right to intervene is limited to litigation over remedy. If consumers and others have an interest in making sure that a government antitrust decree meets their standards of effectiveness, they have an even greater interest in insuring that a violation is found. Thus the Court’s reasoning gives any consumer a right to intervene in government antitrust litigation at the very outset. The Court invites a scope of intervention that will make the delays in this case seem mercifully short. The Court’s decision would not be of such concern, nor merit so much discussion, if it were simply limited to 24(a)(3), a provision which has been superseded. But the same approach which creates a right to intervene for California and the Southern California Edison Co. under the old Rule 24 (a) (3) appears in the Court’s construction of the new Rule 24, under which it says Cascade has a right to intervene. The new Rule 24 (a)(2) a decree in an antitrust suit brought by the Government: “The United States in instituting antitrust litigation seeks to vindicate the public interest and, in so doing, requires continuing control over the suit . . . .” 341 F. 2d, at 1008. CASCADE NAT. GAS v. EL PASO NAT. GAS. 153 129 Stewart, J., dissenting. replaces the previous Rule 24 (a)(2) and (3), and provides for intervention of right: “[W]hen the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” This and other amendments to the Federal Rules of Civil Procedure were promulgated by this Court to “take effect on July 1, 1966, and . . . govern all proceedings in actions brought thereafter and also in all further proceedings in actions then pending . . . .” 383 U. S. 1031. Since the District Court denied Cascade’s motion to intervene in 1965, before the effective date of the amended Rule, the new Rule was inapplicable to Cascade’s motion.18 But even if the new Rule were applicable, neither Cascade nor the other appellants could claim intervention of right under it. The purpose of the revision was to remedy certain logical shortcomings in the construction of the former 24 (a)(2), see Sam Fox Publishing Co. v. United States, supra, and to give recognition to decisions such as 18 In Klapprott v. United States, 335 U. S. 601, the petitioner sought to reopen a default judgment denaturalizing him, relying on amendments to Rule 60 (b). Several Justices thought that the petitioner should be able to obtain relief under the amended Rule even though the District Court had denied the petitioner’s application before the effective date of the amendments. Cascade’s interest here bears no resemblance to the extraordinary hardship and injustice claimed by the petitioner in Klapprott, where it could be persuasively argued that it was “more consonant with equitable considerations to judge the case on the basis of the Rule now in force, even though the lower court did not have the opportunity to apply it.” 335 U. S., at 629 (dissenting opinion). 154 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U.S. Formulabs, Inc. v. Hartley Pen Co., supra, which had expanded intervention under the former 24 (a) (3) beyond the strict pro interesse suo model it embodied.19 But an applicant is still required to have an “interest” in the litigation sufficiently direct and immediate to justify his entry as a matter of right. The remote and general concerns that appellants State of California and Southern California Edison Co. have with this government suit have already been discussed. And Cascade’s interest is even more insubstantial. While it purchases gas from El Paso in Oregon, it seeks intervention to vindicate gas competition in California.20 Even if it should be thought that the amended Rule might encompass such remote interests in some conceivable circumstances, it is clear that such interests may never justify intervention of right in public antitrust litigation, where Congress has carefully entrusted the conduct of government suits to the “direction of the Attorney General.” But even if Cascade should pass this hurdle, it would also have to show that there was a failure of “adequate representation” by the Justice Department in this case. The Court states that the Government “knuckled under to El Paso” and has “fallen far short of representing” Cascade’s interest. Since the interest that Cascade claims to be representing is that of the public, the Court is charging the Justice Department with dereliction of duty or serious incompetence. I regard this charge as wholly unjustified. The Government did settle for less than all the relief that it sought at the outset. But this is a wholly familiar phenomenon of negotiation. Bar- 19 See Notes of Advisory Committee on Rules, Fed. Rule Civ. Proc. 24, 28 U. S. C. App. Rule 24 (1964 ed., Supp. II). 20 The FPC will protect Cascade’s existing supply of gas when New Company applies for certification. See, e. g., Michigan Consolidated Gas Co. v. FPC, 108 U. S. App. D. C. 409, 283 F. 2d 204, cert, denied, 364 U. S. 913. CASCADE NAT. GAS v. EL PASO NAT. GAS. 155 129 Stewart, J., dissenting. gaining for consent decrees and stipulated remedies is a normal and necessary element in the Government’s enforcement of the antitrust laws. Moreover, it is perfectly conceivable that in the course of negotiations the Government may become aware of errors in its opening position. If, as the Court’s opinion seems to suggest, the Government is required to press its original negotiating position unceasingly and to the bitter end, the number of cases which the Government can afford to undertake will be sharply reduced, and the enforcement of the antitrust laws will ultimately become less effective. And of course the delay in antitrust litigation, which so concerns the Court, will markedly increase. The Court’s standard of “adequate representation” comes down to this: If, after the existing parties have settled a case or pursued litigation to the end, some volunteer comes along who disagrees with the parties’ assessment of the issues or the way they have pursued their respective interests, intervention must be granted to that volunteer as of right. This strange standard is not only unprecedented and unwise, it is also unworkable. The requirement of inadequate representation by existing parties as a precondition of the right to intervene under the new Rule 24 is obviously an adaptation of the similar standard contained in the former 24 (a) (2). Decisions under that standard allowed intervention of right when the intervenor could show a conflict of interest between himself and the party supposed to represent his interest,21 a complete failure of representation by existing parties,22 or collusion or the likelihood of collusion be- 21 Pyle-National Co. v. Amos, 172 F. 2d 425 (C. A. 7th Cir.); Mack v. Passaic Nat. Bank & Trust Co., 150 F. 2d 474, 154 F. 2d 907 (C. A. 3d Cir.) ; In re Standard Power & Light Corp., 48 F. Supp. 716 (D. C. Del.). 22 Pellegrino v. Nesbit, 203 F. 2d 463 (C. A. 9th Cir.). 156 OCTOBER TERM, 1966. Stewart, J., dissenting. 386U.S. tween them.23 Mere tactical disagreement over how litigation should be conducted is obviously insufficient to support intervention of right.24 In ignoring these precedents, the Court also overlooks the sound policies which underlie them. The Court’s approach draws judges into the adversary arena and forces them into the impossible position of trying to second-guess the parties in the pursuit of their own interests. It is also wasteful and productive of delay, because under this strange standard a person’s right to intervene in litigation cannot be ascertained until that litigation is concluded and the existing parties’ conduct evaluated. Wrong as the Court’s approach is with respect to litigation generally, it is even more wrong when a would-be intervenor seeks to challenge the adequacy of the Government’s representation of the public interest. The separation of powers in our federal system generates principles that make it peculiarly inappropriate for courts to assume the role of supervision over policy decisions of the Executive. Yet the Court presumes to tell the Justice Department that it made tactical errors in conducting litigation, failed in its assessment of the public interest, and cannot settle a lawsuit which it has brought. This Court does not have the constitutional power to second- 23 Cuthill v. Ortman-Miller Machine Co., 216 F. 2d 336 (C. A. 7th Cir.); Park & Tilford, Inc. v. Schulte, 160 F. 2d 984 (C. A. 2d Cir.), cert, denied, 332 U. S. 761; Klein v. Nu-Way Shoe Co., 136 F. 2d 986 (C. A. 2d Cir.); Molybdenum Corp, of America v. International Mining Corp., 32 F. R. D. 415 (D. C. S. D. N. Y.); Twentieth Century-Fox Film Corp. v. Jenkins, 7 F. R. D. 197 (D. C. S. D. N. Y.). 24 Alleghany Corp. v. Kirby, 344 F. 2d 571 (C. A. 2d Cir.), cert, dismissed, 384 U. S. 28; Stadin v. Union Electric Co., 309 F. 2d 912 (C. A. 8th Cir.), cert, denied, 373 U. S. 915; United States v. American Society of Composers, Authors and Publishers, 202 F. Supp. 340 (D. C. S. D. N. Y.). But cf. Ford Motor Co. v. Bisanz Bros., 249 F. 2d 22 (C. A. 8th Cir.). CASCADE NAT. GAS v. EL PASO NAT. GAS. 157 129 Stewart, J., dissenting. guess decisions of the Attorney General made within the bounds of his official discretion. That is the responsibility of the President and, ultimately, the electorate. In words appropriate here, we long ago stated in the context of an attack on the Government’s settlement of an antitrust case: “. . . we do not find in the statutes defining the powers and duties of the Attorney General any such limitation on the exercise of his discretion as this contention involves. His authority to make determinations includes the power to make erroneous decisions as well as correct ones.” Swift <& Co. v. United States, 276 U. S. 311, 331-332. The Court today gives only lip service to these principles. It states that “We do not question the authority of the Attorney General to settle suits after, as well as before, they reach here.” Ante, at 136. But it then proceeds to take the direction of a government lawsuit out of the hands of the Attorney General and into its own. The Court relies on the fact that we have previously rendered a judgment in this case and cites dictum from the opinion in United States v. E. I. du Pont & Co., 366 U. S. 316, to justify the extraordinary course it takes. But in the absence of outright fraud, it has never been thought that the fact that parties have initially resorted to the courts gives judges power to set aside later settlement agreements and impose others on the parties. And certainly when it is the Executive Branch of the Government that has made the settlement as representative of the public interest, only the grossest bad faith or malfeasance on its part could possibly support such a step. Either the Court is saying the Government was guilty of such misconduct—a charge totally without support in the record—or the Court has grossly overreached the permissible limit of judicial power. Not only concern for the constitutional position of this Court, but more directly pragmatic considerations 158 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U.S. underlie my disagreement with today’s decision. To permit volunteers to intervene and second-guess the Justice Department is especially inappropriate when the issues involved, like those in the antitrust field, require technical experience and an assessment and balancing of interests essentially administrative and political. Formulation of effective and consistent government antitrust policy is unlikely to result from “piecemeal intervention of a multitude of individual complainants” 25 in litigation brought by the Government. Less than six years ago we fully recognized this principle: . . sound policy would strongly lead us to decline [the] invitation to assess the wisdom of the Government’s judgment in negotiating and accepting the . . . consent decree, at least in the absence of any claim of bad faith or malfeasance on the part of the Government in so acting.” Sam Fox Publishing Co. v. United States, supra, at 689.26 Today the Court ignores all this and grants intervention of right to any volunteer claiming to speak for the public interest whenever he can convince a court that the Government might have used bad judgment in conducting or settling a lawsuit. I think this decision, which undermines the Justice Department in the discharge of its responsibilities, and invites obstruction and 25 United States v. General Electric Co., 95 F. Supp. 165 169 (D. C. N. J.). 26 This policy has been given continuing recognition by the lower federal courts. Reich v. Webb, 336 F. 2d 153 (C. A. 9th Cir.), cert, denied, 380 U. S. 915; MacDonald v. United States, 119 F. 2d 821 (C. A. 9th Cir.), aff’d as modified, 315 U. S. 262; United States v. General Electric Co., 95 F. Supp. 165 (D. C. N. J.). See Wometco Television & Theatre Co. v. United States, 355 U. S. 40. But cf. Atlantic Refining Co. v. Standard Oil Co., 113 U. S. App. D. C. 20, 304 F. 2d 387. CASCADE NAT. GAS v. EL PASO NAT. GAS. 159 129 Stewart, J., dissenting. delay in the course of public litigation, is unsupported by the provision of old Rule 24, new Rule 24, or any other conceivably tolerable standard governing intervention as of right. The District Court did not err in denying intervention to the appellants,27 and these appeals should therefore be dismissed.28 But even if I am completely wrong, and the Court is right in concluding that the District Court erred in denying appellants the right to intervene, the proper course would be simply to remand the case to the District Court so that the appellants’ contentions may be met by the Government or El Paso and passed on by a trial court that is intimately familiar with the massive record in this case. Instead, the Court brushes aside the “threshold” question of appellants’ right to intervene in a few pages and devotes most of its opinion to pronouncements on gas reserves, delivery contracts, and other intricacies of gas competition in the western United States. These issues were never the subject of adversary proceedings in the District Court. They were never resolved through findings by the District Court. Appellees did not directly brief or argue them before this Court. On the basis of what are in effect ex parte criticisms of the decree entered below, the Court lays down “guidelines” with respect to complex issues which will shape the future of an important segment of this Na 27 The appellants also seek to challenge the District Court’s denial of their motions for permissive intervention under Rule 24 (b). We have no jurisdiction to consider this challenge. Allen Calculators, Inc. v. National Cash Register Co., 322 U. S. 137. See Sam Fox Publishing Co. v. United States, 366 U. S. 683, at 688 and n. 3. And in any event the District Court did not, in the circumstances of this protracted and complex litigation, abuse its discretion in choosing to allow appellants to present their views by amicus briefs rather than affording them permissive intervention as full parties. 28 See Sutphen Estates, Inc. v. United States, 342 IT. S. 19. 160 OCTOBER TERM, 1966. Stewart, J., dissenting. 386 U. S. tion’s commerce. In so doing the Court roams at large, unconfined by anything so mundane as a factual record developed in adversary proceedings. “The obvious must be restated. We do not sit to draft antitrust decrees de novo. This is a court of appeal, not a trial court. We do not see the witnesses, sift the evidence in detail, or appraise the course of extended argument .... In short, this Court does not partake of the procedure and is not charged with the responsibility demanded of the court entrusted with the task of devising the details of a decree appropriate for the governance of a vastly complicated situation arising out of unique circumstances.” United States v. E. I. du Pont & Co., 366 U. S. 316, 371 (dissenting opinion). The Court has decided this case on little more than repugnance for “the attitude or philosophy of the District Court” and the unjustified and extraordinarily opprobrious conclusion that the Government “knuckled under.” This is not a happy foundation for radical extensions of intervention doctrine. And it is not a proper basis for deciding how stock in the New Company should be marketed, or how gas reserves in New Mexico should be divided. In its zeal to censure the District Judge and reprimand the Justice Department, the Court has rushed headlong into a jurisprudential quagmire far more dangerous than the “evil” it purports to discern in the decree entered by the trial court. Finally, I must note my emphatic disagreement with the Court’s extraordinary action in directing that further proceedings in this case must be conducted by a different district judge. Federal reviewing courts have taken this serious step only in the rarest circumstances, when the trial judge’s personal or emotional involvement in a case has been demonstrated. See Offutt v. United States, 348 CASCADE NAT. GAS v. EL PASO NAT. GAS. 161 129 Stewart, J., dissenting. U. S. 11; Cooke v. United States, 267 U. S. 517; Occidental Petroleum Corp. v. Chandler, 303 F. 2d 55 (C. A. 10th Cir.), cert, denied, 372 U. S. 915. No such involvement by the District Judge in this case is remotely suggested by the record. Nobody has requested his replacement at any stage of the proceedings. For this Court, on its own motion, to disqualify a trial judge in the middle of a case because it disagrees with his “philosophy” is not only unprecedented, but incredible. 162 OCTOBER TERM, 1966. Syllabus. 386 U. S. LEVIN v. MISSISSIPPI RIVER FUEL CORP, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 352. Argued January 19, 1967.—Decided February 27, 1967* The capital stock of the Missouri Pacific Railroad Company (MoPac), a Missouri corporation, consists of two classes, A and B. Class A, with 1,849,576 shares outstanding, is preferentially entitled to noncumulative dividends not to exceed $5 a share annually, and its equity is limited to <$100 a share. Class B, with 39,731 shares outstanding, is entitled to the earnings and equity in excess of the Class A preferences, and its equity is currently valued at about $6,500 a share. MoPac’s corporate charter provides that each share of each class is entitled to one vote, with the proviso that a separate vote of each class is required on any proposal affecting the preferences or relative rights of either class. Section 5 (11) of the Interstate Commerce Act requires for ICC approval of a voluntary railroad merger the assent of the majority of the shares entitled to vote “unless a different vote is required under applicable State law.” Missouri law applicable to mergers provides for approval by at least a two-thirds vote of all outstanding shares (Mo. Rev. Stat. § 351.425). Another section of state law provides for class voting where a corporation’s charter so requires (§ 351.270). A plan to consolidate MoPac and a subsidiary railroad was approved by their boards of directors and submitted for ICC approval, including provision for an exchange of each MoPac share, without regard to class, for four shares of the new corporation. The proposed plan was to be passed on by the stockholders voting collectively rather than by class. Charging that the proposed exchange was unfair in view of the far greater value of the Class B stock than that of the Class A stock, appellants, Class B stockholders, brought this suit for declaratory relief. The District Court upheld appellants’ contention that the collective voting plan would violate MoPac’s corporate charter and both state and federal law. The Court of Appeals reversed on the ground that, despite Missouri law, the “plenary character of § 5 (11) . . . with its consequent preemptive nature” compelled a contrary result. Held: In a consolidation such as that proposed here, Missouri law *Together with No. 359, Alleghany Corp, et al. v. Mississippi River Fuel Corp, et al., also on certiorari to the same court. LEVIN v. MISSISSIPPI RIVER CORP. 163 162 Opinion of the Court. applies, and §351.270 of that law requires application of the corporate charter provision, which in turn requires a majority assent of the stockholders on a separate class-vote basis. Pp. 167-170. 359 F. 2d 106, reversed and remanded. John Lowenthal argued the cause for petitioner in No. 352. With him on the briefs was Maxwell Brandwen. Breck P. McAllister argued the cause for petitioners in No. 359. With him on the briefs was William E. Haudek. Robert H. McRoberts argued the cause for respondents Mississippi River Fuel Corp, et al. in both cases. With him on the brief was John H. Hendren. Dennis G. Lyons argued the cause for respondent Missouri Pacific Railroad Co. in both cases. With him on the brief was Daniel A. Rezneck. Mr. Justice Clark delivered the opinion of the Court. The ultimate issue in these cases is whether the holders of the Class B stock of the Missouri Pacific Railroad Company (MoPac) are entitled to vote separately, as a class, on the proposed plan of consolidation of MoPac and Texas and Pacific Railway Company (T & P) into the newly formed Texas and Missouri Pacific Railroad Company (T & M). An application has been filed with the Interstate Commerce Commission requesting permission to effect a plan of consolidation under § § 5 (2) and 5(11) of the Interstate Commerce Act, as amended, 54 Stat. 905, 908 (1940), 49 U. S. C. §§5(2) and 5(11). MoPac’s Board of Directors has announced that its Class B shareholders are not entitled to vote on the plan separately and apart from its Class A shareholders, and that it intends to submit the plan only to the collective vote of the Class A and Class B shareholders. Three separate declaratory judgment actions were filed by different Class B shareholders seeking a declaration 247-216 0 - 67 - 16 164 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. that the plan requires the separate approval of the holders of the Class B shares by majority vote. Upon a limited consolidation of the cases, the District Court held that MoPac’s Articles of Association prohibited the consolidation unless class voting was observed and that § 5 (11V of the Interstate Commerce Act, by adopting state law, required the separate approval of each class of shareholders. 233 F. Supp. 747. The Court of Appeals reversed on the ground that, despite Missouri law, the “plenary character of § 5 ( 11 ) . . . with its consequent preemptive nature” compelled a contrary result. 359 F. 2d 106, at 119. We granted certiorari. 385 U. S. 814. We have concluded that Missouri law, as provided by §5(11), is controlling on the point and that the judgment must, therefore, be reversed. I. Background of the Parties and the Litigation. MoPac, a Missouri corporation, is an interstate common carrier railroad. It had been in reorganization proceedings under § 77 of the Bankruptcy Act, as amended, 1 Section 5 (11) : “The authority conferred by this section shall be exclusive and plenary, and any carrier or corporation participating in or resulting from any transaction approved by the Commission thereunder, shall have full power (with the assent, in the case of a purchase and sale, a lease, a corporate consolidation, or a corporate merger, of a majority, unless a different vote is required under applicable State law, in which case the number so required shall assent, of the votes of the holders of the shares entitled to vote of the capital stock of such corporation at a regular meeting of such stockholders, the notice of such meeting to include such purpose, or at a special meeting thereof called for such purpose) to carry such transaction into effect and to own and operate any properties and exercise any control or franchises acquired through said transaction without invoking any approval under State authority . . . .” LEVIN v. MISSISSIPPI RIVER CORP. 165 162 Opinion of the Court. 11 U. S. C. § 205, until January 1, 1955.2 After those proceedings terminated, the corporation’s preferred and common stock was replaced by two classes of $100 stated capital no par voting shares: Class A, which is preferentially entitled to noncumulative dividends not to exceed $5 per share annually, and Class B, which is entitled to all the earnings and the equity in excess of the Class A preferences. MoPac’s Articles of Association, Art. VII, § D (3), provide that class voting shall not be required save as to four types of corporate change, none of which shall be effected without the separate consent of the record holders of a majority of the Class A and the Class B shares. The four specified changes are: (1) the issuance of additional shares; (2) the creation or issuance of any MoPac obligation or security convertible into or exchangeable for MoPac shares; (3) an alteration or change in “the preferences, qualifications, limitations, restrictions and special or relative rights of the Class A Stock or of the Class B Stock”; and, finally, (4) the amendment or elimination of any of the foregoing requirements. MoPac has 1,849,576 shares of Class A stock and 39,731 shares of Class B stock outstanding. T & P was incorporated by an Act of Congress in 1871 and is also an interstate railroad of which MoPac owns 82.86% of the outstanding shares of stock. Mississippi River Fuel Corporation (Mississippi) is a Delaware corporation and owns a majority (57.95%) of the Class A shares of the stock of MoPac. Alleghany Corporation (Alleghany) is a Maryland corporation and owns a majority (51%) of the Class B stock of MoPac, subject to a voting trust. T & M is a Delaware corporation organized for the 2 See Missouri Pac. R. Co. Reorganization, 290 I. C. C. 477 (1954); In re Missouri Pac. R. Co., 129 F. Supp. 392 (D. C. E. D. Mo. 1955)', aff’d sub nom. Missouri Pac. R. Co. 5^% S. S. B. C. v Thompson 225 F. 2d 761 (C. A. 8th Cir. 1955). 166 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. purpose of being the consolidated company upon the merger of MoPac and T & P. The agreement and plan of consolidation were approved by the Board of Directors of MoPac and T & P in December of 1963. The plan provided for an exchange of each MoPac share (without regard to class) for four shares of the new corporation and for an exchange of the T & P stock (other than that owned by MoPac) on a basis of one share of T & P for 4.8 shares of the new company. In January of 1964, the three companies filed a joint application with the Interstate Commerce Commission for an order under § 5 (2) of the Act authorizing the consolidation and the issuance of securities by T & M under § 20a. In this application MoPac advised that it would submit the proposed plan to its stockholders, for approval, by May of 1964 on the basis of a collective, rather than class, vote. There are a total of six individual petitioners, each of whom owns only a nominal number of Class B shares, and Alleghany which owns, as aforesaid, a majority of those shares. The respondents are MoPac, T & P, Mississippi, and some of their directors or officers, only one of whom owns any Class B stock of MoPac. The first of the three suits which this cause involves was filed prior to the submission of the plan to the Commission ; the second and third subsequent thereto. Each of the suits attacks the plans of consolidation, alleging, among other things, that the Class B stock has a much greater value than that of the Class A and that the exchange is unfair; that the collective voting plan would violate the Articles of Association, the law of Missouri (and, therefore, § 5 (11) of the Act) and would result in irreparable injury to the Class B shareholders. Each complaint prays for a declaration that the plan of consolidation requires the separate vote of each class of stock. At trial the parties agreed that the court should LEVIN v. MISSISSIPPI RIVER CORP. 167 162 Opinion of the Court. first pass upon the voting rights question. The District Court held that class voting was required and certified the issue to the Court of Appeals which permitted an interlocutory appeal under 28 U. S. C. § 1292 (b). Further proceedings in the District Court were stayed. As we have indicated, the Court of Appeals held that, even though MoPac’s Articles of Association required a class vote on consolidation and Missouri law, therefore, demanded such a vote, it nevertheless was “impressed with the significance of the national transportation policy and its emphasis on railroad consolidation, with the stated exclusive and plenary character of § 5 (11), and with its consequent preemptive nature.” 359 F. 2d, at 119. The Court felt that, by virtue of the federal statute, it was compelled to conclude that it should apply the general standard as to voting rights, i. e., the majority of all voting shares, rather than honor the exception, i. e., class voting, as provided under Missouri law. II. Conclusion. We believe the Court of Appeals erred in so construing § 5 (11) of the Act. That section specifically provides that voluntary consolidations of railroads must have the assent “of a majority [vote of all shares], unless a different vote is required under applicable State law, in which case the number so required shall assent, of the votes of the holders of the shares entitled to vote . . . .” As the Court of Appeals held, this section “bows in the direction of state law.” 359 F. 2d, at 114. Both the District Court and the Court of Appeals decided that Mo. Rev. Stat, c. 351 was “the applicable state law.” As both courts found, § 351.055 (3) authorizes the issuance of classes of shares of stock and § 351.270 provides that where “the articles of incorporation require the vote or concurrence of the holders of a greater portion of the shares, or of any 168 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. class or series thereof, than required by this chapter with respect to such action, the provisions of the articles of incorporation shall control this section.” But the Court of Appeals concluded that since § 351.425 3 permitted the plan to be approved by the vote of at least two-thirds of all the outstanding shares, §5(11) required that it control, rather than § 351.270. We think not. In using the language “required under applicable State law,” § 5 (11) embraced all state law, as the Court of Appeals held. This included the exception of § 351.270 as to those corporations whose articles of incorporation required class voting. The national transportation policy and the provisions of § 5 (11), rather than permitting the result the Court of Appeals reached, require that “the articles of incorporation shall control . . . .” It follows that if a consolidation comes within the requirements of § D (3) of the articles of association, the approval by the separate vote of each class of stock is required. The District Court found that the plan of consolidation did come within § D (3). It is clear that the Court of Appeals did not disturb this finding, although it is not precisely clear what the court found on the question. At one point, it appears to say that “the articles seem to require” separate class voting, while it later assumes that they do so. Subsequently the opinion notes that the court is “not persuaded ... that MoPac’s Articles call for a class vote on a consolidation . . . .” 359 F. 2d, at 119. In any event, we agree with the trial court that the articles do require a separate class vote on the plan. We believe that the provision that the company “shall not. .. (c) alter or change the preferences, qualifications, limitations, 3 Mo. Rev. Stat. § 351.425 provides, in pertinent part: . The plan of merger or consolidation shall be approved upon receiving the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote at such meeting, of each of such corporations.” LEVIN v. MISSISSIPPI RIVER CORP. 169 162 Opinion of the Court. restrictions and special or relative rights of the Class A Stock or of the Class B Stock” would clearly include the plan of consolidation here. MoPac, by consolidating the two railroads that it already controls, will change its Class A stock from voting shares preferentially entitled to non-cumulative dividends of not to exceed $5 per share annually to shares that participate equally in all of the earnings of the company. The Class B stock which now enjoys all of the earnings and the equity in excess of the present Class A preferences would lose those special features. As the Court of Appeals found, the effectuation of the plan would “result in the present Class B holdings being engulfed by the larger number of Class A holdings.” 359 F. 2d, at 110. It is apropos to note here that while the equity of each Class A share remains limited to $100, the value of the equity of the Class B shares is approximately $6,500 per share. The plan proposes to exchange four shares of stock of T & M for one share of MoPac Class B, which, under such values, is like exchanging four rabbits for one horse. Moreover, the final proviso of § D (3) requires a separate class vote where any amendment or elimination of any of the provisions of the section itself is proposed. Under the plan this section would be entirely eliminated on the basis of a collective vote rather than a separate class one. But MoPac argues that this would not be “company action.” We cannot agree. The boards of directors of MoPac and T & P, which it controls, drew up the plan and now request its approval by the Interstate Commerce Commission. This certainly is “company action” within the terms of the Articles.4 Indeed, 4 It is interesting to note that the Interstate Commerce Commission itself required that Art. VII, § D (3) be inserted in MoPac’s Articles of Association. The Commission’s order provided: “The certificate of incorporation [of the reorganized corporation] shall permit the authorization from time to time of additional shares of common stock of either class, but shall specifically provide that 170 OCTOBER TERM, 1966. Opinion of the Court. 386 U.S. this point is so clear that we see no occasion for remanding the issue to the Court of Appeals for its consideration of the point, even though it be assumed that its opinion does not decide it. Effective judicial administration requires that we dispose of the matter here. We do not, of course, reach the merits of the proposed plan which is the concern of the Commission in the first instance. Any reference to the effect of the plan is not to be construed as in any way passing upon its merits. With reference to voting rights, we hold only that in a consolidation as proposed here, Missouri law must be applied and that § 351.270 of that law requires the application of the Articles of Association of MoPac, which in turn, require the assent of the majority of the shareholders on a separate class-vote basis. The judgment is, therefore, reversed and the cause remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Fortas took no part in the consideration or decision of these cases. the new company shall not alter or change the rights of holders of either class of stock or authorize the issuance of additional shares of either class or of any other class or of participating or convertible preferred stock, without the consent of the holders of not less than a majority of the number of shares of common stock of each class at the time outstanding.” 290 I. C. C. 477, at 665. VACA v. SIPES. 171 Syllabus. VACA et al. v. SIPES, ADMINISTRATOR. CERTIORARI TO THE SUPREME COURT OF MISSOURI. No. 114. Argued November 17, 1966.—Decided February 27, 1967. Petitioners, union officials, were sued in a state court by a union member who alleged wrongful discharge by his employer in violation of the collective bargaining agreement and the union’s arbitrary refusal to take his grievance to arbitration under the fifth and final step of the bargaining agreement’s grievance procedures. The employee, whose duties required strenuous activity, was discharged on the ground of poor health. During the fourth grievance step the union sent the employee to a physician for a complete examination. The report was unfavorable to the employee and the union decided not to take the grievance to arbitration. After a jury verdict for the employee, the trial judge set aside the verdict on the ground that the NLRB had exclusive jurisdiction over the controversy. The Kansas City Court of Appeals affirmed, but the Missouri Supreme Court reversed and ordered the jury’s verdict reinstated. Held: 1. Since the union’s duty, as exclusive agent, fairly to represent all members of a designated unit is based on federal statutes, federal law governs the employee’s cause of action for breach of that duty. Pp. 176-177. 2. Although the NLRB has recently held that a union’s breach of its statutory duty of fair representation is an unfair labor practice under § 8 (b) of the National Labor Relations Act, it does not follow that the broad pre-emption doctrine defined in San Diego Building Trades Council v. Garmon, 359 U. S. 236, holding that the NLRB has exclusive jurisdiction over activity arguably subject to § 8 of the Act, is applicable thereto. Pp. 177-188. (a) The pre-emption doctrine has not been rigidly applied where it could not be fairly inferred that Congress intended exclusive jurisdiction to lie with the NLRB. Pp. 179-180. (b) The pre-emption rule has not been applied where the activity regulated was merely a peripheral concern of the Labor Management Relations Act. P. 180. (c) The doctrine of fair representation, w’hich protects individuals against arbitrary union conduct, might be jeopardized by the NLRB’s failure to act in certain cases, if the pre-emption 172 OCTOBER TERM, 1966. Syllabus. 386 U. S. doctrine were applied to oust the courts of their traditional jurisdiction to curb arbitrary union conduct. Pp. 181-183. (d) As a practical matter, in an employee’s suit against his employer for breach of contract under § 301 of the Labor Management Relations Act, the employee may well find it necessary to prove a breach of duty by his union, a facet of the case which does not destroy the court’s jurisdiction, even if the employee joins the union as a defendant. That being so, the result should be no different if the employee sues the employer and the union in separate actions. Pp. 183-187. (e) Where a breach of duty by the union and a breach of contract by the employer are proven in a § 301 breach-of-duty action, the court must fashion an appropriate remedy against both defendants. Pp. 187-188. 3. A union breaches its duty of fair representation when its conduct toward a member of the designated unit is arbitrary, discriminatory or in bad faith, but it does not breach that duty merely because it settles a grievance short of arbitration, and the Missouri Supreme Court erred in upholding the jury’s verdict solely on the ground that the evidence supported the employee’s claim of wrongful discharge. Pp. 190-193. 4. As a matter of federal law the evidence does not support a verdict that the union breached its duty, as the employee, who had no absolute right to have his grievance arbitrated, failed to prove arbitrary or bad-faith conduct by the union in processing his grievance. Pp. 193-195. 5. The claimed damages, which were primarily those suffered as a result of the employer’s alleged breach of contract, should not have been all charged to the union, and, if liability were found, it should have been apportioned between the employer and the union according to the damages caused by the fault of each. Pp. 195-198. 397 S. W. 2d 658, reversed. David E. Feller argued the cause for petitioners. With him on the brief were Henry A. Panethiere, Russell D. Jacobson, Jerry D. Anker and George G. West. Allan R. Browne argued the cause and filed a brief for respondent. Briefs of amici curiae, urging reversal, were filed by Solicitor General Marshall, Robert S. Rifkind, Arnold VACA v. SIPES. 173 171 Opinion of the Court. Ordman, Dominick L. Manoli and Norton J. Come for the United States; by J. Albert Woll, Robert C. Mayer, Laurence Gold and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations; and by Robert L. Hecker and Earl G. Spiker for Swift & Co. Mr. Justice White delivered the opinion of the Court. On February 13, 1962, Benjamin Owens filed this class action against petitioners, as officers and representatives of the National Brotherhood of Packinghouse Workers 1 and of its Kansas City Local No. 12 (the Union), in the Circuit Court of Jackson County, Missouri. Owens, a Union member, alleged that he had been discharged from his employment at Swift & Company’s (Swift) Kansas City Meat Packing Plant in violation of the collective bargaining agreement then in force between Swift and the Union, and that the Union had “arbitrarily, capriciously and without just or reasonable reason or cause” refused to take his grievance with Swift to arbitration under the fifth step of the bargaining agreement’s grievance procedures. Petitioners’ answer included the defense that the Missouri courts lacked jurisdiction because the gravamen of Owens’ suit was “arguably and basically” an unfair labor practice under § 8 (b) of the National Labor Relations Act (N. L. R. A.), as amended, 61 Stat. 141, 29 U. S. C. § 158 (b), within the exclusive jurisdiction of the National Labor Relations Board (NLRB). After a jury trial, a verdict was returned awarding Owens $7,000 compensatory and $3,300 punitive damages. The trial judge set aside the verdict and entered judgment for petitioners on the ground that the NLRB had exclusive jurisdiction 1 Now known as the National Brotherhood of Packinghouse & Dairy Workers. 174 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. over this controversy, and the Kansas City Court of Appeals affirmed. The Supreme Court of Missouri reversed and directed reinstatement of the jury’s verdict,2 relying on this Court’s decisions in International Assn, of Machinists v. Gonzales, 356 U. S. 617, and in Automobile Workers v. Russell, 356 U. S. 634. 397 S. W. 2d 658. During the appeal, Owens died and respondent, the administrator of Owens’ estate, was substituted. We granted certiorari to consider whether exclusive jurisdiction lies with the NLRB and, if not, whether the finding of Union liability and the relief afforded Owens are consistent with governing principles of federal labor law. 384 U. S. 969. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Swift, and the United States have filed amicus briefs supporting petitioners. Although we conclude that state courts have jurisdiction in this type of case, we hold that federal law governs, that the governing federal standards were not applied here, and that the judgment of the Supreme Court of Missouri must accordingly be reversed. I. In mid-1959, Owens, a long-time high blood pressure patient, became sick and entered a hospital on sick leave from his employment with Swift. After a long rest during which his weight and blood pressure were reduced, Owens was certified by his family physician as fit to resume his heavy work in the packing plant. However, Swift’s company doctor examined Owens upon his return and concluded that his blood pressure was too high to permit reinstatement. After securing a second authorization from another outside doctor, Owens returned to the plant, and a nurse permitted him to resume work 2 Punitive damages were reduced to $3,000, the amount claimed by Owens in his complaint. VACA v. SIPES. 175 171 Opinion of the Court. on January 6, 1960. However, on January 8, when the doctor discovered Owens’ return, he was permanently discharged on the ground of poor health. Armed with his medical evidence of fitness, Owens then sought the Union’s help in securing reinstatement, and a grievance was filed with Swift on his behalf. By mid-November 1960, the grievance had been processed through the third and into the fourth step of the grievance procedure established by the collective bargaining agreement.3 Swift adhered to its position that Owens’ poor health justified his discharge, rejecting numerous medical reports of reduced blood pressure proffered by Owens and by the Union. Swift claimed that these reports were not based upon sufficiently thorough medical tests. On February 6, 1961, the Union sent Owens to a new doctor at Union expense “to see if we could get some better medical evidence so that we could go to arbitration with his case.” R., at 107. This examination did not support Owens’ position. When the Union received the report, its executive board voted not to take the Owens grievance to arbitration because of insufficient medical evidence. Union officers suggested to Owens that he accept Swift’s offer of referral to a rehabilitation center, and the grievance was suspended for that purpose. Owens rejected this alternative and demanded that the Union take his grievance to arbitration, but the Union 3 The agreement created a five-step procedure for the handling of grievances. In steps one and two, either the aggrieved employee or the Union’s representative presents the grievance first to Swift’s department foreman, and then in writing to the division superintendent. In step three, grievance committees of the Union and management meet, and the company must state its position in writing to the Union. Step four is a meeting between Swift’s general superintendent and representatives of the National Union. If the grievance is not settled in the fourth step, the National Union is given power to refer the grievance to a specified arbitrator. 176 OCTOBER TERM, 1966. Opinion of the Court. 386 U.S. refused. With his contractual remedies thus stalled at the fourth step, Owens brought this suit. The grievance was finally dismissed by the Union and Swift shortly before trial began in June 1964.4 In his charge to the jury, the trial judge instructed that petitioners would be liable if Swift had wrongfully discharged Owens and if the Union had “arbitrarily . . . and without just cause or excuse . . . refused” to press Owens’ grievance to arbitration. Punitive damages could also be awarded, the trial judge charged, if the Union’s conduct was “willful, wanton and malicious.” However, the jury must return a verdict for the defendants, the judge instructed, “if you find and believe from the evidence that the union and its representatives acted reasonably and in good faith in the handling and processing of the grievance of the plaintiff.” R., at 161-162. The jury then returned the general verdict for Owens which eventually was reinstated by the Missouri Supreme Court. II. Petitioners challenge the jurisdiction of the Missouri courts on the ground that the alleged conduct of the Union was arguably an unfair labor practice and within the exclusive jurisdiction of the NLRB. Petitioners rely on Miranda Fuel Co., 140 N. L. R. B. 181 (1962), enforcement denied, 326 F. 2d 172 (C. A. 2d Cir. 1963), where a sharply divided Board held for the first time that a union’s breach of its statutory duty of fair representation violates N. L. R. A. § 8 (b), as amended. With the NLRB’s adoption of Miranda Fuel, petitioners argue, the broad pre-emption doctrine defined in San Diego Building Trades Council v. Garmon, 359 U. S. 236, be 4 No notice of the dismissal was given to Owens, who by that time had filed a second suit against Swift for breach of contract. The suit against Swift is still pending in a pretrial stage. VACA v. SIPES. 177 171 Opinion of the Court. comes applicable. For the reasons which follow, we reject this argument. It is now well established that, as the exclusive bargaining representative of the employees in Owens’ bargaining unit, the Union had a statutory duty fairly to represent all of those employees, both in its collective bargaining with Swift, see Ford Motor Co. v. Huffman, 345 U. S. 330; Syres v. Oil Workers International Union, 350 U. S. 892, and in its enforcement of the resulting collective bargaining agreement, see Humphrey v. Moore, 375 U. S. 335. The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N. R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210, and was soon extended to unions certified under the N. L. R. A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U. S., at 342. It is obvious that Owens’ complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action. E. g., Ford Motor Co. v. Huffman, supra. Although N. L. R. A. § 8 (b) was enacted in 1947, the NLRB did not until Miranda Fuel interpret a breach of a union’s duty of fair representation as an unfair labor practice. In Miranda Fuel, the Board’s majority held that N. L. R. A. § 7 gives employees “the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their 178 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. employment/’ and “that Section 8 (b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair.” 140 N. L. R. B., at 185. The Board also held that an employer who “participates” in such arbitrary union conduct violates § 8 (a)(1), and that the employer and the union may violate §§ 8 (a)(3) and 8 (b)(2), respectively, “when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee.” 5 Id., at 186. The Board’s Miranda Fuel decision was denied enforcement by a divided Second Circuit, 326 F. 2d 172 (1963). However, in Local 12, United Rubber Workers v. N. L. R. B., 368 F. 2d 12, the Fifth Circuit upheld the Board’s Miranda Fuel doctrine in an opinion suggesting that the Board’s approach will pre-empt judicial cognizance of some fair representation duty suits. In light of these developments, petitioners argue that Owens’ state court action was based upon Union conduct that is arguably proscribed by N. L. R. A. § 8 (b), was potentially enforceable by the NLRB, and was therefore pre-empted under the Garmon line of decisions. A. In Garmon, this Court recognized that the broad powers conferred by Congress upon the National Labor Relations Board to interpret and to enforce the complex Labor Management Relations Act (L. M. R. A.) necessarily imply that potentially conflicting “rules of law, of remedy, and of administration” cannot be permitted to 5 See also Cargo Handlers, Inc., 159 N. L. R. B. No. 17; Local 12, United Rubber Workers, 150 N. L. R. B. 312, enforced, 368 F. 2d 12 (C. A. 5th Cir. 1966); Maremont Corp., 149 N. L. R. B. 482; Galveston Maritime Assn., Inc., 148 N. L. R. B. 897; Hughes Tool Co., 147 N. L. R. B. 1573. VACA v. SIPES. 179 171 Opinion of the Court. operate. 359 U. S., at 242. In enacting the National Labor Relations Act and later the Labor Management Relations Act, 1 ‘Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal .... Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. ... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.” Garner v. Teamsters Union, 346 U. S. 485, 490-491. Consequently, as a general rule, neither state nor federal courts have jurisdiction over suits directly involving “activity [which] is arguably subject to § 7 or § 8 of the Act.” San Diego Building Trades Council v. Garmon, 359 U. S., at 245. This pre-emption doctrine, however, has never been rigidly applied to cases where it could not fairly be inferred that Congress intended exclusive jurisdiction to lie with the NLRB. Congress itself has carved out exceptions to the Board’s exclusive jurisdiction: Section 303 of the Labor Management Relations Act, 1947, 61 Stat. 158, 29 U. S. C. § 187, expressly permits anyone injured by a violation of N. L. R. A. § 8 (b) (4) to recover damages in a federal court even though such unfair labor practices are also remediable by the Board; § 301 of that Act, 61 Stat. 156, 29 U. S. C. § 185, permits suits for breach of a collec- 247-216 0 - 67 - 17 180 OCTOBER TERM, 1966. Opinion of the Court. 386 U.S. tive bargaining agreement regardless of whether the particular breach is also an unfair labor practice within the jurisdiction of the Board (see Smith v. Evening News Assn., 371 U. S. 195); and N. L. R. A. § 14, as amended by Title VII, § 701 (a) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 541, 29 U. S. C. § 164 (c), permits state agencies and courts to assume jurisdiction “over labor disputes over which the Board declines, pursuant to paragraph (1) of this subsection, to assert jurisdiction” (compare Guss v. Utah Labor Board, 353 U. S. 1). In addition to these congressional exceptions, this Court has refused to hold state remedies pre-empted “where the activity regulated was a merely peripheral concern of the Labor Management Relations Act . . . . [or] touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress has deprived the States of the power to act.” San Diego Building Trades Council v. Garmon, 359 U. S., at 243-244. See, e. g., Linn v. Plant Guard Workers, 383 U. S. 53 (libel); Automobile Workers v. Russell, 356 U. S. 634 (violence); International Assn, of Machinists v. Gonzales, 356 U. S. 617 (wrongful expulsion from union membership) ; Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740 (mass picketing). See also Hanna Mining Co. v. Marine Engineers Beneficial Assn., 382 U. S. 181. While these exceptions in no way undermine the vitality of the pre-emption rule where applicable, they demonstrate that the decision to preempt federal and state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies of concurrent judicial and administrative remedies. A primary justification for the pre-emption doctrine— the need to avoid conflicting rules of substantive law VACA v. SIPES. 181 171 Opinion of the Court. in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose—is not applicable to cases involving alleged breaches of the union’s duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L. M. R. A.6 Moreover, when the Board declared in Miranda Fuel that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N. L. R. B., at 184-186. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision.7 In addition to the above considerations, the unique interests served by the duty of fair representation doc- G See Ford Motor Co. v. Huffman, 345 U. S. 330, 332, n. 4. In Huffman, the NLRB submitted an amicus brief stating that it had not assumed pre-emptive jurisdiction over fair representation duty issues. Mem. for the NLRB, Nos. 193 and 194, Oct. Term, 1952. In Syres v. Oil Workers International Union, 350 U. S. 892, the Court reversed the dismissal of a suit which claimed breach of the duty of fair representation despite express reliance by one respondent on exclusive NLRB jurisdiction. Brief for Resp. Gulf Oil Corp., No. 390, Oct. Term, 1955. 7 See Hughes Tool Co., 147 N. L. R. B. 1573, 1589-1590 (Chairman McCulloch and Member Fanning, dissenting in part). 182 OCTOBER TERM, 1966. Opinion of the Court. 386 U.S. trine have a profound effect, in our opinion, on the applicability of the pre-emption rule to this class of cases. The federal labor laws seek to promote industrial peace and the improvement of wages and working conditions by fostering a system of employee organization and collective bargaining. See N. L. R. A. § 1, as amended, 61 Stat. 136, 29 U. S. C. § 151. The collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit. See, e. g., J. I. Case Co. n. Labor Board, 321 U. S. 332. This Court recognized in Steele that the congressional grant of power to a union to act as exclusive collective bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would raise grave constitutional problems if unions were free to exercise this power to further racial discrimination. 323 U. S., at 198-199. Since that landmark decision, the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold, as petitioners and the Government urge, that the courts are foreclosed by the NLRB’s Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F. 2d 776, cert, denied, 385 U. S. 1026.8 The existence of even a small group 8 The public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee, is always the Board’s principal concern in fashioning unfair labor practice remedies. See N. L. R. A. § 10 (c), as amended, 61 Stat. 147, 29 U. S. C. VACA v. SIPES. 183 171 Opinion of the Court. of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB’s tardy assumption of jurisdiction in these cases that Congress, when it enacted N. L. R. A. § 8 (b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee’s statutory representative. B. There are also some intensely practical considerations which foreclose pre-emption of judicial cognizance of fair representation duty suits, considerations which emerge from the intricate relationship between the duty of fair representation and the enforcement of collective bargaining contracts. For the fact is that the question of whether a union has breached its duty of fair representation will in many cases be a critical issue in a suit under L. M. R. A. § 301 charging an employer with a breach of contract. To illustrate, let us assume a collective bargaining agreement that limits discharges to those for good cause and that contains no grievance, arbitration or other provisions purporting to restrict access to the courts. If an employee is discharged without cause, either the union or the employee may sue the employer under L. M. R. A. § 301. Under this section, courts have jurisdiction over suits to enforce collective bargaining agreements even though the conduct of the employer which is challenged as a breach of contract is also arguably an unfair labor practice within the jurisdiction of § 160 (c); Phelps Dodge Corp. v. Labor Board, 313 U. S. 177. Thus, the General Counsel will refuse to bring complaints on behalf of injured employees where the injury complained of is “insubstantial.” See Administrative Decision of the General Counsel, Case No. K-610, Aug. 13, 1956, in CCH N. L. R. B. Decisions, 1956-1957, Transfer Binder, f 54,059. 184 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. the NLRB. Garmon and like cases have no application to § 301 suits. Smith v. Evening News Assn., 371 U. S. 195. The rule is the same with regard to pre-emption where the bargaining agreement contains grievance and arbitration provisions which are intended to provide the exclusive remedy for breach of contract claims.9 If an employee is discharged without cause in violation of such an agreement, that the employer’s conduct may be an unfair labor practice does not preclude a suit by the union10 against the employer to compel arbitration of the employee’s grievance, the adjudication of the claim by the arbitrator, or a suit to enforce the resulting arbitration award. See, e. g., Steelworkers n. American Mjg. Co., 363 U. S. 564. However, if the wrongfully discharged employee himself resorts to the courts before the grievance procedures have been fully exhausted, the employer may well defend on the ground that the exclusive remedies provided by such a contract have not been exhausted. Since the employee’s claim is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced. For this reason, it is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement. Republic Steel Corp. v. Maddox, 379 U. S. 9 If a grievance and arbitration procedure is included in the contract, but the parties do not intend it to be an exclusive remedy, then a suit for breach of contract will normally be heard even though such procedures have not been exhausted. See Republic Steel Corp. v. Maddox, 379 U. S. 650, 657-658; 6A Corbin, Contracts § 1436 (1962). 10 Occasionally, the bargaining agreement will give the aggrieved employee, rather than his union, the right to invoke arbitration. See Retail Clerks v. Lion Dry Goods, Inc., 341 F. 2d 715, cert, denied, 382 U. S. 839. VACA v. SIPES. 185 171 Opinion of the Court. 650. However, because these contractual remedies have been devised and are often controlled by the union and the employer, they may well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach -of-contract claim despite his failure to secure relief through the contractual remedial procedures. An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U. S. 254, 260-263. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action. We think that another situation when the employee may seek judicial enforcement of his contractual rights arises if, as is true here, the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance. It is true that the employer in such a situation may have done nothing t© prevent exhaustion of the exclusive contractual remedies to which he agreed in the collective bargaining agreement. But the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the employee-plaintiff’s benefit were it not for the union’s breach of its statutory duty of fair representation to the employee. To leave the employee remediless in such circumstances would, in our 186 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. opinion, be a great injustice. We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrrongful union conduct in the enforcement of such agreements. Cf. Richardson v. Texas & N. 0. R. Co., 242 F. 2d 230, 235-236 (C. A. 5th Cir.). For these reasons, we think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.11 We may assume for present purposes that such a breach of duty by the union is an unfair labor practice, as the NLRB and the Fifth Circuit have held. The employee’s suit against the employer, however, remains a § 301 suit, and the jurisdiction of the courts is no more destroyed by the fact that the employee, as part and parcel of his § 301 action, finds it necessary to prove an unfair labor practice by the union, than it is by the fact that the suit may involve an unfair labor practice by the employer himself. The court is free to determine 11 Accord, Hiller v. Liquor Salesmen’s Union, 338 F. 2d 778 (C. A. 2d Cir.); Hardcastle v. Western Greyhound Lines, 303 F. 2d 182 (C. A. 9th Cir.), cert, denied, 371 U. S. 920; Fiore n. Associated Transport, Inc., 255 F. Supp. 596; Bieski v. Eastern Automobile Forwarding Co., 231 F. Supp. 710, aff’d, 354 F. 2d 414 (C. A. 3d Cir.); Ostrojsky v. United Steelworkers, 171 F. Supp. 782, aff’d per curiam, 273 F. 2d 614 (C. A. 4th Cir.), cert, denied, 363 U. S. 849; Jenkins v. Wm. Schluderberg-T. J. Kurdle Co., 217 Md. 556, 144 A. 2d 88. VACA v. SIPES. 187 171 Opinion of the Court. whether the employee is barred by the actions of his union representative, and, if not, to proceed with the case. And if, to facilitate his case, the employee joins the union as a defendant, the situation is not substantially changed. The action is still a § 301 suit, and the jurisdiction of the courts is not pre-empted under the Garmon principle. This, at the very least, is the holding of Humphrey v. Moore, supra, with respect to pre-emption, as petitioners recognize in their brief. And, insofar as adjudication of the union’s breach of duty is concerned, the result should be no different if the employee, as Owens did here, sues the employer and the union in separate actions. There would be very little to commend a rule which would permit the Missouri courts to adjudicate the Union’s conduct in an action against Swift but not in an action against the Union itself. For the above reasons, it is obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions. If a breach of duty by the union and a breach of contract by the employer are proven, the court must fashion an appropriate remedy. Presumably, in at least some cases, the union’s breach of duty will have enhanced or contributed to the employee’s injury. What possible sense could there be in a rule which would permit a court that has litigated the fault of employer and union to fashion a remedy only with respect to the employer? Under such a rule, either the employer would be compelled by the court to pay for the union’s wrong—slight deterrence, indeed, to future union misconduct—or the injured employee would be forced to go to two tribunals to repair a single injury. Moreover, the Board would be compelled in many cases either to remedy injuries arising out of a breach of contract, a task which Congress has not assigned to it, or to leave the individual employee with 188 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. out remedy for the union’s wrong.12 Given the strong reasons for not pre-empting duty of fair representation suits in general, and the fact that the courts in many § 301 suits must adjudicate whether the union has breached its duty, we conclude that the courts may also fashion remedies for such a breach of duty. It follows from the above that the Missouri courts had jurisdiction in this case. Of course, it is quite another problem to determine what remedies may be available against the Union if a breach of duty is proven. See Part IV, infra. But the unique role played by the duty of fair representation doctrine in the scheme of federal labor laws, and its important relationship to the judicial enforcement of collective bargaining agreements in the context presented here, render the Garmon pre-emption doctrine inapplicable. III. Petitioners contend, as they did in their motion for judgment notwithstanding the jury’s verdict, that Owens failed to prove that the Union breached its duty of fair representation in its handling of Owens’ grievance. Peti 12 Assuming for the moment that Swift breached the collective bargaining agreement in discharging Owens and that the Union breached its duty in handling Owens’ grievance, this case illustrates the difficulties that would result from a rule pre-empting the courts from remedying the Union’s breach of duty. If Swift did not “participate” in the Union’s unfair labor practice, the Board would have no jurisdiction to remedy Swift’s breach of contract. Yet a court might be equally unable to give Owens full relief in a § 301 suit against Swift. Should the court award damages against Swift for Owens’ full loss, even if it concludes that part of that loss was caused by the Union’s breach of duty? Or should it award Owens only partial recovery hoping that the Board will make him whole? These remedy problems are difficult enough when one tribunal has all parties before it; they are impossible if two independent tribunals, with different procedures, time limitations, and remedial powers, must participate. VACA v. SIPES. 189 171 Opinion of the Court. tioners also argue that the Supreme Court of Missouri, in rejecting this contention, applied a standard that is inconsistent with governing principles of federal law with respect to the Union’s duty to an individual employee in its processing of grievances under the collective bargaining agreement with Swift. We agree with both contentions. A. In holding that the evidence at trial supported the jury’s verdict in favor of Owens, the Missouri Supreme Court stated: “The essential issue submitted to the jury was whether the union . . . arbitrarily . . . refused to carry said grievance . . . through the fifth step . . . . “We have concluded that there was sufficient substantial evidence from which the jury reasonably could have found the foregoing issue in favor of plaintiff. It is notable that no physician actually testified in the case. Both sides were content to rely upon written statements. Three physicians certified that plaintiff was able to perform his regular work. Three other physicians certified that they had taken plaintiff’s blood pressure and that the readings were approximately 160 over 100. It may be inferred that such a reading does not indicate that his blood pressure was dangerously high. Moreover, plaintiff’s evidence showed that he had actually done hard physical labor periodically during the four years following his discharge. We accordingly rule this point adversely to defendants.” 397 S. W. 2d, at 665. Quite obviously, the question which the Missouri Supreme Court thought dispositive of the issue of liability was whether the evidence supported Owens’ assertion that he had been wrongfully discharged by Swift, regardless of the Union’s good faith in reaching a contrary 190 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. conclusion. This was also the major concern of the plaintiff at trial: the bulk of Owens’ evidence was directed at whether he was medically fit at the time of discharge and whether he had performed heavy work after that discharge. A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. See Humphrey v. Moore, supra-, Ford Motor Co. v. Huffman, supra. There has been considerable debate over the extent of this duty in the context of a union’s enforcement of the grievance and arbitration procedures in a collective bargaining agreement. See generally Blumrosen, The Worker and Three Phases of Unionism: Administrative and Judicial Control of the Worker-Union Relationship, 61 Mich. L. Rev. 1435, 1482-1501 (1963) ; Comment, Federal Protection of Individual Rights under Labor Contracts, 73 Yale L. J. 1215 (1964). Some have suggested that every individual employee should have the right to have his grievance taken to arbitration.13 Others have urged that the union be given substantial discretion (if the collective bargaining agreement so provides) to decide whether a grievance should be taken to arbitration, subject only to the duty to refrain from patently wrongful conduct such as racial discrimination or personal hostility.14 13 See Donnelly v. United Fruit Co., 40 N. J. 61, 190 A. 2d 825; Report of Committee on Improvement of Administration of Union-Management Agreements, 1954, Individual Grievances, 50 Nw. U. L. Rev. 143 (1955); Murphy, The Duty of Fair Representation under Taft-Hartley, 30 Mo. L. Rev. 373, 389 (1965); Summers, Individual Rights in Collective Agreements and Arbitration, 37 N. Y. U. L. Rev. 362 (1962). 14 See Sheremet v. Chrysler Corp., 372 Mich. 626, 127 N. W. 2d 313; Wyle, Labor Arbitration and the Concept of Exclusive Representation, 7 B. C. Ind. & Com. L. Rev. 783 (1966). VACA v. SIPES. 191 171 Opinion of the Court. Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. In L. M. R. A. § 203 (d), 61 Stat. 154, 29 U. S. C. § 173 (d), Congress declared that “Final adjustment by a method agreed upon by the parties is . . . the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” In providing for a grievance and arbitration procedure which gives the union discretion to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. Through this settlement process, frivolous grievances are ended prior to the most costly and timeconsuming step in the grievance procedures. Moreover, both sides are assured that similar complaints will be treated consistently, and major problem areas in the interpretation of the collective bargaining contract can be isolated and perhaps resolved. And finally, the settlement process furthers the interest of the union as statutory agent and as coauthor of the bargaining agreement in representing the employees in the enforcement of that agreement. See Cox, Rights Under a Labor Agreement, 69 Harv. L. Rev. 601 (1956). If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer’s confidence in the union’s authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. Moreover, under such a rule, a significantly greater number of grievances would proceed to 192 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. arbitration.15 This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully. See NLRB v. Acme Industrial Co., 385 U. S. 432, 438; Ross, Distressed Grievance Procedures and Their Rehabilitation, in Labor Arbitration and Industrial Change, Proceedings of the 16th Annual Meeting, National Academy of Arbitrators 104 (1963). It can well be doubted whether the parties to collective bargaining agreements would long continue to provide for detailed grievance and arbitration procedures of the kind encouraged by L. M. R. A. § 203 (d), supra, if their power to settle the majority of grievances short of the costlier and more time-consuming steps was limited by a rule permitting the grievant unilaterally to invoke arbitration. Nor do we see substantial danger to the interests of the individual employee if his statutory agent is given the contractual power honestly and in good faith to settle grievances short of arbitration. For these reasons, we conclude that a union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration. For these same reasons, the standard applied here by the Missouri Supreme Court cannot be sustained. For if a union’s decision that a particular grievance lacks 15 Under current grievance practices, an attempt is usually made to keep the number of arbitrated grievances to a minimum. An officer of the National Union testified in this case that only one of 967 grievances filed at all of Swift’s plants between September 1961 and October 1963 was taken to arbitration. And the AFL-CIO’s amicus brief reveals similar performances at General Motors Corporation and United States Steel Corporation, two of the Nation’s largest unionized employers: less than .05% of all written grievances filed during a recent period at General Motors required arbitration, while only 5.6% of the grievances processed beyond the first step at United States Steel were decided by an arbitrator. VACA v. SIPES. 193 171 Opinion of the Court. sufficient merit to justify arbitration would constitute a breach of the duty of fair representation because a judge or jury later found the grievance meritorious, the union’s incentive to settle such grievances short of arbitration would be seriously reduced. The dampening effect on the entire grievance procedure of this reduction of the union’s freedom to settle claims in good faith would surely be substantial. Since the union’s statutory duty of fair representation protects the individual employee from arbitrary abuses of the settlement device by providing him with recourse against both employer (in a § 301 suit) and union, this severe limitation on the power to settle grievances is neither necessary nor desirable. Therefore, we conclude that the Supreme Court of Missouri erred in upholding the verdict in this case solely on the ground that the evidence supported Owens’ claim that he had been wrongfully discharged. B. Applying the proper standard of union liability to the facts of this case, we cannot uphold the jury’s award, for we conclude that as a matter of federal law the evidence does not support a verdict that the Union breached its duty of fair representation. As we have stated, Owens could not have established a breach of that duty merely by convincing the jury that he was in fact fit for work in 1960; he must also have proved arbitrary or bad-faith conduct on the part of the Union in processing his grievance. The evidence revealed that the Union diligently supervised the grievance into the fourth step of the bargaining agreement’s procedure, with the Union’s business representative serving as Owens’ advocate throughout these steps. When Swift refused to reinstate Owens on the basis of his medical reports indicating reduced blood pressure, the Union sent him to another doctor of his own choice, at Union expense, in an attempt to amass persuasive medical evidence of Owens’ fitness for work. When this examination proved unfavorable, the Union 194 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. concluded that it could not establish a wrongful discharge. It then encouraged Swift to find light work for Owens at the plant. When this effort failed, the Union determined that arbitration would be fruitless and suggested to Owens that he accept Swift’s offer to send him to a heart association for rehabilitation. At this point, Owens’ grievance was suspended in the fourth step in the hope that he might be rehabilitated. In administering the grievance and arbitration machinery as statutory agent of the employees, a union must, in good faith and in a nonarbitrary manner, make decisions as to the merits of particular grievances. See Humphrey v. Moore, 375 U. S. 335, 349-350; Ford Motor Co. v. Huffman, 345 U. S. 330, 337-339. In a case such as this, when Owens supplied the Union with medical evidence supporting his position, the Union might well have breached its duty had it ignored Owens’ complaint or had it processed the grievance in a perfunctory manner. See Cox, Rights under a Labor Agreement, 69 Harv. L. Rev., at 632-634. But here the Union processed the grievance into the fourth step, attempted to gather sufficient evidence to prove Owens’ case, attempted to secure for Owens less vigorous work at the plant, and joined in the employer’s efforts to have Owens rehabilitated. Only when these efforts all proved unsuccessful did the Union conclude both that arbitration would be fruitless and that the grievance should be dismissed. There was no evidence that any Union officer was personally hostile to Owens or that the Union acted at any time other than in good faith.16 Having concluded that 16 Owens did allege and testify that petitioner Vaca, President of the Kansas City local, demanded $300 in expenses before the Union would take the grievance to arbitration, a charge which all the petitioners vigorously denied at trial. Under the collective bargaining agreement, the local union had no power to invoke arbitration. See n. 3, supra. Moreover, the Union’s decision to send VACA v. SIPES. 195 171 Opinion of the Court. the individual employee has no absolute right to have his grievance arbitrated under the collective bargaining agreement at issue, and that a breach of the duty of fair representation is not established merely by proof that the underlying grievance was meritorious, we must conclude that that duty was not breached here. IV. In our opinion, there is another important reason why the judgment of the Missouri Supreme Court cannot stand. Owens’ suit against the Union was grounded on his claim that Swift had discharged him in violation of the applicable collective bargaining agreement. In his complaint, Owens alleged “that, as a direct result of said wrongful breach of said contract, by employer . . . Plaintiff was damaged in the sum of Six Thousand, Five Hundred ($6,500.00) Dollars per year, continuing until the date of trial.” For the Union’s role in “preventing Plaintiff from completely exhausting administrative remedies,” Ow’ens requested, and the jury awarded, compensatory damages for the above-described breach of contract plus punitive damages of $3,000. R., at 4. We hold that such damages are not recoverable from the Union in the circumstances of this case. The appropriate remedy for a breach of a union’s duty of fair representation must vary with the circumstances of the particular breach. In this case, the employee’s complaint was that the Union wrongfully failed to afford him the arbitration remedy against his employer established by the collective bargaining agreement. But the damages sought by Owens were primarily those suffered Owens to another doctor at Union expense occurred after Vaca’s alleged demand, and the ultimate decision not to invoke arbitration came later still. Thus, even if the jury believed Owens’ controverted testimony, we do not think that this incident would establish a breach of duty by the Union. 247-216 0 - 67 - 18 196 OCTOBER TERM, 1966. Opinion of the Court. 386 U. S. because of the employer’s alleged breach of contract. Assuming for the moment that Owens had been wrongfully discharged, Swift’s only defense to a direct action for breach of contract would have been the Union’s failure to resort to arbitration, compare Republic Steel Corp. v. Maddox, 379 U. S. 650, with Smith v. Evening News Assn., 371 U. S. 195, and if that failure was itself a violation of the Union’s statutory duty to the employee, there is no reason to exempt the employer from contractual damages which he would otherwise have had to pay. See pp. 185-186, supra. The difficulty lies in fashioning an appropriate scheme of remedies. Petitioners urge that an employee be restricted in such circumstances to a decree compelling the employer and the union to arbitrate the underlying grievance.17 It is true that the employee’s action is based on the employer’s alleged breach of contract plus the union’s alleged wrongful failure to afford him his contractual remedy of arbitration. For this reason, an order compelling arbitration should be viewed as one of the available remedies when a breach of the union’s duty is proved. But we see no reason inflexibly to require arbitration in all cases. In some cases, for example, at least part of the employee’s damages may be attributable to the union’s breach of duty, and an arbitrator may have no power under the bargaining agreement to award such damages against the union. In other cases, the arbitrable issues may be substantially resolved in the course of trying the fair representation controversy. In such situations, the court should be free to decide the contractual claim and to award the employee appropriate damages or equitable relief. A more difficult question is, what portion of the employee’s damages may be charged to the union: in partic- 17 Obviously, arbitration is an appropriate remedy only when the parties have created such a procedure in the collective bargaining agreement. VACA v. SIPES. 197 171 Opinion of the Court. ular, may an award against a union include, as it did here, damages attributable solely to the employer’s breach of contract? We think not. Though the union has violated a statutory duty in failing to press the grievance, it is the employer’s unrelated breach of contract which triggered the controversy and which caused this portion of the employee’s damages. The employee should have no difficulty recovering these damages from the employer, who cannot, as we have explained, hide behind the union’s wrongful failure to act; in fact, the employer may be (and probably should be) joined as a defendant in the fair representation suit, as in Humphrey v. Moore, supra. It could be a real hardship on the union to pay these damages, even if the union were given a right of indemnification against the employer. With the employee assured of direct recovery from the employer, we see no merit in requiring the union to pay the employer’s share of the damages.18 The governing principle, then, is to apportion liability between the employer and the union according to the damage caused by the fault of each. Thus, damages attributable solely to the employer’s breach of contract should not be charged to the union, but increases if any 18 We are not dealing here with situations where a union has affirmatively caused the employer to commit the alleged breach of contract. In cases of that sort where the union’s conduct is found to be an unfair labor practice, the NLRB has found an unfair labor practice by the employer, too, and has held the union and the employer jointly and severally liable for any back pay found owing to the particular employee who was the subject of their joint discrimination. E. g., Imparato Stevedoring Corp., 113 N. L. R. B. 883 (1955); Squirt Distrib. Co., 92 N. L. R. B. 1667 (1951); H. M. Newman, 85 N. L. R. B. 725 (1949). Even if this approach would be appropriate for analogous § 301 and breach-of-duty suits, it is not applicable here. Since the Union played no part in Swift’s alleged breach of contract and since Swift took no part in the Union’s alleged breach of duty, joint liability for either wrong would be unwarranted. 198 OCTOBER TERM, 1966. Fortas, J., concurring in result. 386 U. S. in those damages caused by the union’s refusal to process the grievance should not be charged to the employer. In this case, even if the Union had breached its duty, all or almost all of Owens’ damages would still be attributable to his allegedly wrongful discharge by Swift. For these reasons, even if the Union here had properly been found liable for a breach of duty, it is clear that the damage award was improper. Reversed. Mr. Justice Fortas, with whom The Chief Justice and Mr. Justice Harlan join, concurring in the result. 1. In my view, a complaint by an employee that the union has breached its duty of fair representation is subject to the exclusive jurisdiction of the NLRB. It is a charge of unfair labor practice. See Miranda Fuel Co., 140 N. L. R. B. 181 (1962) ;x Local 12, United Rubber Workers, 150 N. L. R. B. 312, enforced, 368 F. 2d 12 (C. A. 5th Cir. 1966).1 2 As is the case with most other 1 This decision of the NLRB was denied enforcement by the Court of Appeals for the Second Circuit but on a basis which did not decide the point relevant here. NLRB v. Miranda Fuel Co., 326 F. 2d 172 (C. A. 2d Cir. 1963). Only one judge, Judge Medina, took the position that the NLRB had incorrectly held violation of the duty of fair representation to be an unfair labor practice. As an alternative ground for decision, he held that the NLRB had not had sufficient evidence to support its finding of breach of the duty. Judge Lumbard agreed with this latter holding, and explicitly did not reach the question whether breach of the duty is an unfair labor practice. Judge Friendly dissented. He would have affirmed the NLRB both on the sufficiency of the evidence and on the holding that breach of the duty of fair representation is an unfair labor practice as to which the NLRB can give relief. 2 The opinion by Judge Thornberry for the Fifth Circuit supports the views expressed herein. See also Cox, The Duty of Fair Representation, 2 Vill. L. Rev. 151, 172-173 (1957); Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L. J. 1327 (1958). VACA v. SIPES. 199 171 Fortas, J., concurring in result. unfair labor practices, the Board’s jurisdiction is preemptive. Garner v. Teamsters Union, 346 U. S. 485 (1953); Guss v. Utah Labor Board, 353 U. S. 1 (1957); San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959); Local ^38, Constr. Laborers v. Curry, 371 IT. S. 542 (1963); Plumbers’ Union v. Borden, 373 U. S. 690 (1963); Iron Workers v. Perko, 373 U. S. 701 (1963); Liner v. Jajco, Inc., 375 U. S. 301 (1964). Cf. Woody v. Sterling Alum. Prods., Inc., 365 F. 2d 448 (C. A. 8th Cir. 1966), pet. for cert, pending, No. 946, 0. T. 1966. There is no basis for failure to apply the preemption principle in the present case, and, as I shall discuss, strong reason for its application. The relationship between the union and the individual employee with respect to the processing of claims to employment rights under the collective bargaining agreement is fundamental to the design and operation of federal labor law. It is not “merely peripheral,” as the Court’s opinion states. It “presents difficult problems of definition of status, problems which we have held are precisely ‘of a kind most wisely entrusted initially to the agency charged with the day-to-day administration of the Act as a whole.’ ” Iron Workers v. Perko, supra, 373 U. S., at 706. Accordingly, the judgment of the Supreme Court of Missouri should be reversed and the complaint dismissed for this reason and on this basis. I agree, however, that if it were assumed that jurisdiction of the subject matter exists, the judgment would still have to be reversed because of the use by the Missouri court of an improper standard for measuring the union’s duty, and the absence of evidence to establish that the union refused further to process Owens’ grievance because of bad faith or arbitrarily. 2. I regret the elaborate discussion in the Court’s opinion of problems which are irrelevant. This is not an action by the employee against the employer, and the 200 OCTOBER TERM, 1966. Fortas, J., concurring in result. 386 U. S. discussion of the requisites of such an action is, in my judgment, unnecessary. The Court argues that the employee could sue the employer under L. M. R. A. § 301; and that to maintain such an action the employee would have to show that he has exhausted his remedies under the collective bargaining agreement, or alternatively that he was prevented from doing so because the union breached its duty to him by failure completely to process his claim. That may be; or maybe all he would have to show to maintain an action against the employer for wrongful discharge is that he demanded that the union process his claim to exhaustion of available remedies, and that it refused to do so.3 I see no need for the Court to pass upon that question, which is not presented here, and which, with all respect, lends no support to the Court’s argument. The Court seems to use its discussion of the employee-employer litigation as somehow analogous to or supportive of its conclusion that the employee may maintain a court action against the union. But I do not believe that this follows. I agree that the NLRB’s unfair labor practice jurisdiction does not preclude an action under § 301 against the employer for wrongful discharge 3 Cf. my Brother Black’s dissenting opinion in this case. Cf. also Brown v. Sterling Alum. Prods. Corp., 365 F. 2d 651, 656-657 (C. A. 8th Cir. 1966), cert, denied, post, p. 957. Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), does not pass upon the issue. The Court states that “To leave the employee remediless” when the union wrongfully refuses to process his grievance, “would ... be a great injustice.” I do not believe the Court relieves this injustice to any great extent by requiring the employee to prove an unfair labor practice as a prerequisite to judicial relief for the employer’s breach of contract. Nor do I understand how giving the employee a cause of action against the union is an appropriate way to remedy the injustice which would exist if the union were allowed to foreclose relief against the employer. VACA v. SIPES. 201 171 Fortas, J., concurring in result. from employment. Smith v. Evening News Assn., 371 U. S. 195 (1962). Therefore, Owens might have maintained an action against his employer in the present case. This would be an action to enforce the collective bargaining agreement, and Congress has authorized the courts to entertain actions of this type. But his claim against the union is quite different in character, as the Court itself recognizes. The Court holds—and I think correctly if the issue is to be reached—that the union could not be required to pay damages measured by the breach of the employment contract, because it was not the union but the employer that breached the contract. I agree; but I suggest that this reveals the point for which I contend: that the employee’s claim against the union is not a claim under the collective bargaining agreement, but a claim that the union has breached its statutory duty of fair representation. This claim, I submit, is a claim of unfair labor practice and it is within the exclusive jurisdiction of the NLRB. The Court agrees that “one of the available remedies [obtainable, the Court says, by court action] when a breach of the union’s duty is proved” is “an order compelling arbitration.” This is precisely and uniquely the kind of order which is within the province of the Board. Beyond this, the Court is exceedingly vague as to remedy: “appropriate damages or equitable relief” are suggested as possible remedies, apparently when arbitration is not available. Damages against the union, the Court admonishes, should be gauged “according to the damage caused by [its] fault”—i. e., the failure to exhaust remedies for the grievance. The Court’s difficulty, it seems to me, reflects the basic awkwardness of its position: It is attempting to force into the posture of a contract violation an alleged default of the union which is not a violation of the collective bargaining agreement but a breach of its separate and basic duty fairly 202 OCTOBER TERM, 1966. Fortas, J., concurring in result. 386 U. S. to represent all employees in the unit. This is an unfair labor practice, and should be treated as such.4 3. If we look beyond logic and precedent to the policy of the labor relations design which Congress has provided, court jurisdiction of this type of action seems anomalous and ill-advised. We are not dealing here with the interpretation of a contract or with an alleged breach of an employment agreement. As the Court in effect acknowledges, we are concerned with the subtleties of a union’s statutory duty faithfully to represent employees in the unit, including those who may not be members of the union. The Court—regrettably, in my opinion—ventures to state judgments as to the metes and bounds of the reciprocal duties involved in the relationship between the union and the employee. In my opinion, this is precisely and especially the kind of judgment that Congress intended to entrust to the Board and which is well within the pre-emption doctrine that this Court has prudently stated.5 See cases cited, supra, es- 4 The Court argues that since the employee suing the employer for breach of the employment contract would have to show exhaustion of remedies under the contract, and since he would for this purpose have to show his demand on the union and, according to the Court, its wrongful failure to prosecute his grievance, the union could be joined as a party defendant; and since the union could be joined in such a suit, it may be sued independently of the employer. But this is a non sequitur. As the Court itself insists, the suit against the union is not for breach of the employment contract, but for violation of the duty fairly to represent the employee. This is an entirely different matter. It is a breach of statutory duty—an unfair labor practice—and not a breach of the employment contract. 5 In a variety of contexts the NLRB concerns itself with the substantive bargaining behavior of the parties. For example: (a) the duty to bargain in good faith, see, e. g., Fibreboard Corp. v. Labor Board, 379 U. S. 203 (1964); (b) jurisdictional disputes, see, e. g., Labor Board v. Radio Engineers, 364 U. S. 573 (1961); VACA v. SIPES. 203 171 Black, J., dissenting. pecially the Perko and Borden cases, the facts of which strongly parallel the situation in this case. See also Linn v. Plant Guard Workers, 383 U. S. 53, 72 (1966) (dissenting opinion). The nuances of union-employee and union-employer relationships are infinite and consequential, particularly when the issue is as amorphous as whether the union was proved guilty of “arbitrary or bad-faith conduct” which the Court states as the standard applicable here. In all reason and in all good judgment, this jurisdiction should be left with the Board and not be placed in the courts, especially with the complex and necessarily confusing guidebook that the Court now publishes. Accordingly, I join the judgment of reversal, but on the basis stated. Mr. Justice Black, dissenting. The Court today opens slightly the courthouse door to an employee’s incidental claim against his union for breach of its duty of fair representation, only to shut it in his face when he seeks direct judicial relief for his underlying and more valuable breach-of-contract claim against his employer. This result follows from the Court’s announcement in this case, involving an employee’s suit against his union, of a new rule to govern an employee’s suit against his employer. The rule is that before an employee can sue his employer under § 301 of the L. M. R. A. for a simple breach of his employment contract, the employee must prove not only that he attempted to exhaust his contractual remedies, but that his attempt to exhaust them was frustrated by “arbitrary, discriminatory, or . . . bad faith” conduct on (c) secondary boycotts and hot cargo clauses, see, e. g., Orange Belt District Council of Painters No. Jf8 v. NLRB, 117 U. S. App. D. C. 233, 328 F. 2d 534 (1964). 204 OCTOBER TERM, 1966. Black, J., dissenting. 386 U. S. the part of his union. With this new rule and its result I cannot agree. The Court recognizes, as it must, that the jury in this case found at least that Benjamin Owens was fit for work, that his grievance against Swift was meritorious, and that Swift breached the collective bargaining agreement when it wrongfully discharged him. The Court also notes in passing that Owens* has a separate action for breach of contract pending against Swift in the state courts. And in Part IV of its opinion, the Court vigorously insists that “there is no reason to exempt the employer from contractual damages which he would otherwise have had to pay,” that the “employee should have no difficulty recovering these damages from the employer” for his “unrelated breach of contract,” and that “the employee [is] assured of direct recovery from the employer.” But this reassurance in Part IV gives no comfort to Owens, for Part IV is based on the assumption that the union breached its duty to Owens, an assumption which, in Part III of its opinion, the Court finds unsupported by the facts of this case. What this all means, though the Court does not expressly say it, is that Owens will be no more successful in his pending breach-of-contract action against Swift than he is here in his suit against the union. For the Court makes it clear “that the question of whether a union has breached its duty of fair representation will. . . be a critical issue in a suit under L. M. R. A. § 301,” that “the wrongfully discharged employee may bring an action against his employer” only if he “can prove that the union . . . breached its duty of fair representation in its handling of the employee’s grievance,” and “that the employee, as part and parcel of his § 301 action, finds *0wens died while the appeal of his case from the trial court was pending. The administrator of his estate was substituted and is the respondent herein though for simplicity is referred to herein as Owens. VACA v. SIPES. 205 171 Black, J., dissenting. it necessary to prove an unfair labor practice by the union.” Thus, when Owens attempts to proceed with his pending breach-of-contract action against Swift, Swift will undoubtedly secure its prompt dismissal by pointing to the Court’s conclusion here that the union has not breached its duty of fair representation. Thus, Owens, who now has obtained a judicial determination that he was wrongfully discharged, is left remediless, and Swift, having breached its contract, is allowed to hide behind, and is shielded by, the union’s conduct. I simply fail to see how it should make one iota of difference, as far as the “unrelated breach of contract” by Swift is concerned, whether the union’s conduct is wrongful or rightful. Neither precedent nor logic supports the Court’s new announcement that it does. Certainly, nothing in Republic Steel Corp. v. Maddox, 379 U. S. 650, supports this new rule. That was a case where the aggrieved employee attempted to “completely sidestep available grievance procedures in favor of a lawsuit.” Id., at 653. Noting that “it cannot be said . . . that contract grievance procedures are inadequate to protect the interests of an aggrieved employee until the employee has attempted to implement the procedures and found them so,” ibid., the Court there held that the employee “must attempt use of the contract grievance procedure,” id., at 652, and “must afford the union the opportunity to act on his behalf,” id., at 653. I dissented on the firm belief that an employee should be free to litigate his own lawsuit with his own lawyer in a court before a jury, rather than being forced to entrust his claim to a union which, even if it did agree to press it, would be required to submit it to arbitration. And even if, as the Court implied, “the worker would be allowed to sue after he had presented his claim to the union and after he had suffered the inevitable discouragement and delay which necessarily accompanies the union’s refusal 206 OCTOBER TERM, 1966. Black, J., dissenting. 386 U. S. to press his claim,” id., at 669, I could find no threat to peaceful labor relations or to the union’s prestige in allowing an employee to by-pass completely contractual remedies in favor of a traditional breach-of-contract lawsuit for back pay or wage substitutes. Here, of course, Benjamin Owens did not “completely sidestep available grievance procedures in favor of a lawsuit.” With complete respect for the union’s authority and deference to the contract grievance procedures, he not only gave the union a chance to act on his behalf, but in every way possible tried to convince it that his claim was meritorious and should be carried through the fifth step to arbitration. In short, he did everything the Court’s opinion in Maddox said he should do, and yet now the Court says so much is not enough. In Maddox, I noted that the “cases really in point are those which involved agreements governed by the Railway Labor Act and which expressly refused to hold that a discharged worker must pursue collective bargaining grievance procedures before suing in a court for wrongful discharge. Transcontinental