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363.US.166

In.order to meet the bid of a favored buyer, a seller's broker reduced his brokerage commission from 5% to 3%, which was reflected in the seller's reduction of the price of apple concentrate from $1.30 per gallon to $1.25 per gallon; the sale was consummated at that price; and similar concessions were granted on sdbsequent sales to the same buyer but not to any other buyer. Held: The seller's broker violated § 2 ?c) of the Clayton Act, as amended by the Robinson-Patman Act, which makes it unlawful for "any person" to make any allowance in lieu of "brokerage" to the "other party to such transaction." Pp. 167-177. (a) A seller's broker is included within the term "any person" as used in § 2 (c). P. 170. (b) Such an allowance was not made lawful by the proviso of § 2 (a) which exempts from the prohibitions.of that section price differentials based on savings in selling costs resulting from differing methods of distribution. Pp. 170-174. (c) The fact that the buyer was not aware that its favored price was based in part on a discriminatory reduction, in the broker's commission is immaterial. Pp. 174-175. (d) Section 2 (c) applies to payments or allowances by a seller's broker to a buyer, whether made directly to the buyer or indirectly thr6ugh the seller. Pp. 175-176. 261 F. 2d 725, reversed.

Section 2(c) of the Clayton Act, as amended by the Robinson-Patman Act,1 makes it unlawful for 'any person' to make an allowance in lieu of 'brokerage' to the 'other party to such transaction.' The question is whether that prohibition is applicable to the following transactions by respondent. Respondent is a broker or sales representative for a number of principals who sell food products. One of the principals is Canada Foods Ltd., a processor of apple concentrate and other products. Respondent agreed to act for the Canada Foods for a 5% Commission. Other brokers working for the same principal were promised a 4% Commission. Respondent's commission was higher because it stocked merchandise in advance of sales. Canada Foods established a price for its 1954 pack of apple concentrate at $1.30 per gallon in 50-gallon drums and authorized its brokers to negotiate sales at that price. The J. M. Smucker Co., a buyer, negotiated with another broker, Phipps, also working for Canada Foods, for apple concentrate. Smucker wanted a lower price than $1.30 but Canada Foods would not agree. Smucker finally offered $1.25 for a 500-gallon purchase. That was turned down by Canada Foods, acting through Phipps. Canada Foods took the position that the only way the price could be lowered would be through reduction in brokerage. About the same time respondent was negotiating with Smucker. Canada Foods told respondent what it had told Phipps, that the price to the buyer could be reduced only if the brokerage were cut; and it added that it would make the sale at $1.25—the buyer's bid—if respondent would agree to reduce its brokerage from 5% To 3%. Respondent agreed and the sale was consummated at that price and for that brokerage. The reduced price of $1.25 was thereafter granted Smucker on subsequent sales. But on sales to all other customers, whether through respondent or other brokers, the price continued to be $1.30 and in each instance respondent received the full 5% Commission. Only on sales through respondent to Smucker were the selling price and the brokerage reduced. The customary brokerage fee of 5% To respondent would have been $2,036.84. The actual brokerage of 3% Received by respondent was $1,222.11. The reduction of brokerage was $814.73 which is 50% Of the total price reduction of $1,629.47 granted by Canada Foods to Smucker. The Commission charged respondent with violating § 2(c) of the Act, and after a hearing and the making of findings entered a cease-and-desist order against respondent. The Court of Appeals, while not questioning the findings of fact of the Commission, reversed. 261 F.2d 725. The case is here on writ of certiorari, 360 U.S. 908, 79 S.Ct. 1297, 3 L.Ed.2d 1259. The Robinson-Patman Act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power. A lengthy investigation revealed that large chain buyers were obtaining competitive advantages in several ways other than direct price, concessions2 and were thus avoiding the impact of the Clayton Act.3 One of the favorite means of obtaining an indirect price concession was by setting up 'dummy' brokers who were employed by the buyer and who, in many cases, rendered no services. The large buyers demanded that the seller pay 'brokerage' to these fictitious brokers who then turned it over to their employer. This practice was one of the chief targets of § 2(c) of the Act.4 But it was not the only means by which the brokerage function was abused5 and Congress in its wisdom phrased § 2(c) broadly, not only to cover the other methods then in existence but all other means by which brokerage could be used to effect price discrimination.6 The particular evil at which § 2(c) is aimed can be as easily perpetrated by a seller's broker as by the seller himself. The seller and his broker can of course agree on any brokerage fee that they wish. Yet when they agree upon one, only to reduce it when necessary to meet the demands of a favored buyer, they use the reduction in brokerage to undermine the policy of § 2(c). The seller's broker is clearly 'any person' as the words are used in § 2(c)—as clearly such as a buyer's broker. It is urged that the seller is free to pass on to the buyer in the form of a price reduction any differential between his ordinary brokerage expense and the brokerage commission which he pays on a particular sale because § 2(a)7 of the Act permits price differentials based on savings in selling costs resulting from differing methods of distribution. From this premise it is reasoned that a seller's broker should not be held to have violated § 2(c) for having done that which is permitted under § 2(a). We need not decide the validity of that premise, because the fact that a transaction may not violate one section of the Act does not answer the question whether another section has been violated. Section 2(c), with which we are here concerned, is independent of § 2(a) and was enacted by Congress because § 2(a) was not considered adequate to deal with abuses of the brokerage function.8 Before the Act was passed the large buyers, who maintained their own elaborate purchasing departments and therefore did not need the services of a seller's broker because they bought their merchandise directly from the seller, demanded and received allowances reflecting these savings in the cost of distribution. In many cases they required that 'brokerage' be paid to their own purchasing agents. After the Act was passed they discarded the facade of 'brokerage' and merely received a price reduction equivalent to the seller's ordinary brokerage expenses in sales to other customers. When haled before the Commission, they protested that the transaction was not covered by § 2(c) but, since it was a price reduction, was governed by § 2(a). They also argued that because no brokerage services were needed or used in sales to them, they were entitled to a price differential reflecting this cost saving. Congress had anticipated such a contention by the 'in lieu thereof' provision.9 Accordingly, the Commission10 and the courts11 early rejected the contention that such a price reduction was lawful because the buyer's purchasing organization had saved the seller the amount of his ordinary brokerage expense. In Great Atlantic & Pacific Tea Co. v. Federal Trade Comm., 3 Cir., 1939, 106 F.2d 667, a buyer sought to evade § 2(c) by accepting price reductions equivalent to the seller's normal brokerage payments. The court upheld the Commission's view that the price reduction was an allowance in lieu of brokerage under § 2(c) and was prohibited even though, in fact, the seller had 'saved' his brokerage expense by dealing directly with the select buyer. The buyer also sought to justify its price reduction on the ground that it had rendered valuable services to the seller. The court rejected this argument also. Although that court's interpretation of the 'services rendered' exception in § 2(c) has been criticized,12 its conclusion that the price reduction was an allowance in lieu of brokerage within the meaning of § 2(c) has been followed13 and accepted.14 We are asked to distinguish these precedents on the ground that there is no claim by the present buyer that the price reduction, concededly based in part on a saving to the seller of part of his regular brokerage cost on the particular sale, was justified by the elimination of services normally performed by the seller or his broker. There is no evidence that the buyer rendered any services to the seller or to the respondent nor that anything in its method of dealing justified its getting a discriminatory price by means of a reduced brokerage charge. We would have quite a different case if there were such evidence and we need not explore the applicability of § 2(c) to such circumstances. One thing is clear—the absence of such evidence and the absence of a claim that the rendition of services or savings in distribution costs justified the allowance does not support the view that § 2(c) has not been violated. The fact that the buyer was not aware that its favored price was based in part on a discriminatory reduction in respondent's brokerage commission is immaterial. The Act is aimed at price discrimination, not conspiracy. The buyer's intent might be relevant were he charged with receiving an allowance in violation of § 2(c). But certainly it has no bearing on whether the respondent has violated the law. The powerful buyer who demands a price concession is concerned only with getting it. He does not care whether it comes from the seller, the seller's broker, or both. Congress enacted the Robinson-Patman Act to prevent sellers and sellers' brokers from yielding to the economic pressures of a large buying organization by granting unfair preferences in connection with the sale of goods. The form in which the buyer pressure is exerted is immaterial and proof of its existence is not required. It is rare that the motive in yielding to a buyer's demands is not the 'necessity' for making the sale. An 'independent' broker is not likely to be independent of the buyer's coercive bargaining power. He, like the seller, is constrained to favor the buyers with the most purchasing power. If respondent merely paid over part of his commission to the buyer, he clearly would have violated the Act. We see no distinction of substance between the two transactions. In each case the seller and his broker make a concession to the buyer as a consequence of his economic power. In both cases the result is that the buyer has received a discriminatory price. In both cases the seller's broker reduces his usual brokerage fee to get a particular contract. There is no difference in economic effect between the seller's broker splitting his brokerage commission with the buyer15 and his yielding part of the brokerage to the seller to be passed on to the buyer in the form of a lower price.16 We conclude that the statute clearly applies to payments or allowances by a seller's broker to the buyer, whether made directly to the buyer, or indirectly, through the seller. The allowances proscribed by § 2(c) are those made by 'any person' which, as we have said, clearly encompasses a seller's broker.17 The respondent was a necessary party to the price reduction granted the buyer. His yielding of part of his brokerage to be passed on to the buyer was a sine qua non of the price reduction. This is not to say that every reduction in price, coupled with a reduction in brokerage, automatically compels the conclusion that an allowance 'in lieu' of brokerage has been granted. As the Commission itself has made clear, whether such a reduction is tantamount to a discriminatory payment of brokerage depends on the circumstances of each case. Main Fish Co., Inc., 53 F.T.C. 88. Nor does this 'fuse' provisions of § 2(a), which permits the defense of cost justification, with those of § 2(c) which does not; it but realistically interprets the prohibitions of § 2(c) as including an independent broker's allowance of a reduced brokerage to obtain a particular order. It is suggested that reversal of this case would establish an irrevocable floor under commission rates. We think that view has no foundation in fact or in law. Both before and after the sales to Smucker, respondent continued to charge the usual 5% On sales to other buyers. There is nothing in the Act, nor is there anything in this case, to require him to continue to charge 5% On sales to all customers.18 A price reduction based upon alleged savings in brokerage expenses is an 'allowance in lieu of brokerage' when given only to favored customers. Had respondent, for example, agreed to accept a 3% Commission on all sales to all buyers there plainly would be no room for finding that the price reductions were violations of § 2(c). Neither the legislative history nor the purposes of the Act would require such an absurd result, and neither the Commission nor the courts have ever suggested it. Here, however, the reduction in brokerage was made to obtain this particular order and this order only and therefore was clearly discriminatory. The applicability of § 2(c) to sellers' brokers under circumstances not distinguishable in principle from the present case is supported by a 20-year-old administrative interpretation. Beginning in 1940, four years after the Act was passed, the Commission restrained the practice of brokers who, whether buying and selling on their own account or acting on behalf of the seller, sold goods to purchasers who bought through them direct at a reduced price reflecting the savings made by the elimination of the services of a local broker. This practice was held to be a violation of § 2(c), not § 2(a).19 If we held that § 2(c) is not applicable here, we would disregard the history which we have delineated, overturn a settled administrative practice, and approve a construction that is hostile to the statutory scheme—one that would leave a large loophole in the Act. Any doubts as to the wisdom of the economic theory embodied in the statute are questions for Congress to resolve. Reversed.

362.US.365

The Norris-LaGuardia Act deprives a Federal Distfict Court of jurisdiction to enjoin a union of American seamen from peacefully picketing a foreign ship operated entirely by a foreign crew ubder foreign articles while temporarily in an American port, in protest against loss of livelihood by American seamen "to foreign flagships with substandard wages or substandard conditions," and in order to prevent the foreign ship from unloading its foreign cargo in the American port. Benz v. Compania Naviera Hidalgo, 353 U. S. 138, distinguished. Pp. 365-372. (a) Such a controversy-is a "labor dispute" within the meaning of the Norris-LaGuardia Act. P. 370. (b) A different conclusion is not required by the fact that the picketing interfered with foreign commerce or the internal economy of a vessel registered under the flag of a friendly foreign power and prevented such vessel from unloading its cargo at an American port. Pp. 371-372. 265 F. 2d 780, reversed.

The respondents, who are the owner, time charterer, and master of the Liberian registered vessel, S. S. Nikolos, brought this action in a United States District Court against the petitioner union and its members praying for temporary and permanent injunctions to restrain, and for damages allegedly suffered from, the union's peaceful picketing of the ship in American waters and its threats to picket shore consignees of the ship's cargo should they accept delivery. The union's sole contention was that the District Court was without jurisdiction to restrain the picketing because of the Norris-LaGuardia Act which states in § 1: 'That no court of the United States, as herein defined, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this Act; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this Act.'1 Section 4 of that same law specifically denies jurisdiction to District Courts to issue any restraining order or temporary or permanent injunction to prohibit unions from: '(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence * * *.'2 Notwithstanding these provisions of the Norris-LaGuardia Act and despite an express finding that the union and its members had not been guilty of fraud, and had not threatened or committed any acts of physical violence to any person or any property, the District Court issued a temporary injunction to restrain the picketing.3 The injunction prohibited picketing by the petitioner union of 'the §§ 'Nikolos' or any other vessel registered under a foreign flag and manned by an alien crew and owned, operated or chartered by' respondents, in the Puget Sound area. This action of the court was based on its conclusions that (a) the case did not involve or grow out of any labor dispute within the meaning of the Norris-LaGuardia Act and (b) even if there were a labor dispute within the meaning of that Act, the court had jurisdiction to restrain the picketing because it interfered in the internal economy of a vessel registered under the flag of a friendly foreign power and amounted to an 'unlawful interference with foreign commerce.'4 The court's conclusion rested on the following facts, about which there was no substantial dispute. The petitioner and other national labor organizations act as bargaining representatives for most of the unlicensed personnel of vessels that fly the American flag on the Pacific Coast. Petitioner alone, pursuant to National Labor Relations Board certification, represents employees of the stewards' department on a large majority of those vessels. The S. S. Nikolos is owned by a Liberian corporation, was time-chartered for this trip by another Liberian corporation, and all members of its crew were aliens working under employment contracts made outside this country. There was no labor dispute between the ship's employees and the ship. The Nikolos picked up a cargo of salt in Mexico and carried it to the harbor of the port of Tacoma, Washington, for delivery to an American consignee there. After the ship entered the Tacoma harbor it was met by the union's boat which began to circle around the Nikolos displaying signs marked 'PICKET BOAT.' Later an additional sign was put on the boat reading: 'AFL—CIO seamen protest loss of their livelihood to foreign flagships with substandard wages or substandard conditions.' The union threatened to extend its picketing to the consignee of the salt should an attempt be made to berth and unload that cargo. Although the picketing was peaceful and there was no fraud, the result was that the ship could not deliver its cargo. On appeal from the temporary injunction to the Court of Appeals the petitioner argued that the injunction granted by the District Court was beyond the jurisdiction of that court because of the provisions of § 4 of the Norris- LaGuardia Act previously set out,5 but the Court of Appeals rejected that contention and upheld that injunction.6 That court's view was based almost entirely upon our holding in Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709. Certiorari was granted to consider the question of the applicability of the Norris-LaGuardia Act here, 361 U.S. 893, 80 S.Ct. 197, 4 L.Ed.2d 150, and in Order of Railroad Telegraphers v. Chicago & North Western R. Co., 361 U.S. 809, 80 S.Ct. 56, 362 U.S. 330, 80 S.Ct. 761. We think neither the holding nor the opinion in the Benz case supports the narrow construction the Court of Appeals gave the Norris-LaGuardia Act in this case. The Benz case was decided by a United States District Court sitting as a state court to enforce state law under its diversity jurisdiction. The question in the Benz case was whether the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq., governed the internal labor relations of a foreign ship and its foreign workers under contracts made abroad while that ship happened temporarily to be in American waters. The Benz case decided that the Labor Management Relations Act had no such scope or coverage and that it accordingly did not pre-empt the labor relations filed so as to bar an action for damages for unlawful picketing under Oregon law. Nothing was said or intimated in Benz that would justify an inference that because a United States District Court has power to award damages in state case growing out of labor disputes it also has power to issue injunctions in like situations. That question—of United States courts' jurisdiction to issue injunctions in cases like this—is to be controlled by the Norris-LaGuardia Act. That Act's langauge is broad. The language is broad because Congress was intent upon taking the federal courts out of the labor injunction business except in the very limited circumstances left open for federal jurisdiction under the Norris-LaGuardia Act. The history and background that led Congress to take this view have been adverted to in a number of prior opinions of this Court in which we refused to give the Act narrow interpretations that would have restored many labor dispute controversies to the courts.7 It is difficult to see how this controversy could be thought to spring from anything except one 'concerning terms or conditions of employment,' and hence a labor dispute within the meaning of the Norris-LaGuardia Act.8 The protest stated by the pickets concerned 'substandard wages or substandard conditions.' The controversy does involve, as the Act requires, 'persons who are engaged in the same industry, trade, craft, or occupation.'9 And it is immaterial under the Act that the unions and the ship and the consignees did not 'stand in the proximate relation of employer and employee.'10 This case clearly does grow out of a labor dispute within the meaning of the Norris-LaGuardia Act. The District Court held, however, that even if this case involved a labor dispute under the Norris-LaGuardia Act the court had jurisdiction to issue the injunction because the picketing was an 'unlawful interference with foreign commerce' and interfered 'in the internal economy of a vessel registered under the flag of a friendly foreign power' and prevented 'such a vessel from lawfully loading or discharging cargo at ports of the United States.'11 The Court of Appeals adopted this position, but cited no authority for its statement that the picketing was 'unlawful,' nor have the respondents in this Court pointed to any statute or persuasive authority proving that petitioner's conduct was unlawful. Compare § 20 of the Clayton Act, 29 U.S.C. § 52, 29 U.S.C.A. § 52. And even if unlawful, it would not follow that the federal court would have jurisdiction to enjoin the particular conduct which § 4 of the Norris-LaGuardia Act declared shall not be enjoined. Nor does the language of the Norris-LaGuardia Act leave room to hold that jurisdiction it denies a District Court to issue a particular type of restraining order can be restored to it by a finding that the nonenjoinable conduct may 'interfere in the internal economy of a vessel registered under the flag of a friendly foreign power.'12 Congress passed the Norris-LaGuardia Act to curtail and regulate the jurisdiction of courts, not, as it passed the Taft-Hartley Act, to regulate the conduct of people engaged in labor disputes. As we pointed out in the Benz case, a ship that voluntarily enters the territorial limits of this country subjects itself to our laws and jurisdiction as they exist.13 The fact that a foreign ship enters a United States court as a plaintiff cannot enlarge the jurisdiction of that court. There is no presented to us here, and we do not decide, whether the picketing of petitioner was tortious under state or federal law. All we decide is that the Norris-LaGuardia Act deprives the United States court of jurisdiction to issue the injunction it did under the circumstances shown. The judgment of the Court of Appeals is reversed and the case is remanded to the District Court with directions to dismiss the petition for injunction. It is so ordered. Judgment of Court of Appeals reversed and case remanded with directions. Mr. Justice WHITTAKER, believing that the controversy in this case does not constitute a lawful 'labor dispute' within the meaning of the Norris-LaGuardia Act, see his dissenting opinion in Order of Railroad Telegraphers v. Chicago & North Western R. Co., 362 U.S. at page 345, 80 S.Ct. at page 769, dissents.

364.US.372

Petitioner was convicted under 2 U. S. C. § 192 for willful failure to comply with a subpoena of the House of Representatives commanding him to produce before one of its Subcommittees certain records of the Civil Rights Congress. The evidence showed: Before issuance of the subpoena, the Subcommittee had reason to believe that the Civil Rights Congress was a subversive organization and that petitioner was its Executive Secretary. At the hearing, the Chairman of the Subcommittee explained that Detroit is a vital defense area and that the purpose of the hearing was to investigate Communist activities there. When asked whether he would produce the docuanents called for by the subpoena, petitioner stated flatly that he would not. Neither at the hearing nor at his trial did petitioner deny the existence of the records or his ability to produce them. He based his refusal upon a claim of his privilege under the Fifth Amendment. Held: The conviction is sustained. Pp. 373-383. (a) The Government's proof at the trial established a prima facie case of willful refusal to comply with the subpoena-; and, inasmuch as petitioner neither advised the Subcommittee that he was unable to produce the records nor attempted to introduce at his trial any evidence of his inability to produce them, the trial court was justified in concluding and in charging the jury that the records called for by the subpoena were in existence and under petitioner's control at the time the subpoena was served upon him. Pp. 373-380. (b) The Fifth Amendment did not excuse petitioner froip producing the records, since records held in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination. P. 380. (c) The evidence was sufficient to show that the records called for by the subpoena were pertinent to the inquiry. Pp. 380-382. (d) The subpoena was not so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment. Pp. 382-383. 272' F. 2d 627, affirmed.

We here review petitioner's conviction under 2 U.S.C. § 192, 2 U.S.C.A. § 1921 for willful failure to comply with a subpoena of the House of Representatives commanding him to produce certain records of the Civil Rights Congress before a Subcommittee of the House Committee on Un-American Activities. The principal question presented is whether th evidence justified the trial court's rulings that the records called for by the subpoena were in existence, subject to petitioner's control, and pertinent to the Committee's inquiry. The relevant evidence was as follows. Having knowledge that the Civil Rights Congress had been declared a subversive organization by the Attorney General—indeed, having itself earlier found that organization to be a subversive one—and having reason to believe that petitioner was its Executive Secretary,2 the House Committee on Un-American Activities caused a subpoena of the House of Representatives to be issued and served upon petitioner commanding him to appear before its Committee on Un-American Activities, or a subcommittee thereof, at a stated time and place in Detroit, Michigan, on February 26, 1952, and there to produce 'all records, correspondence and memoranda pertaining to the organization of, the affiliation with other organizations and all monies received or expended by the Civil Rights Congress * * * (and) then and there to testify touching matters of inquiry committed to said Committee * * *.' Upon the opening of the hearings before the Subcommittee at Detroit on February 26, 1952, the chairman made a public statement, saying, among other things, that earlier Committee hearings has 'disclosed a concentration of Communist effort in certain defense areas of the country,' consisting in part of keeping 'the national organization of the Communist Party and the international Communist movement fully advised of industrial potentialities' in such areas, and that '(t)here is no area of greater importance to the Nation as a whole, both in time of peace and in time of war, than the general area of Detroit,' and he concluded with the statement that: 'The purpose of this investigation is to determine first, whether there has been Communist activity in this vital defense area, and if so, the nature, extent, character and objects thereof.' Accompanied by counsel, petitioner appeared before the Subcommittee at the time and place commanded by the subpoena, and the following colloquy occurred: 'Mr. Wood (the chairman): Mr. McPhaul, the committee has heretofore served upon you a subpoena duces tecum, to produce certain records and documents. Are you prepared to respond to that subpoena? 'Mr. Wood: * * * Will you answer my question, Mr. McPhaul. Are you prepared to produce the documents and papers that have been called upon for you to produce under the subpoena? 'Mr. McPhaul: Mr. Wood, I refuse to answer this or any question which deals with the possession or custody of the books and records called for in the subpoena. I claim my privilege under the fifth amendment of the Constitution. 'Mr. Tavenner (Committee counsel): I would like to ask the witness if he has any other reason for refusing to produce the documents called for in the subpoena? 'Mr. Wood: In order to complete the record, Mr. McPhaul is it in response to this subpoena that has just been read that you now decline, for the reason you have stated, to produce the documents and books and records therein called for? 'Mr. McPhaul: I have stated the reasons, for the record. 'Mr. Wood: Is it in responses to this subpoena that you refuse to answer? 'Mr. McPhaul: That is my answer that I have just given. 'Mr. Wood: To this subpoena? 'Mr. McPhaul: To that subpoena; yes.' Petitioner was then sworn, and, after submitting a prepared statement and answering a few preliminary questions, the following occurred: 'Mr. Tavenner: The question is as to whether or not you are refusing to produce the records directed to be produced under the subpoena? 'Mr. McPhaul: My answer to that is, I refuse to answer this or any questions which deal with possession or custody of the books and records called for in this subpoena. I claim my privilege under the fifth amendment of the United States Constitution. 'Mr. Tavenner: My question to you was not answered by that statement, in my judgment. My question was whether or not you are refusing to produce the records which you were directed to produce under this subpoena? 'Mr. McPhaul: I have answered it in this statement. 'Mr. Tavenner: No sir. You have stated that you refuse to answer any questions pertaining to them. I have not asked you a question that pertains to them. I have asked you to produce the records. Now, will you produce them? 'Mr. McPhaul: I will not.' Following receipt of the Subcommittee's report of these occurrences, the House certified the matter to the United States Attorney for the Eastern District of Michigan for initiation of contempt proceedings against petitioner, and he was indicted on July 29, 1954. After denial of his motion to dismiss the indictment,3 petitioner entered a plea of not guilty and the case was put to trial before a jury. The Government offered and there was received in evidence those portions of the transcript of the Detroit hearings which we have mentioned, various House documents authorizing the initiation of this proceeding, and a letter on the letterhead of the Civil Rights Congress, dated February 16, 1952, over petitioner's name, and what purported to be his signature, as Executive Secretary.4 Petitioner offered no evidence, but moved for a directed verdict of acquittal substantially on the grounds asserted in his motion to dismiss the indictment (see note 3) and on the further grounds that the Government had failed to adduce any evidence sufficient to show that the records called for by the subpoena were in existence and in petitioner's possession or control at the time he was served with the subpoena or that they were pertinent to the Subcommittee's inquiry. The motion was denied, and thereupon petitioner requested the court to charge the jury, in substance, that unless they found from the evidence and beyond a reasonable doubt that the records called for by the subpoena were in existence and in petitioner's custody or control at the time the subpoena was served upon him, they should find him not guilty. The court refused that request and, instead, charged the jury not to consider 'whether the records and documents designated in the subpoena were actually in existence or under the possession or control of the defendant, because if the defendant had legitimate reasons for failing to produce the said records, he should have stated his reasons for noncompliance with the subpoena when he appeared before the said subcommittee.' The jury found petitioner guilty, and he was fined the sum of $500 and sentenced to imprisonment for a period of nine months. The Court of Appeals affirmed, 6 Cir., 272 F.2d 627, and we granted certiorari, 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 737. Petitioner's principal contentions here are that there was no evidence showing that the records called for by the subpoena were in existence or, if it may be said that there was, that those records were in petitioner's possession or subject to his control, and the trial court therefore should have sustained his motion for a directed verdict of acquittal or, at the minimum, should have submitted those matters to the jury for resolution. It is of course true that '(a) court will not imprison a witness for failure to produce documents which he does not have unless he is responsible for their unavailability, cf. Jurney v. MacCracken (294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802), or is impeding justice by not explaining what happened to them, United States v. Goldstein, 2 Cir., 1939, 105 F.2d 150.' United States v. Bryan, 339 U.S. 323, 330—331, 70 S.Ct. 724, 730, 94 L.Ed. 884. But, so far as the record shows, petitioner has never claimed either before the Subcommittee, the District Court, or the Court of Appeals, and he does not claim here—that the records called for by the subpoena did not exist or that they were not in his possession or subject to his control. Rather, his claim, first raised at his contempt trial more than two years after his appearance before the Subcommittee, is that the Government failed to show that he could have produced the records before the Subcommittee, notwithstanding he has never claimed he could not produce them. We think the Court's decision in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, is highly relevant to these questions.5 For it is as true here as it was there, that 'if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ.' Id., 339 U.S. at page 332, 70 S.Ct. at page 731. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. 'To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of its authority and an obstruction of its processes. See Bevan v. Krieger, 1933, 289 U.S. 459, 464—465, 53 S.Ct. 661, 662 663, 77 L.Ed. 1316.' His failure to make any such statement was 'a patent evasion of the duty of one summoned to produce papers before a congressional committee (, and) cannot be condoned.' Id., 339 U.S. at page 333, 70 S.Ct. at page 731. The Government's proof at the trial thus established a prima facie case of willful failure to comply with the subpoena. The evidence of the Subcommittee's reasonable basis for believing that the petitioner could produce the records in question, coupled with the evidence of his failure even to suggest to the Subcommittee his ability to produce those records, clearly supported an inference that he could have produced them. The burden then shifted to the petitioner to present some evidence to explain or justify his refusal. Morrison v. California, 291 U.S. 82, 88—89, 54 S.Ct. 281, 284, 78 L.Ed. 664. But he elected not to present any evidence. In these circumstances, there was no factual issue, respecting the existence of the records or his ability to produce them, for resolution by the jury. The Fifth Amendment did not excuse petitioner from producing the records of the Civil Rights Congress, for it is well settled that '(b)ooks and records kept 'in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate (their keeper) personally.' United States v. White, 1944, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542.' Rogers v. United States, 340 U.S. 367, 372, 71 S.Ct. 438, 441, 95 L.Ed. 344. And see Curcio v. United States, 354 U.S. 118, 122—123, 77 S.Ct. 1145, 1148—1149, 1 L.Ed.2d 1225. Similarly, there is no merit in petitioner's argument that he could not have advised the Subcommittee that he was unable to produce the records without thereby inviting other questions respecting the records and thus risking waiver of his privilege against self-incrimination. See Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145. Nor does the rule of Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170, excuse one subpoenaed to produce records in a representative capacity, United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, from asserting inability to produce the records if, at a later contempt trial for failure to produce the records he expects to put the Government to proof on that matter. Inasmuch as petitioner neither advised the Subcommittee that he was unable to produce the records nor attempted to introduce any evidence at his contempt trial of his inability to produce them, we hold that the trial court was justified in concluding and in charging the jury that the records called for by the subpoena were in existence and under petitioner's control at the time of the subpoena was served upon him. Petitioner next contends that the evidence was not sufficient to show that the records called for by the subpoena were pertinent to the inquiry. In the first place, petitioner made no objection to the subpoena before the Subcommittee on the ground of pertinency, see Barenblatt v. United States, 360 U.S. 109 123, 79 S.Ct. 1081, 1091, 3 L.Ed.2d 1115 buy we need not rest decision on that score, for here 'pertinency' was clearly shown. The stated purposes of the hearing were to determine 'whether there has been Communist activity in this vital defense area (Detroit), and if so, the nature, extent character and objects thereof.' Earlier Subcommittee hearings had 'disclosed a concentration of Communist effort in certain defense areas of the country,' consisting in part of keeping 'the national organization of the Communist Party and the international Communist movement fully advised of industrial potentialities' in such areas, and the Subcommittee also had reason to believe that the Civil Rights Congress was being used for subversive purposes. The subpoena called for 'all records, correspondence and memoranda' of the Civil Rights Congress relating to three specified subjects: (1) The 'organization of' the group, (2) its 'affiliation with other organizations,' and (3) 'all monies received or expended by (it).' It would seem clear enough that the auspices under which the Civil Rights Congress was organized, the identity and extent of its affiliations, the source of its funds and to whom distributed would be prime considerations in determining whether the organization was being used by the Communists in the Detroit area. If the Civil Rights Congress was affiliated with known Communist organizations, or if its funds were received from such organizations or were used to support Communist activities in the Detroit area, those facts, it is reasonable to suppose, would be shown by the records called for by the subpoena, and those facts would be highly pertinent to the Subcommittee's inquiry. It thus appears that the records called for by the subpoena were not 'plainly incompetent or irrelevant to any lawful purpose (of the Subcommittee) in the discharge of (its) duties,' Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 343, 87 L.Ed. 424, but, on the contrary, were reasonably 'relevant to the inquiry,' Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 506, 90 L.Ed. 614. Finally, petitioner contends that the subpoena was so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment of the Constitution. '(A)dequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry,' Oklahoma Press Publishing Co. v. Walling, supra, 327 U.S. at page 209, 66 S.Ct. at page 506. The Subcommittee's inquiry here was a relatively broad one—whether 'there has been Communist activity in this vital defense area (Detroit), and if so, the nature, extent, character and objects thereof'—and the permissible scope of materials that could reasonably be sought was necessarily equally broad. It is not reasonable to suppose that the Subcommittee knew precisely what books and records were kept by the Civil Rights Congress, and therefore the subpoena could only 'specif(y) * * * with reasonable particularity the subjects to which the documents * * * relate.' Brown v. United States, 276 U.S. 134, 143, 48 S.Ct. 288, 290, 72 L.Ed. 500. The call of the subpoena for 'all records, correspondence and memoranda' of the Civil Rights Congress relating to the three specified subjects describes them 'with all of the particularity the nature of the inquiry and the (Subcommittee's) situation would permit,' Oklahoma Press Publishing Co. v. Walling, supra, 327 U.S. at page 210, n. 48, 66 S.Ct. at page 506. '(T)he description contained in the subpoena was sufficient to enable (petitioner) to know what particular documents were required and to select them accordingly,' Brown v. United States, supra, 276 U.S. at page 143, 48 S.Ct. at page 290. If petitioner was in doubt as to what records were required by the subpoena, or found it unduly burdensome, or found it to call for records unrelated to the inquiry, he could and should have so advised the Subcommittee, where the defect, if any, 'could easily have been remedied,' United States v. Bryan, supra, 339 U.S. at page 333, 70 S.Ct. at page 731. This subpoena was not more sweeping than those sustained against challenges of undue breadth in Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, and Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494. Under these circumstances, we cannot say that the breadth of the subpoena was such as to violate the Fourtn Amendment. Affirmed. Dissenting opinion of Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, announced by Mr. Justice BLACK. Today's decision marks such a departure from the accepted procedure designed to protect accused people from public passion and overbearing officials that I dissent. The Act under which petitioner goes to prison permits conviction only if he 'willfully makes default' as a witness before a congressional Committee. 2 U.S.C. § 192, 2 U.S.C.A. § 192. The subpoena commanded him to produce the records of 'the Civil Rights Congress' at a given time and place. But it did not name petitioner as officer, agent, or member of 'the Civil Rights Congress.' The record contains no word of evidence to show (1) that petitioner was an officer, agent, or member of the Civil Rights Congress, or (2) that petitioner was in possession of, or was a custodian of, any of the records of 'the Civil Rights Congress.' The congressional Committee made no effort to establish these facts. Neither did the prosecutor when this criminal proceeding came to trial. The only evidence, if it can be called such, is the refusal or failure of the petitioner to deny those facts.1 The District Court charged the jury that the failure of the prosecution to establish those facts was immaterial for the following reason: 'If you find from the evidence in this case, and beyond a reasonable doubt, that the defendant appeared before the said subcommittee, and then refused or failed to make any explanation with respect to the existence of the records designated in the subpoena, or with respect to whether or not such records were under his possession or control, I charge you that you may not consider the questions of whether the records and documents designated in the subpoena were actually in existence or under the possession or control of the defendant, because if the defendant had legitimate reasons for failing to produce the said records, he should have stated his reasons for non-compliance with the subpoena when he appeared before the said subcommittee. 'I also charge you that the defendant is not excused from compliance with or producing the records designated in the subpoena merely because he is not designated as an officer or agent of the Civil Rights Congress therein; and neither is the defendant excused from such compliance with the said subpoena merely because of any lack of proof of any connection between the defendant and the Civil Rights Congress.' This theory, now sustained by the Court, permits conviction without any evidence of any 'willful' default. The presumption of innocence, deep in our criminal law, has been one of our most important safeguards against oppression. So far as I can find, this is the first instance where we have dispensed with it. We do so today by shifting the burden to a witness to show that he is not an officer or agent of the organization in question and that he is not able to produce the documents, without requiring any proof whatsoever by the prosecution that connects the defendant either with the organization or with the documents. Reliance is placed on United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884. With all deference, that case is irrelevant because there the witness concededly was 'the executive secretary' of the organization being investigated and had 'custody of its records.' Id., 339 U.S. 324, 70 S.Ct. 727. The issue in the case concerned the authority of the Committee to make the demand, authority challenged, at the trial but not before the Committee, because no quorum of the Committee was present when the witness made default. In United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906, there was also evidence that the defendant had power to cause the documents to be produced. Id., 339 U.S. 353—354, 70 S.Ct. 741. In those situations the prosecution proves enough when it establishes custody or power to control. Id., 339 U.S. 361—363, 70 S.Ct. 745—746. As respects the shift of the burden of going forward in a criminal prosecution to the defendant (Morrison v. California, 291 U.S. 82, 88, 90—91, 54 S.Ct. 281, 284, 285), Mr. Justice Cardozo said, by way of dictum, 'For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance * * * or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge * * *.' Id., 291 U.S. 90—91, 54 S.Ct. 285. Whatever may be the reach of that dictum, it was not adequate to sustain a conviction in that case and is inadequate here. That case involved a charge of conspiracy to violate the alien land law of California. A citizen, charged as co-conspirator, was convicted on a presumption that he knew of the disqualification of his co-conspirator alleged to be an alien. The holding of the Court was that invocation of the presumption against the citizen denied him due process. Id., 291 U.S. 93, 54 S.Ct. 286. The alien was not a conspirator, 'however guilty his own state of mind,' unless the citizen 'shared in the guilty knowledge and design.' Therefore, said Mr. Justice Cardozo, 'The joinder was something to be proved, for it was of the essence of the crime.' Id., 291 U.S. 93, 54 S.Ct. 286. That ruling rests on the presumption of innocence that is never overcome unless the prosecution introduces some competent evidence implicating the accused in the criminal act that is charged.2 Here the crime is 'willful' default in the production of records of 'the Civil Rights Congress.' There can be no 'willful' default unless this petitioner is shown to have (1) some connection with that organization ganization and (2) some custody or control of its records. Simple questions by the Committee might have produced the necessary answers. It is hornbook law that they should have been asked.3 Yet they were not; and without the foundation which they might have laid, the present prosecution has no starting point unless we are to throw procedural requirements to the winds. Failure of a defendant to explain why he does not produce documents may be sufficient under the cases, where it has first been shown that he has a connection with them. See United States v. Fleischman, supra, 339 U.S. 360—363, 70 S.Ct. 745—746; Nilva v. United States, 352 U.S. 385, 392, 77 S.Ct. 431, 435, 1 L.Ed.2d 415. But failure to explain, where no proof of the defendant's connection with the documents is shown, is like taking his action in standing must be a confession of guilt. Once that was the rule. See In re Smith, C.C., 13 F. 25, 26—27; Beale, Criminal Pleading and Practice (1899), p. 52. Once it was the rule that a man who refused to take an oath and answer in criminal proceedings was held in contempt. Trial of Lilburn, 3 How.St.Tr. 1315. See Maguire, Attack of the Common Lawyers on the Oath Ex officio as Administered in the Ecclesiastical Courts in England, Essays in History and Political Theory (1936), c. VII, p. 215. Today we take a step backward. We allow a man to go to prison for doing no more, so far as this record reveals, than challenging the right of a Committee to ask him to produce documents. The Congress had the right to get these documents from someone. But, when it comes to criminal prosecutions, the Government must turn square corners. If Congress desires to have the judiciary adjudge a man guilty for failure to produce documents, the prosecution should be required to prove that the man whom we send to prison had the power to produce them.

361.US.199

After having been discharged from the Armed Forces because of permanent mental disability, and during an unauthorized absence from a Veterans' hospital where he had been classified as 100% "incompetent," petitioner was arrested on a charge of robbery. After eight or nine hours of sustained interrogation in a small room which was at times filled with police officers, he signed a confession written for him by a Deputy Sheriff. Shortly thereafter he exhibited symptoms of insanity and, after proceedings prescribed by state law, he was found insane and committed to a state mental hospital. Over four years later, he was declared mentally competent to stand trial and was tried in a state court on the robbery charge. His confession was admitted in evidence over his objection and he was convicted. Held: The record clearly establishes that the confession most probably was not the product of any meaningful act of volition; and its use in obtaining petitioner's conviction deprived him of his liberty without due process of law in violation of the Fourteenth Amendment, Pp. 200-211. (a) Though it is possible tiat petitioner confessed during a period of complete mental competence, the evidence here establishes the strongest probability that he was insane and incompetent at the time he allegedly confessed. Pp. 207-208. (b) On the record in this case, there was not such a conflict in the evidence as to require this Court to accept the trial judge's conclusion that the confession was voluntary. Pp. 208-209. (c) Where the involuntariness of a 'confession is conclusively demonstrated at any stage of a trial, the defendant is deprived- of due process by its use in obtaining his conviction-even though important evidence concerning the involuntariness of the confession was not introduced until after admission of the confession into evidence and the defendant's counsel did not request reconsideration of that ruling. Pp. 209-211. 40 Ala. App. -, 109 So. 2d 736, reversed.

Jesse Blackburn was tried in the Circuit Court of Colbert County, Alabama, on a charge of robbery, found guilty, and sentenced to 20 years' imprisonment. By far the most damaging piece of evidence against him was his confession, which he persistently maintained had not been made voluntarily.1 The record seemed to provide substantial support for this contention, and we granted certiorari because of a grave doubt whether the judgment could stand if measured against the mandate of the Fourteenth Amendment to the Constitution of the United States. 359 U.S. 1010, 79 S.Ct. 1147, 3 L.Ed.2d 1035. Plenary hearing has hardened this doubt into firm conviction: Jesse Blackburn has been deprived of his liberty without due process of law. The crime with which Blackburn was charged was the robbery of a mobile store on April 19, 1948. By that date Blackburn, a 24-year-old Negro, had suffered a lengthy siege of mental illness. He had served in the armed forces during World War II, but had been discharged in 1944 as permanently disabled by a psychosis. He was thereupon placed in an institution and given medical treatment over extended periods until February 14, 1948, when he was released from a Veterans Administration hospital for a ten-day leave in the care of his sister. He failed to return to the hospital and consequently was discharged on May 24, 1948. The robbery of which he stands convicted occurred during this period of unauthorized absence from a mental ward. Blackburn's medical records further disclose that from 1946 he was classified by the Veterans Administration as 100 percent 'incompetent' and that at the time of his discharge from the hospital both his diagnosis of 'schizophrenic reaction, paranoid type' and his characterization as 'incompetent' remained unchanged. This does not by any means end the record of Blackburn's history of mental illness. He was arrested shortly following the robbery, and some time after his confession on May 8, 1948, the Sheriff reported to the circuit judge that Blackburn had exhibited symptoms of insanity. The judge thereupon had Blackburn examined by three physicians, and after receiving their report he concluded that there was 'reasonable ground to believe that the defendant was insane either at the time of the commission of (the) offense or at the present time.' In accordance with the procedure prescribed by Alabama law,2 the judge then directed the Superintendent of the Alabama State Hospitals to convene a lunacy commission. When the commission unanimously declared Blackburn insane, the judge committed him to the Alabama State Hospital for the mentally ill until he should be 'restored to his right mind.'3 Blackburn escaped from the hospital once, only to be apprehended on another charge, declared insane by a second Alabama circuit judge, and sent back to the hospital. Before his return he was examined by another set of doctors who diagnosed his mental condition as 'Schizophrenic reaction, paranoid type' and declared that he was 'Insane, incompetent, and should be placed in (an) insane hospital.' Except for this brief interlude, Blackburn remained in the hospital for over four years, from July 1948 to October 1952, at which time he was declared mentally competent to stand trial. At his trial, Blackburn entered pleas of not guilty and not guilty by reason of insanity. He testified that he could remember nothing about the alleged crime, the circumstances surrounding it, his arrest, his confession, his commitment to the State Hospital, or the early period of his treatment there. He denied the truth of the confession, but admitted that the signature on it appeared to be his. According to a 1944 Army medical report, one aspect of Blackburn's illness was recurrent 'complete amnesia concerning his behaviour.' When the prosecutor proposed to introduce Blackburn's confession into evidence, his attorney objected, and the judge held a hearing to determine its admissibility. Blackburn's counsel submitted to the judge the depositions of two of the three doctors who had served on the lunacy commission and who had observed Blackburn during his period of treatment at the State Hospital. These depositions incorporated copies of three significant documents. The first was the court order directing examination of Blackburn by a lunacy commission. This order mentioned Blackburn's previous treatment in a mental ward and two of his prior commitments to mental institutions. The second paper was the lunacy commission's report, in which three state-employed doctors had expressed their opinion that Blackburn was insane both at the time of his admission to the hospital on July 29, 1948, and at the time of the robbery on April 19, 1948. Finally, the depositions set forth the order which permanently committed Blackburn to the State Hospital. In addition to attesting to the accuracy of these doctuments, the deponents set forth in detail their opinion of Blackburn's mental condition. Dr. Harry S. Rowe, the Assistant Superintendent of the Hospital who had worked since 1923 exclusively with psychopathic patients, stated that as a member of the lunacy commission he had participated in its investigation and in the submission of its report. Dr. Rowe also said that he had interviewed Blackburn on many occasions since his commitment and that he not only still thought Blackburn had been insane on the date of the crime but also believed he 'most probably (had been) insane and incompetent' on May 8, 1948, when he had confessed. These opinions of Dr. Rowe were seconded by Dr. J. S. Tarwater, a psychiatrist who was Superintendent of the Alabama State Hospitals. To counter this evidence, the prosecutor introduced the deposition of the third member of the lunacy commission, Dr. A. M. Richards, a general practitioner who had spent the previous twelve years treating mental patients and who was a staff member of the State Hospital. The doctor's answers to petitioner's interrogatories were in harmony with the depositions of Drs. Tarwater and Rowe: Dr. Richards acknowledged that he had served on the lunacy commission, that he had signed the report, and that he had concurred in the finding that Blackburn had been insane on the date of the crime. He disclaimed having any other information of value, and noted in response to a cross-interrogatory that Blackburn had been 'up on the criminal ward and he was such a nuisance until I didn't see him often.' In his answers to other cross-interrogatories, however, Dr. Richards executed an astonishing about-face by opining that Blackburn had been 'normal' since he first saw him, that his mental condition was 'normal' on the date of the crime and 'good' on the date of the confession, and that he had never seen Blackburn suffer 'psychotic episodes.' Even this portion of the deposition is not without incongruity, however, for Dr. Richards' response to one cross-interrogatory was that he did not believe Blackburn had experienced lucid intervals. Evidence concerning the circumstances surrounding the making of the confession was supplied by the Chief Deputy Sheriff. He testified that the interrogation had consumed 'something like, maybe five or six hours' on May 8, 1948, and that no one had threatened Blackburn in any way. The Chief Deputy composed the statement in narrative form on the basis of Blackburn's answers to the various questions asked by the officers, and Blackburn signed the confession two days later. When asked about Blackburn's behavior, the witness responded that Blackburn had 'answered like any normal person I have examined.' After the judge ruled that the confession would be admitted, but before it was actually admitted, the Chief Deputy described in somewhat greater detail—this time to the jury—the manner in which the confession had been obtained. It developed that the examination had begun at approximately one o'clock in the afternoon and had continued until ten or eleven o'clock that evening, with about an hour's break for dinner. Thus it was established that the questioning went on for eight or nine hours rather than five or six. Apparently most of the interrogation took place in closely confined quarters—a room about four by six or six by eight feet—in which as many as three officers had at times been present with Blackburn. The Chief Deputy conceded that Blackburn said he had been a patient in a mental institution, but claimed that Blackburn also stated he had been released, and avowed that Blackburn 'talked sensible and give (sic) sensible answers,' was clear-eyed, and did not appear nervous. Blackburn's counsel again objected to admission of the statement, but the objection was overruled and the confession was submitted to the jury. After the Alabama Court of Appeals affirmed the judgment and held that the Fourteenth Amendment did not require exclusion of the confession, Blackburn petitioned this Court for certiorari.4 Thus was the constitutional issue raised, decided, and presented to this Court for review. After according all of the deference to the trial judge's decision which is compatible with our duty to determine constitutional questions,5 we are unable to escape the conclusion that Blackburn's confession can fairly be characterized only as involuntary. Consequently the conviction must be set aside, since this Court, in a line of decisions beginning in 1936 with Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and including cases by now too well known and too numerous to bear citation, has established the principle that the Fourteenth Amendment is grievously breached when an involuntary confession is obtained by state officers and introduced into evidence in a criminal prosecution which culminates in a conviction. Since Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of 'persuasion.'6 A prolonged interrogation of an accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror. Thus the range of inquiry in this type of case must be broad, and this Court has insisted that the judgment in each instance be based upon consideration of 'the totality of the circumstances.' Fikes v. State of Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246. It is also established that the Fourteenth Amendment forbids 'fundamental unfairness in the use of evidence whether true or false.' Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. Consequently, we have rejected the argument that introduction of an involuntary confession is immaterial where other evidence establishes guilt or corroborates the confession. E.g., Spano v. People of State of New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265; Payne v. State of Arkansas, 356 U.S. 560, 567—568, 78 S.Ct. 844, 849, 850, 2 L.Ed.2d 975; Watts v. State of Indiana, 338 U.S. 49, 50, note 2, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224. As important as it is that persons who have committed crimes be convicted, there are considerations which transcend the question of guilt or innocence. Thus, in cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. This insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar. See Chambers v. State of Florida, supra, 309 U.S. at pages 235—238, 60 S.Ct. at pages 477, 478, 84 L.Ed. 716; Watts v. State of Indiana, supra, 338 U.S. at pages 54—55, 69 S.Ct. at page 1350, 93 L.Ed. 1801. But neither the likelihood that the confession is untrue nor the preservation of the individual's freedom of will is the sole interest at stake. As we said just last term, 'The abhorrence of society to the use of involuntary confessions * * * also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.' Spano v. People of State of New York, supra, 360 U.S. at pages 320—321, 79 S.Ct. at pages 1205, 1206, 3 L.Ed. 1265. Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case. In the case at bar, the evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion. And when the other pertinent circumstances are considered—the eight-to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn's friends, relatives, or legal counsel; the composition of the confession by the Deputy Sheriff rather than by Blackburn—the chances of the confession's having been the product of a rational intellect and a free will become even more remote and the denial of due process even more egregious. It is, of course, quite true that we are dealing here with probabilities. It is possible, for example, that Blackburn confessed during a period of complete mental competence. Moreover, these probabilities are gauged in this instance primarily by the opinion evidence of medical experts. But this case is novel only in the sense that the evidence of insanity here is compelling, for this Court has in the past reversed convictions where psychiatric evidence revealed that the person who had confessed was 'of low mentality, if not mentally ill,' Fikes v. State of Alabama, supra, at page 196, 77 S.Ct. at page 284, 1 L.Ed.2d 246, or had a 'history of emotional instability,' Spano v. People of State of New York, supra, 360 U.S. at page 322, 79 S.Ct. at page 1206, 3 L.Ed.2d 1265. And although facts such as youth and lack of education are more easily ascertained than the imbalance of a human mind,7 we cannot say that this has any appreciable bearing upon the difficulty of the ultimate judgment as to the effect these various circumstances have upon independence of will, a judgment which must by its nature always be one of probabilities. Of course, this case is no different from other involuntary confession cases in another respect—where there is a genuine conflict of evidence great reliance must be placed upon the finder of fact. It is this proposition upon which respondent's principal argument rests, for the trial judge's decision is said to be inviolable because of an alleged conflict between the depositions of Dr. Richards on the one hand and Drs. Tarwater and Rowe on the other. We need not in this case consider the relevance of the fact that the trial judge, like ourselves, had no opportunity to witness the demeanor of these doctors. It is sufficient to observe that the deposition of Dr. Richards is in such hopeless internal conflict that it raises no genuine issue of fact. It would be unreasonable in the extreme to base a determination upon those portions in which the doctor proclaimed Blackburn normal while ignoring those portions in which he judged Blackburn insane. Nor have we overlooked the testimony of the Chief Deputy that Blackburn 'talked sensible,' was clear-eyed, and did not appear nervous. But without any evidence in the record indicating that these observed facts bore any relation to Blackburn's disease or were symptoms of a remission of his illness, we are quite unable to conclude that such an inference can be drawn.8 The Fourteenth Amendment would be an illusory safeguard indeed if testimony of this nature were held to raise a 'conflict' which would preclude appellate review of a case where the evidence of insanity is as compelling as it is here. We take note also of respondent's argument that our decision must be predicated solely upon the evidence introduced by defendant before admission of the confession. As we have indicated, this evidence consisted of the depositions, the copies of the documents incorporated therein, and the testimony of the Chief Deputy. The other relevant evidence, which included the detailed medical record of Blackburn's mental illness prior to his arrest, was introduced at a later stage of the trial. It is quite true that Blackburn's counsel, so far as the record shows, made no request that the judge reconsider his ruling on the basis of this additional data. The Alabama Court of Appeals decided that under these circumstances this further documentation of Blackburn's insanity was not, under state law, material to the Fourteenth Amendment question. Even if respondent's argument were meritorious our decision would be the same, since the evidence introduced prior to admission of the confession was ample to establish its involuntariness. But we reject the notion that the scope of our review can be thus restricted. Where the involuntariness of a confession is conclusively demonstrated at any stage of a trial, the defendant is deprived of due process by entry of judgment of conviction without exclusion of the confession. An argument similar to respondent's was disposed of in Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, in the following words: 'That contention rests upon the failure of counsel for the accused, who had objected to the admissibility of the confessions, to move for their exclusion after they had been introduced and the fact of coercion had been proved. It is a contention which proceeds upon a misconception of the nature of petitioners' complaint. That complaint is not of the commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. * * * We are not concerned with a mere question of state practice, or whether counsel assigned to petitioners were competent or mistakenly assumed that their first objections were sufficient. * * * 'In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process * * *.' Id., 297 U.S. at pages 286—287, 56 S.Ct. at pages 465. Just as in Brown, the evidence here clearly establishes that the confession most probably was not the product of any meaningful act of volition. Therefore, the use of this evidence to convict Blackburn transgressed the imperatives of fundamental justice which find their expression in the Due Process Clause of the Fourteenth Amendment, and the judgment must be reversed. Reversed. Mr. Justice CLARK concurs in the result.

364.US.263

Petitioner was arrested and held in jail awaiting trial on a criminal charge for refusing to permit building inspectors to enter and inspect his home without a search warrant, as required by § 806-30 (a) of the Dayton, Ohio, Code of General Ordinances. On review of habeas corpus proceedings in the lower state courts,. the Supreme Court of Ohio sustained the constitutionality of the ordinance: Held: The judgment is affirmed by an equally divided Court. Reported below: 168 Ohio St. 123, 151 N. E. 2d 523.

The judgment is affirmed by an equally divided Court. Mr. Justice STEWART took no part in the consideration or decision of this case. Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join. The judgment of the Ohio Supreme Court in this case is being affirmed ex necessitate, by an equally divided Court. Four of the Justices participating are of opinion that the judgment should be affirmed, while we four think it should be reversed. Accordingly, the judgment is without force as precedent. The Antelope, 10 Wheat. 66, 126, 6 L.Ed. 268; Etting v. Bank of the United States, 11 Wheat. 59, 78, 6 L.Ed. 419. In such circumstances, as those leading cases indicate, the usual practice is not to express any opinion, for such an expression is unnecessary where nothing is settled. But in this case, even before the cause was argued, four Justices made public record of their votes to affirm the judgment, and their basis therefor. 360 U.S. 246, 248—249, 79 S.Ct. 978, 979, 3 L.Ed.2d 1200. These four Justices stated that they were 'of the view that this case is controlled by, and should be affirmed on the authority of, Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, (3 L.Ed.2d 877).' Their opinion further states that they deemed 'the decision in the Maryland case to be completely controlling upon the Ohio decision.' In a longer opinion, one of the four Justices developed his views on the merits further. 360 U.S., at pages 249—250, 79 S.Ct. at pages 979—980. The usual practice of not expressing opinions upon an equal division has the salutary force of preventing the identification of the Justices holding the differing views as to the issue, and this may well enable the next case presenting it to be approached with less commitment. But the action we have described prevents this from being the case here; and so the reason for the usual practice is not applicable. Accordingly, since argument has been had, and votes on the merits are now in order, we express our opinion.1 This case involves Earl Taylor, who is in his sixties and has been working at his trade of plumber for 40 years, and the home at 130 Henry Street, in Dayton, Ohio, which he and his wife bought and in which they have lived for over a decade. He describes it as a little cottage, all in one floor, with a front room, a middle room, two bedrooms, a dining room and a little utility room, and a bathroom and a little kitchen at the back. What was evidently Taylor's first involvement with the criminal law occurred in this fashion. One day three men who were housing inspectors came to his door, and said they wanted to come into the house and go through the house and inspect the inside of the house. They had no credentials, only a sheet of yellow note paper, and Taylor said to them, 'You have nothing to show me you have got a right to go through my house.' The response was, 'We don't have to have, according to the law passed four years ago.'2 RepliedTaylor, 'That don't show me that you got anything in there that you want for inspection, and, further, I don't have nothing in my house that has to be inspected.' The man said, 'Well, you know, according to this ordinance, that we got a right to go through your house and inspect your house.' 'No, I don't think you have, unless you got a search warrant,' answered Taylor. This has been his position ever since, and it is the issue that divides us. The men went away, but later there was a second attempt to gain access to Taylor's house, and a telephone call to the same end. Taylor said, 'I don't see what right that you got coming into my house. Until you show me in writing, or some kind of facts, that you got a right to come into my house and inspect the house, I will not let you in.' The third time the men came, there were two of them. One had some sort of credential with a photograph on it. Neither had a warrant of any kind. One said the housing inspector wanted to inspect Taylor's house. Taylor said, 'What do you have in there that you want to inspect? I have nothing in my house for inspection.' He was told: 'We have a right to come in your house, go through your house, inspect the whole inside of your house.' Taylor's reaction to this was: 'You have nothing wrote down on paper. You don't have a thing to show me you are going to come in there to inspect anything, and as far as that goes you aren't coming in unless you have a search warrant to get in.' The men never came back with a search warrant, but as they left, one said, 'If you ain't going to let us in, we are entitled to get in, and if you don't let us in, I am going to leave it up to the Prosecutor.' Whereupon Taylor said: 'I don't care what you do. You aren't coming in.' Taylor later testified that then the man 'walked over and got in his car and that was the end of it.' But it was not. Taylor and his wife each received through the mail a registered letter from the city prosecutor, notifying them to appear at his office to answer a complaint against them. They did not appear; whereupon the police came to Taylor's home, and finally served him with a warrant—a warrant to appear in court to answer criminal charges brought against him for failing to admit the inspectors to his home. He appeared in court and was held for trial; and not being then able to make bond of $1,000, he was committed to jail, to await trial on the charges, which could have resulted in a fine of $200 and an incarceration of 30 days for each day's recalcitrance. One Eaton, an attorney, filed a petition for habeas corpus on Taylor's behalf in the State Common Pleas Court.3 The Common Pleas Court found the ordinance unconstitutional, and discharged Taylor from custody; but the Court of Appeals reversed, 105 Ohio App. 376, 152 N.E.2d 776, and its judgment was upheld by the Ohio Supreme Court. 168 Ohio St. 123, 151 N.E.2d 523. We noted probable jurisdiction. 360 U.S. 246, 79 S.Ct. 978, 3 L.Ed.2d 1200. The municipal ordinance in question provides numerous requirements for dwellings, deemed by the city to be appropriate in the interests of the public health, safety and comfort. Several of the requirements apply to private dwelling houses, such as the Taylors'. None of these requirements is at all questioned here. What is questioned is the ordinance provision, Code of General Ordinances § 806—30, authorizing the Housing Inspector to enter at any reasonable hour any dwelling whatsoever, and commanding the owner or occupant to give him free access at any reasonable hour for the purpose of his inspection. It was armed with the naked authority of this provision, and not with any warrant (the ordinance provides for none) that the inspectors approached Taylor's door, even after he had made clear to them his intent not to admit them on this basis. Neither before a magistrate empowered to issue warrants, nor in this proceeding, have the inspectors offered any justification for their entry. They have not shown any probable cause or grounds to believe that a proscribed condition existed within the cottage, or even that they had suspicion or complaint thereof. They have not shown that they desired to make the inspection in pursuance of a regular, routinized spot check of individual homes, or in pursuance of a planned blanket check of all the homes in a particular neighborhood, or the like.4 These might be said to be the usual reasons which would impel inspectors to seek to gain admittance to a private dwelling; but none of them is shown by the record to have been present. Most significantly, on the initial recalcitrance of Taylor, the inspectors were not required to, and did not, repair before any independent magistrate to demonstrate to him their reasons for wanting to gain access to Taylor's cottage, and to obtain his warrant for their entry—the authorization on which Taylor was insisting. The judgment below is, on this record, bottomed on the proposition that the inspectors have the right to enter a private dwelling, and the householder can be bound under criminal penalties to admit them, though there is demonstration neither of reason to believe there exists an improper condition within the dwelling, nor of the existence of any plan of inspection, apart from such a belief, which would include the inspection of the dwelling in question. We think that affirmance of this judgment would reduce the protection of the householder 'against unreasonable searches' to the vanishing point. In support of the judgment below, much reliance at the bar has been put on Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. We would not be candid to say that on its own facts we have become reconciled to that judgment. To us, it remains 'the dubious pronouncement of a gravely divided Court.' Cooper v. Aaron, 358 U.S. 1, 24, 78 S.Ct. 1401, 1413, 3 L.Ed.2d 5, 19 (concurring opinion). 'A single decision by a closely divided court, unsupported by the confirmation of time, cannot check' the course of constitutional adjudication here. See Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 454, 455, 93 L.Ed. 513 (concurring opinion). We continue to agree with Judge Prettyman in District of Columbia v. Little, 85 U.S.App.D.C. 242, 246, 178 F.2d 13, 17, 13 A.L.R.2d 954, affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599, that: 'To say that a man suspected of crime has a right to protection against search of his home without a warrant, but that a man not suspected of crime has no such protection, is a fantastic absurdity.' Nothing demonstrated in the Frank case indicates otherwise to us. But the present case goes much further than Frank; and as to the reasonableness of searches, it has been stressed that factual differences may weigh heavily. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374. The search in Frank was for the nesting place of rats. There were ample grounds on the part of the inspecting officer to believe its existence in the house. There had been complaint of rats in the neighborhood; and an external inspection of the house in question revealed that it was 'in an 'extreme state of decay" and that behind it there was a pile of 'rodent feces mixed with straw and trash and debris to approximately half a ton.' See 359 U.S., at page 361, 79 S.Ct. at page 806. The case was decided by the narrowest of divisions; and one member of the majority found it necessary to express in a concurring opinion that the sole purpose of the search was an attempt 'to locate the habitat of disease-carrying rodents known to be somewhere in the immediate area.' 359 U.S., at page 373, 79 S.Ct. at page 812 (concurring opinion). There was no case of a 'systematic area-by-area search' before the Court, and although certain remarks were made as applicable to such a search, 359 U.S. at page 372, 79 S.Ct. at page 811, their character as dicta is patent. Thus, even accepting the judgment in Frank, of such expressions the classic language of Justice Brandeis, dissenting in Jaybird Mining Co. v. Weir, 271 U.S. 609, 619, 46 S.Ct. 592, 595, 70 L.Ed. 1112, can be said again: 'It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation and that an expression in an opinion yields later to the impact of facts unforeseen.' In this case we pass beyond the situation in Frank, where the inspector was looking for a specific violation, and where he had, and was able to demonstrate, considerable grounds to believe it existed in Frank's house. Here it would appear from Taylor's testimony that, even without a warrant, if a specific matter was cited to him by the inspector, he would have permitted the inspection in that regard. On the contrary, Frank's denial of access was described as based on 'a rarely voiced denial of any official justification for seeking to enter his home.' 359 U.S., at page 366, 79 S.Ct. at page 808. There then was a specific demand for inspection, met by a refusal on the broadest of grounds. Here we have the most general of demands, supported by no particularized justification, either directed at the conditions in Taylor's cottage, or in terms of some over-all systematic plan which would include it. This is met not by an attitude of defiance, but by a request by the householder that a specific authorization be furnished him. Not a search warrant, but a criminal complaint is the upshot. We would grossly tone down the protections afforded the householder by the Constitution were we to put an authoritative sanction on the judgment that condemns his refusal. Much argument is made of the need of the authorities to perform inspections on a 'spot check' or on an area-by-area basis. The judgment below cannot be said to present this problem, because there was no evidence that this in fact was what was being done; that the inspectors in fact were proceeding according to a reasonable plan of one sort or another. For all that appears here, the inspectors could have been acting in accordance with no particular plan of spot checks or area-by-area searches which could be justified as 'reasonable,' and which would give probable cause for entry;5 their action could have been based on caprice or on personal or political spite. It hardly contradicts experience to suggest that the practical administration of local government in this country can be infected with such motives. Building inspection ordinances can lend themselves readily to such abuse. We do not at all say this to be the case here, and Taylor has made no proof of it, to be sure; but that simply points up the issue. The inspectors have not been required to make any justification for their entry. The judgment below upholds the charges as sufficient, based on a demand for entry without any such justification. But if we were to assume that the inspectors were proceeding according to a plan, and even if evidence of the plan were put in at the trial, we think that the result should be the same. The time to make such justification is not in the criminal proceeding, after the householder has acted at his peril in denying access. The time to make it is in advance of prosecution, and the place is before a magistrate empowered to issue warrants, which will put the seal of legitimacy—the seal the Constitution specifically provides for—on the demand of the inspector, if indeed it is a reasonable one. Such a warrant need not be sought except where the householder does not consent. This is precisely the procedure followed by England in this particular area, see Public Health Act, 1936, 26 Geo. 5, & 1 Edw. 8, c. 49, § 287(2);6 and no complaint is heard that this stultifies enforcement there of the regulation or the public health and safety. Certainly with this procedure available—the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment, see McDonald v. United States, 335 U.S. 451, 455—456, 69 S.Ct. 191, 193, 93 L.Ed. 153—there is no need to be satisfied with lesser standards in this area. Cf. Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. The public interest in the cleanliness and adequacy of the dwellings of the people is great. So too is the public interest that the tools of counterfeiting and the paraphernalia of the illicit narcotics traffic not remain active. On an adequate and appropriate showing in particular cases, the privacy of the home must bow before these interests of the public. But none of these interests provides an open sesame to those who enforce them. The Fourth Amendment's procedure establishes the way in which these general public interests are to be brought into specific focus to require the individual householder to open his door. It has been suggested that if the Fourth Amendment's requirement of a search warrant is acknowledged to be applicable here, the result will be a general watering-down of the standards for the issuance of search warrants. For it is said that since it is agreed that a warrant for a health and safety inspection can be made on a showing quite different in kind from that which would, for example, justify a search for narcotics, magistrates will become lax generally in issuing warrants. The suggested preventive for this laxity is a drastic one: dispense with warrants for these inspections. We cannot believe that here it is necessary thus to burn down the house to roast the pig. To be sure, the showing that will justify a housing inspection to check compliance with health and safety regulations is different from that which would justify a search for narcotics. But we should not assume that magistrates will become so obtuse as not to bear this in mind. Search warrants to look for counterfeiting equipment, for example, are not issued on a showing of probable cause to believe the existence of an untaxed still. To each specific warrant, an appropriate specific showing is necessary. This can scarcely be thought to tax the capacities of the magistrate. And of course where the rule prevails that evidence obtained in violation of the constitutional guarantee is not admissible, there will be judicial review of the magistrate's action if the fruits of a search are tendered in evidence.7 Apart from the very significant factual distinctions presented by this case from the Frank case, there is another reason why we would reverse the judgment here. It has now become clear that the Frank decision may have turned in substantial part on the positing of a distinction between the affirmative guaranty of privacy against official incursion raised by the Fourth Amendment against federal action, and that raised by the Due Process Clause of the Fourteenth against state action. The concurring opinion of one of the majority in that sharply divided decision indicates some concern in that respect. 359 U.S., at page 373, 79 S.Ct. at page 812. After the greatest consideration, this Court in Wolf v. Colorado, 338 U.S. 25, 27—28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, declared: 'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause.' It is now clear that part of the majority of the Court in the Frank case does not subscribe to the clear import of that statement. Elkins v. United States, 364 U.S. 206, 237—240, 80 S.Ct. 1453, 1455—1457 (dissenting opinion). But the Wolf statement continues to be the ruling doctrine in this Court. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437. The guarantees are of the same dimension, matters of enforcement, such as the exclusionary rule, aside. The classic debate on the import of the Fourteenth Amendment's Due Process Clause as to the applicability of the Bill of Rights to the States, we submit, does not even involve the theory that the matter is one for the judges to solve on an ad hoc basis, according to their over-all reaction to particular cases. Some of us have expressed the conviction that the preferable view of the Fourteenth Amendment is that it makes the guarantees of the Bill of Rights generally enforceable against the States. See Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion). But to them, as well as to us, who have neither accepted nor rejected that view, it is clear that the celebrated passage of Justice Cardozo's opinion in Palko v. Connecticut, 302 U.S. 319, 323—325, 58 S.Ct. 149, 150—152, 82 L.Ed. 288, can have no common ground with the view of the Wolf case that a minority of the Court now expounds. And see Adamson v. California, supra, 332 U.S. at pages 85—86, 89, 67 S.Ct. at pages 1693—1694, 1695 (dissenting opinion). For the Palko opinion refers to 'a process of absorption,' 302 U.S., at page 326, 58 S.Ct. at page 152, of specific Bill of Rights guarantees in the Fourteenth Amendment's standard.8 It is not a license to the judiciary to administer a watered-down, subjective version of the individual guarantees of the Bill of Rights when state cases come before us. To be sure, the contrary view has been urged, occasionally with success; the right to counsel was put on an ad hoc basis, Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, despite what seems the clear implication to the contrary in Palko, 302 U.S., at page 324, 58 S.Ct. at page 151; and recently the surprising suggestion has even been made (never by the Court) that the freedom of speech and of the press may be secured by the Fourteenth Amendment with less vigor than it is secured by the First. See Beauharnais v. Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, 746, 96 L.Ed. 919 (dissenting opinion); Roth v. United States, 354 U.S. 476, 505—506, 77 S.Ct. 1304, 1319—1320, 1 L.Ed.2d 1498 (separate opinion); Smith v. California, 361 U.S. 147, 169, 80 S.Ct. 215, 227, 4 L.Ed.2d 205 (separate opinion).9 In Elkins today we have rejected such a view of the affirmative guarantees of the Fourth Amendment. The opinion of the Court in Frank is very likely a product of such a rejected approach. For that reason, even if it were on all fours with the present case, it should not be followed, and the judgment below should be reversed.

361.US.373

53 Wash. 2d 644, 333 P. 2d 924, reversed.

The judgment is reversed. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.

362.US.199

On the record in this case, petitioner's conviction in a City Police Court for the two offenses of "loitering" and "disorderly conduct" was so totally devoid of evidentiary support as to be invalid under the Due Process Clause of the Fourteenth Amendment. Pp. 199-206. Reversed.

Petitioner was found guilty in the Police Court of Louisville, Kentucky, of two offenses—loitering and disorderly conduct. The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all. The facts as shown by the record are short and simple. Petitioner, a longtime resident of the Louisville area, went into the Liberty End Cafe about 6:20 on Saturday evening, January 24, 1959. In addition to selling food the cafe was licensed to sell beer to the public and some 12 to 30 patrons were present during the time petitioner was there. When petitioner had been in the cafe about half an hour, two Louisville police officers came in on a 'routine check.' Upon on seeing petitioner 'out there on the floor dancing by himself,' one of the officers, according to his testimony, went up to the manager who was sitting on a stool nearby and asked him how long petitioner had been in there and if he had bought anything. The officer testified that upon being told by the manager that petitioner had been there 'a little over a half-hour and that he had not bought anything,' he accosted Thompson and 'asked him what was his reason for being in there and he said he was waiting on a bus.' The officer then informed petitioner that he was under arrest and took him outside. This was the arrest for loitering. After going outside, the officer testified, petitioner 'was very argumentative—he argued with us back and forth and so then we placed a disorderly conduct charge on him.' Admittedly the disorderly conduct conviction rests solely on this one sentence description of petitioner's conduct after he left the cafe. The foregoing evidence includes all that the city offered against him, except a record purportedly showing a total of 54 previous arrests of petitioner. Before putting on his defense, petitioner moved for a dismissal of the charges against him on the ground that a judgment of conviction on this record would deprive him of property and liberty1 without due process of law under the Fourteenth Amendment in that (1) there was no evidence to support findings of guilt and (2) the two arrests and prosecutions were reprisals against him because petitioner had employed counsel and demanded a judicial hearing to defend himself against prior and allegedly baseless charges by the police.2 This motion was denied. Petitioner then put in evidence on his own behalf, none of which in any way strengthened the city's case. He testified that he bought, and one of the cafe employees served him, a dish of macaroni and a glass of beer and that he remained in the cafe waiting for a bus to go home.3 Further evidence showed without dispute that at the time of his arrest petitioner gave the officers his home address; that he had money with him, and a bus schedule showing that a bus to his home would stop within half a block of the cafe at about 7:30; that he owned two unimproved lots of land; that in addition to work he had done for others, he had regularly worked one day or more a week for the same family for 30 years; that he paid no rent in the home where he lived and that his meager income was sufficient to meet his needs. The cafe manager testified that petitioner had frequently patronized the cafe, and that he had never told petitioner that he was unwelcome there. The manager further testified that on this very occasion he saw petitioner 'standing there in the middle of the floor and patting his foot,' and that he did not at any time during petitioner's stay there object to anything he was doing. There is no evidence that anyone else in the cafe objected to petitioner's shuffing his feet in rhythm with the music of the jukebox or that his conduct was boisterous or offensive to anyone present. At the close of his evidence, petitioner repeated his motion for dismissal of the charges on the ground that a conviction on the foregoing evidence would deprive him of liberty and property without due process under the Fourteenth Amendment. The court denied the motion, convicted him of both offenses, and fined him $10 on each charge. A motion for new trial, on the same grounds, also was denied, which exhausted petitioner's remedies in the police court. Since police court fines of less than $20 on a single charge are not appealable or otherwise reviewable in any other Kentucky court,4 petitioner asked the police court to stay the judgments so that he might have an opportunity to apply for certiorari to this Court (before his case became moot)5 to review the due process contentions he raised. The police court suspended judgment for 24 hours during which time petitioner sought a longer stay from the Kentucky Circuit Court. That court, after examining the police court's judgment and transcript, granted a stay concluding that 'there appears to be merit' in the contention that 'there is no evidence upon which conviction and sentence by the Police Court could be based' and that petitioner's Federal Sonstitutional claims are substantial and not frivolous.'6 On appeal by the city, the Kentucky Court of Appeals held that the Circuit Court lacked the power to grant the stay it did, but nevertheless went on to take the extraordinary step of granting its own stay, even though petitioner had made no original application to that court for such a stay.7 Explaining its reason, the Court of Appeals took occasion to agree with the Circuit Court that petitioner's 'federal constitutional claims are substantial and not frivolous.'8 The Court of Appeals then went on to say that petitioner 'appears to have a real question as to whether he has been denied due process under the Fourteenth Amendment of the Federal Constitution, yet this substantive right cannot be tested unless we grant him a stay of execution because his fines are not appealable and will be satisfied by being served in jail before he can prepare and file his petition for certiorari. Appellee's substantive right of due process is of no avail to him unless this court grants him the ancillary right whereby he may test same in the Supreme Court.'9 Our examination of the record presented in the petition for certiorari convinced us that although the fines here are small, the due process questions presented are substantial and we therefore granted certiorari to review the police court's judgments. 360 U.S. 916, 79 S.Ct. 1433, 3 L.Ed.2d 1532. Compare Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (San Francisco Police Judges Court judgment imposing a $10 fine, upheld by state appellate court, held invalid as in contravention of the Fourteenth Amendment). The city correctly assumes here that if there is no support for these convictions in the record they are void as denials of due process.10 The pertinent portion of the city ordinance under which petitioner was convicted of loitering reads as follows: 'It shall be unlawful for any person * * *, without visible means of support, or who cannot give a satisfactory account of himself, * * * to sleep, lie, loaf, or trespass in or about any premises, building, or other structure in the City of Louisville, without first having obtained the consent of the owner or controller of said premises, structure, or building; * * *' § 85—12, Ordinances of the City of Louisville.11 In addition to the fact that petitioner proved he had 'visible means of support,' the prosecutor at trial said 'This is a loitering charge here. There is no charge of no visible means of support.' Moreover, there is no suggestion that petitioner was sleeping, lying or trespassing in or about this cafe. Accordingly he could only have been convicted for being unable to give a satisfactory account of himself while loitering in the cafe, without the consent of the manager. Under the words of the ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law. The record is entirely lacking in evidence to support any of the charges. Here, petitioner spent about half an hour on a Saturday evening in January in a public cafe which sold food and beer to the public. When asked to account for his presence there, he said he was waiting for a bus. The city concedes that there is no law making it an offense for a person in such a cafe to 'dance,' 'shuffle' or 'pat' his feet in time to music. The undisputed testimony of the manager, who did not know whether petitioner had bought macaroni and beer or not but who did see the patting, shuffling or dancing, was that petitioner was welcome there. The manager testified that he did not at any time during petitioner's stay in the cafe object to anything petitioner was doing and that he never saw petitioner do anything that would cause any objection. Surely this is implied consent, which the city admitted in oral argument satisfies the ordinance. The arresting officer admitted that there was nothing in any way 'valgar' about what he called petitioner's 'ordinary dance,' whatever relevance, if any, vulgarity might have to a charge of loitering. There simply is no semblance of evidence from which any person could reasonably infer that petitioner could not give a satisfactory account of himself or that he was loitering or loafing there (in the ordinary sense of the words) without 'the consent of the owner or controller' of the cafe. Petitioner's conviction for disorderly conduct was under § 85 8 of the city ordinance which, without definition, provides that '(w)hoever shall be found guilty of disorderly conduct in the City of Louisville shall be fined * * *.' etc. The only evidence of 'disorderly conduct' was the single statement of the policeman that after petitioner was arrested and taken out of the cafe he was very argumentative. There is no testimony that petitioner raised his voice, used offensive language, resisted the officers or engaged in any conduct of any kind likely in any way to adversely affect the good order and tranquillity of the City of Louisville. The only information the record contains on what the petitioner was 'argumentative' about is his statement that he asked the officers 'what they arrested me for.' We assume, for we are justified in assuming, that merely 'arguing' with a policeman is not, because it could not be, 'disorderly conduct' as a matter of the substantive law of Kentucky. See Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Moreover, Kentucky law itself seems to provide that if a man wrongfully arrested fails to object to the arresting officer, he waives any right to complain later that the arrest was unlawful. Nickell v. Commonwealth, Ky., 285 S.W.2d 495, 496. Thus we find no evidence whatever in the record to support these convictions. Just as 'Conviction upon a charge not made would be sheer denial of due process,'12 so is it a violation of due process to convict and punish a man without evidence of his guilt.13 The judgments are reversed and the cause is remanded to the Police Court of the City of Louisville for proceedings not inconsistent with this opinion. Reversed and remanded.

362.US.479

The National Labor Relations Board found that, during the course of a strike, petitioner unions had violated § 8 (b) (1) (A) of the National Labor Relations Act by coercing employees of a telephone company in the exercise of their right to refrain from or discontinue participation in the strike, and it entered an order requiring the unions to cease and desist from restraining or coercing employees of the telephone company "or any other employer" in the exercise of rights guaranteed in § 7 of the Act, though it had not found that the unions had engaged in violations against the employees of any employer other than the telephone company. Held: The order is modified by striking therefrom the words "or any other employer," and, as so modified, the judgment of the Court of Appeals enforcing the order is affirmed. Pp. 479-481. 266 F. 2d 823, modified and affirmed.

The Board found that the petitioner unions, during the course of a strike, coerced employees of the Ohio Consolidated Telephone Company in the exercise of their right to refrain from or discontinue participation therein, in violation of § 8(b)(1)(A) of the National Labor Relations Act.1 It entered an order requiring the unions to cease and desist 'from in any manner restraining or coercing employees of Ohio Consolidated Telephone Company or any other employer in the exercise of the rights guaranteed in Section 7 of the Act.' (Emphasis supplied.) The Court of Appeals enforced the order after deleting the words 'in any manner.' (266 F.2d 823.) Because of an asserted conflict with the decision of the Court of Appeals for the Fifth Circuit in National Labor Relations Board v. Local 926, Int. Union of Operating Engrs., 267 F.2d 418, 421, we brought the case here. 361 U.S. 893, 80 S.Ct. 199, 4 L.Ed.2d 150. The only challenge here to the order as so amended is to its validity as extended to 'any other employer,' as well as the telephone company. Petitioners were not found to have engaged in violations against the employees of any employer other than Ohio Consolidated and we find neither justification nor necessity for extending the coverage of the order generally by the inclusion therein of the phrase 'any other employer.' 'It would seem * * * clear that the authority conferred on the Board to restrain the practice which it has found * * * to have (been) committed is not an authority to restrain generally all other unlawful practices which it has neither found to have been pursued nor persuasively to be related to the proven unlawful conduct.' National Labor Relations Board v. Express Pub. Co., 1941, 312 U.S. 426, 433, 61 S.Ct. 693, 698, 85 L.Ed. 930. See also May Dept. Stores Co. v. National Labor Relations Board, 1945, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145. That loaned employees of other affiliated companies were included within the ambit of petitioners' coercive acts plainly does not evidence such a generalized scheme against all telephone employers, for it was only the employment of such employees at the struck plant that brought them within the scope of the unions' activities.2 We therefore conclude that the inclusion in the order of the words 'or any other employer' was unwarranted and the order is modified by striking the same therefrom. As so modified, the judgment is affirmed. Modified and affirmed.

363.US.237

1. Federal tax liens on real estate which are junior to defaulted mortgages held on the same properties by other parties may be effectively extinguished by stat proceedings to which the-United States is not, and is not required under state law to be, a party. Pp. 238-252. (a) Since federal tax liens are wholly creatures of federal statute, matters directly affecting their nature or operation are federal questions, regardless of whether or not the federal statutory scheme deals with them specifically. Pp. 240-241. (b) Nevertheless, it is believed desirable to adopt as federal law state law governing divestiture of junior federal tax liens (except to the extent that Congress may have entered the field), since this will avoid the severe dislocation of local property relationships which would result from disregarding state procedures. Pp. 241-242. (c) By the enactment of 26 U. S. C. § 7424 and 28 U. S. C. § 2410, Congress did not intend to make the proceedings under those sections the only means by which a junior federal tax lien could be extinguished; it did not intend to exclude the application of all state -procedures, whatever their existence or effectiveness might be, Pp. 242-250. 2. Under Pennsylvania law, mortgagees of a tract of Pennsylvania land on which the United States held a junior federal tax lien proceeded under a confession-of-judgment provision of the mortgage bond to obtain an in personam judgment against the mortgagortaxpayer, pursuant to which the property was sold under a writ of fieri facias. Subsequently, the United States sued under 26 U. S. C. § 7403 to enforce its junior tax lien on the same land by foreclosure and sale. Held: Under Pennsylvania law, the sheriff's sale under a writ of fierifacias was a judicial sale; but the doctrine of sovereign immunity from unconsented suits has not yet been applied to such proceedings and will not be extended to them now. Therefore, the Government's junior tax lien on the property was effectively extinguished by the Pennsylvania proceedings. Pp. 239, 250. 3. Califorhia real estate and personal properties subject to a deed of trust and two chattel mortgages were sold by the trustee-mortgagee pursuant to powers of sale contained in the respective instruments. The United States, which had junior tax liens on the properties, received no actual notice of the sale. Thereafter the mortgagee, which had bought in at the sale, brought suit against the United States under 28 U. S. C. § 2410 to quiet its title. Held: The doctrine of sovereign immunity from unconsented suits does not apply to such priva te sales without judicial proceedings. Therefore, the exercise under California law of the powers of sale conferred by the deed of trust and chattel mortgages effectively extinguished the junior federal tax liens. Pp. 239-240, 250-252. 264 F. 2d 762, affirmed. 265 F. 2d 862, reversed.

In these two cases, the United States purports to hold federal tax liens on Pennsylvania and California real properties which are concededly junior to defaulted mortgages held on the same properties by the other parties to the suits. The basic issue in each case is whether the federal lien was effectively extinguished by state proceedings to which the United States was not, nor was required under state law to be, a party. The course of proceedings giving rise to this issue was as follows: In No. 137, involving a tract of Pennsylvania land, the respondent mortgagees, under a confession-of-judgment provision of the mortgage bond, obtained an in personam judgment against the mortgagor-taxpayer, pursuant to which the property was sold under a writ of fieri facias.1 Subsequently, the United States instituted this suit under 26 U.S.C. § 7403, 26 U.S.C.A. § 7403, seeking an enforcement of its tax lien by foreclosure and sale.2 The District Court held that the Government's lien on the property in question had been effectively extinguished by the Pennsylvania proceedings, and it entered judgment for the defendants. The Court of Appeals affirmed. 3 Cir., 264 F.2d 762. In No. 183, California real and personal properties, subject to a deed of trust and two chattel mortgages, were sold by the trustee-mortgagee pursuant to powers of sale contained in the respective instruments. The United States received no actual notice of the sale. Thereafter, the mortgagee, which had bought in at the sale, brought this suit against the Government under 28 U.S.C. § 2410, 28 U.S.C.A. § 2410, to quiet its title, claiming that the exercise of the powers of sale had effectively extinguished the federal tax lien. The Court of Appeals, reversing the District Court, dismissed the suit, holding that the federal lien could be divested 'only with the consent of the United States and in the manner prescribed by Congress.' 9 Cir., 265 F.2d 862, 869. The Court did not reach the question of the effect which California law purports to give to the exercise of the power of sale upon junior liens. We brought the cases here, 361 U.S. 811, 80 S.Ct. 63, 4 L.Ed.2d 58, because of the importance of the issue in the administration of the tax laws and the conflict between the decisions of the Third and Ninth Circuits. Federal tax liens are wholly creatures of federal statute. Detailed provisions govern their creation, continusance, validity, and release.3 Consequently, matters directly affecting the nature or operation of such liens are federal questions, regardless of whether the federal statutory scheme specifically deals with them or not. See Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. Yet because federal liens intrude upon relationships traditionally governed by state law, it is inevitable that the Court, in developing the federal law defining the incidents of such liens, should often be called upon to determine whether, as a matter of federal policy, local policy should e adopted as the governing federal law, or whether a uniform nationwide federal rule should be formulated. In determining the extent of the 'property and rights to property' (§ 6321) to which a government tax lien attaches, we have looked to state law. United States v. Bess, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057, 2 L.Ed.2d 1135. The mortgagees claim that the present cases are governed by the principle of Bess. They assert that since the taxpayer-mortgagors' interests were subject to being terminated by means of the state proceedings here invoked, their 'property and rights to property' were limited to that extent; that under Bess, the Government's lien attaches only to property rights created under state law; and that therefore, the Government's interest was subject to being similarly terminated. The fallacy of this contention is evident. In Bess, we held that a deceased's property in insurance policies on his own life was limited to their cash surrender value and did not extend to their proceeds, which he could never enjoy. Here, however, the mortgagors owned the entire fee interests in the properties, subject only to the mortgages. This Court has repeatedly rejected the contention that because a fee owned by a taxpayer was already encumbered by a lien which enjoyed seniority under state law, the Government's lien necessarily attached subject to that lien.4 A fortiori, the 'property' to which the federal lien can attach is not diminished by the particular means of enforcement possessed by a competing lienor to whom federal law concedes priority. We nevertheless believe it desirable to adopt as federal law state law governing divestiture of federal tax liens, except to the extent that Congress may have entered the field. It is true that such liens form part of the machinery for the collection of federal taxes, the objective of which is 'uniformity, as far as may be.' United States v. Gilbert Associates, 345 U.S. 361, 364, 73 S.Ct. 701, 703, 97 L.Ed. 1071. However, when Congress resorted to the use of liens, it came into an area of complex property relationships long since settled and regulated by state law. We believe that, so far as this Court is concerned, the need for uniformity in this instance is outweighed by the severe dislocation to local property relationships which would result from our disregarding state procedures. Long accepted nonjudicial means of enforcing private liens would be embarrassed, if not nullified where federal liens are involved, and many titles already secured by such means would be cast in doubt. We think it more harmonious with the tenets of our federal system and more consistent with what Congress has already done in this area, not to inject ourselves into the network of competing private property interests, by displacing well-established state procedures governing their enforcement, or superimposing on them a new federal rule. Cf. Board of Com'rs of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313. This conclusion would not, of course, withstand a congressional direction to the contrary. The Government argues that by the enactment of certain statutes relating to judicial proceedings for the enforcement and extinguishment of federal liens, Congress has, at least impliedly, so spoken. As early as 1868, Congress had authorized a suit by the United States to enforce its own tax lien.5 A similar provision now appears as 26 U.S.C. § 7403, 26 U.S.C.A. § 7403.6 However, it was already then well established that the United States was an indispensable party to any suit affecting property in which it had an interest, and that such a suit was therefore a suit against the United States which could not be maintained without its consent.7 Furthermore, the laws of many States themselves required all persons claiming an interest in property to be joined as parties to any suit to foreclose a lien or quiet title to the property. Thus there was no way in which a party who held a lien on property senior to that of the United States could get a judicial decree extinguishing the Government's interest. To remedy this situation, Congress in 1924 passed the predecessor of 26 U.S.C. § 7424, 26 U.S.C.A. § 7424,8 which gives the holder of a prior-filed lien the right to enforce it by civil action against the United States, subject to the exhaustion of certain administrative remedies. The court is to proceed to 'a final determination of all claims to or liens upon the property in question' in the same manner as if the action had been brought by the Government to enforce its lien under § 7403. The latter section requires the court to determine the merits of all claims to the property, and in case the United States establishes such a claim, permits, but does not require, the court to order a judicial sale. The details of the procedure to be followed in case of judicial sale are not specified, nor is the United States expressly given any right to redeem. In 1931, Congress, for similar reasons, passed the predecessor of 28 U.S.C. § 2410, 28 U.S.C.A. § 2410, whih gives a private lienor the right to name the United States a party in any action or suit to foreclose a mortgage or lien or to quiet title to property on which the United States claims any kind of mortgage or lien, whether or not a tax lien.9 The action can be brought in a state court, but is removable to a federal court.10 If a judicial sale is conducted in such an action or suit, it is to have the same effect as it would have under local law, but the United States is given one year to redeem. These statutes on their face evidence no intent to exclude otherwise available state procedures. Their only apparent purpose is to lift the bar of sovereign immunity which had theretofore been considered to work a particular injustice on private lienors. Several features of the statutes make this clear: (1) Both sections are purely permissive in tenor. A private lienor 'may * * * file a petition in the district court' under § 7424, or 'the United States may be named a party' under § 2410. (Emphasis added.) (2) Under neither section is there a federally imposed requirement that there be any judicial sale at all. Nor is there any uniformity of procedure under the statutes. Under § 7424, the court 'may decree a sale' of the property, but no guidance is given as to the procedure to be followed. Under § 2410, a judicial sale is to have the same effect as it would have under local law, but nothing in the section indicates when a judicial sale is to be had. While the Government is guaranteed a one-year right to redeem if the plaintiff proceeds under § 2410, it is guaranteed no such right if he proceeds under § 7424. (3) The specific permission of § 2410(a) to institute a quiet-title suit against the United States obviously contemplates a declaration by the federal courts of previously created legal consequences. If § 7424 or § 2410 were invoked to extinguish a federal lien, a subsequent suit to quiet title obviously would not be necessary. Therefore, Congress must have recognized the possibility that state procedures might affect federal liens. The Government, however, aruges that the legislative history indicates that Congress believed a suit against the United States to be the only way in which a federal lien could be extinguished. But the statements relied on11 reveal simply a recognition that competing lienors were put at an unfair disadvantage because of inability to join effectively the Government as a party to judicial proceedings. As to the extent of that disadvantage, it is not clear whether Congress thought that the Government's sovereign immunity barred an attempt to affect a federal lien in any manner; that a nonjudicial procedure might be effective to divest federal liens but that state procedures by and large required junior lienors to be joined as parties to judicial proceedings; or that regardless of the existence and effectiveness of state procedures, a cloud on the title could only be removed conclusively by a judicial determination binding on the United States. In any event, the basic question is not what the existing state of the law was, or even what Congress believed it to be, but whether Congress intended to exclude the application of all state procedures, whatever their existence or effectiveness might be. No such inference can be drawn from the legislative statements referred to. The question remains whether the state procedures followed in these cases were nonetheless ineffective to defeat the government liens because they should de regarded as being unconsented suits against the United States. Because no judicial proceeding was there involved, No. 183 presents no such problem, unless we are now to hold, beyond anything this Court has heretofore decided, that because the private sale of its own force was effective under California law to extinguish all junior liens,12 what was done in this instance amounted to a 'suit' against the United States. We do not think that the doctrine of sovereign immunity reaches so far. No. 137, however, presents a different and more difficult question on this score. Under Pennsylvania law the Sheriff's sale of the mortgaged land under a writ of fieri facias was a judicial sale, having the effect of extinguishing junior liens even though their holders were not, nor required to be made, parties to the proceedings.13 Under the decisions of this Court, a judicial proceeding against property in which the Government has an interest is a suit against the United States which cannot be maintained without its consent. The Siren, 7 Wall. 152, 19 L.Ed. 129; State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235; United States v. State of Alabama, 313 U.S. 274, 61 S.Ct. 1011, 85 L.Ed. 1327. It has been suggested that this rpinciple applies only where the Government holds a fee interest or such other interest in the property as to render it an indispensable party under state law. See United States v. Cless, 3 Cir., 254 F.2d 590, 592. That, however, seems a dubious distinction, since whether or not the United States is an indispensable party to a judicial proceeding cannot depend on state law. See State of Minnesota v. United States, supra, 305 U.S. at page 386, 59 S.Ct. at page 294. Nevertheless, no case in this Court, so far as we can find, has yet applied the doctrine of sovereign immunity in the precise situation before us. Much can be said for the view that this Pennsylvania procedure should not be considered as being an unconsented suit against the United States,14 any more than the wholly private proceeding in the California case. In both cases, the practical effect upon junior liens is exactly the same. Be that as it may, we shall not so extend the principle of sovereign immunity. To do so would not only produce incongruous results as between these two cases, but would trespass upon the considerations which have led to our refusal to fashion a federal rule of uniformity respecting the extinguishment of federal junior liens under state procedures. It must be recognized that the factors supporting a federal rule of uniformity in this field, and those militating against the dislocation of long-standing state procedures, are full of competing considerations. They involve many imponderables which this Court is ill-equipped to assess, on which Congress has not yet spoken, and which we think are best left to that body to deal with in light of their full illumination. A wise solution of such a far-reaching problem cannot be achieved within the confines of a lawsuit. Until Congress otherwise determines, we think that state law is effective to divest government junior liens in cases such as these. The judgment in No. 137 is affirmed, and that in No. 183 is reversed. It is so ordered. Judgment of Court of Appeals for the Third Circuit affirmed; judgment of Court of Appeals for the Ninth Circuit reversed.

361.US.278

Article 2 (11) of the Uniform Code of Military Justice, providing for the trial by court-martial of "all persons serving with, employed by, or accompanying the armed forces" of the United States in foreign. countries, cannot constitutionally be applied in peacetime to the trial of a civilian employee of the armed forces serving with the armed forces in a foreign country and charged with having committed a capital offense there. Reid v. Covert, 354 U. S. 1. Pp. 278-280. 261 F. 2d 204, reversed.

This case tests by habeas corpus the validity of Article 2(11) of the Uniform Code of Military Justice, 10 U.S.C. § 802, 10 U.S.C.A. § 802,1 as applied to a civilian tried by courtmartial for a capital offense while employed overseas by the United States Army. It is a companion case to Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, which involves the application of the same Article to non-capital offenses committed by dependents accompanying soldiers stationed outside the United States, and to McElroy v. Gaugliardo and Wilson v. Bohlender, 361 U.S. 281, 80 S.Ct. 305, involving non-capital offenses committed by armedservices employees while stationed overseas—all of which cases are decided today. Petitioner, a civilian employee of the United States Army attached to an Army installation in France, was tried by a general court-martial for the capital offense of premeditated murder as defined in Article 118(1) of the Uniform Code of Military Justice. 10 U.S.C.A. § 918(1). He was found guilty of the lesser and included offense of unpremeditated murder, and sentenced to confinement at hard labor for the term of his natural life. The sentence was subsequently reduced to 35 years. While serving this sentence at the United States Penitentiary at Lewisburg, Pennsylvania, he filed this petition for a writ of habeas corpus, claiming that Article 2(11) was unconstitutional as applied to him, for the reason that Congress lacked the power to deprive him of a civil trial affording all of the protections of Article III and the Fifth and Sixth Amendments of the Constitution. The writ was dismissed, Grisham v. Taylor, D.C., 161 F.Supp. 112, and the Court of Appeals affirmed, 3 Cir., 261 F.2d 204. In the light of the opinion of this Court on the rehearing in Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 as well as that of the Court of Appeals on the issue of the severability of Article 2(11) in Guagliardo v. McElroy, 104 U.S.App.D.C. 112, 259 F.2d 927,2 we granted certiorari. 1959, 359 U.S. 978, 79 S.Ct. 900, 3 L.Ed.2d 927. We are of the opinion that this case is controlled by Reid v. Covert, supra. It decided that the application of the Article to civilian dependents charged with capital offenses while accompanying servicemen outside the United States was unconstitutional as violative of Article III and the Fifth and Sxith Amendments. We have carefully considered the Government's position as to the distinctions between civilian dependents and civilian employees, especially its voluminous historical materials relating to court-martial jurisdiction. However, the considerations pointed out in Covert have equal applicability here. Those who controlled the majority there held that the death penalty is so irreversible that a dependent charged with a capital crime must have the benefit of a jury. The awesomeness of the death penalty has no less impact when applied to civilian employees. Continued adherence to Covert requires civilian employees to be afforded the same right of trial by jury. Furthermore, the number of civilian employees is much smaller than the number of dependents, and the alternative procedures available for controlling discipline as to the former more effective. See McElroy v. Guagliardo. For the purposes of this decision, we cannot say that there are any valid distinctions between the two classes of persons. The judgment is therefore reversed. It is so ordered. Reversed.

363.US.194

In 1936, respondent's decedent divested himself of his rights in certain insurance policies on his own life by assigning them to his wife; but he continued topay the premiums on them until he died in 1954. The Internal Revenue Service determined that, under § 811 (g) (2) (A) of the Internal Revenue Code of 1939, the portion of the proceeds attributable to premiums paid by the insured after January. 10, 1941, should be included in his estate for the purposes of the federal estate tax. Held: As thus applied, § 811 (g) (2) (A) is constitutional. Pp. 194-201. (a) The tax is not a direct tax on property which Congress-cannot exact without apportionment among the States. Pp. 197-200. (b) The tax is not retroactive and does not violate the Due Process Clause of the Fifth Amendment. ' Pp. 200-201. 175 F. Supp. 291, reversed.

The question here is whether Section 811(g)(2)(A) of the Internal Revenue Code of 1939 is constitutional as applied in this case. That section, the 'payment of premiums' provision in the 1939 Code, requires inclusion of insurance proceeds in the gross estate of an insured where the proceeds are receivable by beneficiaries other than the executor but are attributable to premiums paid by the insured.1 Inclusion is required regardless of whether the insured retained any policy rights. However, if the insured possessed no 'incident of ownership' after January 10, 1941, the premiums paid by him before that date are excluded in determining the portion of the proceeds for which he paid the premiums.2 The facts in the case are stipulated. The insured died testate on July 15, 1954. The taxpayer is his executor. On the estate tax return, the taxpayer included, as part of the gross estate, the proceeds of four insurance policies payable to the wife of the insured. These policies were originally issued to the insured, but he divested himself of the policy rights by assigning them to his wife on December 18, 1936. However, he continued to pay the premiums on the policies until he died. After his death, the proceeds were retained by the insurer for the benefit of the family, pursuant to the provisions of a settlement option selected by the wife. In auditing the return, the Revenue Service determined that only the portion of the proceeds attributable to premiums paid by the insured after January 10, 1941, should be included in his estate.3 Accordingly, the tax was adjusted and a refund was made. The executor then filed a claim for refund of the rest of the tax attributable to the inclusion of the proceeds. The executor claimed that because the decedent had divested himself of all interest in the policies in 1936, the tax constituted an unapportioned direct tax on property, invalid under Article I, Sections 2 and 9, of the Constitution.4 However, the Commissioner refused to allow the claim, and the present suit for refund followed. In the District Court, the executor added a claim that the tax is also invalid under the Due Process Clause of the Fifth Amendment 'because it is retroactive and discriminatory in its operation.' The District Court sustained the taxpayer's contention that, as applied in this case, Section 811(g)(2)(A) is unconstitutional. It held that because the decedent retained no incidents of ownership in the policies after 1936, 'no transfer of the property herein sought to be included in the estate of this decedent occurred at the time of his death.' (175 F.Supp. 293.) The court concluded that the tax was therefore a direct tax on the proceeds themselves and could not be levied without apportionment.5 175 F.Supp. 291. The Government appealed directly to this Court under Sections 1252 and 2101 of Title 28, and we noted jurisdiction. 361 U.S. 880, 80 S.Ct. 151, 4 L.Ed.2d 116. The first objection to the tax is that it is a direct tax that is, that it is not a tax upon a transfer or other taxable event but is, instead, a tax upon property—which Congress cannot exact without apportionment. This argument does not do justice to the evident intent of Congress to tax events, 'as distinguished from (their) tangible fruits.' Tyler v. United States, 281 U.S. 497, 502, 50 S.Ct. 356, 358, 74 L.Ed. 991. From its inception, the estate tax has been a tax on a class of events which Congress has chosen to label, in the provision which actually imposes the tax, 'the transfer of the net estate of every decedent.'6 (Emphasis added.) See New York Trust Co. v.Eisner, 256 U.S. 345, 41 S.Ct. 506, 65 L.Ed. 963. If there is any taxable event here which can fairly be said to be a 'transfer' under this language in Section 810 of the 1939 Code, the tax is clearly constitutional without apportionment. For such a tax has always 'been treated as a duty or excise, because of the particular occasion which gives rise to its levy.' Knowlton v. Moore, 178 U.S. 41, 81, 20 S.Ct. 747, 763, 44 L.Ed. 969; New York Trust Co. v. Eisner, supra, 256 U.S. at page 349, 41 S.Ct. at page 507. Under the statute, the occasion for the tax is the maturing of the beneficiaries' right to the proceeds upon the death of the insured. Of course, if the insured possessed no policy rights, there is no transfer of any interest from him at the moment of death. But that fact is not material, for the taxable 'transfer,' the maturing of the beneficiaries' right to the proceeds, is the crucial last step in what Congress can reasonably treat as a testamentary disposition by the insured in favor of the beneficiaries. That disposition, which began with the payment of premiums by the insured, is completed by his death. His death creates a genuine enlargement of the beneficiaries' rights. It is the 'generating source' of the full value of the proceeds. See Schwarz v. United States, D.C., 170 F.Supp. 2, 6. The maturing of the right to proceeds is therefore an appropriate occasion for taxing the transaction to the estate of the insured. Cf. Tyler v. United States, 281 U.S. 497, 503, 504, 50 S.Ct. 356, 359. There is no inconsistency between such a view of the taxable event and the basic definition of the subject of the tax in Section 810. 'Obviously, the word 'transfer' in the statute, or the privilege which may constitutionally be taxed, cannot be taken in such a restricted sense as to refer only to the passing of particular items of property directly from the decedent to the transferee. It must * * * at least include the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another.' Chase National Bank v. United States, 278 U.S. 327, 337, 49 S.Ct. 126, 128, 73 L.Ed. 405. It makes no difference that the payment of premiums occurred during the lifetime of the insured and indirectly effected an inter vivos transfer of property to the owner of the policy rights. Congress can properly impose excise taxes on wholly inter vivos gifts. Bromley v. McCaughn, 280 U.S. 124, 50 S.Ct. 46, 74 L.Ed. 226. It may impose an estate tax on inter vivos transfers looking toward death. Milliken v. United States, 283 U.S. 15, 51 S.Ct. 324, 75 L.Ed. 809. Surely, then, it may impose such a tax on the final step—the maturing of the right to proceeds—in a partly inter vivos transaction completed by death. The question is not whether there has been, in the strict sense of the word, a 'transfer' of property owned by the decedent at the time of his death, but whether 'the death has brought into being or ripened for the survivor, property rights of such character as to make appropriate the imposition of a tax upon that result * * *.' Tyler v. United States, supra, 281 U.S. at page 503, 50 S.Ct. at page 359. Therefore, this tax, laid on the 'ripening,' at death, of rights paid for by the decedent, is not a direct tax within the meaning of the Constitution. Cf. Chase National Bank v. United States, supra; Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116; Tyler v. United States, supra; United States v. Jacobs, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763.7 Further objections to the statute as applied in this case are predicated on the Due Process Clause of the Fifth Amendment. It is said that the statute operates retroactively. But the taxable event—the maturing of the policies at death—occurred long after the enactment of Section 811(g)(2)(A) in 1942. Moreover, the payment of all but a few of the premiums in question occurred after the effective date of the statute, and those few were paid during the period after January 10, 1941, when regulations gave the insured fair notice of the likely tax consequences. See T.D. 5032, 1941—1 Cum.Bull. 427.8 Therefore, the statute cannot be said to be retroactive in its impact. It is not material that the policies were purchased and the policy rights were assigned before the statute was enacted. The tax is not laid on the creation or transfer of the policy rights, and it 'does not operate retroactively merely because some of the facts or conditions upon which its application depends came into being prior to the enactment of the tax.' United States v. Jacobs, supra, 306 U.S. at page 367, 59 S.Ct. at page 554. The taxpayer argues, however, that the enactment of the statute subjected the insured to a choice between unpleasant alternatives: '(H)e could stop paying the premiums—in which case the policies would be destroyed; or, he could continue paying premiums—in which case they would be included in his estate.' But when he gave away the policy rights, the possibility that he would eventually be faced with that choice was an obvious risk, in view of the administrative history of the 'payment of premiums' test. See 1 Paul, Federal Estate and Gift Taxation, § 10.13. The executor should not complain because his decedent gambled and lost. And, while it may be true that the insured could have avoided the tax only at the price of a loss on an investment already made, that fact alone does not prove that the lawmakers did 'a wholly arbitrary thing,' or that they 'found equivalence where there was none,' or that they 'laid a burden unrelated to privilege or benefit.' Burnet v. Wells, 289 U.S. 670, 679, 53 S.Ct. 761, 764, 77 L.Ed. 1439. Without such a showing, it cannot be held that the tax offends due process. Reversed. Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

361.US.314

In an action against the United States under the Federal Tort Claims Act to recover for the wrongful death of an employee of an independent contractor engaged to perform repairs to the Bonneville Dam, which is owned and operated by the United States, it appeared that his death resulted from drowning in navigable waters of the Columbia River within the State of Oregon. Held: The right of action for wrongful death created by the Oregon Employers' Liability Law may be invoked to recover for a maritime death in that State wifhout constitutional inhibition. The Tungus v. Skovgaard, 358 U. S. 588. Pp. 314-321. 259 F. 2d 285, judgment vacated and cause remanded.

This action was brought against the United States under the Federal Tort Claims Act1 to recover for the death of petitioner's decedent, George W. Graham. Graham was drowned in the Columbia River while in the course of his employment as a carpenter foreman for Larson Construction Company, an independent contractor which had undertaken to perform repairs at Bonneville Dam. That structure is owned and operated by the United States. As a preliminary to the job it had contracted to accomplish, Larson decided to send a working party by boat to the foot of the spillway dam to take soundings. Larson told the government inspector of the plan and asked that the operating personnel of the dam be requested to close two additional spillway gates near the point where the soundings were to be taken. This request was complied with. Larson then dispatched a group of employees to the area in a tug-and-barge unit. Graham was a member of this working party. Approaching the dam, the tug and barge veered and struck a pier, staving a hole in the barge. The unit then was carried northwardly in the river towards that part of the dam where the spillway gates were open. There it capsized in the turbulent water. Grapham and all but one of his fellow employees were killed. Their deaths occurred on navigable waters within the territorial limits of the State of Oregon. The theory of the petitioner's complaint was that Graham's death had been proximately caused by the failure of operating personnel of the dam to close a sufficient number of spillway gates near the area where the soundings were to be taken. Liability was asserted under the general wrongful death statute of Oregon,2 as well as under another statute of that State, the Employers' Liability Law,3 which also creates a right to recover for death under certain circumstances. The wrongful death statute permits recovery for death 'caused by the wrongful act or omission of another,' limits liability to $20,000, and makes the decedent's contributory negligence an absolute bar to recovery.4 In the limited area where the Employers' Liability Law applies, the road to recovery in a death action is considerably easier. Under that statute a defendant is liable for failure to 'use every device, care and precaution which it is practicable to use for the protection and safety of life and limb * * *.'5 There is no monetary limitation of liability, and the decedent's contributory negligence goes only to mitigate damages.6 After trial without a jury, the District Court entered judgment for the United States. Since Graham's death had occurred on navigable waters, the court ruled that the case was one for decision under maritime law, which is this case would apply the general wrongful death act of Oregon. Upon the basis of detailed findings of fact the court concluded that there was no liability under that statute because Graham's death was 'not caused by the negligence of the United States or its employees.' As to the Employers' Liability Law, it was the court's view that 'this Act is not applicable for the reason that the Government was not responsible for the work there being performed, and for the further reason that the high standard of care required under the Act, if applied to these cases, would be unconstitutional.' 1958 A.M.C. 660. The Court of Appeals affirmed, holding that the trial court had not erred in finding that negligence had not been proved, and agreeing that the Employers' Liability Law 'could not be constitutionally applied to this case.' The appellate court expressly refrained from deciding 'whether the trial court was also correct in ruling that, if that act were applied, the United States would not be liable thereunder because it was not responsible for the work being performed by the decedent.' 9 Cir., 259 F.2d 285, 292. Certiorari was granted to consider a seemingly important question of federal law. 359 U.S. 923, 79 S.Ct. 604, 3 L.Ed.2d 627. At this case reaches us, the petitioner no longer challenges the finding that the United States was not guilty of such negligence as would make it liable under the wrongful death statute of Oregon. His sole claim here is that he was erroneously deprived of the opportunity to invoke the Employers' Liability Law. The Federal Tort Claims Act grants the District Courts jurisdiction of civil actions against the United States 'for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b). Graham's death and the wrongful act or omission which allegedly caused it occurred within the State of Oregon, and liability must therefore be determined in accordance with the law of that place. Since death occurred on navigable waters, the controversy is, as the trial court correctly held, within the reach of admiralty jurisdiction, The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. Oregon would be required, therefore, to look to maritime law in deciding it. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501; 62 L.Ed. 1171; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927.7 Although admiralty law itself confers no right of action for wrongful death, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, yet 'where death * * * results from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given.' Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210. See The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; La Bourgogne, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973; Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319; The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524; United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541. In such a case the maritime law enforces the state statute 'as it would one originating in any foreign jurisdiction.' Levinson v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 916. This means that in an action for wrongful death in state territorial waters the conduct said to give rise to liability is to be measured not under admiralty's standards of duty, but under the substantive standards of the state law. United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 615, 79 S.Ct. 517, 518. See also Curtis v. A. Garcia y Cia., 3 Cir., 241 F.2d 30; The H.S., Inc., No. 72, 3 Cir., 130 F.2d 341; Klingseisen v. Costanzo Transp. Co., 3 Cir., 101 F.2d 902; Graham v. A. Lusi, Ltd., 5 Cir., 206 F.2d 223; Truelson v. Whitney & Bodden Shipping Co., 5 Cir., 10 F.2d 412; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A.,N.S.., 303; Lee v. Pure Oil Co., 6 Cir., 218 F.2d 711; Feige v. Hurley, 6 Cir., 89 F.2d 575; Holley v. The Manfred Stansfield, 4 Cir., 269 F.2d 317.8 '(A)dmiralty courts, when invoked to protect rights rooted in state law, endeavor to determine the issues in accordance with the substantive law of the State.' Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 251, 87 L.Ed. 239. Accepting this principle, we find no constitutional impediment to the application, by the maritime law, of Oregon's Employers' Liability Law to a death action in which the statute would otherwise by its terms apply. We are concerned with constitutional adjudication, not with reaching particular results in given cases. What was said last Term in deciding The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, is controlling here: 'The policy expressed by a State Legislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind results in death. It is incumbent upon a court enforcing that policy to enforce it all; it may not pick or choose.' 358 U.S. at page 593, 79 S.Ct. at page 507. 'Even Southern Pacific Co. v. Jensen, which fathered the 'uniformity' concept, recognized that uniformity is not offended by 'the right given to recover in death cases.' 244 U.S. 205, at page 216, 37 S.Ct. 524, at page 529, 61 L.Ed. 1086. It would be an anomaly to hold that a State may create a right of action for death, but that it may not determine the circumstances under which that right exists. The power of a State to create such a right includes of necessity the power to determine when recovery shall be permitted and when it shall not. Cf. Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968.' 358 U.S. at page 594, 79 S.Ct. at page 507. We have open the question whether a state wrongful death act might contain provisions so offensive to traditional principles of maritime law that the admiralty would decline to enforce them. The Oregon statute here in issue presents no such problem. Indeed, as the petitioner points out, the Employers' Liability Law contains many provisions more in consonance with traditional principles of admiralty than the State's general wrongful death statute. We hold, therefore, that the right of action for wrongful death created by the Oregon Employers' Liability Law may be invoked to recover for a maritime death in that State without constitutional inhibition. Whether the statute by its terms, and as construed by the Oregon Supreme Court, would extend to the present case, and whether, if the statute is applicable, the United States violated the standard of care which it prescribes, are questions which we do not undertake to decide, and upon which we intimate no view. The District Court made an alternative ruling that the statute was inapplicable as a matter of state law. The Court of Appeals did not reach the question. Although this issue has been argued here, we leave its disposition to a court more at home with the law of Oregon.9 The judgment is set aside and the case remanded to the United States Court of Appeals for the Ninth Circuit. So ordered. The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice BRENNAN join the opinion of the Court, but solely under compulsion of the Court's ruling in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524. They believe that as long as the view of the law represented by that ruling prevails in the Court, it should be applied evenhandedly, despite the contrary views of some of those originally joining it that state law is the measure of recovery when it helps the defendant, as in Tungus, and is not the measure of recovery when it militates against the defendant as it does here. However, they note their continued disagreement with the ruling in The Tungus, and reserve their position as to whether it should be overruled, particularly in the light of the controversy application of it has engendered among its original subscribers. See the various separate opinions in this case and in Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 359 et seq.

361.US.212

Petitioner was indicted and convicted in a Federal District Court for interfering with interstate commerce by extortion, in violation of the Hobbs Act, 18 U. S. C. § 1951. The only interstate commerce mentioned in the indictment was the importation into Pennsylvania of sand to be used in building a steel plant there; but the trial judge permitted the introduction of evidence to show interference also with the exportation from Pennsylvania of steel to be manufactured in the new plant, and he instructed the jury that it could base a conviction upon interference with either the importation of sand or the exportation of steel. Held: The conviction is reversed. Pp. 213-219. (a) Since the indictment did not charge interference with the exportation of steel from the State, it was prejudicial error to submit to the jury the question whether the extortion interfered with the exportation of steel. Pp. 215-219. (b) The variance between pleading and proof here involved was not insignificant and may not be dismissed as harmless error, because it deprived petitioner of his substantial right to be tried for a felony only on charges presented in an indictment returned by a grand jury. Pp. 217-218. (c) Since the jury might have based the conviction on a finding of interference with the exportation of steel, the conviction must be reversed. P. 219. 262 F. 2d 571, reversed.

Petitioner Nicholas Stirone was indicted and convicted in a federal court for unlawfully interfering with interstate commerce in violation of the Hobbs Act.1 The crucial question here is whether he was convicted of an offense not charged in the indictment. So far as relevant to this question the indictment charged the following: From 1951 until 1953, a man by the name of William G. Rider had a contract to supply ready-mixed concrete from his plant in Pennsylvania to be used for the erection of a steel-processing plant at Allenport, Pennsylvania. For the purpose of performing this contract Rider 'caused supplies and materials (sand) to move in interstate commerce between various points in the United States and the site of his plant for the manufacture or mixing of ready mixed concrete, and more particularly, from outside the State of Pennsylvania into the State of Pennsylvania.' The indictment went on to charge that Stirone, using his influential union position, 'did * * * unlawfully obstruct, delay (and) affect interstate commerce between the several states of the United States and the movement of the aforesaid materials and supplies in such commerce, by extortion * * * of $31,274.13 * * * induced by fear and by the wrongful use of threats of labor disputes and threats of the loss of, and obstruction and prevention of, performance of his contract to supply ready mixed concrete.' The district judge, over petitioner's objection as to its materiality and relevancy, permitted the Government to offer evidence of an effect on interstate commerce not only in sand brought into Pennsylvania from other States but also in interference with steel shipments from the steel plant in Pennsylvania into Michigan and Kentucky. Again over petitioner's objection the trial judge charged the jury that so far as the interstate commerce aspect of the case was concerned, Stirone's guilt could be rested either on a finding that (1) sand used to make the concrete 'had been shipped from another state into Pennsylvania' or (2) 'Mr. Rider's concrete was used for constructing a mill which would manufacture articles of steel to be shipped in interstate commerce * * *' from Pennsylvania into other States. On motion of petitioner for arrest of judgment, acquittal or new trial, the District Court held that 'A sufficient foundation for introduction of both kinds of proof was laid in the indictment.' 168 F.Supp. 490, 495. The Court of Appeals affirmed, all the judges agreeing that interference with the sand movements into Pennsylvania was barred by the Hobbs Act. 3 Cir., 262 F.2d 571. Judge Hastie and Chief Judge Biggs disagreed with the court's holding that Stirone could be tried and convicted for interference with the possible future shipments of steel from Pennsylvania to Michigan and Kentucky. 262 F.2d 578, 580. They were of opinion that no interference with interstate steel shipments was charged in the indictment and that in any event it is an unreasonable extension of the Act to make a federal offense out of extortion from a man merely because he is supplying concrete to build a mill which after construction will produce steel, a part of which may, if processed, move in interstate commerce. We agree with the Court of Appeals that Rider's dependence on shipments of sand from outside Pennsylvania to carry on his ready-mixed concrete business entitled him to the Hobbs Act's protection against interruption or stoppage of his commerce in sand by extortion of the kind that the jury found the petitioner had committed here. That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference 'in any way or degree.' 18 U.S.C. § 1951(a), 18 U.S.C.A. § 1951(a). Had Rider's business been hindred or destroyed, interstate movements of sand to him would have slackened or stopped. The trial jury was entitled to find that commerce was saved from such a blockage by Rider's compliance with Stirone's coercive and illegal demands. It was to free commerce from such destructive burdens that the Hobbs Act was passed. United States v. Green, 350 U.S. 415, 420, 76 S.Ct. 522, 525, 100 L.Ed. 494. Whether prospective steel shipments from the new steel mills would be enough, alone, to bring this transaction under the Act is a more difficult question. We need not decide this, however, since we agree with the dissenting judges in the Court of Appeals that it was error to submit that question to the jury and that the error cannot be dismissed as merely an insignificant variance between allegation and proof and thus harmless error as in Berger v. United States, 295 U.S.78, 55 S.Ct. 629, 79 L.Ed. 1314. The crime charged here is a felony and the Fifth Amendment requires that prosecution be begun by indictment. Ever since Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887, it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself. In that case, the court ordered that some specific and relevant allegations the grand jury had charged be stricken from the indictment so that Bain might be convicted without proof of those particular allegations.2 In holding that this could not be done, Mr. Justice Miller, speaking for the Court, said: 'If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed.' 121 U.S. 1, 10, 7 S.Ct. 781, 786. The Court went on to hold in Bain: 'that after the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney * * *.' 121 U.S. 1, 13, 7 S.Ct. 781, 787. The Bain case, which has never been disapproved, stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. See also United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 425, 74 L.Ed. 1076; Cf. Clyatt v. United States, 197 U.S. 207, 219, 220, 25 S.Ct. 429, 431, 432, 49 L.Ed. 726. Yet the court did permit that in this case. The indictment here cannot fairly be read as charging interference with movements of steel from Pennsylvania to other States nor does the Court of Appeals appear to have so read it. The grand jury which found this indictment was satisfied to charge that Stirone's conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel from a mill later to be built with Rider's concrete. And it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same. And the addition charging interference with steel exports here is neither trivial, useless, nor innocuous. Compare Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793; Goto v. Lane, 265 U.S. 393, 402, 44 S.Ct. 525, 527, 68 L.Ed. 1070. While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.3 Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge. Here, as the trial court charged the jury, there are two essential elements of a Hobbs Act crime: interference with commerce, and extortion. Both elements have to be charged. Neither is surplusage and neither can be treated as surplusage. The charge that interstate commerce is affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference. It follows that when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or another had been burdened. The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here, as in the Bain case, we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet because of the court's admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error. Cf. Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278. Reversed.

364.US.130

Respondent trucking company ceased operations during World War II because of a strike, and the Director of the Office of Defense Transportation took possession and assumed control of its business but left title to its properties in respondent, which resumed normal operations and functioned under the control of a federal manager until termination of possession and control by the Government. The Motor Carrier Claims Commission determined that, by assuming possession and control of respondent's facilities, the Government had deprived it of the right to determine freely what use was to be made of them, and it awarded to respondent as compensation a sum representing the fair rental value of its facilities during the period of government control. Held: Under the Internal Revenue Code of 1939, this award constituted ordinary income and not a capital gain resulting from an "involuntary conversion" of respondent's capital assets consisting of real or depreciable personal property used in its trade or business, within the meaning of § 1i7 (j). Pp. 130-136. 265 F. 2d 648, reversed.

The question in this case is whether a sum received by respondent from the United States as compensation for the temporary taking by the Government of its business facilities during World War II represented ordinary income or a capital gain. The issue involves the construction and application of s 117(j) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 117(j). In 1944, respondent was a common carrier of commodities by motor vehicle. On August 4, 1944, respondent's drivers struck, and it completely ceased to operate. Shortly thereafter, because of the need for respondent's facilities in the transportation of war materiel, the President ordered the Director of the Office of Defense Transportation to 'take possession and assume control of' them. The Director assumed possession and control as of August 12, and appointed a Federal Manager, who ordered respondent to resume normal operations. The Federal Manager also announced his intention to leave title to the properties in respondent and to interfere as little as possible in the management of them. Subject to certain orders given by the Federal Manager from time to time, respondent resumed normal operations and continued so to function until the termination of all possession and control by the Government on June 16, 1945. Pursuant to an Act of Congress creating a Motor Carrier Claims Commission, 62 Stat. 1222, 49 U.S.C.A. § 305 note, respondent presented its claim for just compensation. The Government contended that there had been no 'taking' of respondent's property but only a regulation of it. The Commission, however, determined that by assuming actual possession and control or respondent's facilities, the United States had deprived respondent of the valuable right to determine freely what use was to be made of them. In ascertaining the fair market value of that right, the Commission found that one use to which respondent's facilities could have been put was to rent them out, and that therefore their rental value represented a fair measure of respondent's pecuniary loss. The Commission noted that in other cases of temporary takings, it has typically been held that the market value of what is taken is the sum which would be arrived at by a willing lessor and a willing lessee. Accordingly, it awarded, and the respondent received in 1952, the sum of $122,926.21, representing the fair rental value of its facilities from August 12, 1944, until June 16, 1945, plus $34,917.78, representing interest on the former sum, or a total of $157,843.99. The Commission of Internal Revenue asserted that the total compensation award represented ordinary income to respondent in 1952. Respondent contended that it constituted an amount received upon an 'involuntary conversion' of property used in its trade or business and was therefore taxable as long-term capital gain pursuant to § 117(j) of the Internal Revenue Code of 1939.* The Tax Court, adopting its opinion in Midwest Motor Express, Inc., 27 T.C. 167, affirmed 8 Cir., 251 F.2d 405, which involved substantially identical facts, held that the award represented ordinary income. The Court of Appeals, one judge dissenting, in this instance reversed. 265 F.2d 648. We granted certiorari because of the conflict between the decisions of the two Circuits. 361 U.S. 881, 80 S.Ct. 151, 4 L.Ed.2d 118. Respondent stresses that the Motor Carrier Claims Commission, rejecting the Government's contention that only a regulation, rather than a taking, of its facilities had occurred, found that respondent had been deprived of property, and awarded compensation therefor. That is indeed true. But the fact that something taken by the Government is property compensable under the Fifth Amendment does not answer the entirely different question whether that thing comes within the capital-gains provisions of the Internal Revenue Code. Rather, it is necessary to determine the precise nature of the property taken. Here the Commission determined that what respondent had been deprived of, and what the Government was obligated to pay for, was the right to determine freely what use to make of its transportation facilities. The measure of compensation adopted reflected the nature of that property right. Given these facts, we turn to the statute. Section 117(j), under which respondent claims, is an integral part of the statute's comprehensive treatment of capital gains and losses. Long-established principles govern the application of the more favorable tax rates to long-term capital gains: (1) There must be first, a 'capital asset,' and second, a 'sale or exchange' of that asset (§ 117(a)); (2) 'capital asset' is defined as 'property held by the taxpayer,' with certain exceptions not here relevant (§ 117(a)(1)); and (3) for purposes of calculating gain, the cost or other basis of the property (§ 113(b), 26 U.S.C.A. § 113(b)) must be subtracted from the amount realized on the sale or exchange (§ 111(a), 26 U.S.C.A. § 111(a)). Section 117(j), added by the Revenue Act of 1942, effects no change in the nature of a capital asset. It accomplishes only two main objectives. First, it extends capital-gains treatment to real and depreciable personal property used in the trade or business, the type of property involved in this case. Second, it accords such treatment to involuntary conversions of both capital assets, strictly defined, and property used in the trade or business. Since the net effect of the first change is merely to remove one of the exclusions made to the definition of capital assets in § 117(a)(1), it seems evident that 'property used in the trade or business,' to be eligible for capital-gains treatment, must satisfy the same general criteria as govern the definition of capital assets. The second change was apparently required by the fact that this Court had given a narrow construction to the term 'sale or exchange.' See Helvering v. William Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878, 85 L.Ed. 1310. But that change similarly had no effect on the basic notion of what constitutes a capital asset. While a capital asset is defined in § 117(a)(1) as 'property held by the taxpayer,' it is evident that not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term 'capital asset' is to be construed narrowly in accordance with the purpose of Congress to afford capital-gains treatment only in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year. Burnet v. Harmel, 287 U.S. 103, 106, 53 S.Ct. 74, 75, 77 L.Ed. 199. Thus the Court has held that an unexpired lease, Hort v. Commissioner, 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168, corn futures, Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 76 S.Ct. 20, 100 L.Ed. 29 and oil payment rights, Commissioner of Internal Revenue v. P. G. Lake, Inc., 356 U.S. 260, 78 S.Ct. 691, 2 L.Ed.2d 743, are not capital assets even though they are concededly 'property' interests in the ordinary sense. And see Surrey, Definitional Problems in Capital Gains Taxation, 69 Harv.L.Rev. 985, 987—989 and Note 7. In the present case, respondent's right to use its transportation facilities was held to be a valuable property right compensable under the requirements of the Fifth Amendment. However, that right was not a capital asset within the meaning of §§ 117(a)(1) and 117(j). To be sure, respondent's facilities were themselves property embraceable as capital assets under § 117(j). Had the Government taken a fee in those facilities, or damaged them physically beyond the ordinary wear and tear incident to normal use, the resulting compensation would no doubt have been treated as gain from the involuntary conversion of capital assets. See, e.g., Waggoner, 15 T.C. 496; Henshaw, 23 T.C. 176. But here the Government took only the right to determine the use to which those facilities were to be put. That right is not something in which respondent had any investment, separate and apart from its investment in the physical assets themselves. Respondent suggests no method by which a cost basis could be assigned to the right; yet it is necessary, in determining the amount of gain realized for purposes of § 117, to deduct the basis of the property sold, exchanged, or involuntarily converted from the amount received. § 111(a). Further, the right is manifestly not of the type which gives rise to the hardship of the realization in one year of an advance in value over cost built up in several years, which is what Congress sought to ameliorate by the capital-gains provisions. See cases cited, 364 U.S. at page 134, 80 S.Ct. at page 1500. In short, the right to use is not a capital asset, but is simply an incident of the underlying physical property, the recompense for which is commonly regarded as rent. That is precisely the situation here, and the fact that the transaction was involuntary on respondent's part does not change the nature of the case. Respondent lays stress on the use of the terms 'seizure' and 'requisition' in § 117(j). More specifically, the section refers to the 'involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of property used in the trade or business and capital assets * * *.' (Emphasis added.) It is contended that the Government's action in the present case is perhaps the most typical example of a seizure or requisition, and that, therefore, Congress must have intended to treat it as a capital transaction. This argument, however, overlooks the fact that the seizure or requisition must be 'of property used in the trade or business (or) capital assets.' We have already shown that § 117(j) does not change the long-standing meaning of these terms and that the property taken by the Government in the present case does not come within them. The words 'seizure' and 'requisition' are not thereby deprived of effect, since they equally cover instances in which the Government takes a fee or damages or otherwise impairs the value of physical property. We conclude that the amount paid to respondent as the fair rental value of its facilities from August 12, 1944, to June 16, 1945, represented ordinary income to it. A fortiori, the interest on that sum is ordinary income. Kieselbach v. Commissioner, 317 U.S. 399, 63 S.Ct. 303, 87 L.Ed. 358. Reversed. Mr. Justice DOUGLAS dissents.

366.US.420

Appellants, employees of a large department store on a highway in Anne Arundel County, Md., were convicted and fined in a Maryland State Court for selling on Sunday a loose-leaf binder, a can of floor wax, a stapler, staples and a toy, in violation of Md. Ann. Code, Art. 27, § 521, which generally prohibits the sale on Sunday of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruit, gasoline, oils, greases, drugs, medicines, newspapers and periodicals. Recent amendments now except from the prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs, and exempt entirely any retail establishment in that County which employs not more than one person other than the owner. There are many other Maryland laws which prohibit specific activities on Sundays or limit them to certain hours, places or conditions. Held: Art. 27, § 521 does not violate the Equal Protection or Due Process Clause of the Fourteenth Amendment or constitute a law respecting an establishment of religion, within the meaning of the First Amendment, which is made applicable to the Stats by the Fourteenth Amendment. Pp. 422-453. 1. Art. 27, § 521 does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 425-428. (a) On the record in this case, it cannot be said that the classifications made by the statute are without rational and substantial relation to the objects of the legislation, so as to exceed the wide discretion permitted the States in enacting laws which affect some groups of citizens differently from others. Pp. 425-427. (b) Provisions of the statute which permit only certain Anne Arundel County retailers to sell merchandise essential to, or customarily sold at, or incidental to, the operation of bathing beaches, amusement parks, etc., do not discriminate invidiously against retailers in other Maryland counties. P. 427. (c) The Equal Protection Clause is not violated by Art. 27, § 509, which permits only certain merchants in Anne Arundel County (operators of bathing beaches, amusement parks, etc.) to sell merchandise customarily sold at such places while forbidding its sale by other vendors, such as appellants' employer. Pp. 427-428. 2. Art. 27, § 509, which exempts, retail sales of "merchandise essential to, or customarily sold at, or incidental to, the operation, of" bathing beaches, amusement parks, etc., is hot so vague as to violate the Due Process Clause of the Fourteenth Amendment. Pp. 428-429. 3. Art. 27, § 521 is not a law respecting an establishment of religion, within the meaning of the First Amendment. Pp. 429-453. (a) Since appellants allege only economic injury to themselves and do not allege any..infringement of their own religious freedoms, they have no standing to raise the question whether the statute prohibits the free exercise of religion, contrary to the First Amendment. Pp. 429-430. (b) Since appellants have suffered direct economic injury, allegedly due to the imposition- .on them of the tenets of the Christian religion, they have standing to complain that the statute is a law respecting an establishment of religion. Pp. 430-431. (c) In the light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is concluded that, as presently written and adrriinistered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion, as those words are used in the Constitution of the United States. Pp. 431-444. (d) The 'present purpose and effect of most of our Sunday Closing Laws is to provide a uniform day of rest for all citizens; and the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. Pp. 444-445. (e) After engaging in the close scrutiny demanded of it when First Amendment liberties are at issue, this Court accepts the determination of the State Supreme Court that the present purpose and effect of the statute here involved is not to aid religion but to set aside a day of rest and recreation. Pp. 445-449. (f) This Court rejects appellants' contention that the State has other means at its disposal to accomplish its secular purpose that would not even remotely or incidentally give state aid to religion Pp. 449-453. 220 Md. 117, 151 A. 2d 156, affirmed.

The issues in this case concern the constitutional validity of Maryland criminal statutes,1 commonly known as Sunday Closing Laws or Sunday Blue Laws. These statutes, with exceptions to be noted hereafter, generally proscribe all labor, business and other commercial activities on Sunday. The questions presented are whether the classifications within the statutes bring about a denial of equal protection of the law, whether the laws are so vague as to fail to give reasonable notice of the forbidden conduct and therefore violate due process, and whether the statutes are laws respecting an establishment of religion or prohibiting the free exercise thereof. Appellants are seven employees of a large discount department store located on a highway in Anne Arundel County, Maryland. They were indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of Md.Ann.Code, Art. 27, § 521. Generally, this section prohibited, throughout the State, the Sunday sale of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruits, gasoline, oils, greases, drugs and medicines, and newspapers and periodicals. Recently amended, this section also now excepts from the general prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs. It now further provides that any retail establishment in Anne Arundel County which does not employ more than one person other than the owner may operate on Sunday. Although appellants were indicted only under § 521, in order properly to consider several of the broad constitutional contentions, we must examine the whole body of Maryland Sunday laws. Several sections of the Maryland statutes are particularly relevant to evaluation of the issues presented. Section 492 of Md.Ann.Code, Art. 27, forbids all persons from doing any work or bodily labor on Sunday and forbids permitting children or servants to work on that day or to engage in fishing, hunting and unlawful pastimes or recreations. The section excepts all works of necessity and charity. Section 522 of Md.Ann.Code, Art. 27, disallows the opening or use of any dancing saloon, opera house, bowling alley or barber shop on Sunday. However, in addition to the exceptions noted above, Md.Ann.Code, Art. 27, § 509, exempts, for Anne Arundel County, the Sunday operation of any bathing beach, bathhouse, dancing saloon and amusement park, and activities incident thereto and retail sales of merchandise customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses. Section 90 of Md.Ann.Code, Art. 2B, makes generally unlawful the sale of alcoholic beverages on Sunday. However, this section, and immediately succeeding ones, provide various immunities for the Sunday sale of different kinds of alcoholic beverages, at different hours during the day, by vendors holding different types of licenses, in different political divisions of the State—particularly in Anne Arundel County. See Md.Ann.Code, Art. 2B, § 28(a). The remaining statutory sections concern a myriad of exceptions for various counties, districts of counties, cities and towns throughout the State. Among the activities allowed in certain areas on Sunday are such sports as football, baseball, golf, tennis, bowling, croquet, basketball, lacrosse, soccer, hockey, swimming, softball, boating, fishing, skating, horseback riding, stock car racing and pool or billiards. Other immunized activities permitted in some regions of the State include group singing or playing of musical instruments; the exhibition of motion pictures; dancing; the operation of recreation centers, picnic grounds, swimming pools, skating rinks and miniature golf courses. The taking of oysters and the hunting or killing of game is generally forbidden, but shooting conducted by organized rod and gun clubs is permitted in one county. In some of the subdivisions within the State, the exempted Sunday activities are sanctioned throughout the day; in others, they may not commence until early afternoon or evening; in many, the activities may only be conducted during the afternoon and late in the evening. Certain localities do not permit the allowed Sunday activity to be carried on within one hundred yards of any church where religious services are being held. Local ordinances and regulations concerning certain limited activities supplement the State's statutory scheme. In Anne Arundel County, for example, slot machines, pinball machines and bingo may be played on Sunday. Among other things, appellants contended at the trial that the Maryland statutes under which they were charged were contrary to the Fourteenth Amendment for the reasons stated at the outset of this opinion. Appellants were convicted and each was fined five dollars and costs. The Maryland Court of Appeals affirmed, 220 Md. 117, 151 A.2d 156; on appeal brought under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), we noted probable jurisdiction. 362 U.S. 959, 80 S.Ct. 874, 4 L.Ed.2d 874. Appellants argue that the Maryland statutes violate the 'Equal Protection' Clause of the Fourteenth Amendment on several counts. First, they contend that the classifications contained in the statutes concerning which commodities may or may not be sold on Sunday are without rational and substantial relation to the object of the legislation.2 Specifically, appellants allege that the statutory exemptions for the Sunday sale of the merchandise mentioned above render arbitrary the statute under which they were convicted. Appellants further allege that § 521 is capricious because of the exemptions for the operation of the various amusements that have been listed and because slot machines, pin-ball machines, and bingo are legalized and are freely played on Sunday. The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. See Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093; Metropolitan Casualty Ins. Co. of New York v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909.3 It would seem that a legislature could reasonably find that the Sunday sale of the exempted commodities was necessary either for the health of the populace or for the enhancement of the recreational atmosphere of the day—that a family which takes a Sunday ride into the country will need gasoline for the automobile and may find pleasant a soft drink or fresh fruit; that those who go to the beach may wish ice cream or some other item normally sold there; that some people will prefer alcoholic beverages or games of chance to add to their relaxation; that newspapers and drug products should always be available to the public. The record is barren of any indication that this apparently reasonable basis does not exist, that the statutory distinctions are invidious, that local tradition and custom might not rationally call for this legislative treatment. See Salsburg v. State of Maryland, 346 U.S. 545, 552—553, 74 S.Ct. 280, 284, 98 L.Ed. 281; Kotch v. Board of River Port Pilot Com'rs, supra. Likewise, the fact that these exemptions exist and deny some vendors and operators the day of rest and recreation contemplated by the legislature does not render the statutes violative of equal protection since there would appear to be many valid reasons for these exemptions, as stated above, and no evidence to dispel them. Secondly, appellants contend that the statutory arrangement which permits only certain Anne Arundel County retailers to sell merchandise essential to, or cutomarily sold at, or incidental to, the operation of bathing beaches, amusement parks et cetera is contrary to the 'Equal Protection' Clause because it discriminates unreasonably against retailers in other Maryland counties. But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite. With particular reference to the State of Maryland, we have noted that the prescription of different substantive offenses in different counties is generally a matter for legislative discretion. We find no invidious discrimination here. See Salsburg v. State of Maryland, supra. Thirdly, appellants contend that this same statutory provision, Art. 27, § 509, violates the 'Equal Protection' Clause because it permits only certain merchants within Anne Arundel County (operators of bathing beaches and amusement parks et cetera) to sell merchandise customarily sold at these places while forbidding its sale by other vendors of this merchandise, such as appellants' employer.4 Here again, it would seem that a legislature could reasonably find that these commodities, necessary for the health and recreation of its citizens, should only be sold on Sunday by those vendors at the locations where the commodities are most likely to be immediately put to use. Such a determination would seem to serve the consuming public and at the same time secure Sunday rest for those employees, like appellants, of all other retail establishments. In addition, the enforcement problems which would accrue if large retail establishments, like appellants' employer, were permitted to remain open on Sunday but were restricted to the sale of the merchandise in question would be far greater than the problems accruing if only beach and amusement park vendors were exempted. Here again, there has been no indication of the unreasonableness of this differentiation. On the record before us, we cannot say that these statutes do not provide equal protection of the laws. Another question presented by appellants is whether Art. 27, § 509, which exempts the Sunday retail sale of 'merchandise essential to, or customarily sold at, or incidental to, the operation of' bathing beaches, amusement parks et cetera in Anne Arundel County, is unconstitutionally vague. We believe that business people of ordinary intelligence in the position of appellants' employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county. See United States v. Harriss, 347 U.S. 612, 617—618, 74 S.Ct. 808, 811—812, 98 L.Ed. 989. Under these circumstances, there is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. Questions concerning proof that the items appellants sold were customarily sold at, or incidental to the operation of, a bathing beach or amusement park were not raised in the Maryland Court of Appeals, nor are they raised here. Thus, we cannot consider the matter. Whitney v. People of State of California, 274 U.S. 357, 362—363, 47 S.Ct. 641, 643—644, 71 L.Ed. 1095. The final questions for decision are whether the Maryland Sunday Closing Laws conflict with the Federal Constitution's provisions for religious liberty. First, appellants contend here that the statutes applicable to Anne Arundel County violate the constitutional guarantee of freedom of religion in that the statutes' effect is to prohibit the free exercise of religion in contravention of the First Amendment, made applicable to the States by the Fourteenth Amendment.5 But appellants allege only economic injury to themselves; they do not allege any infringement of their own religious freedoms due to Sunday closing. In fact, the record is silent as to what appellants' religious beliefs are. Since the general rule is that 'a litigant may only assert his own constitutional rights or immunities,' United States v. Raines, 362 U.S. 17, 22,80 S.Ct. 519, 523, 4 L.Ed.2d 524, we hold that appellants have no standing to raise this contention.6 Tileston v. Ullman, 318 U.S. 44, 46, 63 S.Ct. 493, 494, 87 L.Ed. 603. Furthermore, since appellants do not specifically allege that the statutes infringe upon the religious beliefs of the department store's present or prospective patrons, we have no occasion here to consider the standing question of Pierce v. Society of Sisters, 268 U.S. 510, 535—536, 45 S.Ct. 571, 573 574, 69 L.Ed. 1070. Those persons whose religious rights are allegedly impaired by the statutes are not without effective ways to assert these rights. Cf. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 459—460, 78 S.Ct. 1163, 1170—1171, 2 L.Ed.2d 1488; Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586. Appellants present no weighty countervailing policies here to cause an exception to our general principles. See United States v. Raines, supra. Secondly, appellants contend that the statutes violate the guarantee of separation of church and state in that the statutes are laws respecting an establishment of religion contrary to the First Amendment, made applicable to the States by the Fourteenth Amendment. If the purpose of the 'establishment' clause was only to insure protection for the 'free exercise' of religion, then what we have said above concerning appellants' standing to raise the 'free exercise' contention would appear to be true here. However, the writings of Madison, who was the First Amendment's architect, demonstrate that the establishment of a religion was equally feared because of its tendencies to political tyranny and subversion of civil authority.7 Thus, in Everson v. Board of Education, supra, the Court permitted a district taxpayer to challenge, on 'establishment' grounds, a state statute which authorized district boards of education to reimburse parents for fares paid for the transportation of their children to both public and Catholic schools. Appellants here concededly have suffered direct economic injury, allegedly due to the imposition on them of the tenets of the Christian religion.8 We find that, in these circumstances, these appellants have standing to complain that the statutes are laws respecting an establishment of religion. The essence of appellants' 'establishment' argument is that Sunday is the Sabbath day of the predominant Christian sects; that the purpose of the enforced stoppage of labor on that day is to facilitate and encourage church attendance; that the purpose of setting Sunday as a day of universal rest is to induce people with no religion or people with marginal religious beliefs to join the predominant Christian sects; that the purpose of the atmosphere of tranquility created by Sunday closing is to aid the conduct of church services and religious observance of the sacred day. In substantiating their 'establishment' argument, appellants rely on the wording of the present Maryland statutes, on earlier versions of the current Sunday laws and on prior judicial characterizations of these laws by the Maryland Court of Appeals. Although only the constitutionality of § 521, the section under which appellants have been convicted, is immediately before us in this litigation, inquiry into the history of Sunday Closing Laws in our country, in addition to an examination of the Maryland Sunday closing statutes in their entirety and of their history, is relevant to the decision of whether the Maryland Sunday law in question is one respecting an establishment of religion. There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces. But what we must decide is whether present Sunday legislation, having undergone extensive chances from the earliest forms, still retains its religious character. Sunday Closing Laws go far back into American history, having been brought to the colonies with a background of English legislation dating to the thirteenth century. In 1237, Henry III forbade the frequenting of markets on Sunday; the Sunday showing of wools at the staple was banned by Edward III in 1354; in 1409, Henry IV prohibited the playing of unlawful games on Sunday; Henry VI proscribed Sunday fairs in churchyards in 1444 and, four years later, made unlawful all fairs and markets and all showings of any goods or merchandise; Edward VI disallowed Sunday bodily labor by several injunctions in the mid-sixteenth century; various Sunday sports and amusements were restricted in 1625 by Charles I. Lewis, A Critical History of Sunday Legislation, 82—108; Johnson and Yost, Separation of Church and State, 221. The law of the colonies to the time of the Revolution and the basis of the Sunday laws in the States was 29 Charles II, c. 7 (1677). It provided, in part: 'For the better observation and keeping holy the Lord's day, commonly called Sunday: be it enacted * * * that all the laws enacted and in force concerning the observation of the day, and repairing to the church thereon, be carefully put in execution; and that all and every person and persons whatsoever shall upon every Lord's day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion, publicly and privately; and that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor or business or work of their ordinary callings upon the Lord's day, or any part thereof (works of necessity and charity only excepted); * * * and that no person or persons whatsoever shall publicly cry, show forth, or expose for sale any wares, merchandise, fruit, herbs, goods, or chattels, whatsoever, upon the Lord's day, or any part thereof. * * *' (Emphasis added.)9 Observation of the above language, and of that of the prior mandates, reveals clearly that the English Sunday legislation was in aid of the established church. The American colonial Sunday restrictions arose soon after settlement. Starting in 1650, the Plymouth Colony proscribed servile work, unnecessary travelling, sports, and the sale of alcoholic beverages on the Lord's day and enacted laws concerning church attendance. The Massachusetts Bay Colony and the Connecticut and New Haven Colonies enacted similar prohibitions, some even earlier in the seventeenth century. The religious orientation of the colonial statutes was equally apparent. For example, a 1629 Massachusetts Bay instruction began, 'And to the end the Sabbath may be celebrated in a religious manner. * * *' A 1653 enactment spoke of Sunday activities 'which things tend much to the dishonor of God, the reproach of religion, and the profanation of his holy Sabbath, the sanctification whereof is sometimes put for all duties immediately respecting the service of God. * * *' Lewis, op. cit., supra, at pp. 160—195, particularly at 167, 169.10 These laws persevered after the Revolution and, at about the time of the First Amendment's adoption, each of the colonies had laws of some sort restricting Sunday labor. See note, 73 Harv.L.Rev. 729—730, 739—740; Johnson and Yost, op. cit., supra, at pp. 222—223. But, despite the strongly religious origin of these laws, beginning before the eighteenth century, nonreligious arguments for Sunday closing began to be heard more distinctly and the statutes began to lose some of their totally religious flavor. In the middle 1700's, Blackstone wrote, '(T)he keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness.' 4 Bl.Comm. 63. A 1788 English statute dealing with chimney sweeps, 28 Geo. III, c. 48, in addition to providing for their Sunday religious affairs, also regulated their hours of work. The preamble to a 1679 Rhode Island enactment stated that the reason for the ban on Sunday employment was that 'persons being evill minded, have presumed to employ in servile labor, more than necessity requireth, their servants. * * *' 3 Records of the Colony of Rhode Island and Providence Plantations 31. The New York law of 1788 omitted the term 'Lord's day' and substituted 'the first day of the week commonly called Sunday.' 2 Laws of N.Y. 1785 1788, 680. Similar changes marked the Maryland statutes, discussed below. With the advent of the First Amendment, the colonial provisions requiring church attendance were soon repealed. Note, 73 Harv.L.Rev., supra, at pp. 729—730. More recently, further secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week's work to come. In England, during the First World War, a committee investigating the health conditions of munitions workers reported that 'if the maximum output is to be secured and maintained for any length of time, a weekly period of rest must be allowed. * * * On economic and social grounds alike this weekly period of rest is best provided on Sunday.'11 The proponents of Sunday closing legislation are no longer exclusively representatives of religious interests. Recent New Jersey Sunday legislation was supported by labor groups and trade associations, Note, 73 Harv.L.Rev. 730—731; modern English Sunday legislation was promoted by the National Federation of Grocers and supported by the National Chamber of Trade, the Drapers' Chamber of Trade, and the National Union of Shop Assistants. 308 Parliamentary Debates, Commons 2158—2159. Throughout the years, state legislatures have modified, deleted from and added to their Sunday statutes. As evidenced by the New Jersey laws mentioned above, current changes are commonplace. Almost every State in our country presently has some type of Sunday regulation and over forty possess a relatively comprehensive system. Note, 73 Harv.L.Rev. 732—733; Note, 12 Rutgers L.Rev. 506. Some of our States now enforce their Sunday legislation through Departments of Labor, e.g., 6 S.C.Code.Ann. (1952), § 64—5. Thus have Sunday laws evolved from the wholly religious sanctions that originally were enacted. Moreover, litigation over Sunday closing laws is not novel. Scores of cases may be found in the state appellate courts relating to sundry phases of Sunday enactments.12 Religious objections have been raised there on numerous occasions but sustained only once, in Ex parte Newman, 1858, 9 Cal. 502, and that decision was overruled three years later, in Ex parte Andrews, 18 Cal. 678. A substantial number of cases in varying postures bearing on state Sunday legislation have reached this Court.13 Although none raising the issues now presented have gained plenary hearing, language used in some of these cases further evidences the evolution of Sunday laws as temporal statutes. Mr. Justice Field wrote in Soon Hing v. Crowley, supra, 113 U.S. 703, at page 710, 5 S.Ct. 730, at page 734: 'Laws setting aside Sunday as a day of rest are upheld, not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the states.' While a member of the California Supreme Court, Mr. Justice Field dissented in Ex parte Newman, supra, 9 Cal. at pages 519 520, 528, saying: 'Its requirement is a cessation from labor. In its enactment, the Legislature has given the sanction of law to a rule of conduct, which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and sustained by science. * * * The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted.' This was quoted with approval by Mr. Justice Harlan in Hennington v. State of Georgia, supra, who also stated: 'It is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness and health of the people, it was within its discretion to fix the day when all labor, within the limits of the State, works of necessity and charity excepted, should cease.' Id., 163 U.S. at page 304, 16 S.Ct. at page 1088. And Mr. Chief Justice Fuller cited both of these passages in Petit v. State of Minnesota, supra. Before turning to the Maryland legislation now here under attack, an investigation of what historical position Sunday Closing Laws have occupied with reference to the First Amendment should be undertaken, Everson v. Board of Education, supra, 330 U.S. at page 14, 67 S.Ct. at page 510, 91 L.Ed. 711. This Court has considered the happenings surrounding the Virginia General Assembly's enactment of 'An act for establishing religious freedom,' 12 Hening's Statutes of Virginia 84, written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, as particularly relevant in the search for the First Amendment's meaning. See the opinions in Everson v. Board of Education, supra. In 1776, nine years before the bill's passage, Madison co-authored Virginia's Declaration of Rights which provided, inter alia, that 'all men are equally entitled to the free exercise of religion, according to the dictates of conscience * * *.' 9 Henning's Statutes of Virginia 109, 111—112. Virginia had had Sunday legislation since early in the seventeenth century; in 1776, the laws penalizing 'maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever' (emphasis added), were repealed, and all dissenters were freed from the taxes levied for the support of the established church. Id., at 164. The Sunday labor prohibitions remained; apparently, they were not believed to be inconsistent with the newly enacted Declaration of Rights. Madison had sought also to have the Declaration expressly condemn the existing Virginia establishment.14 This hope was finally realized when 'A Bill for Establishing Religious Freedom' was passed in 1785. In this same year, Madison presented to Virginia legislators 'A Bill for Punishing * * * Sabbath Breakers' which provided, in part: 'If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence.'15 This became law the following year and remained during the time that Madison fought for the First Amendment in the Congress. It was the law of Virginia, and similar laws were in force in other States, when Madison stated at the Virginia ratification convention: 'Happily for the states, they enjoy the utmost freedom of religion. * * * Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. * * * I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom.'16 In 1799, Virginia pronounced 'An act for establishing religious freedom' as 'a true exposition of the principles of the bill of rights and constitution,' and repealed all subsequently enacted legislation deemed inconsistent with it. 2 Shepherd, Statutes at Large of Virginia, 149. Virginia's statute banning Sunday labor stood.17 In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, the Court relied heavily on the history of the Virginia bill. That case concerned a Mormon's attack on a statute making bigamy a crime. The Court said: 'In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or polygamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all of this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.' Id., 98 U.S. at page 165. In the case at bar, we find the place of Sunday Closing Laws in the First Amendment's history both enlightening and persuasive. But in order to dispose of the case before us, we must consider the standards by which the Maryland statutes are to be measured. Here, a brief review of the First Amendment's background proves helpful. The First Amendment states that 'Congress shall make no law respecting an establishment of religion * * *.' U.S.Const., Amend. I. The Amendment was proposed by James Madison on June 8, 1789, in the House of Representatives. It then read, in part: 'The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.' (Emphasis added.) I Annals of Congress 434. We are told that Madison added the word 'national' to meet the scruples of States which then had an established church. 1 Stokes, Church and State in the United States, 541. After being referred to committee, it was considered by the House, on August 15, 1789, acting as a Committee of the Whole. Some assistance in determining the scope of the Amendment's proscription of establishment may be found in that debate. In its report to the House, the committee, to which the subject of amendments to the Constitution had been submitted, recommended the insertion of the language, 'no religion shall be established by law.' I Annals of Congress 729. Mr. Gerry 'said it would read better if it was, that no religious doctrine shall be established by law.' Id., at 730. Mr. Madison 'said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. * * * He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform.' Id., at 730—731. The Amendment, as it passed the House of Representatives nine days later, read, in part: 'Congress shall make no law establishing religion. * * *' Records of the United States Senate, 1A—C2 (U.S.Nat.Archives). It passed the Senate on September 9, 1789, reading, in part: 'Congress shall make no law establishing articles of faith, or a mode of worship. * * *' Ibid. An early commentator opined that the 'real object of the amendment was * * * to prevent any national ecclesiastical establishment, which shold give to an hierarchy the exclusive patronage of the national government.' 3 Story, Commentaries on the Constitution of the United States, 728. But, the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a 'broad interpretation * * * in the light of its history and the evils it was designed forever to suppress * * *.' Everson v. Board of Education, supra, 330 U.S. at pages 14—15, 67 S.Ct. at page 511. It has found that the First and Fourteenth Amendments afford protection against religious establishment for more extensive than merely to forbid a national or state church. Thus, in People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, the Court held that the action of a board of education, permitting religious instruction during school hours in public school buildings and requiring those children who chose not to attend to remain in their classrooms, to be contrary to the 'Establishment' Clause. However, it is equally true that the 'Establishment' Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Reynolds v. United States, supra. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue. Thus, these broad principles have been set forth by this Court. Those cases dealing with the specific problems arising under the 'Establishment' Clause which have reached this Court are few in number. The most extensive discussion of the 'Establishment' Clause's latitude is to be found in Everson v. Board of Education, supra, 330 U.S. at pages 15—16, 67 S.Ct. at pages 511—512: 'The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State." Under challenge was a statute authorizing repayment to parents of their children's transportation expenses to public and Catholic schools. The Court, speaking through Mr. Justice Black, recognized that 'it is undoubtedly true that children are helped to get to church schools,' and '(t)here is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State.' Id., 330 U.S. at page 17, 67 S.Ct. at page 512. But the Court found that the purpose and effect of the statute in question was general 'public welfare legislation,' id., 330 U.S. at page 16, 67 S.Ct. at page 512; that it was to protect all school children from the 'very real hazards of traffic,' id., 330 U.S. at page 17, 67 S.Ct. at page 512; that the expenditure of public funds for school transportation, to religious schools or to any others, was like the expenditure of public funds to provide policemen to safeguard these same children or to provide 'such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks,' id., 330 U.S. at pages 17—18, 67 S.Ct. at page 512.18 In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States. Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general well-being of our citizens. Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, week-end diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State. We now reach the Maryland statutes under reivew. The title of the major series of sections of the Maryland Code dealing with Sunday closing—Art. 27, §§ 492—534C—is 'Sabbath Breaking'; § 492 proscribes work or bodily labor on the 'Lord's day,' and forbids persons to 'profane the Lord's day' by gaming, fishing et cetera; § 522 refers to Sunday as the 'Sabbath day.' As has been mentioned above, many of the exempted Sunday activities in the various localities of the State may only be conducted during the afternoon and late evening; most Christian church services, of course, are held on Sunday morning and early Sunday evening. Finally, as previously noted, certain localities do not permit the allowed Sunday activities to be carried on within one hundred yards of any church where religious services are being held. This is the totality of the evidence of religious purpose which may be gleaned from the face of the present statute and from its operative effect. The predecessors of the existing Maryland Sunday laws are undeniably religious in origin. The first Maryland statute dealing with Sunday activities, enacted in 1649, was entitled 'An Act concerning Religion.' 1 Archieves of Maryland 244—247. It made it criminal to 'profane the Sabbath or Lords day called Sunday by frequent swearing, drunkennes or by any uncivill or disorderly recreation, or by working on that day when absolute necessity doth not require it.' Id., at 245. A 1692 statute entitled 'An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province,' 13 Archives of Maryland 425—430, after first stating the importance of keeping the Lord's Day holy and sanctified and expressing concern with the breach of its observance throughout the State, then enacted a Sunday labor prohibition which was the obvious precursor of the present § 492.19 There was a re-enactment in 1696 entitled 'An Act for Sanctifying & keeping holy the Lord's Day Commonly called Sunday.' 19 Archives of Maryland 418—420. By 1723, the Sabbath-breaking section of the statute assumed the present form of § 492, omitting the specific prohibition against Sunday swearing and the patently religiously motivated title. Bacon, Laws of Maryland (1723), c. XVI. There are judicial statements in early Maryland decisions which tend to support appellants' position. In an 1834 case involving a contract calling for delivery on Sunday, the Maryland Court of Appeals remarked that 'Ours is a christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four hours nect ensuing the midnight of Saturday.' Kilgour v. Miles, 6 Gill & J. 268, 274. This language was cited with approval in Judegind v. State, 1894, 78 Md. 510, 514, 28 A. 405, 406, 22 L.R.A. 721. It was also stated there: 'It is undoubtedly true that rest from secular employment on Sunday does have a tendency to foster and encourage the Christian religions, of all sects and denominations, that observe that day, as rest from work and ordinary occupations enables many to engage in public worship who probably would not otherwise do so. But it would scarcely be asked of a court in what professes to be a Christian land, to declare a law unconstitutional because it requires rest from bodily labor on Sunday, except works of necessity and charity, and thereby promotes the cause of Christianity. If the Christian religion is, incidentally or otherwise, benefited or fostered by having this day of rest, (as it undoubtedly is,) there is all the more reason for the enforcement of laws that help to preserve it. While courts have generally sustained Sunday laws as 'civil regulation,' their decisions will have no less weight if they are shown to be in accordance with divine law as well as human.' Id., 78 Md. at pages 515—516, 28 A. at page 407. But it should be noted that, throughout the Judefind decision, the Maryland court specifically rejected the contention that the laws interfered with religious liberty and stated that the laws' purpose was to provide the 'advantages of having a weekly day of rest, 'from a mere physical and political standpoint." Id., 78 Md. at page 513, 28 A. at page 406. Considering the language and oeprative effect of the current statutes, we no longer find the blanket prohibition against Sunday work or bodily labor. To the contrary, we find that § 521 of Art. 27, the section which appellants violated, permits the Sunday sale of tobaccos and sweets and a long list of sundry articles which we have enumerated above; we find that § 509 of Art. 27 permits the Sunday operation of bathing beaches, amusement parks and similar facilities; we find that Art. 2B, § 28, permits the Sunday sale of alcoholic beverages, products strictly forbidden by predecessor statutes; we are told that Anne Arundel County allows Sunday bingo and the Sunday playing of pinball machines and slot machines, activities generally condemned by prior Maryland Sunday legislation.20 Certainly, these are not works of charity or necessity. Section 521's current stipulation that shops with only one employee may remain open on Sunday does not coincide with a religious purpose. These provisions, along with those which permit various sports and entertainments on Sunday, seem clearly to be fashioned for the purpose of providing a Sunday atmosphere of recreation, cheerfulness, repose and enjoyment. Coupled with the general proscription against other types of work, we believe that the air of the day is one of relaxation rather than one of religion. The existing Maryland Sunday laws are not simply verbatim re-enactments of their religiously oriented antecedents. Only § 492 retains the appellation of 'Lord's day' and even that section no longer makes recitation of religious purpose. It does talk in terms of 'profan(ing) the Lord's day,' but other sections permit the activities previously thought to be profane. Prior denunciation of Sunday drunkenness is now gone. Contemporary concern with these statutes is evidenced by the dozen changes made in 1959 and by the recent enactment of a majority of the exceptions. Finally, the relevant pronouncements of the Maryland Court of Appeals dispel any argument that the statutes' announced purpose is religious. In Hiller v. State of Maryland, 1914, 124 Md. 385, 92 A. 842, the court had before it a Baltimore ordinance prohibiting Sunday baseball. The court said: 'What the eminent Chief Judge said with respect to police enactments which deal with the protection of the public health, morals, and safety apply with equal force to those which are concerned with the peace, order, and quiet of the community on Sunday, for these social conditions are well recognized heads of the police power. Can the court say that this ordinance has no real and substantial relation to the peace and order and quiet of Sunday as a day of rest in the city of Baltimore?' Id., 124 Md. at page 393, 92 A. at page 844. See also Levering v. Williams, 1919, 134 Md. 48, 54—59, 106 A. 176, 178—179, 4 A.L.R. 374. And the Maryland court declared in its decision in the instant case: 'The legislative plan is plain. It is to compel a day of rest from work, permitting only activities which are necessary or recreational.' McGowan v. State, supra, 220 Md. at page 123, 151 A.2d at page 159. After engaging in the close scrutiny demanded of us when First Amendment liberties are at issue, we accept the State Supreme Court's determination that the statutes' present purpose and effect is not to aid religion but to set aside a day of rest and recreation. But this does not answer all of appellants' contentions. We are told that the State has other means at its disposal to accomplish its secular purpose, other courses that would not even remotely or incidentally give state aid to religion. On this basis, we are asked to hold these statutes invalid on the ground that the State's power to regulate conduct in the public interest may only be executed in a way that does not unduly or unnecessarily infringe upon the religious provisions of the First Amendment. See Cantwell v. State of Connecticut, supra, 310 U.S. at pages 304—305, 60 S.Ct. at pages 903—904, 84 L.Ed. 1213. However relevant this argument may be, we believe that the factual basis on which it rests is not supportable. It is true that if the State's interest were simply to provide for its citizens a periodic respite from work, a regulation demanding that everyone rest one day in seven, leaving the choice of the day to the individual, would suffice. However, the State's purpose is not merely to provide a one-day-in-seven work stoppage. In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, recreation and tranquility—a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days.21 Obviously, a State is empowered to determine that a rest-one-day-in-seven statute would not accomplish this purpose; that it would not provide for a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together. Furthermore, it seems plain that the problems involved in enforcing such a provision would be exceedingly more difficult than those in enforcing a common-day-of-rest provision. Moreover, it is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive and active entertainments, for dining out, and the like. 'Vast masses of our people, in fact, literally millions, go out into the countryside on fine Sunday afternoons in the Summer. * * *' 308 Parliamentary Debates, Commons 2159. Sunday is a day apart from all others.22 The cause is irrelevant; the fact exists. It would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare to require a State to choose a common day of rest other than that which most persons would select of their own accord. For these reasons, we hold that the Maryland statutes are not laws respecting an establishment of religion. The distinctions between the statutes in the case before us and the state action in People of State of Illinois ex rel. McCollum v. Board of Education, supra, the only case in this Court finding a violation of the 'Establishment' Clause, lend further substantiation to our conclusion. In McCillum, state action permitted religious instruction in public scheool buildings during school hours and required students not attending the religious instruction to remain in their classrooms during that time. The Court found that this system had the effect of coercing the children to attend religious classes; no such coercion to attend church services is present in the situation at bar. In McCollum, the only alternative available to the nonattending students was to remain in their classrooms; the alternatives open to nonlaboring persons in the instant case are far more diverse. In McCollum, there was direct cooperation between state officials and religious ministers; no such direct participation exists under the Maryland laws. In McCollum, tax-supported buildings were used to aid religion; in the instant case, no tax monies are being used in aid of religion. Finally, we should make clear that this case deals only with the constitutionality of § 521 of the Maryland statute before us. We do not hold that Sunday legislation may not be a violation of the 'Establishment' Clause if it can be demonstrated that its purpose—evidenced either on the face of the legislation, in conjunction with its legislative history, or in its operative effect—is to use the State's coercive power to aid religion. Accordingly, the decision is affirmed. Affirmed. (For opinion of Mr. Justice FRANKFURTER, joined by Mr. Justice HARLAN, see 366 U.S. 459, 81 S.Ct. 1153.) (For dissenting opinion of Mr. Justice DOUGLAS, see 366 U.S. 561, 81 S.Ct. 1218.) Md. Ann. Code, Art. 27. 'Sabbath Breaking. 's 492. Working on Sunday; Permitting children or servants to game, fish, hunt, etc.—No person whatsoever shall work or do any bodily labor on the Lord's day, commonly called Sunday; and no person having children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord's day (works of necessity and charity always excepted), nor shall suffer or permit any children or servants to profane the Lord's day by gaming, fishing, fowling, hunting or unlawful pastime or recreation; and every person transgressing this section and being hereof convicted before a justice of the peace shall forfeit five dollars, to be applied the use of the county.' 's 509. Beaches, amusement parks, picnic groves, etc., in Anne Arundel County.—It shall be lawful to operate, work at, or be employed in the occupations of operating any bathing beach, bathhouse, amusement park, dancing saloon, the sale or selling of any novelties, souvenirs, accessories, or other merchandise essential to, or customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses, at retail, picnic groves, amusements, games, amusement rides, amusement devices, entertainments, shows and the hiring or renting of boats, tables, chairs, beach umbrellas, on the first day of the week, commonly called Sunday, within Anne Arundel County, and §§ 492, 521 and 522 of this article are repealed, in so far and to the extent that they prohibit the operating of and/or the working of or employment of persons in the operation of any bathing beach, bathhouse, amusement park, dancing saloon, the sale or selling at retail of any merchandise, essential to or customarily sold or incidental to the operation of the aforesaid occupations or businesses, picnic groves, amusements, games, amusement rides, amusement devices, entertainments, shows, and the hiring and renting of boats, tables, chairs, beach umbrellas, on the first day of the week, commonly called Sunday, in Anne Arundel County.' 's 521. Sale, etc., of merchandise on Sunday; exceptions. '(a) Sunday sales of merchandise prohibited; excepted articles—No person in this State shall sell, dispose of, barter, or deal in, or give away any articles of merchandise on Sunday, except retailers, who may sell and deliver on said day tobacco, cigars, cigarettes, candy, sodas and soft drinks, ice, ice cream, ices and other confectionery, milk, bread, fruits, gasoline, oils and greases. '(b) Additional excepted articles in Anne Arundel County; certain establishments excepted.—In Anne Arundel County, in addition to the articles of merchandise hereinbefore mentioned, retailers may sell, barter, deal in, and deliver on Sunday the following articles of merchandise: butter, eggs, cream, soap and other detergents, disinfectants, vegetables, meats, and all other food or food stuffs prepared or intended for human consumption, automobile accessories and parts, boating and fishing accessories, artificial and natural flowers and shrubs, toilet goods, hospital supplies, thermometers, camera films, souvenirs, surgical instruments, rubber goods, paper goods, drugs, medicines, patent medicines, and all other articles used for the relief of pain or prescribed by a physician; provided, however, that nothing in this subtitle shall be construed to prevent the operation of any retail establishment on Sunday, the operation of which does not entail the employment of more than one person, not including the owner or proprietor. '(c) Penalty for violation; second and subsequent offenses; revocation of license.—Any person violating any one of the provisions of this section shall be liable to indictment in any court in this State having criminal jurisdiction, and upon conviction thereof shall be fined a sum of not less than twenty nor more than fifty dollars, in the discretion of the court, for the first offense, and if convicted a second time for a violation of this section, the person or persons so offending shall be fined a sum not less than $50 nor more than $500, and be imprisoned for not less than 10 nor more than 30 days, in the discretion of the court, and his, her or their license, if any was issued, shall be declared null and void by the judge of said court; and it shall not be lawful for such person or persons to obtain another license for the period of twelve months from the time of such conviction, nor shall a license be obtained by any other person or persons to carry on said business on the premises or elsewhere, if the person, so as aforesaid convicted, has any interest whatever therein, or shall derive any profit whatever therefrom; and in case of being convicted more than twice for a violation of this section, such person or persons on each occasion shall be imprisoned for not less than thirty nor more than sixty days, and fined a sum not less than double that imposed on such person or persons on the last preceding conviction; and his, her or their license, if any was issued, shall be declared null and void by the court, and no new license shall be issued to such person or persons for a period of two years fron the time of such conviction, nor to anyone else to carry on said business wherein he or she is in anywise interested, as before provided for the second violation of the provisions of this section; all the fines to be imposed under this section shall be paid to the State. '(d) Apothecaries; sale of newspapers and periodicals.—This section is not to apply to apothecaries and such apothecaries may sell on Sunday drugs, medicines, and patent medicines as on week days; and this section shall not apply to the sale of newspapers and periodicals. 's 522.—Keeping open or using dancing saloon, opera house, tenpin alley, barber saloon or ball alley on Sunday.—It shall not be lawful to keep open or use any dancing saloon, opera house, tenpin alley, barber saloon or ball alley within this State on the Sabbath day, commonly called Sunday; and any person or person, or body politic or corporate, who shall violate any provision of this section, or cause or knowingly permit the same to be violated by a person or persons in his, her or its employ shall be liable to indictment in any court of this State having criminal jurisdiction, and upon conviction thereof shall be fined a sum not less than fifty dollars nor more than one hundred dollars, in the discretion of the court, for the first offense; and if convicted a second time for a violation of this section, the person or persons, or body politic or corporate shall be fined a sum not less than one hundred nor more than five hundred dollars; and if a natural person shall be imprisoned, not less than ten nor more than thirty days in the discretion of the court; and in the case of any conviction or convictions under this section subsequent to the second, such person or persons, body politic or corporate shall be fined on each occasion a sum at least double that imposed upon him, her, them or it on the last preceding conviction; and if a natural person, shall be imprisoned not less than thirty nor more than sixty days in the discretion of the court; all fines to be imposed under this section shall be paid to the State.' Md. Ann. Code, Art. 2B. § 28.—Anne Arundel County. '(a) Special Sunday licenses.—(1) Notwithstanding any other provision of this article, no license for sale of alcoholic beverages issued by the board of license commissioners for Anne Arundel County (except 'special licenses' provided for in § 22 of this article) shall be deemed to nor shall it permit or authorize the holder thereof to sell any alcoholic beverages in Anne Arundel County after 2 A.M. on Sundays, except as hereinafter provided. '(2) Any person holding a license for the sale of alcoholic beverages in Anne Arundel County (except persons holding any Class BP, WP, LP, or LT license, 'Package Goods—off sale license,' 'six day tavern license,' or 'special licenses') issued by the board of license commissioners for Anne Arundel County, shall, upon application made as for new licenses and approval thereof by the board of license commissioners for Anne Arundel County, as provided for by §§ 60 and 67(c) of this article, be issued a license to be known as a 'special Sunday license,' upon payment of the fee therefor as provided herein. '(3) Such 'special Sunday license' shall authorize the holder thereof to sell alcoholic beverages of the same kind, and subject to the same limitations as to hours, alcoholic content of the beverages to be sold thereunder, restrictions and provisions, as govern such other license for the sale of alcoholic beverages, issued to and held by the holder of such 'special Sunday license,' on each Sunday. No 'special Sunday license' shall be issued to any person who does not hold an alcoholic beverage license of some other class issued by the board of license commissioners for Anne Arundel County.' '§ 90—Sundays.—(a) Bar and counter sales.—(1) No retail dealer holding a Class B or C license shall be permitted to sell any alcoholic beverage at a bar or counter on Sunday. '(2) Provided, that in Anne Arundel County it shall be lawful to sell, vend, serve, deliver and/or consume any alcoholic beverages permitted by law to be sold in the first, second, third, fourth, fifth, seventh and eighth districts of Anne Arundel County at any bar or counter on any day on which the sale of alcoholic beverages is permitted by law. '(b) General restrictions.—(1) In the jurisdictions in which this subsection is applicable, it shall be unlawful for anyone to sell or for any licensed dealer to deliver, give away or otherwise dispose of any alcoholic beverages on Sunday. Any person selling or any licensed dealer delivering, giving away or otherwise disposing of such beverages in such jurisdictions on Sundays shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not exceeding fifty dollars ($50.00) for the first offense and for each succeeding offense shall be fined not exceeding one hundred dollars ($100.00), or imprisoned in the county jail for not more than thirty (30) days, or be both fined and imprisoned, in the discretion of the court. '(2) This subsection shall be applicable and have effect in Caroline, Carroll, Cecil, Dorchester, Garrett, Harford, Kent, Queen Anne's, Somerset, Talbot, Washington, Wicomico and Worcester conties, provided that it shall not apply to or affect special Class C licenses issued under the provisions of this article, nor shall it apply to special Class C licenses issued in Washington County for temporary use.' Separate opinion of Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins. So deeply do the issues raied by these cases cut that it is not surprising that no one opinion can wholly express the views even of all the members of the Court who join in its result. Individual opinions in constitutional controversies have been the practice throughout the Court's history.* Such expression of differences in view or even in emphasis converging toward the same result makes for the clarity of candor and thereby enhances the authority of the judicial process. For me considerations are determinative here which call for separate statement. The long history of Sunday legislation, so decisive if we are to view the statutes now (Note: This opinion applies also to No. 36, Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; No. 67, Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; and No. 11, Gallagher v. Crown Kosher Super Market, Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536.) attacked in a perspective wider than that which is furnished by our own necessarily limited outlook, cannot be conveyed by a partial recital of isolated instances or events. The importance of that history derives from its continuity and fullness—from the massive testimony which it bears to the evolution of statutes controlling Sunday labor and to the forces which have, during three hundred years of Anglo-American history at the least, changed those laws, transmuted them, made them the vehicle of mixed and complicated aspirations. Since I find in the history of these statutes insights controllingly relevant to the constitutional issues before us, I am constrained to set that history forth in detail. And I also deem it incumbent to state how I arrive at concurrence with THE CHIEF JUSTICE'S principal conclusions without drawing on Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711. Because the long colonial struggle for disestablishment—the struggle to free all men, whatever their theological views, from state-compelled obligation to acknowledge and support state-favored faiths—made indisputably fundamental to our American culture the principle that the enforcement of religious belief as such is no legitimate concern of civil government, this Court has held that the Fourteenth Amendment embodies and applies against the States freedoms that are loosely indicated by the not rigidly precise but revealing phrase 'separation of Church and State.' Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 466, 92 L.Ed. 648. The general principles of church-state separation were found to be included in the Amendment's Due Process Clause in view of the meaning which the presuppositions of our society infuse into the concept of 'liberty' protected by the clause. This is the source of the limitations imposed upon the States. To the extent that those limitations are akin to the restrictions which the First Amendment places upon the action of the central government, it is because—as with the freedom of thought and speech of which Mr. Justice Cardozo spoke in Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288—it is accurate to say concerning the principle that a government must neither establish nor suppress religious belief, that 'With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal.' Id., at page 327, 58 S.Ct. at page 152. But the several opinions in Everson and McCollum, and in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, make sufficiently clear that 'separation' is not a self-defining concept. '(A)greement, in the abstract, that the First Amendment was designed to erect a 'wall of separation between Church and State,' does not preclude a clash of views as to what the wall separates.' Illinois ex rel. McCollum v. Board of Education, supra, 333 U.S. at page 213, 68 S.Ct. at page 466 (concurring opinion). By its nature, religion—in the comprehensive sense in which the Constitution uses that word—is an aspect of human thought and action which profoundly relates the life of man to the world in which he lives. Religious beliefs pervade, and religious institutions have traditionally regulated, virtually all human activity. It is a postulate of American life, reflected specifically in the First Amendment to the Constitution but not there alone, that those beliefs and institutions shall continue, as the needs and longings of the people shall inspire them, to exist, to function, to grow, to wither, and to exert with whatever innate strength they may contain their many influences upon men's conduct, free of the dictates and directions of the state. However, this freedom does not and cannot furnish the adherents of religious creeds entire insulation from every civic obligation. As the state's interest in the individual becomes more comprehensive, its concerns and the concerns of religion perforce overlap. State codes and the dictates of faith touch the same activities. Both aim at human good, and in their respective views of what is good for man they may concur or they may conflict. No constitutional command which leaves religion free can avoid this quality of interplay. Innumerable civil regulations enforce conduct which harmonizes with religious canons. State prohibitions of murder, theft and adultery reinforce commands of the decalogue. Nor do such regulations, in their coincidence with tenets of faith, always support equally the beliefs of all religious sects: witness the civil laws forbidding usury and enforcing monogamy. Because these laws serve ends which are within the appropriate scope of secular state interest, they may be enforced against those whose religious beliefs do not proscribe, and even sanction, the activity which the law condemns. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12. This is not to say that governmental regulations which find support in their appropriateness to the achievement of secular, civil ends are invariably valid under the First or Fourteenth Amendment, whatever their effects in the sphere of religion. If the value to society of achieving the object of a particular regulation is demonstrably outweighed by the impediment to which the regulation subjects those whose religious practices are curtailed by it, or if the object sought by the regulation could with equal effect be achieved by alternative means which do not substantially impede those religious practices, the regulation cannot be sustained. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. This was the ground upon which the Court struck down municipal license taxes as applied to religious colporteurs in Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; Murdock v. State of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, and Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290. In each of those cases it was believed that the State's need for revenue, which could be satisfied by taxing any of a variety of sources, did not justify a levy imposed upon an activity which in the light of history could reasonably be viewed as sacramental. But see Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, in which the Court, balancing the public benefits secured by a regulatory measure against the degree of impairment of individual conduct expressive of religious faith which it entailed, sustained the prohibition of an activity similarly regarded by its practicants as sacramental. And see Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645. Within the discriminating phraseology of the First Amendment, distinction has been drawn between cases raising 'establishment' and 'free exercise' questions. Any attempt to formulate a bright-line distinction is bound to founder. In view of the competition among religious creeds, whatever 'establishes' one sect disadvantages another, and vice versa. But it is possible historically, and therefore helpful analytically—no less for problems arising under the Fourteenth Amendment, illuminated as that Amendment is by our national experience, than for problems arising under the First—to isolate in general terms the two largely overlapping areas of concern reflected in the two constitutional phrases, 'establishment' and 'free exercise,'1 and which emerge more or less clearly from the background of events and impulses which gave those phrases birth. In assuring the free exercise of religion, the Framers of the First Amendment were sensitive to the then recent history of those persecutions and impositions of civil disability with which sectarian majorities in virtually all of the Colonies had visited deviation in the matter of conscience.2 This protection of unpopular creeds, however, was not to be the full extent of the Amendment's guarantee of freedom from governmental intrusion in matters of faith. The battle in Virginia, hardly for years won, where James Madison had led the forces of disestablishment in successful opposition to Patrick Henry's proposed Assessment Bill levying a general tax for the support of Christian teachers,3 was a vital and compelling memory in 1789. The lesson of that battle, in the words of Jefferson's Act for Establishing Religious Freedom, whose passage was its verbal embodiment,4 was 'that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind * * *.'5 What Virginia had long practiced, and what Madison, Jefferson and others fought to end, was the extension of civil government's support to religion in a manner which made the two in some degree interdependent, and thus threatened the freedom of each. The purpose of the Establishment Clause was to assure that the national legislature would not exert its power in the service of any purely religious end; that it would not, as Virginia and virtually all of the Colonies had done, make of religion, as religion, an object of legislation. Of course, the immediate object of the First Amendment's prohibition was the established church as it had been known in England and in most of the Colonies. But with foresight those who drafted and adopted the words, 'Congress shall make no law respecting an establishment of religion,' did not limit the constitutional proscription to any particular, dated form of state-supported theological venture. The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief. Congress may not make these matters, as such, the subject of legislation, nor, now, may any legislature in this country. Neither the National Government nor, under the Due Process Clause of the Fourteenth Amendment, a State may, by any device, support belief or the expression of belief for its own sake, whether from conviction of the truth of that belief, or from conviction that by the propagation of that belief the civil welfare of the State is served, or because a majority of its citizens, holding that belief, are offended when all do not hold it. With regulations which have other objectives the Establishment Clause, and the fundamental separationist concept which it expresses, are not concerned. These regulations may fall afoul of the constitutional guarantee against infringement of the free exercise or observance of religion. Where they do they must be set aside at the instance of those whose faith they prejudice. But once it is determined that a challenged statute is supportable as implementing other substantial interests than the promotion of belief, the guarantee prohibiting religious 'establishment' is satisfied. To ask what interest, what objective, legislation serves, of course, is not to psychoanalyze its legislators, but to examine the necessary effects of what they have enacted. If the primary end achieved by a form of regulation is the affirmation or promotion of religious doctrine—primary, in the sense that all secular ends which it purportedly serves are derivative from, not wholly independent of, the advancement of religion—the regulation is beyond the power of the state. This was the case in McCollum. Or if a statute furthers both secular and religious ends by means unnecessary to the effectuation of the secular ends alone where the same secular ends could equally be attained by means which do not have consequences for promotion of religion—the statute cannot stand. A State may not endow a church although that church might inculcate in its parishioners moral concepts deemed to make them better citizens, because the very raison d'e tre of a church, as opposed to any other school of civilly serviceable morals, is the predication of religious doctrine. However, inasmuch as individuals are free, if they will, to build their own churches and worship in them, the State may guard its people's safety by extending fire and police protection to the churches so built. It was on the reasoning that parents are also at liberty to send their children to parochial schools which meet the reasonable educational standards of the State, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, that this Court held in the Everson case that expenditure of public funds to assure that children attending every kind of school enjoy the relative security of buses, rather than being left to walk or hitchhike, is not an unconstitutional 'establishment,' even though such an expenditure may cause some children to go to parochial schools who would not otherwise have gone. The close division of the Court in Everson serves to show what nice questions are involved in applying to particular governmental action the proposition, undeniable in the abstract, that not every regulation some of whose practical effects may facilitate the observance of a religion by its adherents affronts the requirement of church-state separation. In an important sense, the constitutional prohibition of religious establishment is a provision of more comprehensive availability than the guarantee of free exercise, insofar as both give content to the prohibited fusion of church and state. The former may be invoked by the corporate operator of a seven-day department store whose state-compelled Sunday closing injures it financially—or by the department store's employees, whatever their faith, who are convicted for violation of a Sunday statute—as well as by the Orthodox Jewish retailer or consumer who claims that the statute prejudices him in his ability to keep his faith. But it must not be forgotten that the question which the department store operator and employees may raise in their own behalf is narrower than that posed by the case of the Orthodox Jew.6 Their 'establishment' contention can prevail only if the absence of any substantial legislative purpose other than a religious one is made to appear. See Selective Draft Law Cases (Arver v. U.S.), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349. In the present cases the Sunday retail sellers and their employees and customers, in attacking statutes banning various activities on a day which most Christian creeds consecrate, do assert that these statutes have no other purpose. They urge, first, that the legislators' motives were religious. But the private and unformulated influences which may work upon legislation are not open to judicial probing. 'The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.' McCray v. United States, 195 U.S. 27, 56, 24 S.Ct. 769, 776, 49 L.Ed. 78. 'Inquiry into the hidden motives which may move (a legislature) to exercise a power constitutionally conferred upon it is beyond the competency of courts.' Sonzinsky v. United States, 300 U.S. 506, 513—514, 57 S.Ct. 554, 556, 81 L.Ed. 772. Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482; Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. These litigants also argue, however, that when the state statutory provisions are regarded in their legislative context religion is apparent on their face: they point to the use of the terms 'Lord's day' and 'Sabbath' and 'desecration,' to exceptions whose hours permit activities only at times on Sunday when religious services are customarily not held, to explicit prohibition of otherwise permitted activity in the vicinity of churches, to regulations which condition the allowance of conduct on its consistency with the 'due observance' of the day. Of course, since these various provisions regarding exemption from the Sunday ban of certain recreational activities have no possible application to the litigants in the present cases, they are not themselves before the Court, and their constitutionality is not now in issue. But they are put forward as evidence of the purpose of the statutes which are attacked here, and as such we may properly look to them, and also to the history of the body of state Sunday regulations, which, it is urged, further demonstrates sectarian creedal purpose. As a basis for appraising these arguments that the statutes are religious legislation, and preliminary to determining the claims of infringement of conscience raised in the Gallagher and Braunfeld cases, it is necessary to survey the long historical development and present-day position of civil Sunday regulation. For these purposes the span of centuries which saw the enunciation of the Fourth Commandment,7 Constantine's edict proscribing labor on the venerable day of the Sun,8 and the Sunday prohibitions of Carlovingian, Merovingian and Saxon rulers, and later of the English kings of the thirteenth and fourteenth centuries, may be passed over.9 What is of concern here is the Sunday institution as it evolved in modern England, the American Colonies, and the States of the Union under the Constitution. The first significant English Sunday regulation, for this purpose, was the statute of Henry VI in 1448 which, after reciting, 'the abominable injuries and offences done to Almighty God, and to his Saints, * * * because of fairs and markets upon their high and principal feasts, * * * in which principal and festival days, for great earthly covetise, the people is more willingly vexed, and in bodily labour soiled, than in other * * * days, * * * as though they did nothing remember the horrible defiling of their souls in buying and selling, with many deceitful lies and false perjury, with drunkenness and strifes, and so specially withdrawing themselves and their servants from divine service * * *,' ordained that all fairs and markets should cease to show forth goods or merchandise on Sundays, Good Friday, and the principal feast days.10 A short-lived ordinance of Edward VI a century later, limiting the ban on bodily labor to Sundays and enumerated holy days, demonstrated in its preamble a similar sectarian purpose,11 and in 1625 Charles I, announcing that 'there is nothing more acceptable to God than the true and sincere service and worship of him * * * and that the holy keeping of the Lord's day is a principal part of the true service of God,' prohibited all meetings of the people out of their parishes for sports and pastimes on Sunday, and all bear-baiting, bull-baiting, interludes, common plays, and other unlawful exercises and pastimes on that day.12 Several years later the same king declared it reproachful of God and religion, and hence made it unlawful, for butchers to slaughter or carriers, drovers, waggoners, etc., to travel on the Lord's day;13 then, in 1677,14 'For the better Observation and keeping Holy the Lord's Day,' the statute, 29 Charles II, c. 7, which is still the basic Sunday law of Britain, was enacted: 'that all and every Person and Persons whatsoever, shall on every Lord's Day apply themselves to the Observation of the same, by exercising themselves thereon in the Duties of Piety and true Religion, publickly and privately; * * * and that no Tradesman, Artificer, Workman, Labourer or other Person whatsoever, shall do or exercise any wordly Labour, Business or Work of their ordinary Callings, upon the Lord's Day, or any part thereof (Works of Necessity and Charity only excepted;) * * * and that no Person or Persons whatsoever, shall publickly cry, shew forth, or expose to Sale, any Wares, Merchandizes, Fruit, Herbs, Goods or Chattels whatsoever, upon the Lord's Day * * *.'15 In 1781, a statute, 21 Geo. III, c. 49, reciting that various public entertainments and explications of scriptural texts by incompetent persons tended 'to the great encouragement of irreligion and profaneness,' closed all rooms and houses in which public entertainment, amusement or debates, for an admission charge, were held.16 These Sunday laws were indisputably works of the English Establishment. Their prefatory language spoke their religious inspiration,17 exceptions made from time to time were expressly limited to preserve inviolable the hours of the divine service,18 and in their administration a spirit of inquisitorial piety was evident.19 But even in this period of religious predominance, notes of a secondary civil purpose could be heard. Apart from the counsel of those who had from the time of the Reformation insisted that the Fourth Commandment itself embodied a precept of social rather than sacramental significance,20 claims were asserted in the eighteenth century on behalf of Sunday rest, in part, in the sevice of health and welfare.21 Blackstone wrote that '* * * besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker.'22 In 1788 the schedule to the act, 28 Geo. III, c. 48, obligated master chimney sweeps to have their apprentices washed at least once a week, providing that on Sunday the master should send the apprentice to worship, should allow him to have religious instruction, and should not allow him to wear his sweeping dress; the act also regulated the sweeps' hours of work. In 1832 a Commons Select Committee on the Observance of the Sabbath heard the testimony of a medical doctor as to the physically injurious effects of seven-day unremitted labor,23 and although the report of the Committee reveals a primarily religious cast of mind, it discloses also a sensitivity to the plight of the journeyman bakers, seven thousand of whom had petitioned the House for one day's repose weekly, and to the wishes of shopkeepers and tradesmen forced by competition to work on Sunday, although 'most desirous of a day of rest.'24 The Committee recommended the enactment of severer sanctions for Lord's day violations: 'The objects to be attained by Legislation may be considered to be, first, a solemn and decent outward Observance of the Lord's-day, as that portion of the week which is set apart by Divine Command for Public Worship; and next, the securing to every member of the Community without any exception, and however low his station, the uninterrupted enjoyment of that Day of Rest which has been in Mercy provided for him, and the privilege of employing it, as well in the sacred Exercises for which it was ordained, as in the bodily relaxation which is necessary for his well-being, and which, though a secondary end, is nevertheless also of high importance.'25 But, whatever the nature of the propulsions underlying state-enforced Sunday labor stoppage during these centuries before the twentieth, it is clear that its effect was the creation of an institution of Sunday as a day apart. The origins of the institution were religious, certainly, but through long-established usage it had become a part of the life of the English people.26 It was a day of rest not merely in a physical, hygienic sense, but in the sense of a recurrent time in the cycle of human activity when the rhythms of existence changed, a day of particular associations which came to have their own autonomous value for life.27 When that value was threatened by the pressures of the Industrial Revolution, agitation began for new legislative action to preserve the traditional English Sunday.28 At the turn of the century, the Factory and Workshop Act, 1901, prohibited the Sunday employment of women and children in industrial establishments.29 The Shops Act, 1912, in its institution of a five-and-a-half-day week for shop assistants, built upon the base of existing Sunday closing law.30 When during the war the pressures of national defense compelled continuous factory operation, a Committee of the Ministry of Munitions appointed to investigate industrial fatigue as this affected the health and efficiency of munitions workers, recommended to Parliament reinauguration of Sunday work stoppage: '* * * The problem of Sunday labour, although materially affected by various industrial questions and the established custom of Sunday rest, is—as regards Munitions Works primarily a question of the extent to which workers actually require weekly or periodic rests if they are to maintain their health and energy over long periods. Intervals of rest are needed to overcome mental as well as physical fatigue. In this connection account has to be taken not only of the hours of labour (overtime, 12-hour shifts, 8-hour shifts), the environment of the work and the physical strain involved, but also the mental fatigue or boredom resulting from continuous attention to work. As one Manager put it, it is the monotony of the work which kills—the men get sick of it. '* * * (I)f the maximum output is to be secured and maintained for any length of time, a weekly period of rest must be allowed. * * * On economic and social grounds alike this weekly period of rest is best provided on Sunday * * *.'31 In 1936 the conflict between the economic pressures for seven-day commercial activity and the resistance to those pressures culminated in the Shops (Sunday Trading Restriction) Act of that year, which, with a complex pattern of exceptions, prohibited Sunday trading upon pain of penalties more severe, and hence better calculated to assure obedience, than the nominal fines which had obtained under the seventeenth century Lord's day ban.32 The Parliamentary Debates on the 1936 Act are instructive. With extremely rare exceptions,33 no intimation of religious purpose is to be discovered in them.34 The opening speech by Mr. Loftus who introduced the bill is representative: '* * * (I)t is a Bill which is necessary to secure the family life and liberty of hundreds of thousands of our people. * * * '* * * I will explain to the House that there are thousands of shopkeepers who hate opening on Sunday—they dislike the whole idea—but are forced to open because their neighbours open. They are forced to open not for the sake of the Sunday trading, but because if they let their customers get into the habit on Sunday of going to other shops they may lose their week-day custom. * * * They have the right to a holiday on Sunday, to be able to rest from work on that day and to go out into the parks or into the country on a summer day. That is the liberty for which they are asking, and that is the liberty which this Bill would give to them. As regards the support behind the Bill, it is promoted by the Early Closing Association, with 300 affiliated associations, and the National Federation of Grocers, representing 400,000 individual shops, and is supported by the National Chamber of Trade, the Drapers' Chamber of Trade, the National Federation of the Boot Trade, and as regards the employe s—and this is important—it is supported by the National Union of Shop Assistants and by the National Union of Distributive Workers.'35 Speakers asserted the necessity for maintaining 'the traditional quality of the Sunday in this country.'36 One particularly staunch Labour supporter of the measure argued: '* * * Frankly, I am afraid of a seven-day week. I see it coming gradually, and a seven-day week means six days' pay for seven days' work. I have worked seven days a week in my time and I say that, if I can help it, nobody else shall work seven days for six days' pay. It is clear that if one shopkeeper opens in a street, the whole street is bound to open and, if one street opens, the whole town must open automatically. * * * I am not speaking as a Sabbatarian. I stand for the six-day working week with one day's rest in seven but I do not want that day's rest arranged on the lines suggested by the hon. Member * * * who, apparently, wants to turn my Sunday into a Tuesday or a Wednesday. The argument is that all we need do is to say there shall be a six-day working week with one day's rest in seven, and that it does not matter whether the Sunday comes on a Friday or a Tuesday. As a family man let me say that my family life would be unduly disturbed if any member had his Sunday on a Tuesday. The value of a Sunday is that everybody in the family is at home on the same day. What is the use of talking about a six-day working week in which six members of a family would each have his day of rest on a different day of the week?'37 The bill was strongly supported by labor and trade groups38 and passed by an overwhelming margin.39 Thus the English experience demonstrates the intimate relationship between civil Sunday regulation and the interest of a state in preserving to its people a recurrent time of mental and physical recurperation from the strains and pressures of their ordinary labors. It demonstrates also, of course, the intimate historical connection between the choice of Sunday as this time of rest and the doctrines of the Christian church. Long before the emergence of modern notions of government, religion had set Sunday apart. Through generations, the people were accustomed to it as a day when ordinary uses ceased. If it might once—or elsewhere—have been equally practicable to fulfill the same need of the workers and traders for periodic relaxation by the selection of some other cycle, it was no longer practicable in England. Some hypothetical man might do better with one-day-in-eight, or one-day-in-four, but the Englishman was used to one-day-in-seven. And that day was Sunday. Through associations fostered by tradition, that day had a character of its own which became in itself a cultural asset of importance: a release from the daily grind, a preserve of mental peace, an opportunity for self-disposition. Certainly, legislative fiat could have attempted to switch the day to Tuesday. But Parliament, naturally enough, concluded that such an attempt might prove as futile as the ephemeral decade of the French Republic of 1792.40 In England's American settlements, too, civil Sunday regulation early became an institution of importance in shaping the colonial pattern of life. Every Colony had a law prohibiting Sunday labor. These had been enacted in many instances prior to the last quarter of the seventeenth century, and they were continued in force throughout the period that preceded the adoption of the Federal Constitution and the Bill of Rights.41 This is not in itself, of course, indicative of the purpose of those laws, or of their consistency with the guarantee of religious freedom which the First Amendment, restraining the power of the central Government, secured. Most of the States were only partly disestablished in 1789.42 Only in Virginia43 and in Rhode Island, which had never had an establishment,44 had the ideal of complete church-state separation been realized. Other States were fast approaching that ideal, however, and everywhere the spirit of liberty in religion was in the ascendant. Ratifying Conventions in New York, New Hampshire and North Carolina, as well as in Virginia and Rhode Island, proposed an anti-establishment amendment to the Constitution or signified that in their understanding the Constitution embodied such a safeguard.45 All of these five States had Sunday laws at the time that their Conventions spoke. Indeed, in four of the five, their legislatures had reaffirmed the Sunday labor ban within five years or less immediately prior to that date.46 The earlier among the colonial Sunday statutes were unquestionably religious in purpose. Their preambles recite that profanation of the Lord's day 'to the great Reproach of the Christian Religion,'47 or 'to the great offence of the Godly welafected among us,'48 must be suppressed; that 'the keeping holy the Lord's day, is a principal part of the true service of God';49 that neglecting the Sabbath 'pulls downe the judgments of God upon that place or people that suffer the same * * *.'50 The first Pennsylvania Sunday law announces a purpose 'That Looseness, irreligion, and Atheism may not Creep in under the pretense of Conscience * * *.'51 Sometimes reproach of God is made an operative element of the offense.52 Prohibitions of Sunday labor are frequently coupled with admonitions that all persons shall 'carefully apply themselves to Duties of Religion and Piety, publickly and privately * * *,'53 and are found in comprehensive ecclesiastical codes which also prohibit blasphemy,54 lay taxes for the support of the church,55 or compel attendance at divine services.56 But even the seventeenth century legislation does not show an exclusively religious preoccupation. The same Pennsylvania law which speaks of the suppression of atheism also ordains Sunday rest 'for the ease of the Creation,' and shows solicitude that servants, as well as their masters, may be free on that day to attend such spiritual pursuits as they may wish.57 The Rhode Island Assembly in 1679 enacted: 'Voted, Whereas there hath complaint been made that sundry persons being evill minded, have presumed to employ in servile labor, more than necessity requireth, their servants, and alsoe hire other mens' servants and sell them to labor on the first day of the week: * * * bee it enacted * * *. That if any person or persons shall employ his servants or hire and employ any other man's servant or servants, and set them to labor as aforesaid (he shall be penalized).'58 In the latter half of the eighteenth century, the Sunday laws, while still giving evidence of concern for the 'immorality' of the practices they prohibit, tend no longer to be prefixed by preambles in the form of theological treatises.59 Now it appears to be the community, rather than the Deity, which is offended by Sunday labor. New York's statute of 1788 no longer refers to the Lord's day, but to 'the first day of the week commonly called Sunday.'60 Where preambles do appear, they display a duplicity of purpose. The Massachusetts Act of 1792 begins: 'Whereas the observance of the Lord's Day is highly promotive of the welfare of a community, by affording necessary seasons for relaxation from labour and the cares of business; for moral reflections and conversation on the duties of life * * *; for public and private worship of the Maker, Governor and Judge of the world; and for those acts of charity which support and adorn a Christian society: And whereas some thoughtless and irreligious persons, inattentive to the duties and benefits of the Lord's Day, profane the same, by unnecessarily pursuing their worldly business and recreations on that day, to their own great damage, as members of a Christian society; to the great disturbance of well-disposed persons, and to the great damage of the community, by producing dissipation of manners and immoralities of life. * * *.' An enactment of Vermont in 1797 is similar.61 More significant is the history of Sunday legislation in Virginia. Even before the English statute of 29 Charles II, that Colony had had laws compelling Sunday attendance at worship62 and forbidding Sunday labor.63 In 1766, the General Convention at Williamsburg adopted a Declaration of Rights, providing, inter alia, that '* * * all men are equally entitled to the free exercise of religion, according to the dictates of conscience * * *,'64 and in the same year the acts of Parliament compelling church attendance and punishing deviation in belief were declared void, dissenters were exempted from the tax for support of the established church, and the levy of that tax was suspended.65 Eight years later came the battle over the Assessment Bill. Under Madison's leadership the forces supporting entire freedom of religion wrote the definitive quietus to the Virginia establishment, and Jefferson's Bill for Establishing Religious Freedom was enacted in 1786: 'I. Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to * * * propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; * * * that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, * * * that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, * * *. 'II. Be it enacted * * * That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or effect their civil capacities.'66 In this bill breathed the full amplitude of the spirit which inspired the First Amendment, and this Court has looked to the bill, and to the Virginia history which surrounded its enactment, as a gloss on the signification of the Amendment. See the opinions in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711. The bill was drafted for the Virginia Legislature as No. 82 of the Revised Statutes returned to the Assembly by Jefferson and Wythe on June 18, 1779.67 Bill No. 84 of the Revision provided: 'If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings * * *.'68 This bill was presented to the Assembly by Madison in 1785,69 and was enacted in 1786.70 Apparently neither Thomas Jefferson nor James Madison regarded it as repugnant to religious freedom. Nor did the Virginia legislators who thirteen years later reaffirmed the Bill for Establishing Religious Freedom as 'a true exposition of the principles of the bill of rights and constitution,' by repealing all laws which they deemed inconsistent with it.71 The Sunday law of 1786 was not among those repealed. Legislation currently in force in forty-nine of the Fifty States illegalizes on Sunday some form of conduct lawful if performed on weekdays.72 In several States only one or a few activities are banned—the sale of alcoholic beverages,73 hunting,74 barbering,75 pawnbroking,76 trading in automobiles77—but thirty-four jurisdictions broadly ban Sunday labor, or the employment of labor, or selling or keeping open for sale, or some two or more of these comprehensive categories of affairs. In many of these States, and in others having no state-wide prohibition of industrial or commercial activity, municipal Sunday ordinances are ubiquitous.78 Most of these regulations are the product of many re-enactments and amendments. Although some are still built upon the armatures of earlier statutes, they are all, like the laws of Maryland, Massachusetts and Pennsylvania which are before us in these cases,79 recently reconsidered legislation. As expressions of state policy, they must be deemed as contemporary as their latest-enacted exceptions in favor of moving pictures80 or severer bans of Sunday motor vehicle trading.81 In all, they reflect a widely felt present-day need, for whose satisfaction old laws are shaped and new laws enacted. To be sure, the Massachusetts statute now before the Court, and statutes in Pennsylvania and Maryland, still call Sunday the 'Lord's day' or the 'Sabbath.' So do the Sunday laws in many other States.82 But the continuation of seventeenth century language does not of itself prove the continuation of the purposes for which the colonial governments enacted these laws, or that these are the purposes for which their successors of the twentieth have retained them and modified them. We know, for example, that Committees of the New York Legislature, considering that State's Sabbath Laws on two occasions more than a century apart, twice recommended no repeal of those laws, both times on the ground that the laws did not involve 'any partisan religious issue, but rather economic and health regulation of the activities of the people on a universal day of rest,'83 and that a Massachusetts legislative committee rested on the same views.84 Sunday legislation has been supported not only by such clerical organizations as the Lord's Day Alliance, but also by labor and trade groups.85 The interlocking sections of the Massachusetts Labor Code construct their six-day-week provisions upon the basic premise of Sunday rest.86 Other States have similar laws.87 When in Pennsylvania motion pictures were excepted from the lord's day statute, a day-of-rest-in-seven clause for motion picture personnel was written into the exempting statute to fill the gap.88 Puerto Rico's closing law, which limits the weekday hours of commercial establishments as well as proscribing their Sunday operation, does not express a religious purpose.89 Rhode Island and South Carolina now enforce portions of their Sunday employment bans through their respective Departments of Labor.90 It cannot be fairly denied that the institution of Sunday as a time whose occupations and atmosphere differ from those of other days of the week has now been a portion of the American cultural scene since well before the Constitution; that for many millions of people life has a hebdomadal rhythm in which this day, with all its particular associations, is the recurrent note of repose.91 Cultural history establishes not a few practices and prohibitions religious in origin which are retained as secular institutions and ways long after their religious sanctions and justifications are gone.92 In light of these considerations, can it reasonably be said that no substantial nonecclesiastical purpose relevant to a well-ordered social life exists for Sunday restrictions? It is urged, however, that if a day of rest were the legislative purpose, statutes to secure it would take some other form than the prohibition of activity on Sunday.93 Such statutes, it is argued, would provide for one day's labor stoppage in seven, leaving the choice of the day to the individual; or, alternatively, would fix a common day of rest on some other day—Monday or Tuesday. But, in all fairness, certainly, it would be impossible to call unreasonable a legislative finding that these suggested alternatives were unsatisfactory. A provision for one day's closing per week, at the option of every particular enterpriser, might be disruptive of families whose members are employed by different enterprises.94 Enforcement might be more difficult, both because violation would be less easily discovered and because such a law would not be seconded, as is Sunday legislation, by the community's moral temper. More important, one-day-a-week laws do not accomplish all that is accomplished by Sunday laws. They provide only a periodic physical rest, not that atmosphere of entire community repose which Sunday has traditionally brought and which, a legislature might reasonably believe, is necessary to the welfare of those who for many generations have been accustomed to its recuperative effects. The same considerations might also be deemed to justify the choice of Sunday as the single common day when labor ceases. For to many who do not regard it sacramentally, Sunday is nevertheless a day of special, long-established associations, whose particular temper makes it a haven that no other day could provide. The will of a majority of the community, reflected in the legislative process during scores of years, presumably prefers to take its leisure on Sunday.95 The spirit of any people expresses in goodly measure the heritage which links it to its past. Disruption of this heritage by a regulations which, like the unnatural labors of Claudius' shipwrights, does not divide the Sunday from the week, might prove a measure ill-designed to secure the desirable community repose for which Sunday legislation is designed. At all events, Maryland, Massachusetts and Pennsylvania, like thirty-one other States with similar regulations, could reasonably so find. Certainly, from failure to make a substitution for Sunday in securing a socially desirable day of surcease from subjection to labor and routine a purpose cannot be derived to establish or promote religion. The question before the Court in these cases is not a new one. During a hundred and fifty years Sunday laws have been attacked in state and federal courts as disregarding constitutionally demanded Church-State separation, or infringing protected religious freedoms, or on the ground that they subserved no end within the legitimate compass of legislative power. One California court in 1858 held California's Sunday statute unconstitutional.96 That decision was overruled three years later.97 Every other appellate court that has considered the question has found the statutes supportable as civil regulations98 and not repugnant to religious freedom.99 These decisions are assailed as latter-day justifications upon specious civil grounds of legislation whose religious purposes were either overlooked or concealed by the judges who passed upon it. Of course, it is for this Court ultimately to determine whether federal constitutional guarantees are observed or undercut. But this does not mean that we are to be indifferent to the unanimous opinion of generations of judges who, in the conscientious discharge of obligations as solemn as our own, have sustained the Sunday laws as not inspired by religious purpose. The Court did not ignore that opinion in Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; McGee v. State of North Carolina, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334; Kidd v. State of Ohio, 358 U.S. 132, 79 S.Ct. 235, 3 L.Ed.2d 225; and Ullner v. State of Ohio, 358 U.S. 131, 79 S.Ct. 230, 3 L.Ed.2d 225, dismissing for want of a substantial federal question appeals from state decisions sustaining Sunday laws which were obnoxious to the same objections urged in the present cases.100 I cannot ignore that consensus of view now. The statutes of Maryland, Massachusetts and Pennsylvania which we here examine are not constitutionally forbidden fusions of church and state.101 Appellees in the Gallagher case and appellants in the Braunfeld case contend that, as applied to them, Orthodox Jewish retailers and their Orthodox Jewish customers, the Massachusetts Lord's day statute and the Pennsylvania Sunday retail sales act violate the Due Process Clause of the Fourteenth Amendment because, in effect, the statutes deter the exercise and observance of their religion. The argument runs that by compelling the Sunday closing of retail stores and thus making unavailable for business and shopping uses one-seventh part of the week, these statutes force them either to give up the Sabbath observance—an essential part of their faith—or to forego advantages enjoyed by the non-Sabbatarian majority of the community. They point out, moreover, that because of the prevailing five-day working week of a large proportion of the population, Sunday is a day peculiarly profitable to retail sellers and peculiarly convenient to retail shoppers. The records in these cases support them in this. The claim which these litigants urge assumes a number of aspects. First, they argue that any one-commonday-of-closing regulation which selected a day other than their Sabbath would be ipso facto unconstitutional in its application to them because of its effect in preferring persons who observe no Sabbath, therefore creating economic pressures which urge Sabbatarians to give up their usage. The creation of this pressure by the Sunday statutes, it is said, is not so necessary a means to the achievement of the ends of day-of-rest legislation as to justify its employment when weighed against the injury to Sabbatarian religion which it entails. Six-day-week regulation, with the closing day left to individual choice, is urged as a more reasonable alternative. Second, they argue that even if legitmate state interests justify the enforcement against persons generally of a single common day of rest, the choice of Sunday as that day violates the rights of religious freedom of the Sabbatarian minority. By choosing a day upon which Sunday-observing Christians worship and abstain from labor, the statutes are said to discriminate between religions. The Sunday observer may practice his faith and yet work six days a week, while the observer of the Jewish Sabbath, his competitor, may work only during five days, to the latter's obvious disadvantage. Orthodox Jewish shoppers whose jobs occupy a five-day week have no week-end shopping day, while Sunday-observing Christians do. Leisure to attend Sunday services, and relative quiet throughout their duration, is assured by law, but no equivalent treatment is accorded to Friday evening and Saturday services. Sabbatarians feel that the power of the State is employed to coerce their observance of Sunday as a holy day; that the State accords a recognition to Sunday Christian doctrine which is withheld from Sabbatarian creeds. All of these prejudices could be avoided, it is argued, without impairing the effectiveness of common-day-of-rest regulation, either by fixing as the rest time some day which is held sacred by no sect, or by providing for a Sunday work ban from which Sabbatarians are excepted, on condition of their abstaining from labor on Saturday. Failure to adopt these alternatives in lieu of Sunday statutes applicable to Sabbatarians is said to constitute an unconstitutional choice of means. Finally, it is urged that if, as means, these statutes are necessary to the goals which they seek to attain, nevertheless the goals themselves are not of sufficient value to society to justify the disadvantage which their attainment imposes upon the religious exercise of Sabbatarians. The first of these contentions has already been discussed. The history of Sunday legislation convincingly demonstrates that Sunday statutes may serve other purposes than the provision merely of one day of physical stoppage in seven. These purposes fully justify commonday-of-rest statutes which choose Sunday as the day. In urging that an exception in favor of those who observe some other day as sacred would not defeat the ends of Sunday legislation, and therefore that failure to provide such an exception is an unnecessary—hence an unconstitutional—burden on Sabbatarians, the Gallagher appellees and Braunfeld appellants point to such exceptions in twenty-one of the thirty-four jurisdictions which have statutes banning labor or employment or the selling of goods on Sunday.102 Actually, in less than half of these twenty-one States does the exemption extend to sales activity as well as to labor.103 There are tenable reasons why a legislature might choose not to make such an exception. To whatever extent persons who come within the exception are present in a community, their activity would disturb the atmosphere of general repose and reintroduce into Sunday the business tempos of the week. Administration would be more difficult, with violations less evident and, in effect, two or more days to police instead of one. If it is assumed that the retail demand for consumer items is approximately equivalent on Saturday and on Sunday, the Sabbatarian, in proportion as he is less numerous, and hence the competition less severe, might incur through the exception a competitive advantage over the non-Sabbatarian, who would then be in a position, presumably, to complain of discrimination against his religion.104 Employers who wished to avail themselves of the exception would have to employ only their co-religionists,105 and there might be introduced into private employment practices an element of religious differentiation which a legislature could regard as undesirable.106 Finally, a relevant consideration which might cause a State's lawmakers to reject exception for observers of another day than Sunday is that administration of such a provision may require judicial inquiry into religious belief. A legislature could conclude that if all that is made requisite to qualify for the exemption is an abstinence from labor on some other day, there would be nothing to prevent an enterpriser from closing on his slowest business day, to take advantage of the whole of the profitable week-end trade, thereby converting the Sunday labor ban, in effect, into a day-of-rest-in-seven statute, with choice of the day left to the individual. All of the state exempting statutes seem to reflect this consideration. Ten of them require that a person claiming exception 'conscientiously' believe in the sanctity of another day or 'conscientiously' observe another day as the Sabbath.107 Five demand that he keep another day as 'holy time.'108 Three allow the exemption only to members of a 'religious' society observing another day,109 and a fourth provides for proof of membership in such a society by the certificate of a preacher or of any three adherents.110 In Illinois the claimant must observe some day as a 'Sabbath,' and in New Jersey he must prove that he devotes that day to religious exercises.111 Connecticut, one of the jurisdictions demanding conscientious belief, requires in addition that he who seeks the benefit of the exception file a notice of such belief with the prosecuting attorney.112 Indicative of the practical administrative difficulties which may arise in attempts to effect, consistently with the purposes of Sunday closing legislation, an exception for persons conscientiously observing another day as Sabbath, are the provisions of § 53 of the British Shops Act, 1950,113 continuing in substance § 7 of the Shops (Sunday Trading Restriction) Act, 1936.114 These were the product of experience with earlier forms of exemptions which had proved unsatisfactory,115 and the new 1936 provisions were enacted only after the consideration and rejection of a number of proposed alternatives.116 They allow shops which are registered under the section and which remain closed on Saturday to open for trade until 2 p.m. on Sunday. Applications for registration must contain a declaration that the shop occupier 'conscientiously objects on religious grounds to carrying on trade or business on the Jewish Sabbath,'117 and any person who, to procure registration, 'knowingly or recklessly makes an untrue statement or untrue representation,' is subject to fine and imprisonment. Whenever upon representations made to them the local authorities find reason to believe that a registered occupier is not a person of the Jewish religion or 'that a conscientious objection on religious grounds * * * is not genuinely held,' the authorities may furnish particulars of the case to a tribunal established after consultation with the London Committee of Deputies of the British Jews,118 which tribunal, if in their opinion the occupier is not a person of the Jewish religion or does not genuinely hold a conscientious objection to trade on the Jewish Sabbath, shall so report to the local authorities; and upon this report the occupier's registration is to be revoked.119 Surely, in light of the delicate enforcement problems to which these provisions bear witness, the legislative choice of a blanket Sunday ban applicable to observers of all faiths cannot be held unreasonable. A legislature might in reason find that the alternative of exempting Sabbatarians would impede the effective operation of the Sunday statutes, produce harmful collateral effects, and entail, itself, a not inconsiderable intrusion into matters of religious faith. However preferable, personally, one might deem such an exception, I cannot find that the Constitution compels it. It cannot, therefore, be said that Massachusetts and Pennsylvania have imposed gratuitous restrictions upon the Sunday activities of persons observing the Orthodox Jewish Sabbath in achieving the legitimate secular ends at which their Sunday statutes may aim. The remaining question is whether the importance to the public of those ends is sufficient to outweigh the restraint upon the religious exercise of Orthodox Jewish practicants which the restriction entails. See Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. The nature of the legislative purpose is the preservation of a traditional institution which assures to the community a time during which the mind and body are released from the demands and distractions of an increasingly machanized and competition-driven society. The right to this release has been claimed by workers and by small enterprisers, especially by retail merchandisers, over centuries, and finds contemporary expression in legislation in three-quarters of the States. The nature of the injury which must be balanced against it is the economic disadvantage to the enterpriser, and the inconvenience to the consumer, which Sunday regulations impose upon those who choose to adhere to the Sabbatarian tenets of their faith. These statutes do not make criminal, do not place under the onus of civil or criminal disability, any act which is itself prescribed by the duties of the Jewish or other religions. They do create an undeniable financial burden upon the observers of one of the fundamental tenets of certain religious creeds, a burden which does not fall equally upon other forms of observance. This was true of the tax which this Court held an unconstitutional infringement of the free exercise of religion in Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938. But unlike the tax in Follett, the burden which the Sunday statutes impose is an incident of the only feasible means to achievement of their particular goal. And again unlike Follett, the measure of the burden is not determined by fixed legislative decree, beyond the power of the individual to alter. Upon persons who earn their livelihood by activities not prohibited on Sunday, and upon those whose jobs require only a five-day week, the burden is not considerable. Like the customers of Crown Kosher Super Market in the Gallagher case, they are inconvenienced in their shopping. This is hardly to be assessed as an injury of preponderant constitutional weight. The burden on retail sellers competing with Sunday-observing and non-observing retailers is considerably greater, But, without minimizing the fact of this disadvantage, the legislature may have concluded that its severity might be offset by the industry and commercial initiative of the individual merchant. More is demanded of him, admittedly, whether in the form of additional labor or of material sacrifices, than is demanded of those who do not choose to keep his Sabbath. More would be demanded of him, of course, in a State in which there were no Sunday laws and in which his competitors chose—like 'Two Guys from Harrison-Allentown'—to do business seven days a week. In view of the importance of the community interests which must be weighed in the balance, is the disadvantage wrought by the nonexempting Sunday statutes an impermissible imposition upon the Sabbatarian's religious freedom? Every court which has considered the question during a century and a half has concluded that it is not.120 This Court so concluded in Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345. On the basis of the criteria for determining constitutionality, as opposed to what one might desire as a matter of legislative policy, a contrary conclusion cannot be reached. Two further grounds of unconstitutionality are urged in all these cases, based upon the selection in the challenged statutes of the activities included in, or excluded from, the Sunday ban. First it is argued that, if the aim of the statutes is to secure a day of peace and repose, the laws of Massachusetts and Maryland, by their exceptions, and the retail sales act of Pennsylvania, by its enumeration of the articles whose sale is forbidden, operate so imperfectly in the service of this aim—show so little rational relation to it—that they must be accounted as arbitrary and therefore violative of due process. The extensive range of recreational and commercial Sunday activity permitted in these States is said to deprive the statutes of any reasonable basis. The distinctions drawn by the laws between what may be sold or done and what may not, it is claimed, are unsupported by reason. Second, these claimants argue that the same discriminations between items which may and may not be sold, and in some cases between the persons who may and those who may not sell identical items, deprive them of the equal protection of the laws. Although these contentions require the Court to examine separately and with particularity the provisions of each of the three States' statutes which are attacked, the general considerations which govern these cases are the same. It is clear that in fashioning legislative remedies by fine distinctions to fit specific needs, 'The range of the State's discretion is large.' Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482. This is especially so where, by the nature of its subject, regulation must take account of traditional and prevailing local customs. See Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093. 'The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. State of Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124. 'Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. * * * Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. * * * The legislature may select one phase of one field and apply a remedy there, neglecting the others.' Williamson v. Lee Optical, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. Neither the Due Process nor the Equal Protection Clause demands logical tidiness. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 33 S.Ct. 441, 57 L.Ed. 730. No finicky or exact conformity to abstract correlation is required of legislation. The Constitution is satisfied if a legislature responds to the practical living facts with which it deals. Through what precise points in a field of many competing pressures a legislature might most suitably have drawn its lines is not a question for judicial re-examination. It is enough to satisfy the Constitution that in drawing them the principle of reason has not been disregarded. See Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163. And what degree of uniformity reason demands of a statute is, of course, a function of the complexity of the needs which the statute seeks to accommodate. In the case of Sunday legislation, an extreme complexity of needs is evident. This is so, first because one of the prime objectives of the legislation is the preservation of an atmosphere a subtle desideratum, itself the product of a peculiar and changing set of local circumstances and local traditions. But in addition, in the achievement of that end, however formulated, numerous compromises must be made. Not all activity can halt on Sunday. Some of the very operations whose doings most contribute to the rush and clamor of the week must go on throughout that day as well, whether because life depends upon them, or because the cost of stopping and restarting them is simply too great, or because to be without their services would be more disruptive of peace than to have them continue. Many activities have a double aspect: providing entertainment or recreation for some persons, they entail labor and workday tedium for others.121 Cogent expression of the intricate problems which these various countervalent pressures pose was given by Mr. Lloyd in the course of the debate in Commons on the English Sunday closing act of 1936: '* * * We should all like to see shopkeepers and their staffs as far as possible in a position to observe Sunday in a normal way like most other people. On the other hand, we know that there are certain reasonable needs of the public which require to be met even on a Sunday, and I think we should also all agree that the fewest possible number of people should have to give up their Sunday in order to cater for those public needs. I think we should probably reach a large measure of general agreement on the principle that only those shops should remain open which are essential to meet the requirements of the public and only to the extent that they are essential * * *. Therefore, the problem is to strike a just balance between the reasonable needs of the public and the equally reasonable desire of the great bulk of those engaged in the distributive trades to enjoy their share of Sunday rest and recreation. 'If that is accepted, it follows at once that the crux of any Bill of this kind lies in the scope and the nature of the exemptions to the general principle of closing on Sunday. * * *'122 Moreover, the variation from activity to activity in the degree of disturbance which Sunday operation entails, and the similar variation in degrees of temptation to flout the law, and in degrees of ability to absorb and ignore various legal penalties, make exceedingly difficult the devising of effective, yet comprehensively fair, schemes of sanctions. Early in the history of the Sunday laws there developed mechanisms which served to adapt their wide general prohibitions both to practical exigencies and to the evolving concerns and desires of the public. Where it was found that persons in certain activities tended with particular frequency to engage in violations, those activities were singled out for harsher punishment.123 On the other hand, practices found necessary or convenient to popular habits were specifically excepted from the ban.124 Under the basic English Sunday statute, 29 Charles II, c. 7, a wide general exception obtained for 'Works of Necessity and Charity';125 this provision found its way into the American colonial laws,126 and has descended into all of their successors currently in force.127 The effect of the phrase has been to give the courts a wide range of discretion in determining exceptions. But reasonable men can and do differ as to what is 'necessity.'128 In every jurisdiction legislatures, presumably deeming themselves fitter tribunals for decisions of this sort than were courts, acted to resolve the question against, or in favor of, various particular activities. Some pursuits were expressly declared not works of necessity, or were specially banned.129 Others were expressly permitted: series of exceptions, giving the laws resiliency in the course of cultural change, proliferated.130 Today, as Appendix II to this opinion, 366 U.S. 551, 81 S.Ct. 1201, shows, the general pattern in over half of the States and in England131 is similar. Broad general prohibitions are qualified by numerous precise exemptions, often with provision for local variation within a State, and are frequently bolstered by special provisions more heavily penalizing named activities. The regulations of Maryland, Massachusetts and Pennsylvania are not atypical in this regard, although they are undoubtedly among the more complex of the statutory patterns. The degree of explicitness of these provisions in so many jurisdictions demonstrates the intricacy of the adjustments which they are designed to make. How delicate those adjustments can be is strikingly illustrated, once again, by a remark of the sponsor of the British closing bill of 1936, the most extensively documented modern Sunday statute. Supporting an amendment which permitted local authority to authorize the opening, during a portion of the year, of shops in areas frequented as seaside resorts, Mr. Loftus said: '* * * In a Bill such as this one must have elasticity. * * * We had a unanimous demand from the Association of Fish Fryers, representing the trade all over England, asking that fish-frying shops should be closed on Sundays, and we agreed and took them out of the First Schedule (which exempts shops selling meals or refreshments). But then we heard from Blackpool, which is visited every year by, I suppose, millions of poor people, cotton operatives and others, who like to get cheap meals of fried fish on Sunday afternoons and Sunday evenings, and we feel there must be some provision in the Bill to allow the grant of exemptions in such a case. The difficulty is to avoid putting in a Clause which is open to abuse and I submit that there are two provisions which provide a safeguard. The first is that the local authority must approve the granting of exemptions, and the second is that the local authority cannot approve unless two-thirds of those particular shops in its locality are in favour of exemption. Having no desire that hardships should be inflicted on poor class people I would ask the House to accept the Clause.'132 Certainly, when relevant considerations of policy demand decisions and distinctions so find, courts must accord to the legislature a wide range of power to classify and to delineate. It is true that, unlike their virtually unanimous attitude on the issue of religious freedom, state courts have not always sustained Sunday legislation against the charge of unconstitutional discrimination. Statutes and ordinances have been struck down as arbitrary133 or as violative of state constitutional prohibitions of special legislation.134 A far greater number of courts, in similar classes of cases, have sustained the legislation.135 But the very diversity of judicial opinion as to what is reasonable classification—like the conflicting views on what is such 'necessity' as will justify Sunday operations—testifies that the question of inclusion with regard to Sunday bans is one where judgments rationally differ, and hence where a State's determinations must be given every fair presumption of a reasonable support in fact. The restricted scope of this Court's review of state regulatory legislation under the Equal Protection Clause, U.S.Const.Amend. 14. is of long standing. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 79, 31 S.Ct. 337, 340—341, 55 L.Ed. 369. The applicable principles are that a state statute may not be struck down as offensive of equal protection in its schemes of classification unless it is obviously arbitrary, and that, except in the case of a statute whose discriminations are so patently without reason that no conceivable situation of fact could be found to justify them, the claimant who challenges the statute bears the burden of affirmative demonstration that in the actual state of facts which surround its operation, its classifications lack rationality. When these standards are applied, first, to the Maryland statute challenged in the McGowan case, appellants' claims under the Due Process and Equal Protection Clauses show themselves clearly untenable. Counsel contend that the Sunday sales prohibition, Md.Code Ann., 1957, Art. 27, § 521, is rendered arbitrary by its exception of retail sales of tobacco items and soft drinks, ice and ice cream, confectionery, milk, bread, fruit, gasoline products, newspapers and periodicals, and of drugs and medical supplies by apothecaries—by the further exemption in Anne Arundel County, under § 509, of certain recreational activities and sales incidental to them—and by the permissibility under other state and local regulations of various amusements and public entertainments on Sunday, Sunday beer and liquor sales, and Sunday pinball machines and bingo. The short answer is that these kinds of commodity exceptions, and most of these exceptions for amusements and entertainments, can be found in the comprehensive Sunday statutes of England, Puerto Rico, a dozen American States, and many other countries having uniform-day-of-rest legislation.136 Surely unreason cannot be so widespread. The notion that, with these matters excepted, the Maryland statute lacks all rational foundation is baseless. The exceptions relate to products and services which a legislature could reasonably find necessary to the physical and mental health of the people or to their recreation and relaxation on a day of repose. Other sales activity and, under Art. 27, § 492, all other labor, are forbidden. That more or fewer activities than fall within the exceptions could with equal rationality have been excluded from the general ban does not make irrational the selection which has actually been made. There is presented in this record not a trace of evidence as to the habits and customs of the population of Maryland or of Anne Arundel County, nothing that suggests that the pattern of legislation which their representatives have devised is not reasonably related to local circumstances determining their ways of life. Appellants have wholly failed to meet their burden of proof. Counsel for McGowan urge that the allowance, limited to Anne Arundel County, of retail sales of merchandise customarily sold at bathing beaches, bathhouses, amusement parks and dancing saloons, violates the equal protection of the laws both by discriminating between Anne Arundel retailers and those in other counties, and by discriminating among classes of persons within Anne Arundel County who compete in sales of the same articles.137 Clearly appellants, who were convicted for selling within the county, would not ordinarily have standing to raise the issue of possible discrimination against out-of-county merchants; in any event, on this record, it is dubious that the contention was adequately raised below. Suffice to say, for purposes of the due process issue which appellants did raise, that the provision of different Sunday regulations for different regions of a State is not ipso facto arbitrary. See Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281; State of Missouri v. Lewis, 101 U.S. 22, 31, 25 L.Ed. 989.138 As for the asserted discrimination in favor of those who sell at the beach or the park articles not permitted to be sold elsewhere, the answer must be that between such beach-side enterprisers and the general suburban merchandising store at which appellants are employed there is a reasonable line of demarcation. The reason of the exemption dictates the human logic of its scope. The legislature has found it desirable that persons seeking certain forms of recreation on Sunday have the convenience of purchasing on that day items which add enjoyment to the recreation and which, perhaps, could not or would not be provided for by a vacationer prior to the day of his Sunday outing. On the other hand, the policy of securing to the maximum possible number of distributive employees their Sunday off might reasonably preclude allowing every retail establishment in the county to open to serve this convenience. A tenable resolution, surely, is to permit these particular sales only on the premises where the items will be needed and used. The enforcement problem which could arise from permitting general merchandising outlets to open for the sale of these items alone, but not for the sale of thousands of other items at adjacent counters and shelves, might in itself justify the limitation of the exception to the group of on-the-premises merchants who are less likely to stock articles extraneous to the use of the enumerated amusement facilities. The Massachusetts statute attacked in the Gallagher case contains a wider range of exceptions but, again, none that this record shows to be patently baseless and therefore constitutionally impermissible. The court below believed that reason was offended by such provisions as those which allow, apparently, digging for claims but not dredging for oysters, or which permit certain professional sports during the hours from 1:30 to 6:30 p.m. while restricting their amateur counterparts to 2 to 6, or which make lawful (as the court below read the statute) Sunday pushcart vending by conscientious Sabbatarians, but not Sunday vending within a building. But the record below, on the basis of which a federal court has been asked to enjoin the enforcement of a state statute, contains no evidence concerning clam-digging or oyster-dredging, nothing to indicate that these two activities have anything more in common—requiring similar treatment—than that in each there is involved the pursuit of mollusca. There is nothing in the record concerning professional or amateur athletic events, and certainly nothing to support the conclusion that the problem of Sunday regulation of pushcarts is so similar to the problem of Sunday regulation of indoor markets as to require uniform treatment for both.139 These various differently treated situations may be different in fact, or they may not. A statute is not to be struck down on supposition. It is true, as appellees there claim, that Crown Kosher Super Market may not sell on Sunday products which other retail establishments may sell on that day: bread (which may be sold during certain hours by innkeepers, common victuallers, confectioners and fruiterers, and, along with other bakery products, by bakers), confectionery, frozen desserts and dessert mix, and soda water (which may be sold by innkeepers, common victuallers, confectioners and fruiterers, and druggists), tobacco (which may be sold by innkeepers, common victuallers, druggists, and regular newsdealers), etc. (The sale of drugs and newspapers on Sunday is permitted generally.) But although Crown Kosher undoubtedly suffers an element of competitive disadvantage from these provisions, the provisions themselves are not irrational. Their purpose, apparently, is to permit dealers specializing in certain products whose distribution on Sunday is regarded as necessary, to sell those products and also such other among the same group of necessaries as are generally found sold together with the products in which they specialize, thus fostering the maximum dissemination of the permitted products with the minimum number of retail employees required to work to disseminate them. Shops such as newsdealers, druggists, and confectioners may in Massachusetts tend, for all we know, to be smaller, less noisy, more widely distributed so that access to them from residential areas entails less traveling, than is the case with other stores. They may tend to hire fewer employees. They may present, because they specialize in products whose sale is permitted, less of a policing problem than would general markets selling these and many other products.140 Again there is nothing in the record to support the conclusion that Massachusetts has failed to afford to the Crown Kosher Super Market treatment which is equivalent to that enjoyed by all other retailers of a class not rationally distinguishable from Crown. 'The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here.' Williamson v. Lee Optical, Inc. of Okl., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. Nor, on the record of the McGinley case, can any other conclusion be reached as to the 1959 Pennsylvania Sunday retail sales act. Appellants in this case argue that to punish by a fine of up to one hundred dollars per sale—or two hundred dollars per sale within one year after the first offense—the retail selling of some twenty enumerated broad categories of commodities, while punishing all other sales and laboring activity by the four-dollars-per-Sunday fine fixed by the earlier Lord's day statute,141 is arbitrary and violative of equal protection. But the court below found, and in this it is supported by the legislative history of the 1959 act,142 that the enactment providing severer penalties for these classes of sales was responsive to the appearance in the Commonwealth, only shortly before the act's passage, of a new kind of large-scale mercantile enterprise which, absorbing without difficulty a four-dollar-a-week fine, made a profitable business of persistent violation of the earlier statute. These new enterprises may have attracted a disturbing volume of Sunday traffic; they may have employed more retail salesmen, and under different conditions, than other kinds of businesses in the State; some of the legislators, apparently, so believed.143 The danger may have been apprehended that not only would these violations of long-standing State legislation continue, but that competition would force open other enterprises which had for years closed on Sunday. Under this threat the 1959 statute was designed. It applies not only to the new merchandisers—if that were so, quite obviously, different constitutional problems would arise. Rather it singles out the area where a danger has been made most evident, and within that area treats all business enterprises equally. That in so doing it may have drawn the line between the sale of a sofa cover, punished by a hundred-dollar fine, and the sale of an automobile seat cover, punished by a four dollar fine, is not sufficient to void the legislation. '(A) state may classify with reference to the evil to be prevented, and * * * if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named.' Mr. Justice Holmes, in Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539. Even less should a legislature be required to hew the line of logical exactness where the statutory distinction challenged is merely one which sets apart offenses subject to penalties of differing degrees of severity, not one which divides the lawful from the unlawful. 'Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience. * * * '* * * Moreover, the whole problem of deterrence is related to still wider considerations affecting the temper of the community in which law operates. The traditions of a society, the habits of obedience to law, the effectiveness of the lawenforcing agencies, are all peculiarly matters of time and place. They are thus matters within legislative competence.' Tigner v. State of Texas, 310 U.S. 141, 148, 149, 60 S.Ct. 879, 882, 84 L.Ed. 1124. Appellants in McGinley, like appellants in the McGowan and appellees in the Gallagher cases, have had full opportunity to demonstrate the arbitrariness of the statute which they challenge. On this record they have entirely failed to satisfy the burden which they carry. Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; McGee v. State of North Carolina, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334; Towery v. State of North Carolina, 347 U.S. 925, 74 S.Ct. 532, 98 L.Ed. 1079. Cf. Missouri, K. & T.R. Co. of Texas v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135. The Braunfeld case, however, comes here in a different posture. Appellants, plaintiffs below, allege in their amended complaint that the 1959 Pennsylvania Sunday retail sales act is irrational and arbitrary. The three-judge court dismissed the amended complaint for failure to state a claim. Speaking for myself alone and not for Mr. Justice Harlan on this point, I think that this was too summary a disposition. However difficult it may be for appellants to prove what they allege, they must be given an opportunity to do so if they choose to avail themselves of it, in view of the Court's decisions in this series of cases. I would remand No. 67 to the District Court. APPENDIX I TO OPINION OF MR. JUSTICE FRANKFURTER. Principal Colonial Sunday Statutes and Their Continuation Until the End of the Eighteenth Century. 1656: Prophanation of the Lord's Day, New Haven's Settling in New England. And Some Laws for Government (1656), reprinted in Hinman, The Blue Laws (1838), 132, 206. See also Prince, An Examination of Peters' 'Blue Laws,' H.R.Doc.No.295, 55th Cong., 3d Sess. 95, 109, 113—114, 123—125. 1668: 2 Public Records of the Colony of Connecticut, 1665 1678 (1852), 88 (traveling, playing). 1672: Prophanation of the Sabbath, Laws of Connecticut, 1673 (Brinley reprint 1865), 58. 1676: 2 Public Records of the Colony of Connecticut, 1665 1678 (1852), 280. See An Act for the due Observation, and keeping the Sabbath, or Lord's Day; and for Preventing, and Punishing Disorders, and Prophaneness on the same, Acts and Laws of His Majesty's English Colony of Connecticut in New-England (1750), 139; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1784), 213; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1796), 368. 1740: An Act to prevent the Breach of the Lord's Day commonly called Sunday, Laws of the Government of New-Castle, Kent and Sussex Upon Delaware (1741), 121. 1795: An act more effectually to prevent the profanation of the Lord's day, commonly called Sunday, 2 Laws of Delaware, 1700 1797 (1797), 1209. 1762: An Act For preventing and punishing Vice, Profaneness, and Immorality, and for keeping holy the Lord's Day, commonly called Sunday, Acts Passed by the General Assembly of Georgia, 1761—1762 (ca. 1763), 10. See Marbury and Crawford, Digest of the Laws of Georgia, 1755 1800 (1802), 410. 1649: An Act concerning Religion, 1 Archives of Maryland (Proceedings and Acts of the General Assembly), 1637/8—1664 (1883), 244. 1654: Concerning the Sabboth Day, id., at 343. 1674: An Act against the Prophaning of the Sabbath day, 2 Archives of Maryland (Proceedings and Acts of the General Assembly), 1666—1676 (1884), 414 (innkeepers). 1692: An act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province, 13 Archives of Maryland (Proceedings and Acts of the General Assembly), 1684—1692 (1894), 425. 1696: An Act for Sanctifying & keeping holy the Lord's Day Comonly called Sunday, 19 Archives of Maryland (Proceedings and Acts of the General Assembly), 1693—1697 (1899), 418. 1723: An Act to punish Blasphemers, Swearers, Drunkards, and Sabbath-Breakers . . ., Bacon, Laws of Maryland (1765), Sf2. See 1 Dorsey, General Public Statutory Law of Maryland, 1692 1839 (1840), 65. 1650: Prophanacon the Lord's Day, Compact with the Charter and Laws of the Colony of New Plymouth (1836), 92. 1658: Id., at 113 (traveling). 1671: General Laws of New Plimouth, c. III, §§ 9, 10 (1672), in id., at 247. 1653: Sabbath, Colonial Laws of Massachusetts (reprinted from the edition of 1672 with the supplements through 1686) (1887), 132 (traveling, sporting, drinking). 1668: For the better Prevention of the Breach of the Sabbath, id., at 134. 1692: An Act for the better Observation and Keeping the Lord's Day, Acts and Laws of His Majesty's Province of the Massachusetts-Bay in New-England, in Charter of the Province of the Massachusetts-Bay in New-England (1759 (sic)), 13. 1761: An Act for Repealing the several Laws now in Force which relate to the Observation of the Lord's-Day, and for making more effectual Provision for the due Observation thereof, id., at 392. 1782: An Act for Making More Effectual Provision for the Due Observation of the Lord's Day . . ., Acts and Laws of Massachusetts, 1782 (reprinted 1890), 63. 1792: An Act providing for the due Observation of the Lord's Day, 2 Laws of Massachusetts, 1780—1800 (1801), 536. See also the act of 1629 set forth in Blakely, American State Papers on Freedom in Religion (4th rev. ed. 1949), at 29—30. 1700: An Act for the better Observation and Keeping the Lords Day, Acts and Laws Passed by the General Court of His Majesties Province of New-Hampshire in New-England, 1726 (reprinted 1886), 7. 1715: An Act for the Inspecting, and Supressing of Disorders in Licensed Houses, id., at 57 (innkeepers). 1785: An Act for the Better Observation and Keeping the Lords Day, 5 Laws of New Hampshire (First Constitutional Period), 1784 1792 (1916), 75. 1789: An Act for the better Observation of the Lord's day . . ., id., at 372. 1799: An Act for the better observation of the Lords day . . ., 6 Laws of New Hampshire (Second Constitutional Period), 1792 1801 (1917), 592. New Jersey: 1675: Leaming and Spicer, Grants, Concessions and Original Constitutions of the Province of New-Jersey with the Acts Passed during the proprietary Governments (ca. 1752), 98. 1683: Against prophaning the Lord's Day, id., at 245. 1693: An Act for preventing Profanation of the Lords Day, id., at 519. 1704: An Act for Suppressing of Immorality, 1 Nevill, Acts of the General Assembly of the Province of New-Jersey, 1703—1752 (1752), 3. 1790: An Act to promote the Interest of Religion and Morality, and for suppressing of Vice . . ., Acts of the Fourteenth General Assembly of the State of New Jersey, c. 311 (1790), 619. 1798: An Act for suppressing vice and immorality, Laws of New Jersey, Revised and Published under the Authority of the Legislature (1800), 329. 1685: A Bill against Sabbath breaking, 1 Colonial Laws of New York, 1664—1775 (1894), 173. 1695: An Act against profanation of the Lords Day, called Sunday, id., at 356. 1788: An Act for suppressing immorality, Laws of New York, 1785—1788 (1886), 679. 1741: An Act for the better observation and keeping of the Lord's day, commonly called Sunday; and for the more effectual suppression of vice and immorality, 1 Laws of North Carolina (1821), 142. Pennsylvania: 1682: The Great Law or The Body of Laws, in Charter and Laws of the Province of Pennsylvania, 1682—1700 (with the Duke of Yorke's Book of Laws, 1676—1682) (1879), 107. 1690: The Law Concerning Liberty of Conscience (A Petition of Right, First Law), id., at 192. 1700: The Law Concerning Liberty of Conscience, 2 Statutes at Large of Pennsylvania (1896), 3. 1705: An Act to Restrain People from Labor on the First Day of the Week, id., at 175. 1779: An Act for the Suppression of Vice and Immorality, 9 Statutes at Large of Pennsylvania (1903), 333. 1786: An Act for the Prevention of Vice and Immorality . . ., 12 Statutes at Large of Pennsylvania (1906), 313. 1794: An Act for the Prevention of Vice and Immorality . . ., 15 Statutes at Large of Pennsylvania (1911), 110. 1673: 2 Records of the Colony of Rhode Island and Providence Plantations, 1664—1677 (1857), 503 (alcoholic beverages). 1679: 3 Records of the Colony of Rhode Island and Providence Plantations, 1678—1706 (1858), 30 (employing servants). 1679: An Act Prohibiting Sports and Labours on the First Day of the Week, Acts and Laws, of His Majesty's Colony of Rhode-Island and Providence-Plantations (1730), 27. 1784: Rhode Island Acts and Resolves, Aug. 1784 (1784), 9 (excepting members of Sabbatarian societies; but exception does not extend to opening shops, to mechanical work in compact places, etc.). 1798: An Act prohibiting Sports and Labour on the first Day of the Week, Public Laws of Rhode-Island and Providence Plantations (1798), 577. 1692: An Act for the better Observance of the Lord's Day, commonly called Sunday, 2 Statutes at Large of South Carolina (1837), 74. 1712: An Act for the better observation of the Lord's Day, commonly called Sunday, id., at 396. See Grimke, Public Laws, of South-Carolina (1790), 19. 1610: For the Colony in Virginea Britannia, Lawes Divine, Morall and Martiall (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844), II, 10 (gaming). 1629: 1 Hening, Statutes of Virginia (1823), 144. 1642—1643: Id., at 261 (traveling, shooting). 1657: The Sabboth to bee kept holy, id., at 434 (traveling, shooting, lading). 1661—1662: Sundays not to bee profaned, 2 Hening, Statutes of Virginia (1823), 48. 1691: An act for the more effectual suppressing the severall sins and offences of swaring, cursing, profaineing Gods holy name, Sabbath abuseing, drunkenness, ffornication, and adultery, 3 Hening, Statutes of Virginia (1823), 71. 1705: An act for the effectual suppression of vice, and restraint and punishment of blasphemous, wicked, and dissolute persons, id., at 358. 1786: An act for punishing disturbers of Religious Worship and Sabbath breakers, 12 Hening, Statutes of Virginia (1823), 336. In some of the Colonies the English Sunday laws were also in effect. See, e.g., Martin, Collection of the Statutes of England in Force in North-Carolina (1792), 379. APPENDIX II TO OPINION OF MR. JUSTICE FRANKFURTER. Analysis of Important State Sunday Statutes Currently in Force. This Appendix sets forth the important state legislative provisions currently in force prohibiting or regulating private activity on Sunday. In reducing these often complex laws to tabular form, a certain simplification has been required. Provisions in different States which are found in a single category, e.g., 'Trade in Alcoholic Beverages,' or 'Racing,' may differ considerably in detail. This Appendix does not include references to: (1) provisions declaring Sunday a holiday or non-business day; (2) provisions closing the courts on Sunday or prohibiting the service of judicial process on that day; (3) provisions giving various government employees Sunday off or excepting Sunday from the days of labor for state prisoners; (4) penalty sections where Sunday laws are parts of general regulatory codes, e.g., fish and game laws; (5) jurisdictional provisions or provisions authorizing arrest and detention on Sunday of offenders against the various Sunday laws, unless these are of special interest; and (6) definition provisions, statutes of limitation of prosecution, and similar ancillary provisions. [The graphics for this case are contained in seprerate files]

361.US.363

Proceeding under a Missouri statute, the Governor of Missouri found that the public interest, health and welfare were jeopardized by an existing strike against a public utility in the State and issued executive orders taking possession of the company and directing that it continue operations. Pursuant to the statute, a state court enjoined continuation of the strike. The strike was then terminated; a new labor agreement was entered into between the unions and the company; and the Governor ended the seizure. On appeal from the injunction decree, the Supreme Court of Missouri noted that the injunction had "expired by its own terms"; but it proceeded to sustain the constitutionality of those sections of the statute authorizing the seizure, forbidding continuation of a strike after seizure, and authorizing the state courts to enjoin violations of the Act. On appeal to this Court, held: Since the injunction has long since expired by its own terms, the cause has become moot. Pp. 364-371. (a) Because the injunction has long since "expired by its own terms" there remains for this Court no actual matter in controversy essential to a decision of this case. Harris v. Battle, 348 U. S. 803. Pp. 367-369. (b) Life is not given to this appeal by the fact that the statute contains provisions which impose (1) monetary penalties upon labor unions which continue a strike after seizure, and (2) loss of seniority for employees participating in such a strike; since the Supreme Court of Missouri found that those separable provisions of the Act were not involved in this case, it carefully refrained from passing on their validity, and they are not properly before this Court in this case. Pp. 369-371. 317 S. W. 2d 309, judgment vacated and cause remanded.

This is an appeal from a judgment of the Supreme Court of Missouri affirming a decree which enjoined the appellants from continuing a strike against a St. Louis public utility. The judgment upheld the constitutionality of certain provisions of a Missouri law, commonly known as the King-Thompson Act, which authorizes the Governor on behalf of the State to take possession of and operate a public utility affected by a work stoppage when in his opinion 'the public interest, health and welfare are jeopardized,' and 'the exercise of such authority is necessary to insure the operation of such public utility.'1 In the state courts and in this Court the appellants have contended that the Missouri law conflicts with federal legislation enacted under the Commerce Clause of the Federal Constitution, and that it violates the Due Process Clause of the Fourteenth Amendment. Because of doubt as to whether the controversy was moot, we postponed further consideration of the question of jurisdiction to the hearing of the case on the merits. 359 U.S. 982, 79 S.Ct. 941, 3 L.Ed.2d 932. The appellants are labor unions which represent employees of the Laclede Gas Company, a corporation engaged in the business of selling natural gas in the St. Louis area. In the spring of 1956 the appellants notified Laclede of their desire to negotiate changes in the terms of the collective bargaining agreement which was to expire in that year. Extended negotiations were conducted, but no new agreement was reached, and upon expiration of the existing contract on June 30, 1956, the employees went out on strike.2 Five days later the Governor of Missouri issued a proclamation stating that after investigation he believed that the public interest, health, and welfare were in jeopardy, and that seizure under authority of the state law was necessary to insure the company's continued operation. In an executive order issued the same day the Governor took 'possession' of Laclede 'for the use and operation by the State of Missouri in the public interest.' A second executive order provided that all the 'rules and regulations * * * governing the internal management and organization of the company, and its duties and responsibilities, shall remain in force and effect throughout the term of operation by the State of Missouri.' After the seizure the appellants continued the strike in violation of the statute,3 and the State of Missouri filed suit for an injunction against them in the Circuit Court of St. Louis.4 At the end of a three-day hearing the trial court entered an order enjoining the appellants from continuing the strike, and in an amendment to the decree declared the entire King-Thompson Act constitutional and valid. 'On July 14, 1956, the day after the injunction issued, the strike was terminated. On August 10, 1956, the appellants and Laclede signed a new labor agreement, and on October 31, 1956, the Governor ended the seizure. On appeal the Supreme Court of Missouri, although noting that the injunction had 'expired by its own terms,' nevertheless proceeded to consider the merits of certain of the appellants' contentions. The court restricted its consideration, however, to those sections of the King-Thompson Act 'directly involved' 'Section 295.180, relating to the power of seizure, and subparagraphs (1) and (6) of Section 295.200 RSMo, V.A.M.S., making unlawful a strike or concerted refusal to work after seizure and giving the state courts power to enforce the provisions of the Act by injunction or other means.'5 317 S.W.2d at page 316. In upholding the constitutionality of these sections of the Act the court explicitly declined to pass on other provisions which the appellants sought to attack, stating: 'The sections which we have considered are severable from and may stand independently of the remainder of the Act. Although the defendants argue strenuously to the contrary, no case is made in this record for determination of the constitutionality of section 295.090, pertaining to a written labor agreement of a minimum duration and section 295.200, subparagraphs 2, 3, 4 and 5, relating to monetary penalties and loss of seniority. We, therefore, refrain from expressing any opinion with reference thereto.' 317 S.W.2d at page 323. Accordingly, the court 'limited and modified' the judgment of the trial court so as to remove all possible intimation that any provisions of the Act had been held constitutional, other than those necessarily upheld in sustaining the validity of the injunction.6 Because that injunction has long since 'expired by its own terms,' we cannot escape the conclusion that there remain for this Court no 'actual matters in controversy essential to the decision of the particular case before it.' United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808. Whatever the practice in the courts of Missouri, the duty of this Court 'is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293. See Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, etc. v. Wisconsin Employment Relations Board, 340 U.S. 416, 71 S.Ct. 373, 95 L.Ed. 389. To express an opinion upon the merits of the appellants' contentions would be to ignore this basic limitation upon the duty and function of the Court, and to disregard principles of judicial administration long established and repeatedly followed.7 In Harris v. Battle, 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634, these principles were given concrete application in a context so parallel as explicitly to control disposition of the primary issue here. That case originated as an action to enjoin the enforcement of a Virginia statute, markedly similar to the King-Thompson Act, under which the Governor had ordered that 'possession' be taken of a transit company whose employees were on strike. Although the labor dispute was subsequently settled and the seizure terminated, the trial court nevertheless proceeded to decide the merits of the case, holding that the seizure was constitutional. Harris v. Battle, 32 L.R.R.M. 83. The Virginia Supreme Court refused an appeal. Harris v. Battle, 195 Va. lxxxviii. In this Court it was urged that the controversy was not moot because of the continuing threat of state seizure in future labor disputes.8 It was argued that the State's abandonment of alleged unconstitutional activity after its objective had been accomplished should not be permitted to forestall decision as to the validity of the statute under which the State had purported to act.9 It was contended that the situation was akin to cases like Southern Pac. Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 514—516, 31 S.Ct. 279, 283—284, 55 L.Ed. 310.10 In finding that the controversy was moot, the Court necessarily rejected all these contentions. 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634. Upon the authority of that decision the same contentions must be rejected in the present case. See also Barker Painting Co. v. Local No. 734, Brotherhood of Painters, etc., 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967; Commercial Cable Co. v. Burleson, 250 U.S. 360, 39 S.Ct. 512, 63 L.Ed. 1030. However, as the appellants point out, the decision in Harris v. Battle is not completely dispositive here because, unlike the Virginia statute, the King-Thompson Act contains provisions which impose: (1) monetary penalties upon labor unions which continue a strike after seizure;11 and (2) loss of seniority for employees participating in such a strike.12 The Missouri court found that these separable provisions of the Act were not involved in the present case, and it carefully refrained from passing on their validity.13 The court noted that liability for monetary penalties had been asserted in a separate lawsuit, 317 S.W.2d at page 314, and the parties have informed us that the action is still pending in the state courts. We cannot agree that the pendency of that litigation gives life to the present appeal. When that claim is litigated it will be subject to review, but it is not for us now to anticipate its outcome. "Constitutional questions are not to be dealt with abstractly' * * *. They will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us. * * * Nor will we assume in advance that a State will so construe its law as to bring it into conflict with the federal Constitution or an act of Congress.' Allen-Bradley Local, etc., v. Wisconsin Employment Relations Board, 315 U.S. 740, at page 746, 62 S.Ct. 820, at page 824, 86 L.Ed. 1154. The guiding principle is well illustrated in American Book Co. v. State of Kansas, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613. There the Kansas Supreme Court had ousted the appellant from doing business in the State until it complied with provisions of the local law governing foreign corporations. Pending appeal the appellant satisfied the judgment by complying with the requirements of the statute. But meanwhile the State had brought another action against the appellant to void contracts it had made prior to the date of its compliance. Because of this pending litigation the appellant argued that "there still exists a controversy, undetermined and unsettled,' involving the right of the State to enforce the statute against a corporation engaged in interstate commerce.' 193 U.S. at page 51, 24 S.Ct. at page 395. What the Court said in rejecting that argument and dismissing the appeal as moot is entirely relevant here. '(T)hat suit is not before us. We have not now jurisdiction of it or its issues. Our power only extends over and is limited by the conditions of the case now before us.' 193 U.S. at page 52, 24 S.Ct. at page 396. See Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071. The asserted threat to the seniority rights of Laclede employees is even more speculative. Almost four years have passed since the strike, and the appellants concede that no action has been taken to deprive any employees of their seniority. Moreover, the section of the Act which relates to seniority rights imposes no legal sanctions on the employees or their unions, but makes unlawful only the action of the utility company which rehires he employees without loss of seniority.14 In the unlikely event that a legal proceeding should now be brought against Laclede for having done so, there is no way to know what the outcome of such a proceeding in the Missouri courts might be.15 The decision we are asked to review upheld only the validity of an injunction, an injunction that expired by its own terms more than three years ago. Any judgment of ours at this late date 'would be wholly ineffectual for want of a subject-matter on which it could operate. An affirmance would ostensibly require something to be done which had already taken place. A reversal would ostensibly avoid an event which had already passed beyond recall. One would be as vain as the other. To adjudicate a cause which no longer exists is a proceeding which this court uniformly has declined to entertain.' Brownlow v. Schwartz, 261 U.S. 216, 217 218, 43 S.Ct. 263, at page 264, 67 L.Ed. 620. The judgment of the Supreme Court of Missouri is vacated, and the cause is remanded for such proceedings as by that court may be deemed appropriate. Vacated and remanded.

362.US.293

Respondent, a Nebraska corporation engaged in the business of selling health insurance to residents of all States, is licensed only in Nebraska and Virginia. All of its business is transacted by mail from an office in Nebraska, where policies are issued, premiums are paid and claims are filed. A Nebraska statute prohibits unfair or deceptive practices in the insurance business there or "in any other state." Held: As to alleged deceptive practices outside the State of Nebraska, this statute is not sufficient to bring respondent within § 2 (b) of the McCarran-Ferguson Act, which exempts the insurance business from the Federal Trade Commission Act to the extent that it is "regulated by State law." Pp. 294-302. (a) Federal Trade Commission v. National Casualty Co., 357 U. S. 560, distinguished. Pp. 297-298. (b) The state regulation which Congress provided should operate to displace the Federal Trade Commission Act means regulation by the State in which the deception is practiced and has its impact. Pp. 298-302. 262 F. 2d 241, judgment vacated and case remanded.

Section 2(b) of the McCarran-Ferguson Act provides that '(T)he Federal Trade Commission Act, * * * shall be applicable to the business of insurance to the extent that such business is not regulated by State law.'1 The State in which the respondent is incorporated prohibits unfair or deceptive practices in the insurance business there or 'in any other state.' The question presented is whether the respondent's interstate mail order insurance business is thereby 'regulated by State law' so as to insulate its practices in commerce from the regulative authority of the Federal Trade Commission. The respondent, a Nebraska corporation, is engaged in the business of selling health insurance. Licensed only in the States of Nebraska and Virginia, the respondent sells no policies through agents, but from its office in Omaha transacts business by mail with residents of every State. It solicits business by mailing circular letters to prospective buyers recommended by existing policyholders. All business is carried on by direct mail from the Omaha office; it is from there that policies are issued, and there that premiums are paid and claims filed. A Nebraska statute provides: 'No person shall engage in this state in unfair methods of competition or in unfair or deceptive acts and practices in the conduct of the business of insurance. No person domiciled in or resident of this state shall engage in unfair methods of competition or in unfair or deceptive acts and practices in the conduct of the business of insurance in any other state, territory, possession, province, country, or district.'2 The Court of Appeals set aside a cease-and-desist order of the Federal Trade Commission prohibiting the respondent from making certain statements and representations in its circular letters found by the Commission to be misleading and deceptive in violation of the Federal Trade Commission Act. 15 U.S.C. § 45, 15 U.S.C.A. § 45. The court concluded that '(w)ith every activity of the (respondent), in the conduct of its business, subject to the supervision and control of the Director of Insurance of Nebraska, we think that the (respondent's) practices in the solicitation of insurance by mail in Nebraska or elsewhere reasonably and realistically cannot be held to be unregulated by State law.' The court accordingly decided that the Commission was 'without authority to regulate the practices of the (respondent) in soliciting insurance.' 262 F.2d 241, 244. Judge Vogel dissented, stating his belief that it was 'impractical and ineffective' to 'force the citizens of other states to rely upon Nebraska's regulation of the long distance advertising practices of the (respondent) in the promotion and sale by mail or otherwise of insurance outside the State of Nebraska.' It was his view that Nebraska's regulation of deceptive practices 'in any other state' is not 'the kind of regulation by state law Congress had in mind' in enacting the McCarran-Ferguson Act. 262 F.2d 241, 245. Certiorari was granted 359 U.S. 988, 79 S.Ct. 1122, 3 L.Ed.2d 978, to resolve an important question left undecided in Federal Trade Comm. v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540. In that case the issue involved the effect of state laws regulating the advertising practices of insurance companies which were licensed to do business within the States and which were engaged in advertising programs requiring distribution of material by local agents. In those circumstances the Court found there was 'no question but that the States possess ample means to regulate this advertising within their respective boundaries.' 357 U.S. at page 564, 78 S.Ct. at page 1262. It was held that § 2(b) of the McCarran-Ferguson Act 'withdrew from the Federal Trade Commission the authority to regulate respondents' advertising practices in those States which are regulating those practices under their own laws.' 357 U.S. at page 563, 78 S.Ct. at page 1261. The Court expressed no view as to 'the intent of Congress with regard to interstate insurance practices which the States cannot for constitutional reasons regulate effectively * * *.' 357 U.S. at page 564, 78 S.Ct. at page 1262. The question here is thus quite different from that presented in National Casualty. In this case the state regulation relied on to displace the federal law is not the protective legislation of the States whose citizens are the targets of the advertising practices in question. Rather, we are asked to hold that the McCarran-Ferguson Act operates to oust the Commission of jurisdiction by reason of a single State's attempted regulation of its domiciliary's extraterritorial activities.3 But we cannot believe that this kind of law of a single State takes from the residents of every other State the protection of the Federal Trade Commission Act.4 In our opinion the state regulation which Congress provided should operate to displace this federal law means regulation by the State in which the deception is practiced and has its impact. The McCarran-Ferguson Act was passed in 1945. Its basic purpose was to allay doubts, thought to have been raised by this Court's decision of the previous year in United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, as to the continuing power of the States to tax and regulate the business of insurance.5 See Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429—433, 66 S.Ct. 1142, 1154—1156, 90 L.Ed. 1342; Maryland Casualty Co. v. Cushing, 347 U.S. 409, 413, 74 S.Ct. 608, 610, 98 L.Ed. 806; Securities & Exchange Comm. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 99, 79 S.Ct. 618, 636, 3 L.Ed.2d 640 (dissenting opinion). The original bills as passed by both the Senate and the House would have made the Federal Trade Commission Act completely inapplicable to the insurance business. S. 340, 79th Cong., 1st Sess., 91 Cong.Rec. 478—488, 1085, 1093—1094. During the debate in the House, however, several members objected to the provision exempting the business of insurance from this federal statute (91 Cong.Rec. 1027—1028, 1086, 1089, 1092—1093), and Representative Sumners, Chairman of the House Judiciary Committee, stated that in conference he would support an amendment which would make the Federal Trade Commission Act applicable to the same extent as the Sherman and Clayton Acts, 15 U.S.C.A. § 1 et seq., 12 et seq., 91 Cong.Rec. 1093. Thus it was that § 2(b) in the form finally enacted first appeared as a recommendation of the Conference Committee of the two Houses. H.R.Conf.Rep. No. 213, 79th Cong., 1st Sess. Since the House accepted the Conference Report without debate, 91 Cong.Rec. 1396, the only discussion of § 2(b) in its present form occurred in the Senate. Yet, from that somewhat limited debate, as well as the earlier debate in both Houses as to the effect of the Sherman and Clayton Acts, it is clear that Congress viewed state regulation of insurance solely in terms of regulation by the law of the State where occurred the activity sought to be regulated. There was no indication of any thought that a State could regulate activities carried on beyond its own borders. Thus the report on the original House bill stated: 'It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case. Briefly, your committee is of the opinion that we should provide for the continued regulation and taxation of insurance by the States, subject always, however, to the limitations set out in the controlling decisions of the United States Supreme Court, as, for instance, in Allgeyer v. (State of) Louisiana (165 U.S. 578 (17 S.Ct. 427, 41 L.Ed. 832)), St. Louis Cotton Compress Co. v. (State of) Arkansas (260 U.S. 346 (43 S.Ct. 125, 67 L.Ed. 297)), and Connecticut General (Life) Insurance Co. v. Johnson (303 U.S. 77 (58 S.Ct. 436, 82 L.Ed. 673)), which hold, inter alia, that a State does not have power to tax contracts of insurance or reinsurance entered into outside its jurisdiction by individuals or corporations resident or domiciled therein covering risks within the State or to regulate such transactions in any way.' (H.R.Rep. No. 143, 79th Cong., 1st Sess. 3.) Significantly, when Senator McCarran presented to the Senate the bill agreed to in conference, he began by reading most of the foregoing quotation from the original House Report as part of his explanation of the bill. 91 Cong.Rec. 1442. The ensuing Senate debate centered around § 2(b). The three Senate conferees, Senators McCarran, O'Mahoney, and Ferguson, repeatedly emphasized that the provision did not authorize state regulation of extraterritorial activities. See, e.g., 91 Cong.Rec. 1481, 1483, 1484. Typical is the following statement by Senator O'Mahoney: 'When the moratorium period passes, the Sherman Act, the Clayton Act, and the Federal Trade Commission Act come to life again in the field of interstate commerce, and in the field of interstate regulation. Nothing in the proposed law would authorize a State to try to regulate for other States, or authorize any private group or association to regulate in the field of interstate commerce.' 91 Cong.Rec. 1483. Not only this specific legislative history, but also a basic motivating policy behind the legislative movement that culminated in the enactment of the McCarran-Ferguson Act serve to confirm the conclusion that when Congress provided that the Federal Trade Commission Act would be displaced to the extent that the insurance business was 'regulated' by state law, it referred only to regulation by the State where the business activities have their operative force. One of the major arguments advanced by proponents of leaving regulation to the States was that the States were in close proximity to the people affected by the insurance business and, therefore, were in a better position to regulate that business than the Federal Government. See, e.g., 91 Cong.Rec. 1087; 90 Cong.Rec. 6532. Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 1362, H.R. 3269, H.R. 3270, 78th Cong., 1st Sess. 17, 37, 117, 238—239, 242—243, 244, 252. Such a purpose would hardly be served by delegating to any one State sole legislative and administrative control of the practices of an insurance business affecting the residents of every other State in the Union. This Court has referred before to the 'unwisdom, unfairness and injustice of permitting policyholders to seek redress only in some distant state where the insurer is incorporated.' Travelers Health Ass's v. Com. of Virginia, 339 U.S. 643, 649, 70 S.Ct. 927, 930, 94 L.Ed. 1154. Because of our view as to the meaning of § 2(b) of the McCarran-Ferguson Act, we do not need to consider the constitutional questions that might arise as to the applicability of the Nebraska statute to misrepresentations made to residents of other States. Compare Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 1457; Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835. Suffice it to note that the impediments, contingencies, and doubts which constitutional limitations might create as to Nebraska's power to regulate any given aspect of extraterritorial activity serve only to confirm the reading we have given to § 2(b) of the Act. It follows that the judgment of the Court of Appeals must be vacated, and the case remanded to that court for further proceedings consistent with the views expressed in this opinion. Vacated and remanded.

361.US.477

On a complaint before the National Labor Relations Board charging that a union had refused to bargain in good faith with an employer in violation of § 8 (b) (3) of .the National Labor Relations Act, as amended, it appeared that the union had conferred with the employer at the bargaining table for the purpose and with the desire of reaching an agreement on contract terms, but that, during the negotiations, it had sponsored concerted on-the-job activities by its members of a harassing nature designed to interfere with the conduct of the employer's business, for the avowed purpose of putting economic pressure on the employer to accede to theunion's bargaining demands. Held: Such tactics would not support a finding by the Board that the union had failed to bargain in good faith as required by § 8 (b) (3). Pp. 478-500. (1) The basic premise of the duty of collective bargaining required in the Act is that it is a process in which the parties deal with each other in a serious, good-faith desire to reach agreement and to enter into a contract ordering their industrial relationship. Congress did not intend that the Board control the substantive terms of collective bargaining contracts through the administration of this requirement; and it added § 8 (d) in the Taft-Hartley Act to make the proper construction of the duty clear. Pp. 483-487. (2) By adding § 8 (b) (3) to the Act through the Taft-Hartley amendments, Congress intended to require of unions the same standard of good faith in collective bargaining that it had already required of employers. P. 487. (3) Section 8 (b) (3) does not authorize the Board to infer a lack of good faith in bargaining on the part of a union solely because the union. resorts to tactics designed to exert economic pressure during the negotiations. Pp. 488-490. (4) The use of economic pressure is not inconsistent with the duty of bargaining in good faith; and the Board is not empowered under §8 (b) (3) to distinguish among various union economic weapons and to brand those here involved inconsistent with goodfaith collective bargaining. Pp. 490-496. (a) A different conclusion is not required on the theory that a total strike is a concerted activity protected against employer interference by §§ 7 and 8 (a) (1) of the Act, whereas the activity here involved is not a protected concerted activity. Even if an activity is not protected against disciplinary action that does not necessarily mean that it amounts to a refusal to bargain in good faith. Pp. 492-495. (b) A different conclusion is not required on the theory that, because an orthodox "total" strike is "traditional," its use must be taken as being consistent with § 8 (b) (3) ; whereas the tactics here involved are not "traditional" or "normal" and, therefore, need not be so viewed. Pp. 495-496. (5) To construe § 8 (b)(3) as authorizing the Board to act as an arbiter of the sort of economic weapons the parties can use in seeking to gain -acceptance of their bargaining demands would inject the Board into the substantive aspects of the bargaining process to an extent that Congress did not intend and has not authorized. Pp. 496-500. 104 U. S. App. D. C. 218, 260 F. 2d 736, affirmed.

This case presents an important issue of the scope of the National Labor Relations Board's authority under § 8(b)(3) of the National Labor Relations Act,1 which provides that 'It shall be an unfair labor practice for a labor organization or its agents * * * to refuse to bargain collectively with an employer, provided it is the representative of his employees * * *.' The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because during the negotiations it seeks to put economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer's business. Since 1949 the respondent Insurance Agents' International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements covering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his 'debit.' He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on collections made and on new policies written; his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses. In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956.2 It is not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract. However, in April 1956, Prudential filed a § 8(b)(3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a 'Work Without a Contract' program—which meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company. A complaint of violation of § 8(b)(3) issued on the charge and hearings began before the bargaining was concluded.3 It was developed in the evidence that the union's harassing tactics involved activities by the member agents such as these: refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the company's reporting procedures; refusal to participate in the company's 'May Policyholders' Month Campaign'; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in 'sit-in-mornings,' 'doing what comes naturally' and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstrations there. The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N.L.R.B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, Textile Workers Union v. N.L.R.B., 97 U.S.App.D.C. 35, 227 F.2d 409, he did not consider that he was bound to follow it. However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner's recommendation, and entered a cease-and-desist order, 119 N.L.R.B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board's order. 104 U.S.App.D.C. 218, 260 F.2d 736. We granted the Board's petition for certiorari to review the important question presented. 358 U.S. 944, 79 S.Ct. 352, 3 L.Ed.2d 351. The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union had not fulfilled its statutory duty; in fact nothing else was relied upon by the Board's General Counsel in prosecuting the complaint.4 The hearing examiner's analysis of the congressional design in enacting the statutory duty to bargain led him to conclude that the Board was not authorized to find that such economically harassing activities constituted a § 8(b)(3) violation. The Board's opinion answers flatly 'We do not agree' and proceeds to say '* * * the Respondent's reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could take place. In such circumstances, the fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith * * *.' 119 N.L.R.B., at 769, 770—771. Thus the Board's view is that irrespective of the union's good faith in conferring with the employer at the bargaining table for the purpose and with the desire of reaching agreement on contract terms, its tactics during the course of the negotiations constituted per se a violation of § 8(b)(3).5 Accordingly, as is said in the Board's brief, 'The issue here * * * comes down to whether the Board is authorized under the Act to hold that such tactics, which the Act does not specifically forbid but Section 7 does not protect,6 support a finding of a failure to bargain in good faith as required by Section 8(b)(3).' First. The bill which became the Wagner Act included no provision specifically imposing a duty on either party to bargain collectively. Senator Wagner thought that the bill required bargaining in good faith without such a provision.7 However, the Senate Committee in charge of the bill concluded that it was desirable to include a provision making it an unfair labor practice for an employer to refuse to bargain collectively in order to assure that the Act would achieve its primary objective of requiring an employer to recognize a union selected by his employees as their representative. It was believed that other rights guaranteed by the Act would not be meaningful if the employer was not under obligation to confer with the union in an effort to arrive at the terms of an agreement. It was said in the Senate Report: 'But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives * * * and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment. Such a course provokes constant strife, not peace.' S.Rep. No. 573, 74th Cong., 1st Sess., p. 12. However, the nature of the duty to bargain in good faith thus imposed upon employers by § 8(5) of the original Act8 was not sweepingly conceived. The Chairman of the Senate Committee declared: 'When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, 'Here they are, the legal representatives of your employees.' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it.'9 The limitation implied by the last sentence has not been in practice maintained—practically, it could hardly have been—but the underlying purpose of the remark has remained the most basic purpose of the statutory provision. That purpose is the making effective of the duty of management to extend recognition to the union; the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union. Decisions under this provision reflect this. For example, an employer's unilateral wage increase during the bargaining processes tends to subvert the union's position as the representative of the employees in matters of this nature, and hence has been condemned as a practice violative of this statutory provision. See National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. And as suggested, the requirement of collective bargaining, although so premised, necessarily led beyond the door of, and into, the conference room. The first annual report of the Board declared: 'Collective bargaining is something more the mere meeting of an employer with the representatives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. * * * The Board has repeatedly asserted that good faith on the part of the employer is an essential ingredient of collective bargaining.'10 This standard had early judicial approval, e.g., National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713. Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of 'take it or leave it'; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. See Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309. This was the sort of recognition that Congress, in the Wagner Act, wanted extended to labor unions; recognition as the bargaining agent of the employees in a process that looked to the ordering of the parties' industrial relationship through the formation of a contract. See Local 24, International Brotherhood of Teamsters Union v. Oliver, 358 U.S. 283, 295, 79 S.Ct. 297, 304, 3 L.Ed.2d 312. But at the same time, Congress was generally not concerned with the substantive terms on which the parties contracted. Cf. Terminal Railroad Ass'n v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571. Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground. And in fact criticism of the Board's application of the 'good-faith' test arose from the belief that it was forcing employers to yield to union demands if they were to avoid a successful charge of unfair labor practice.11 Thus, in 1947 in Congress the fear was expressed that the Board had 'gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make.' H.R.Rep.No. 245, 80th Cong., 1st Sess., p. 19. Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties' substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the good-faith test of bargaining into § 8(d) of the Act. That section defines collective bargaining as follows: 'For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *.'12 The same problems as to whether positions taken at the bargaining table violate the good-faith test continue to arise under the Act as amended. See National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823. But it remains clear that § 8(d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements. National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027. Second. At the same time as it was statutorily defining the duty to bargain collectively, Congress, by adding § 8(b)(3) of the Act through the Taft-Hartley amendments, imposed that duty on labor organizations. Unions obviously are formed for the very purpose of bargaining collectively; but the legislative history makes it plain that Congress was wary of the position of some unions, and wanted to ensure that they would approach the bargaining table with the same attitude of willingness to reach an agreement as had been enjoined on management earlier. It intended to prevent employee representatives from putting forth the same 'take it or leave it' attitude that had been condemned in management. 93 Cong.Rec. 4135, 4363, 5005.13 Third. It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the over-all design of achieving industrial peace. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893. Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. The mainstream of cases before the Board and in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences. See Local 24, International Brotherhood of Teamsters Union v. Oliver, supra, 358 U.S. at page 295, 79 S.Ct. at page 304. We believe that the Board's approach in this case—unless it can be defended, in terms of § 8(b)(3), as resting on some unique character of the union tactics involved here—must be taken as proceeding from an erroneous view of collective bargaining. It must be realized that collective bargaining, under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth—or even with what might be thought to be the ideal of one. The parties—even granting the modification of views that may come from a realization of economic interdependence—still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors—necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms—exist side by side. One writer recognizes this by describing economic force as 'a prime motive power for agreements in free collective bargaining.'14 Doubtless one factor influences the other; there may be less need to apply economic pressure if the areas of controversy have been defined through discussion; and at the same time, negotiation positions are apt to be weak or strong in accordance with the degree of economic power the parties possess. A close student of our national labor relations laws writes: 'Collective bargaining is curiously ambivalent even today. In one aspect collective bargaining is a brute contest of economic power somewhat masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion.' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1409. For similar reasons, we think the Board's approach involves an intrusion into the substantive aspects of the bargaining process—again, unless there is some specific warrant for its condemnation of the precise tactics involved here. The scope of § 8(b)(3) and the limitations on Board power which were the design of § 8(d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S.Rep.No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union. Fourth. The use of economic pressure, as we have indicated, is of itself not at all inconsistent with the duty of bargaining in good faith. But in three cases in recent years, the Board has assumed the power to label particular union economic weapons inconsistent with that duty. See the Personal Products case,15 supra, 108 N.L.R.B. 743, set aside, Textile Workers Union v. N.L.R.B., 97 U.S.A.pp.D.C. 35, 227 F.2d 409;16 the Boone County case, United Mine Workers, 117 N.L.R.B. 1095, set aside, International Union, United Mine Workers v. N.L.R.B., 103 U.S.App.D.C. 207, 257 F.2d 211;17 and the present case. The Board freely (and we think correctly) conceded here that a 'total' strike called by the union would not have subjected it to sanctions under § 8(b)(3), at least if it were called after the old contract, with its no-strike clause, had expired. Cf. United Mine Workers, supra. The Board's opinion in the instant case is not so unequivocal as this concession (and therefore perhaps more logical).18 But in the light of it and the principles we have enunciated, we must evaluate the claim of the Board to power, under § 8(b)(3), to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining. We conclude its claim is without foundation.19 (a) The Board contends that the distinction between a total strike and the conduct at bar is that a total strike is a concerted activity protected against employer interference by §§ 720 and 8(a)(1)21 of the Act, while the activity at bar is not a protected concerted activity. We may agree arguendo with the Board22 that this Court's decision in the Briggs-Stratton case, International Union, U.A.W., A.F. of L., Local 232 v. Wisconsin Employers Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, establishes that the employee conduct here was not a protected concerted activity.23 On this assumption the employer could have discharged or taken other appropriate disciplinary action against the employees participating in these 'slow-down,' 'sit-in,' and arguably unprotected disloyal tactics. See National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627; National Labor Relations Board v. Local No. 1229, Intern. B. of Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195. But surely that a union activity is not protected against disciplinary action does not mean that it constitutes a refusal to bargain in good faith. The reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining. The Board suggests that since (on the assumption we make) the union members' activities here were unprotected, and they could have been discharged, the activities should also be deemed unfair labor practices, since thus the remedy of a cease-and-desist order, milder than mass discharges of personnel and less disruptive of commerce, would be available. The argument is not persuasive. There is little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if they were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing § 8(b)(3)'s terms, and we do not see how the availability of self-help to the employer has anything to do with the matter. (b) The Board contends that because an orthodox 'total' strike is 'traditional' its use must be taken as being consistent with § 8(b)(3); but since the tactics here are not 'traditional' or 'normal,' they need not be so viewed.24 Further, the Board cites what it conceives to be the public's moral condemnation of the sort of employee tactics involved here. But again we cannot see how these distinctions can be made under a statute which simply enjoins a duty to bargain in good faith. Again, these are relevant arguments when the question is the scope of the concerted activities given affirmative protection by the Act. But as we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. On this basis, we fail to see the relevance of whether the practice in question is time-honored or whether its exercise is generally supported by public opinion. It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it.25 The same may be said for the Board's contention that these activities, as opposed to a 'normal' strike, are inconsistent with § 8(b)(3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here,26 but the matter does not turn on that. Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. The catalog of union and employer27 weapons that might thus fall under ban would be most extensive.28 Fifth. These distinctions essayed by the Board here, and the lack of relationship to the statutory standard inherent in them, confirm us in our conclusion that the judgment of the Court of Appeals, setting aside the order of the Board, must be affirmed. For they make clear to us that when the Board moves in this area, with only § 8(b)(3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly 'balanced'29 bargaining power, or some new distinction of justifiable and unjustifiable, proper and 'abusive'30 economic weapons into the collective bargaining duty imposed by the Act. The Board's assertion of power under § 8(b)(3) allows it to sit in judgment upon every economic weapon the parties to a labor contract negotiation employ, judging it on the very general standard of that section, not drafted with reference to specific forms of economic pressure. We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced. It is one thing to say that the Board has been afforded flexibility to determine, for example, whether an employer's disciplinary action taken against specific workers is permissible or not, or whether a party's conduct at the bargaining table evidences a real desire to come into agreement. The statute in such areas clearly poses the problem to the Board for its solution. Cf. National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. And specifically, we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. See § 8(b)(4) of the National Labor Relations Act, as added by the Taft-Hartley Act, 61 Stat. 141, and as supplemented by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542; (29 U.S.C. § 158(b)(4)), 29 U.S.C.A. § 158(b)(4); § 8(b)(7), as added by the latter Act, 73 Stat. 544. But the activities here involved have never been specifically outlawed by Congress.31 To be sure, the express prohibitions of the Act are not exclusive—if there were any questions of a stratagem or device to evade the policies of the Act, the Board hardly would be powerless. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. But it is clear to us that the Board needs a more specific charter than § 8(b)(3) before it can add to the Act's prohibitions here. We recognize without hesitation the primary function and responsibility of the Board to resolve the conflicting interests that Congress has recognized in its labor legislation. Clearly, where the 'ultimate problem is the balancing of the conflicting legitimate interests' it must be remembered that 'The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' National Labor Relations Board v. Truck Drivers Union, supra, 353 U.S. at page 96, 77 S.Ct. at page 648. Certainly a 'statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application.' Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S. at page 194, 61 S.Ct. at page 852. But recognition of the appropriate sphere of the administrative power here obviously cannot exclude all judicial review of the Board's actions. On the facts of this case we need not attempt a detailed delineation of the respective functions of court and agency in this area. We think the Board's resolution of the issues here amounted not to a resolution of interests which the Act had left to it for case-by-case adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked. We see no indication here that Congress has put it to the Board to define through its processes what economic sanctions might be permitted negotiating parties in an 'ideal' or 'balanced' state of collective bargaining. It is suggested here that the time has come for a reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of 'pure' negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties' grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress' policy has not yet moved to this point, and with only § 8(b)(3) to lean on, we do not see how the Board can do so on its own.32 Affirmed. Separate opinion of Mr. Justice FRANKFURTER, which Mr. Justice HARLAN and Mr. Justice WHITTAKER join. The sweep of the Court's opinion, with its far-reaching implications in a domain of lawmaking of such nationwide importance as that of legal control of collective bargaining, compels a separate statement of my views. The conduct which underlies this action was the respondent union's 'Work Without a Contract' program which it admittedly initiated after the expiration of its contract with the Prudential Insurance Company on March 19, 1956. In brief, the union directed its members at various times to arrive late to work; to decline, by 'sitting-in' the company offices, to work according to their regular schedule; to refuse to write new business or, when writing it, not to report it in the ordinary fashion; to decline to attend special business meetings; to demonstrate before company offices; and to solicit petitions in the union's behalf from policyholders with whom they dealt. Prudential was given notice in advance of the details of this program and of the demands which the union sought to achieve by carrying it out. This action was commenced by a complaint issued on June 5, 1956, alleging respondent's failure to bargain in good faith. After a hearing, the Trial Examiner recommended that the complaint be dismissed, finding that '(f)rom the 'circumstantial evidence' (of the union's state of mind) of the bargaining itself * * * but one inference is possible * * * the Union's motive was one of good faith . . .'; and that 'whatever inference may be as reasonably drawn from the Union's concurrent 'unprotected' activities' is not sufficient to outweigh this evidence of good faith. The Board sustained exceptions to the Trial Examiner's report, concluding that respondent failed to bargain in good faith. The only facts relied on by the Board were based on the 'Work Without a Contract' program. The Board found that such tactics on respondent's part 'clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table' and that respondent therefore failed to bargain in good faith. In support of its conclusion of want of bargaining in good faith, the Board stated that '(h) arassing activities are plainly 'irreconcilable with the Act's requirement of reasoned discussion in a background of balanced bargaining relations upon which good-faith bargaining must rest' * * *.' The Board made no finding that the outward course of the negotiations gave rise to an inference that respondent's state of mind was one of unwillingness to reach agreement. It found from the character of respondent's activities in carrying out the 'Work Without a Contract' program that what appeared to be good faith bargaining at the bargaining table was in fact a sham: '(T)he fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith, as the Respondent argues and the Trial Examiner believes. At most, it demonstrates that the Respondent was prepared to go through the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands.' The Board issued a cease-and-desist order1 and sought its enforcement in the Court of Appeals for the District of Columbia. Respondent cross-petitioned to set it aside. The Court of Appeals, relying exclusively on its prior decision in Textile Workers Union v. National Labor Relations Board, 1955, 97 U.S.App.D.C. 35, 227 F.2d 409, denied enforcement and set aside the order. In the Textile Workers case the court had held (one judge dissenting) that the Board could not consider the 'harassing' activities of the union there involved as evidence of lack of good faith during the negotiations. 'There is not the slightest inconsistency between genuine desire to come to an agreement and use of economic pressure to get the kind of agreement one wants.' 97 U.S.App.D.C. 35, 36, 227 F.2d 409, 410. The record presents two different grounds for the Board's action in this case. The Board's own opinion proceeds in terms of an examination of respondent's conduct as it bears upon the genuineness of its bargaining in the negotiation proceedings. From the respondent's conduct the Board drew the inference that respondent's state of mind was inimical to reaching an agreement, and that inference alone supported its conclusion of a refusal to bargain. The Board's position in this Court proceeded in terms of the relation of conduct such as respondent's to the kind of bargaining required by the statute, without regard to the bearing of such conduct on the proof of good faith revealed by the actual bargaining. The Board maintained that it 'could appropriately determine that the basic statutory purpose of promoting industrial peace through the collective bargaining process would be defeated by sanctioning resort to this form of industrial warfare as a collective bargaining technique.' The opinion of this Court, like that of the Court of Appeals, disposes of both questions by a single broad stroke. It concludes that conduct designed to exert pressure on the bargaining situation with the aim of achieving favorable results is to be deemed entirely consistent with the duty to bargain in good faith. No evidentiary significance, not even an inference of a lack of good faith, is allowed to be drawn from the conduct in question as part of a total context. I agree that the position taken by the Board here is not tenable. In enforcing the duty to bargain the Board must find the ultimate fact whether, in the case before it and in the context of all its circumstances, the respondent has engaged in bargaining without the sincere desire to reach agreement which the Act commands. I further agree that the Board's action in this case is not sustainable as resting upon a determination that respondent's apparent bargaining was in fact a sham, because the evidence is insufficient to justify that conclusion even giving the Board, as we must, every benefit of its right to draw on its experience in interpreting the industrial significance of the facts of a record. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. What the Board has in fact done is lay down a rule of law that such conduct as was involved in carrying out the 'Work Without a Contract' program necessarily betokens bad faith in the negotiations. The Court's opinion rests its conclusion on the generalization that 'the ordinary economic strike is not evidence of a failure to bargain in good faith * * * (because) there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining.' This large statement is justified solely by reference to § 8(b)(3) and to the proposition that inherent in bargaining is room for the play of forces which reveal the strength of one party, or the weakness of the other, in the economic context in which they seek agreement. But in determining the state of mind of a party to collective bargaining negotiations the Board does not deal in terms of abstract 'economic pressure.' It must proceed in terms of specific conduct which it weighs as a more or less reliable manifestation of the state of mind with which bargaining is conducted. No conduct in the complex context of bargaining for a labor agreement can profitably be reduced to such an abstraction as 'economic pressure.' An exertion of 'economic pressure' may at the same time be part of a concerted effort to evade or disrupt a normal course of negotiations. Vital differences in conduct, varying in character and effect from mild persuasion to destructive, albeit 'economic,' violence2 are obscured under cover of a single abstract phrase. While § 8(b)(3) of course contemplates some play of 'economic pressure,' it does not follow that the purpose in engaging in tactics designed to exert it is to reach agreement through the bargaining process in the manner which the statute commands, so that the Board is precluded from considering such conduct, in the totality of circumstances, as evidence of the actual state of mind of the actor. Surely to deny this scope for allowable judgment to the Board is to deny it the special function with which it has been entrusted. See Universal Camera Corp. v. National Labor Relations Board, supra. This Court has in the past declined to pre-empt by broad proscriptions the Board's competence in the first instance to weigh the significance of the raw facts of conduct and to draw from them an informed judgment as to the ultimate fact. It has recognized that the significance of conduct, itself apparently innocent and evidently insufficient to sustain a findings of an unfair labor practice, 'may be altered by imponderable subtleties at work which it is not our function to appraise' but which are, first, for the Board's consideration upon all the evidence. National Labor Relations Board v. Virginia Elec. & Power Co., 314 U.S. 469, 479, 62 S.Ct. 344, 349, 86 L.Ed. 348. Activities in isolation may be wholly innocent, lawful and 'protected' by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts 'are bound together as the parts of a single plan (to frustrate agreement). The plan may make the parts unlawful.' Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518. See also Aikens v. State of Wisconsin, 195 U.S. 194, 206, 25 S.Ct. 3, 6, 49 L.Ed. 154. Moreover, conduct designed to exert and exerting 'economic pressure' may not have the shelter of § 8(b)(3) even in isolation. Unlawful violence, whether to person or livelihood, to secure acceptance of an offer, is as much a withdrawal of included statutory subjects from bargaining as the 'take it or leave it' attitude which the statute clearly condemns.3 One need not romanticize the community of interest between employers and employees, or be unmindful of the conflict between them, to recognize that utilization of what in one set of circumstances may only signify resort to the traditional weapons of labor may in another and relevant context offend the attitude toward bargaining commanded by the statute. Section 8(b)(3) is not a specific direction, but an expression of a governing viewpoint or policy to which, by the process of specific application, the Board and the courts must give concrete, not doctrinaire content. The main purpose of the Wagner Act was to put the force of law behind the promotion of unionism as the legitimate and necessary instrument 'to give laborers opportunity to deal on equality with their employer.' Mr. Chief Justice Taft for the Court, in American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189. Equality of bargaining power between capital and labor, to use the conventional terminology of our predominant economic system, was the aim of this legislation. The presupposition of collective bargaining was the progressive enlargement of the area of reason in the process of bargaining through the give-and-take of discussion and enforcing machinery within industry, in order to substitute, in the language of Mr. Justice Brandeis, 'processes of justice for the more primitive method of trial by combat.' Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488, 41 S.Ct. 172, 184, 65 L.Ed. 349 (dissenting). Promotion of unionism by the Wagner Act, with the resulting progress of rational collective bargaining, has been gathering momentum for a quarter of a century. In view of the economic and political strength which has thereby come to unions, interpretations of the Act ought not to proceed on the assumption that it actively throws its weight on the side of unionism in order to redress an assumed inequality of bargaining power. For the Court to fashion the rules governing collective bargaining on the assumption that the power and position of labor unions and their solidarity are what they were twenty-five years ago, is to fashion law on the basis of unreality. Accretion of power may carry with it increasing responsibility for the manner of its exercise. Therefore, in the unfolding of law in this field it should not be the inexorable premise that the process of collective bargaining is by its nature a bellicose process. The broadly phrased terms of the Taft-Hartley Act should be applied to carry out the broadly conceived policies of the Act. At the core of the promotion of collective bargaining, which was the chief means by which the great social purposes of the National Labor Relations Act were sought to be furthered, is a purpose to discourage, more and more, industrial combatants from pressing their demands by all available means to the limits of the justification of self-interest. This calls for appropriate judicial construction of existing legislation. The statute lays its emphasis upon reason and a willingness to employ it as the dominant force in bargaining. That emphasis is respected by declining to take as a postulate of the duty to bargain that the legally impermissible exertions of so-called economic pressure must be restricted to the crudities of brute force. Cf. National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627. However, it of course does not follow because the Board may find in tactics short of violence evidence that a party means not to bargain in good faith that every such finding must be sustained. Section 8(b)(3) itself, as previously construed by the Board and this Court and as amplified by § 8(d), provides a substantial limitation on the Board's becoming, as the Court fears, merely 'an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands.' The Board's function in the enforcement of the duty to bargain does not end when it has properly drawn an inference unfavorable to the respondent from particular conduct. It must weigh that inference as part of the totality of inferences which may appropriately be drawn from the entire conduct of the respondent, particularly its conduct at the bargaining table. The state of mind with which the party charged with a refusal to bargain entered into and participated in the bargaining process is the ultimate issue upon which alone the Board must act in each case, and on the sufficiency of the whole record to justify its decision the courts must pass. National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027. The Board urges that this Court has approved its enforcement of § 8(b)(3) by the outlawry of conduct per se, and without regard to ascertainment of a state of mind. It relies upon four cases: H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; National Labor Relations Board v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320; National Labor Relations Board v. F. W. Woolworth Co., 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235; and National Labor Relations Board v. Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823. These cases do not sustain its position. While it is plain that the per se proscription of an employer's refusal to reduce a collective agreement to writing was approved in the Heinz case, it is equally plain from its opinion in that case as well as its argument before this Court that the Board itself regarded the act of refusal to agree to the integration of the agreement in a writing as a manifestation that the employer's state of mind was hostile to agreement with the union. This Court so regarded the evidence. 311 U.S. at pages 525—526, 61 S.Ct. at page 325. Decision in the Borg-Warner case proceeded from a similar premise. By forcing a deadlock upon a non-statutory subject of bargaining the employer manifested his intention to withdraw the statutory subjects from bargaining. The Crompton-Highland decision rested not on approval of a per se rule that unilateral changes of the conditions of employment by an employer during bargaining constitute a refusal to bargain, but upon the inferences of a lack of good faith which arose from the facts, among others, that the employer instituted a greater increase than it had offered the union and that it did so without consulting the union. Finally, no such conclusion as the Board urges can be drawn from the summary disposition of the Woolworth case here.4 To the extent that in any of these cases language referred to a per se proscription of conduct it was in relation to facts strongly indicating a lack of a sincere desire to reach agreement. Moreover, in undertaking to fashion the law of collective bargaining in this case in accordance with the command of § 8(b)(3), the Board has considered § 8(b)(3) in isolation, as if it were an independent provision of law, and not a part of a reticulated legislative scheme with interlacing purposes. It is the purposes to be drawn from the statute in its entirely, with due regard to all its interrelated provisions, in relation to which § 8(b)(3) is to be applied. Cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972. A pertinent restraint on the Board's power to consider as inimical to fair bargaining the exercise of the 'economic' weapons of labor is expressed in the Act by § 13:5 'Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.' Section 501(2) of the Labor Management Relations Act provides a definition of 'strike':6 'When used in this Act—* * * (2) The term 'strike' includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slowdown or other concerted interruption of operations by employees.' As the last clause of § 13 makes plain, the section does not recognize an unqualified right, free of Board interference, to engage in 'strikes,' as respondent contends. The Senate Report7 dealing with the addition of the clause to the section confirms that its purpose was to approve the elaboration of limitations on the right to engage in activities nominally within the definition of § 501(2) which this Court had heretofore developed in such cases as National Labor Relations Board v. Fansteel Metallurgical Corp., supra; National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; and Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246. But 'limitations and qualifications' do not extinguish the rule. For the Board to proceed, as it apparently claims power to do, against conduct which, but for the bargaining context in which it occurs, would not be within those limitations,8 it must rely upon the specific grant of power to enforce the duty to bargain which is contained in § 8(b)(3). In construing that section the policy of the rule of construction set forth by § 13, see International Union, U.A.W., A.F. of L., Local 232 v. Wisconsin Board, 336 U.S. 245, 259, 69 S.Ct. 516, 524, must be taken into account. In the light of that policy there is no justification for divorcing from the total bargaining situation particular tactics which the Board finds undesirable, without regard to the actual conduct of bargaining in the case before it. The scope of the permission embodied in § 13 must be considered by the Board in determining, under a proper rule of law, whether the totality of the respondent's conduct justifies the conclusion that it has violated the 'specific' command of § 8(b)(3). When the Board emphasizes tactics outside the negotiations themselves as the basis of the conclusion that the color of illegitimacy is imparted to otherwise apparently bona fide negotiations, § 13 becomes relevant. A total, peaceful strike in compliance with the requirements of § 8(d) would plainly not suffice to sustain the conclusion; prolonged union-sponsored violence directed at the company to secure compliance as plainly would. Here, as in so many legal situations of different gradations, drawing the line between them is not an abstract, speculative enterprise. Where the line ought to be drawn should await the decision of particular cases by the Board. It involves experienced judgment regarding the justification of the means and the severity of the effect of particular conduct in the specialized context of bargaining. Section 8(d), which was added in the amendments of 1947, is also inconsistent with the Board's claim of power to proscribe conduct without regard to the state of mind with which the actor participated in negotiations. The 1935 Act did not define the 'practice and procedure of collective bargaining' which it purposed to 'encourage.' Act of July 5, 1935, § 1, 49 Stat. 449. That definition, until 1947, was evolved by the Board and the courts in the light of experience in the administration of the Act. See, e.g., H. J. Heinz Co. v. National Labor Relations Board, supra. In 1947, after considerable controversy over the need to objectify the elements of the duty to bargain, § 8(d) was enacted. We have held that the history of that enactment demonstrates an intention to restrain the Board's power to regulate, whether directly or indirectly, the substantive terms of collective agreements. National Labor Relations Board v. American National Ins. Co., supra, 343 U.S. at page 404, 72 S.Ct. at page 829. In the same case we recognized that implicit in that purpose is a restraint upon the Board's proceeding by the proscription of conduct per se and without regard to inferences as to state of mind to be drawn from the totality of the conduct in each case. Id., 343 U.S. at page 409, 72 S.Ct. at page 832. Finally, it is not disputed that the duty to bargain imposed on unions in 1947 was the same as that previously imposed on employers, and it is therefore not without significance for its present assertion of power that for 25 years of administration of the employer's duty to bargain, which was imposed by the Act of 1935 and preserved by the amendments of 1947, the Board has not found it necessary to assert that it may proscribe conduct as undesirable in bargaining without regard to the actual course of the negotiations. See Federal Trade Comm. v. Bunte Bros., 312 U.S. 349, 351—352, 61 S.Ct. 580, 581—582, 85 L.Ed. 881. These considerations govern the disposition of the case before the Court. Viewed as a determination upon all the evidence that the respondent bargained without the sincere desire to compose differences and reach agreement which the statute commands, the Board's conclusion must fall for want of support in the evidence as a whole. See Universal Camera Corp. v. National Labor Relations Board, supra. Apart from any restraint upon its conclusion imposed by § 13, a matter which the Board did not consider, no reason is manifest why the respondent's nuisance tactics here should be thought a sufficient basis for the conclusion that all its bargaining was in reality a sham. On this record it does not appear that respondent merely stalled at the bargaining table until its conduct outside the negotiations might force Prudential to capitulate to its demands, nor does any other evidence give the color of pretence to its negotiating procedure. From the conduct of its counsel before the Trial Examiner, and from its opinion, it is apparent that the Board proceeded upon the belief that respondent's tactics were, without more, sufficient evidence of a lack of a sincere desire to reach agreement to make other consideration of its conduct unnecessary. For that reason the case should be remanded to the Board for further opportunity to introduce pertinent evidence, if any there be, of respondent's lack of good faith. Viewed as a determination by the Board that it could, quite apart from respondent's state of mind, proscribe its tactics because they were not 'traditional,' or were thought to be subject to public disapproval, or because employees who engaged in them may have been subject to discharge, the Board's conclusion proceeds from the application of an erroneous rule of law. The decision of the Court of Appeals should be vacated, and the case remanded to the Board for further proceedings consistent with these views.

364.US.350

Under § 340 (a) of the Immigration and Nationality Act of 1952, as amended, the United States sued to revoke the order admitting petitioner to citizenship, on the ground that it had been procured "by concealment of a material fact or by willful misrepresentation." The compltint alleged, and the District Court found, that petitioner had concealed membership in the Communist Party, a lack of intent to renounce foreign allegiance, and a record of arrests; and 'it revoked his citizenship. The Court of Appeals affirmed, reaching only the question of concealment of the arrests, which occurred more than five years before petitioner's naturalization and were for -distributing -handbills, making a speech in a public' park, and 'a . breach of the peace. Held: On the record in this case concerning the arrests, the Government failed to. show by clear, unequivocal, -and. convincing evidence .either (1) that facts were suppressed which, if known, would have warranted denial of citizenship, or '(2) that their disclosure might have been useful in an investigation possibly, leading to the discovery of other facts warranting denial of citizenship. Pp. 350-356. 270 F. 2d 179, reversed and-cause remanded.

Petitioner, a native of Hungary, was admitted to citizenship by a decree of the District Court in 1940. Respondent filed a complaint to revoke and set aside that order as authorized by § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 68 Stat. 1232, 8 U.S.C. § 1451(a), 8 U.S.C.A. § 1451(a), on the ground that it had been procured 'by concealment of a material fact or by willful misrepresentation.'1 The complaint stated that petitioner had falsely denied membership in the Communist Party and that by virtue of that membership he lacked the requisite attachment to the Constitution, etc., and the intent to renounce foreign allegiance. It also alleged that petitioner had procured his naturalization by concealing and misrepresenting a record of arrests. The District Court cancelled petitioner's naturalization, finding that he had concealed and misrepresented three matters—his arrests, his membership in the Communist Party, and his allegiance. The Court of Appeals affirmed, reaching only the question of the concealment of the arrests. 9 Cir., 270 F.2d 179. The case is here on a writ of certiorari. 362 U.S. 901, 80 S.Ct. 610, 4 L.Ed.2d 554. One question, on a form petitioner filled out in connection with his petition for naturalization, asked if he had ever been 'arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation' and if so to give full particulars. To this question petitioner answered 'no.' There was evidence that when he was questioned under oath by an examiner he gave the same answer. There was also evidence that if his answer has been 'yes,' the investigative unit of the Immgration Service would check with the authorities at the places where the arrests occurred 'to ascertain * * * whether the full facts were stated.' The District Court found that from 10 to 11 years before petitioner was naturalized he had been arrested three times as follows: (1) On July 30, 1929, he was arrested for distributing handbills in New Haven, Connecticut, in violation of an ordinance. He pleaded not guilty and was discharged. (2) On December 21, 1929, he was arrested for violating the park regulations in New Haven, Connecticut, by making 'an oration, harangue, or other public demonstration in New Haven Green, outside of the churches.' Petitioner pleaded not guilty. Disposition of the charge is not clear, the notation on the court record reading 'Found J.S.' which respondent suggests may mean 'Judgment Suspended' after a finding of guilt. (3) On March 11, 1930, he was again arrested in New Haven and this time charged with 'General Breach of the Peace.' He was found guilty by the City Court and fined $25. He took an appeal and the records show 'nolled April 7, 1930.' Acquisition of American citizenship is a solemn affair. Full and truthful response to all relevant questions required by the naturalization procedure is, of course, to be exacted, and temporizing with the truth must be vigorously discouraged. Failure to give frank, honest, and unequivocal answers to the court when one seeks naturalization is a serious matter. Complete replies are essential so that the qualifications of the applicant or his lack of them may be ascertained. Suppressed or concealed facts, if known, might in and of themselves justify denial of citizenship. Or disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship. On the other hand, in view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside the evidence must indeed be 'clear, unequivocal, and convincing' and not leave 'the issue in doubt.' Schneiderman v. United States, 320 U.S. 118, 125, 158, 63 S.Ct. 1333, 1336, 1352, 87 L.Ed. 1796; Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525. The issue in these cases is so important to the liberty of the citizen that the weight normally given concurrent findings of two lower courts does not preclude reconsideration here, for we deal with 'judgments lying close to opinion regarding the whole nature of our government and the duties and immunities of citizenship.' Baumgartner v. United States, supra, 322 U.S. 671, 64 S.Ct. 1243, 1244. And see Klapprott v. United States, 335 U.S. 601, 612 and (concurring opinion) 617, 69 S.Ct. 384, 389, 391, 93 L.Ed. 266. While disclosure of them was properly exacted, the arrests in these cases were not reflections on the character of the man seeking citizenship. The statute in force at the time of his naturalization required that 'he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States' during the previous five years.2 These arrests were made some years prior to the critical five-year period. They did not, moreover, involve moral turpitude within the meaning of the law. Cf. Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886. No fraudulent conduct was charged. They involved distributing handbills, making a speech, and a breach of the peace. In one instance he was discharged, in one instance the prosecution was 'nolled,' and in the other (for making a speech in a park in violation of city regulations) he apparently received a suspended sentence. The totality of the circumstances surrounding the offenses charged makes them of extremely slight consequence. Had they involved moral turpitude or acts directed at the Government, had they involved conduct which even peripherally touched types of activity which might disqualify one from citizenship, a different case would be presented. On this record the nature of these arrests, the crimes charged, and the disposition of the cases do not bring them, inherently, even close to the requirement of 'clear, unequivocal, and convincing' evidence that naturalization was illegally procured within the meaning of § 340(a) of the Immigration and Nationality Act. It is argued, however, that disclosure of the arrests made in New Haven, Connecticut, in the years 1929 and 1930 would have led to a New Haven investigation at which leads to other evidence—more relevant and material than the arrests—might have been obtained. His residence in New Haven was from February 1929 to November 1930. Since that period was more than five years before his petition for naturalization, the name of his employer at that time was not required by the form prepared by the Service. It is now said, however, that if the arrests had been disclosed and investigated, the Service might well have discovered that petitioner in 1929 was 'a district organizer' of the Communist Party in Connecticut. One witness in this denaturalization proceeding testified that such was the fact. An arrest, though by no means probative of any guilt or wrongdoing, is sufficiently significant as an episode in a man's life that it may often be material at least to further enquiry. We do not minimize the importance of that disclosure. In this case, however, we are asked to base materiality on the tenuous line of investigation that might have led from the arrests to the alleged communistic affiliations, when as a matter of fact petitioner in this same application disclosed that he was an employee and member of the International Workers' Order, which is said to be controlled by the Communist Party. In connection with petitioner's denial of such affiliations, respondent argues that since it was testified that the IWO was an organization controlled and dominated by the Communist Party, it is reasonable to infer that petitioner had those affiliations at the time of the application. But by the same token it would seem that a much less tenuous and speculative nexus with the Communist Party, if it be such, was thereby disclosed and was available for further investigation if it had been deemed appropriate at the time. Cf. United States v. Anastasio, 3 Cir., 226 F.2d 912. It is said that IWO did not become tainted with Communist control until 1941. We read the record differently. If the Government's case is made out, that taint extended back at least as far as 1939. Had that disclosure not been made in the application, failure to report the arrests would have had greater significance. It could then be forcefully argued that failure to disclose the arrests was part and parcel of a project to conceal a Communist Party affiliation. But on this record, the failure to report the three arrests occurring from 10 to 11 years previously is neutral. We do not speculate as to why they were not disclosed. We only conclude that, in the circumstances of this case, the Government has failed to show by 'clear, unequivocal, and convincing' evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship. There are issues in the case which we do not reach and which were not passed upon by the Court of Appeals. Accordingly the judgment will be reversed and the cause remanded to it so that the other questions raised in the appeal may be considered. It is so ordered. Judgment reversed and cause remanded.

363.US.555

After Alaska achieved statehood, these suits to enjoin enforcement of a statute of the State on the ground that it conflicted with applicable federal law were instituted in the District Court for Alaska, which, by the Constitution of the new State, and by state and federal statutes, was designated the successor of the former Territorial District Court in the interim until the organization of the new state courts and the Federal District Court for the District of Alaska. The District Court for Alaska held the statute constitutional and entered orders denying the injunctions and dismissing the complaints. Notices of direct appeals to this Court were filed after the Justices of the new Alaska Supreme Court had been designated but before that Court was in actual operation. Held: 1. The District Court for Alaska was the "highest court of a State in which a decision could be had," and the appeals are within the jurisdiction of this Court under 28 U. S. C. § 1257 (2). Pp. 557-560. 2. Since the question of the constitutionality of the Alaska statute raises the issue of its justification under the so-called police power and is entangled with questions of state law which the Supreme Court of Alaska might construe so as to avoid conflict with federal law, this Court refrains at this stage from deciding the issues presented on the merits of these appeals so as to afford the Supreme Court of Alaska an opportunity to rule- on the questions presented. Pp. 561-562. 3. The cases are retained on the docket of this Court pending further proceedings or a further appeal after the decision of the Supreme Court of Alaska, and the stays granted are continued until final disposition of the cases. Pp. 562-563. 18 Alaska -, 174 F. Supp. 500, decision reserved and appeals held on docket pending consideration by the Supreme Court of Alaska.

These consolidated cases were commenced on June 22 and 24, 1959, in the interim District Court for Alaska, by complaints seeking permanent injunctions against threatened enforcement by the new State of Alaska, its Governor, and other agents, of an Alaska statute (Alaska Laws 1959, c. 17, as amended, Alaska Laws 1959, c. 95) making it a criminal offense to fish with traps. The statute was assailed on the ground that it was in conflict with applicable federal law. On July 2, 1959, orders were entered denying the injunctions, dismissing the complaints with prejudice, and denying an injunction pending appeal to this Court. 174 F.Supp. 500. On July 11, 1959, Mr. Justice Brennan, acting in his capacity as a circuit justice, granted appellants' application for an injunction pending final disposition of their future appeals to this Court. His opinion noted the existence of substantial questions, both as to our jurisdiction and the merits. 80 S.Ct. 33, 4 L.Ed.2d 34. The notices of appeal were filed on August 6, 1959; on December 7, 1959, we postponed further consideration of the question of jurisdiction to the hearing of the cases on the merits. 361 U.S. 911, 80 S.Ct. 254, 4 L.Ed.2d 181. If the orders rendered on July 2, 1959, were those of the 'highest court of a State in which a decision could be had,' the appeals are within our jurisdiction under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), since the court below sustained a statute of the State of Alaska against a claim of unconstitutionality under the United States Constitution. The jurisdictional problem arises out of the enactments governing Alaska's accession to statehood, specifically, in relation to the Constitution of the new State and to the state and federal laws governing the termination of the former territorial courts and their displacement by a new state judicial system and a Federal District Court for the District of Alaska. The State Constitution, which took effect 'immediately upon the admission of Alaska into the Union as a state' (Art. XV, § 25) on January 3, 1959, provided for a Supreme Court, to 'be the highest court of the State, with final appellate jurisdiction,' a superior court, and such other courts as the legislature may provide. Art. IV, §§ 1, 2. Article XV, § 17, provides that in the transitional period until the new courts are organized, 'the judicial system shall remain as constituted on the date of admission * * *' and that '(w)hen the state courts are organized, new actions shall be commenced and filed therein, and all causes, other than those under the jurisdiction of the United States, pending in the courts existing on the date of admission, shall be transferred to the proper state court as though commenced, filed, or lodged in those courts in the first instance, except as otherwise provided by law.' The Alaska Statehood Act, 72 Stat. 339, which also became fully effective on January 3, 1959, in §§ 13—17, 48 U.S.C.A. preceding section 23, makes similar provision for the eventual disposition of business pending in the territorial district court upon the organization of the new District Court for the District of Alaska. However, it too provides, in § 18, that 'the United States District Court for the Territory of Alaska shall continue to function as heretofore' for three years, or until the President proclaims that the new District Court 'is prepared to assume the functions imposed upon it.' In June, 1959, when these actions were commenced, and on July 2, 1959, when decision below was rendered, neither new federal nor state courts were in operation. The first question presented is whether the interim Alaskan District Court was the 'court of a State' in deciding these cases. Sections 12 to 18 of the Statehood Act, 72 Stat. 339, make it plain that the interim court was not intended to be the newly created United States District Court for the District of Alaska, 28 U.S.C. § 81A, 28 U.S.C.A. § 81A; otherwise the nature of the court, whether state or federal, is not explicitly set forth. It is apparent, however, that the court is to a significant degree the creature of two sovereigns acting cooperatively to accomplish the joint purpose of avoiding an interregnum in judicial administration in the transitional period. The termination of the existence of the interim court is governed by federal law, Statehood Act § 18; but the termination of its general jurisdiction over state law matters, insofar as it is dependent on state consent, is governed by state law, Alaska Laws 1959, c. 50, § 31(2), which also provides for the accelerated organization of separate Alaska courts should the interim court be terminated before they are ready. Alaska Laws 1959, c. 50, § 32(4), amended by Alaska Laws 1959, c. 151, § 1. To determine our jurisdiction we need not engage in abstract speculation as to the function of the interim court in cases not before us. Whether the court can serve as a federal court, and the permissible scope of its powers if it may so serve, cf. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556; Benner v. Porter, 9 How. 235, 13 L.Ed. 119, are perplexing questions, decision of which should not be avoidably made. It is apparent that the legislature of Alaska vested the judicial power of the State in the interim District Court for the time being, that the district judge in this case explicitly deemed himself to be exercising such power, and that, in light of the express consent of the United States, he properly did so. Benner v. Porter, supra. It follows that the District Court sat as a 'court of a State' to decide these cases. The question remains whether the interim court was also the 'highest court' of Alaska within the meaning of 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. At the time of the filing of the notice of this appeal on August 6, 1959, the latest time at which jurisdiction could properly be determined, no new Alaska state court was in actual operation, although on July 29 the Justices of the Court were designated by the Governor. The contention that the interim court was not the highest court of Alaska at that time rests upon this latter fact, and the terms of Alaska Laws 1959, c. 151, § 1, amending Alaska Laws 1959, c. 50, § 32, which amendment provides that in the event that 'a court of competent jurisdiction, by final judgment, declares that the United States Court of Appeals for the Ninth Circuit lacks jurisdiction to hear appeals from the District Court of the District of Alaska, the Judicial Council shall forthwith meet and submit to the Governor the names of the persons nominated as justices of the supreme court and appeals from the District Court of the District of Alaska may be made to the State Supreme Court.' Because the Ninth Circuit had ruled against its appellate jurisdiction over the interim court on June 16, 1959, six days before this action was commenced, Parker v. McCarrey, 268 F.2d 907, it is urged that this provision, preserving appeals from the District Court to the Supreme Court of the State until the creation of that court, requires the conclusion that at least after July 29, when the Justices were appointed, appellate review was sufficiently guaranteed to make the Supreme Court, and not the District Court, the highest court of Alaska in which a decision in the instant case could be rendered. The question thus raised is not free from doubt. Viewing the cases as of August 6, when the notices of appeal were filed, it is fairly arguable that the preservation effected by Alaska Laws 1959, c. 151, § 1, of the right to appeal to the Supreme Court of Alaska constituted the interim court as a lower court of Alaska within the intent of 28 U.S.C. § 1257, 28 U.S.C.A. § 1257, to await the completion of the State's adjudicatory process as a prerequisite to adjudication here. Yet, were the promise of an appeal, however indefinitely postponed, to be taken as sufficient to bar our jurisdiction under § 1257, its equally obvious purpose to allow substantial constitutional questions to be timely brought here as of right would be frustrated. Although these cases were decided below on July 2, 1959, the date set by Alaska statute for full organization of the state courts was not until January 3, 1962, Alaska Laws 1959, c. 50, ss31 and 32(4). If no other fact were present, a potential delay of two and one-half years before the organization of a court to hear the preserved appeal would in itself counsel a construction against denial of our jurisdiction. Here, however, two additional facts must be weighed: (1) the Justices of the Supreme Court were actually appointed on July 29, in pursuance of a direction to accelerate the organization of the court; and (2) the effective promulgation of the rules of the court (accomplished on October 5, 1959) and appointment of a clerk were in their hands. Alaska Laws 1959, c. 50, § 32(3). While in light of these facts the question is exceedingly nice, we do not think that the assurance of a timely appeal to a court not yet functioning was sufficiently definite when the appeals were here filed to constitute a bar to our jurisdiction under § 1257(2). The interim court sustained the validity of the Alaska statute banning fishing with traps, Alaska Laws 1959, c. 17, as amended by Alaska Laws 1959, c. 95, against the claim of overriding federal law under the Supremacy Clause, Const. art. 6, cl. 2. The claim was based on an asserted conflict between the statute and regulations of the Secretary of the Interior, 24 Fed.Reg. 2053—71, prohibiting trap fishing in Alaskan waters generally, but excepting the appellants, thereby granting them in effect a license to fish with traps. The authority under which the Secretary purported to act is the Act of 1924, 43 Stat. 464, as amended 48 U.S.C. §§ 221, 222, 48 U.S.C.A. §§ 221, 222. A question not free from doubt, to put it at its lowest, thus raised under the Supremacy Clause, is however entangled with questions of construction of Alaskan state statutes as well as of the Alaska Statehood Act, supra. Also in issue is the effect of provisions of a compact between Alaska and the United States which, it is urged, reserved exclusive regulatory powers over Indian fishing rights to the United States, 72 Stat. 339, and which, so construed, is assertedly unconstitutional because of its failure to accord to Alaska participation in the Union on an 'equal footing' with the other States. The latter contention raises related questions of federal power under the Commerce Clause, Art. I, § 8. While we have before us questions of federal law that are the concern of this Court, their consideration implicates antecedent questions of local law turning in part on appreciation of local economic and social considerations pertinent to the scope of the so-called police power reserved to the State, upon which it would be patently desirable to have the enlightenment which the now fully formed Alaska Supreme Court presumably could furnish. The original Act prohibiting traps was amended by Alaska Laws 1959, c. 95, § 1, so as to provide that it should not be construed inconsistently with the compact, and if the Alaska court determines as a matter of statutory construction that the compact was designed to leave with the United States, as to Indian fishing, the power it exercises under the White Act, a constitutional question now appearing on the horizon might disappear. Moreover, since questions are raised regarding the status of these two Indian communities in relation to the authority of the Secretary of the Interior, enlightenment drawn on the spot by the Alaska Supreme Court may be material to any ultimate determination of federal questions by this Court. Finally, since the ultimate challenge to this legislation is that it must yield to superior federal authority, an authoritative pronouncement by the Supreme Court of Alaska with regard to the justifications of this legislation under the so-called police power would have important bearing on the question of the scope of the powers reserved to the State. Accordingly, consistently with the policies embodied in § 1257, and in view of the peculiar facts of these cases, we refrain at this stage from deciding the issues presented on the merits of these appeals so as to afford the Alaska Supreme Court the opportunity to rule on questions open to it for decision. We assume that that court has jurisdiction in these cases. However, since it alone can authoritatively decide such a question, we shall hold the cases on our docket. After the Alaska Supreme Court's decision, there may be further proceedings on these appeals; and if it assumes jurisdiction, further appeals may be taken from its judgments. Cf. Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. Because of the nature of the asserted claim of federal right and the irreparable nature of the injury which may flow from the enforcement of these Alaska criminal statutes prior to a final determination of the merits, we continue the stays granted by Mr. Justice Brennan on July 11, 1959, until the final disposition of the cases. Having been advised that appeals in these cases are pending in the Alaska Supreme Court, we direct appellants to pursue those appeals for disposition not inconsistent with this opinion. It is so ordered. Cases held on docket with directions. THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS dissent from remitting the parties to the Alaska Supreme Court, as they are of the view that the controlling questions are federal ones whose resolution is for this Court.

363.US.666

Petitioner, an alien, brought this action in a Federal District Court to obtain judicial review of an administrative determination by the Director, Office of Alien Property, sanctioned by the Attorney General, that petitioner was not eligible under § 32 (a) (2) (D) of the Trading with the Enemy Act, as amended, for the return of property vested by the Alien Property Custodian in which petitioner claimed to have an interest.. Held: Judicial review of that administrative determination was precluded by § 7 (c) of the Trading with the Enemy Act, which provides that, "The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter . . . transferred .. .to the Alien Property Custodian .. .shall be that provided by the terms of this Act," since that Act cannot be construed to provide a judicial remedy for a person such as petitioner. Pp. 667-677. (a) Section 10 of 'the Administrative Pyocedure Act does not entitle petitioner to judicial review of this administrative determination, both because the matter involved is "committed to agency discretion" by § 32 (a) of the Trading with the Enemy.Act and. because judicial review is precluded by § 7 (c) of that Act. 'Pp. 670-676. (b) A different conclusion is not required on the theory that, by moving to dismiss petitioner's action, respondent admitted petitioner's.allegation that the administrative action was arbitrary and capricious. Pp. 676-677. (c) The Declaratory Judgment Act does not entitle petitioner to judicial review, because relief thereunder is precluded by § 7 (c) of the Trading with the Enemy Act. P. 677. 106 U. S. App. D. C. 8, 268 F. 2d 584, affirmed.

Section 32(a) of the Trading with the Enemy Act (added by 60 Stat. 50, as amended, 50 U.S.C.Appendix, § 32(a), 50 U.S.C.A.Appendix, § 32(a)) authorizes the return in certain circumstances of property vested by the United States during World War II. Under that provision: 'The President, or such officer or agency as he may designate, may return any property or interest vested in or transferred to the Alien Property Custodian (other than any property or interest acquired by the United States prior to December 18, 1941), or the net proceeds thereof, whenever the President or such officer or agency shall determine * * *' that the following conditions are met: (1) the claimant was the owner of the property in question prior to its vesting, or is the legal representative or successor in interest of the owner;1 (2) he was not a member of any of several excluded classes, summarized in the margin;2 (3) the property was not used pursuant to a 'cloaking' arrangement, whereby the interest of an ineligible person in the property was concealed;3 (4) there is no danger of liability in respect of the property attaching to the Custodian under the renegotiation statutes;4 and (5) 'such return is in the interest of the United States.'5 The particular provision involved in this case is paragraph 2(D) of § 32(a), which makes ineligible citizens of certain enemy countries who were present in those countries after the onset of hostilities, and its first proviso (added by 60 Stat. 930), which exempts from that ineligibility certain persons who were the victims of persecution.6 The question for decision is whether the District Court had jurisdiction to review a determination of the Director, Office of Alien Property, sanctioned by the respondent Attorney General, holding this proviso inapplicable to the facts presented by the petitioner's claim.7 Petitioner, a national and resident of Germany at all material times, duly filed with the Attorney General a claim under the § 32(a)(2)(D) proviso for the return of the proceeds of certain property vested by the respondent's predecessors in 1942, 1947, and 1948, asserting an interest therein of some $68,500. He alleged that throughout the relevant period he, as an 'anti-Nazi,' claimed to have been a discriminated-against political group, had been deprived of full rights of German citizenship, in that he had been denied admission to the practice of law. A Hearing Examiner recommended allowance of the claim, but his recommendation was rejected by the Director on the ground that petitioner was ineligible for relief under the § 32(a)(2)(D) proviso.8 The Attorney General refused review. Petitioner then sued in the District Court to review the administrative determination, claiming it to have been arbitrary and illegal. The court denied the Government's motion to dismiss the complaint for want of jurisdiction. The Court of Appeals reversed, holding, in line with its own prior course of decisions, that judicial review of the administrative disposition was precluded by § 7(c) of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 7(c). 106 U.S.App.D.C. 8, 268 F.2d 584. Because of the importance of the question in the proper administration of the Trading with the Enemy Act we brought the case here. 361 U.S. 874, 80 S.Ct. 138, 4 L.Ed.2d 112. For reasons given hereafter we affirm the judgment below. Petitioner's principal reliance is upon § 10 of the Administrative Procedure Act which provides for judicial review of agency action '(e)xcept so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.' 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009. We find that both such limitations are applicable here. 'The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter * * * transferred * * * to the Alien Property Custodian * * * shall be that provided by the terms of this Act * * *.' 40 Stat. 1021. We perceive no basis for petitioner's contention that § 7(c) limits only the remedies available to nonenemies under § 9(a), or for construing § 7(c), passed in 1918, as not being applicable to § 32, passed in 1946. The language of the section is 'all-inclusive,' Becker Steel Co. of America v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 15, 18, 80 L.Ed. 54, and it speaks to the future as well as the past. See also Central Union Trust Co. of New York v. Garvan, 254 U.S. 554, 568, 41 S.Ct. 214, 216, 65 L.Ed. 403. The only express provision in the Trading with the Enemy Act for recourse to the courts by those claiming the return of property vested during World War II is that contained in § 9(a). That section, however, is applicable only to persons not enemies or allies of enemies as defined in the relevant statutes, and hence is not available to this petitioner, an enemy national.9 While § 9(c) also entitles certain classes of 'enemies' enumerated in § 9(b) similarly to sue in the courts to recover vested property whose return is authorized under § 9(b), those sections apply only to World War I vestings. See Feyerabend v. McGrath, 89 U.S.App.D.C. 33, 189 F.2d 694; cf. Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165. Although § 32(a) broadened the categories of those having an enemy status who were eligible for the return of property vested during World War II, unlike § 9(c) it contains no express provision for judicial relief in respect of such claims. The question then is whether a right to such relief can fairly be implied, for we shall assume that if such be the case the requirements of § 7(c) would be satisfied. The terms of § 32 and its legislative history speak strongly against any such implication. The absence in § 32 of any provision for judicial relief respecting 'enemy' claims for the return of property vested during World War II stands in sharp contrast to the presence of such a provision in s 9(c) with respect to certain enemy claims arising out of World War I vestings. The original version of what ultimately became § 32 did contain a provision for judicial relief comparable to that in § 9(c), not applicable, however, to property of enemy national-residents, as well as a 'sole relief and remedy' provision comparable to that in § 7(c)—H.R. 4840, § 32(b), (c), in Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives on H.R. 4840, 78th Cong., 2d Sess., pp. 1—2—but the subsequent draft of the bill, substantially in the form as finally enacted in March 1946 (60 Stat. 50), omitted both provisions. See H.R. 3750, in Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st Sess., pp. 1—2. While the legislative record contains no explanation of these omissions, the committee hearings on H.R. 3750 and those on subsequent amendments to the Act preclude the view that it was contemplated that persons having an enemy status, still less those who were nationals and residents of enemy countries, should have the right of recourse to the courts with respect to administrative denials of return claims. Speaking to H.R. 3750 at the initial committee hearing. Mr. Markham, then Alien Property Custodian, stated: 'I want to be sure I make this clear. Supposing a person applies to the Custodian for the return of a property, and for reasons that I deem appropriate under the bill I refuse to return the property. Now, we will say this person would have to be a technical enemy, a Frenchman. He has no right to compel me to return it under this bill.' Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st Sess., p. 14; see also pp. 11, 15. And when a few months later, in August 1946, various amendments to the statute were considered and the § 32(a)(2)(D) proviso was added (60 Stat. 930), § 32 came under severe criticism because of the absence of provisions for judicial relief in respect of return claims by technical enemies. See Hearings before a Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., pp. 57—59, 61, 62—63. The affording of such relief to enemy nationals was, however, at no time suggested. Congress, nevertheless, permitted § 32 to stand without enacting provisions for such judicial relief,10 and later proposed legislation of that character also failed of enactment. See S. 2544, 82d Cong., 2d Sess.; S. 34, 83d Cong., 1st Sess.11 The conclusion which the history of § 32 impels is confirmed by the text of the section and other provisions of the Act. The absence of any provision for recourse to the courts in connection with § 32(a) return claims contrasts strongly with the care that Congress took to provide for and limit judicial remedies with respect to other aspects of the section and other provisions of the Act. See, e.g., §§ 32(d), 32(e), 32(f),12 33, 34(e), 34(f), 34(i). It is not of moment that these provisions concerned direct judicial relief, and not court review of denials of administrative relief. The point is that in this Act Congress was advertent to the role of courts, and an absence in any specific area of any kind of provision for judicial participation strongly indicates a legislative purpose that there be no such participation. Beyond this, the permissive terms in which the § 32 return provisions are drawn (363 U.S. at page 667, 80 S.Ct. at page 1290) persuasively indicate that their administration was committed entirely to the discretionary judgment of the Executive branch 'without the intervention of the courts.' See Work v. United States ex rel. Rives, 267 U.S. 175, 182, 45 S.Ct. 252, 254, 69 L.Ed. 561. Petitioner, however, relying on McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, contends that even though he might not be entitled to judicial review of an adverse administrative determination on the merits of his claim, he is nonetheless entitled to such review on the issue of his eligibility under the § 32(a)(2)(D) proviso, the only issue here involved. The Kristensen case, involving eligibility for suspension of deportation under § 244 of the Immigration and Nationality Act (66 Stat. 214, 8 U.S.C. § 1254, 8 U.S.C.A. § 1254), bears little resemblance to the situation involved here. See Heikkila v. Barber, 345 U.S. 229, 233, 73 S.Ct. 603, 605, 97 L.Ed. 972; Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61. The structure of § 32(a) does not permit of any such distinction in this case. Compare H.R. 4840, 78th Cong., 2d Sess., § 32(a). Indeed, it is not certain whether petitioner's theory of partial reviewability would apply only to the proviso with which he is concerned; to all of paragraph (2), but only to that paragraph; or to paragraphs (1), (3), and (4) as well (see 363 U.S. at pages 667—668, 80 S.Ct. at pages 1290—1291, and notes 1—4). None of these alternatives is acceptable. As to the first and second, no reason appears why either of these categories should be singled out for special treatment, while the third would make reviewable determinations which involve factors with which only the Executive Branch can satisfactorily deal. See, e.g., Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H.R. 3750, 79th Cong., 1st Sess., p. 4 (proof of prevesting ownership); Hearings before Subcommittee No. 1 of the Committee on the Judiciary, House of Representatives, on H.R. 5089, 79th Cong., 2d Sess., p. 37 (proof of 'cloaking' arrangements). Beyond that, we think the congressional decision to spell out in some detail certain limitations on the power it was conferring on the Executive was not designed to bestow rights on claimants, arising out of an assertedly too-narrow reading by the Executive of the discretionary power given him. Rather we consider the specifications of paragraphs (1) through (4) as designed to provide guides for the Executive, thereby lessening the administrative burden of decision. See Hearings before a Subcommittee of the Senate Committee on the Judiciary, on S. 2378 and S. 2039, 79th Cong., 2d Sess., p. 19. We conclude that the Trading with the Enemy Act excludes a judicial remedy in this instance, and that because of this, as well as because of the discretionary character of the administrative action involved, the Administrative Procedure Act, by its own terms (363 U.S. at page 670, 80 S.Ct. at page 1292), is unavailing to the petitioner.13 Petitioner's other contentions may be dealt with shortly. It is urged that judicial review is in any event available because the complaint, whose allegations as the case comes here must be taken as true, alleges that the administrative action was arbitrary and capricious. However, such conclusory allegations may not be read in isolation from the complaint's factual allegations and the considerations set forth in the administrative decision upon which denial of this claim was based. See Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 401, 14 S.Ct. 1047, 1056, 38 L.Ed. 1014. So read, it appears that the complaint should properly be taken as charging no more than that the administrative action was erroneous. This is not a case in which it is charged either that an administrative official has refused or failed to exercise a statutory discretion, or that he has acted beyond the scope of his powers, where the availability of judicial review would be attended by quite different considerations than those controlling here. Cf., e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681; Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210. Finally, petitioner's reliance on the Declaratory Judgments Act, 28 U.S. C.A. §§ 2201, 2202 carries him no further. Section 7(c) of the Trading with the Enemy Act embraces that form of judicial relief as well as others. Additionally, the Declaratory Judgments Act is not an independent source of federal jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194; the availability of such relief presupposes the existence of a judicially remediable right. No such right exists here. We conclude that the Court of Appeals correctly held that the District Court lacked jurisdiction over this action, and that its judgment must be affirmed. Affirmed.

361.US.353

176 F. Supp. 411, affirmed.

Mr. Byron M. Gray, for appellants in No. 526. Messrs. R. W. Henriott and M. L. Cassell, for appellants in No. 527. Messrs. Robert W. Ginnane and Isaac K. Hay, for appellant in No. 528. Messrs. MacDonald Gallion, Atty. Gen. of Alabama, George F. McCanless, Atty. Gen. of Tennessee, Donald Macleay, George Shuff, John A. Caddell and Charles J. McCarthy, for appellees. The motion to affirm is granted and the judgment is affirmed.

363.US.192

In petitioner's application to a Federal District Court for a .writ of habeas corpus, -his allegation that the Supreme Court of Ohio did not provide him, as an indigent criminal defendant, with an adequate remedy for the prosecution of an appeal from his conviction without payment of docket fees, made out a case of denial of equal protection of the laws. Therefore, certiorari is granted, the judgment denying a writ of habeas corpus is reversed, and the cause is remanded to the 'District Court for further proceedings in the light of Burns v. Ohio, 360 U. S. 252. Pp. 192-193. Judgment reversed and cause remanded.

The motion for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is also granted. Petitioner, a prisoner in an Ohio penitentiary, filed an application for a writ of habeas corpus in the District Court for the Northern District of Ohio. Among other claims, the petitioner alleged that the Ohio Supreme Court did not provide him, as an indigent criminal defendant, an adequate remedy for the prosecution of an appeal from his conviction without payment of docket fees. This deficiency was urged, as we read this lay petitioner's informal pro se application for the writ, as a violation of the Federal Constitution's guarantee of the equal protection of the laws. See Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209. The writ of habeas corpus was in effect denied by the District Court, that court denying petitioner, for want of merit, leave to proceed in forma pauperis before it. The District Court further denied a motion for leave to appeal in forma pauperis and the Court of Appeals sustained this action on the renewal of the motion before it. We hold that petitioner's allegations in the application for the writ made out a case of deprivation of his constitutional right to the equal protection of the laws by Ohio in respect to his appeal from the conviction in the criminal prosecution against him. Clearly federal habeas corpus is an appropriate remedy under these circumstances. See Johnson v. Zerbst, 304 U.S. 458, 467—468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461; Burns v. State of Ohio, supra, 360 U.S. at page 262, 79 S.Ct. at page 1170 (dissenting opinion). In view of our decision in Burns as to the validity of the former Ohio practice, and Ohio's conformance, as we are advised, to the requirements of that decision, we think that the District Court should suspend a hearing on the writ for a reasonable time to allow petitioner to reapply to the Ohio Supreme Court for consideration of his appeal. Upon that court's action thereon, the District Court should proceed, upon hearing, to make such appropriate order in the premises, as under the circumstances 'law and justice require.' 28 U.S.C. § 2243, 28 U.S.C.A. § 2243. It may at that time consider, in the posture in which the case then stands, petitioner's other claims as to the constitutional adequacy of Ohio's appellate procedure in respect of his original conviction and his application for state collateral relief. To this end, the judgment is reversed and the cause is remanded to the District Court. Reversed and remanded. Mr. Justice STEWART took no part in the consideration or decision of this case.

362.US.608

Judgment vacated and case remanded to the District Court with instructions to dismiss the complaint as moot. Reported below: 257 F. 2d 885.

Upon the suggestion of mootness, the judgment of the Court of Appeals is vacated and the case is remanded to the District Court with instructions to dismiss the complaint as moot.

362.US.329

Certiorari granted and judgment reversed. Reported below: 269 F. 2d 694.

The petition for writ of certiorari is granted. The judgment of the United States Court of Appeals for the Fourth Circuit is reversed. National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, etc., 362 U.S. 274, 80 S.Ct. 706.

363.US.420

The Civil Rights Act of 1957 created in the Executive Branch of the Government a Commission on Civil Rights to investigate written, sworn allegations that persons have been discriminatorily deprived of their right to vote on account of their color, race, religion or national origin, to study and collect information "concerning legal developments constituting a denial of equal protectidn of the laws," and to report to the President and Congress. The Commission is authorized to subpoena witnesses and documents and to conduct hearings. The Act prescribes certain rules of procedure; but nothing in the Act requires the Commission to afford persons accused of discrimination the right to be apprised as to the specific charges against them or as to the identity of their accusers, or the right to confront and cross-examine witnesses appearing at Commission hearings; and the Commission prescribed supplementary rules of procedure which deny such rights in hearings conducted by it. Held: 1. In the light of the legislative history of the Act, the Commission was authorized by Congress to adopt such rules of procedure. Pp. 430-439. 2. Since the Commission makes no adjudications but acts solely as an investigatiye and fact-finding agencythese rules of procedure do not violate the Due Process Clause of the Fifth Amendment. Morgan v. United States, 304 U. S. 1; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S.. 123; Greene v. McElroy, 360 U. S. 474, distinguished. Pp. 440-452. 3. Such rules of procedure do not violate the Sixth Amendment, since that Amendment is specifically limited to "criminal prosecutions," and the .proceedings of the Commission do not fall in that category. P. 440, n. 16. 4. The Civil Rights Act of 1957 is appropriate legislation under the Fifteenth Amendment. P. 452. 5. Section 7 of the Administrative Procedure Act is not applicable to hearings conducted by.this Commission. Pp. 452-453. 177 F. Supp. 816, reversed.

These cases involve the validity of certain Rules of Procedure adopted by the Commission on Civil Rights, which was established by Congress in 1957.1 Civil Rights Act of 1957, 71 Stat. 634, 42 U.S.C. §§ 1975—1975e, 42 U.S.C.A. §§ 1975—1975e. They arise out of the Commission's investigation of alleged Negro voting deprivations in the State of Louisiana. The appellees in No. 549 are registrars of voters in the State of Louisiana, and the respondents in No. 550 are private citizens of Louisiana.2 After having been summoned to appear before a hearing which the Commission proposed to conduct in Shreveport, Louisiana, these registrars and private citizens requested the United States District Court for the Western District of Louisiana to enjoin the Commission from holding its anticipated hearing. It was alleged, among other things, that the Commission's Rules of Procedure governing the conduct of its investigations were unconstitutional. The specific rules challenged are those which provide that the identity of persons submitting complaints to the Commission need not be disclosed, and that those summoned to testify before the Commission, including persons against whom complaints have been filed, may not cross-examine other witnesses called by the Commission. The District Court held that the Commission was not authorized to adopt the Rules of Procedure here in question, and therefore issued an injunction which prohibits the Commission from holding any hearings in the Western District of Louisiana as long as the challenged procedures remain in force. The Commission requested this Court to review the District Court's decision.3 We granted the Commission's motion to advance the cases, and oral argument was accordingly scheduled on the jurisdiction on appeal in No. 549, on the petition for certiorari in No. 550, and on the merits of both cases. Having heard oral argument as scheduled, we now take jurisdiction in No. 549 and grant certiorari in No. 550. The specific questions which we must decide are (1) whether the Commission was authorized by Congress to adopt the Rules of Procedure challenged by the respondents, and (2) if so, whether those procedures violate the Due Process Clause of the Fifth Amendment. A description of the events leading up to this litigation is necessary not only to place the legal questions in their proper factual context, but also to indicate the significance of the Commission's proposed Shreveport hearing. During the months prior to its decision to convene the hearing, the Commission had received some sixty-seven complaints from individual Negroes who alleged that they had been discriminatorily deprived of their right to vote. Based upon these complaints, and pursuant to its statutory mandate to 'investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin,'4 the Commission began its investigation into the Louisiana voting situation by making several ex parte attempts to acquire information. Thus, in March 1959, a member of the Commission's staff interviewed the Voting Registrars of Claiborne, Caddo, and Webster Parishes, but obtained little relevant information. During one of these interviews the staff member is alleged to have informed Mrs. Lannie Linton, the Registrar of Claiborne Parish, that the Commission had on file four sworn statements charging her with depriving Negroes of their voting rights solely because of their race. Subsequent to this interview, Mr. W. M. Shaw, Mrs. Linton's personal attorney, wrote a letter to Mr. Gordon M. Tiffany, the Staff Director of the Commission, in which it was asserted that Mrs. Linton knew the sworn complaints lodged against her to be false. The letter also indicated that Mrs. Linton wished to prefer perjury charges against the affiants, and Mr. Shaw therefore demanded that the Commission forward to him copies of the affidavits so that a proper presentment could be made to the grand jury. On April 14, 1959, Mr. Tiffany replied to Mr. Shaw's letter and indicated that the Commission had denied the request for copies of the sworn affidavits. Mr. Shaw was also informed of the following official statement adopted by the Commission: 'The Commission from its first meeting forward, having considered all complaints submitted to it as confidential because such confidentiality is essential in carrying out the statutory duties of the Commission, the Staff Director is hereby instructed not to disclose the names of complainants or other information contained in complaints to anyone except members of the Commission and members of the staff assigned to process, study, or investigate such complaints.' A copy of Mr. Tiffany's letter was sent to Mr. Jack P. F. Gremillion, the Attorney General of Louisiana, who had previously informed the Commission that under Louisiana law the Attorney General is the legal adviser for all voting registrars in any hearing or investigation before a federal commission. Another attempt to obtain information occurred on May 13, 1959, when Mr. Tiffany, upon Commission authorization, sent a list of 315 written interrogatories to Mr. Gremillion. These interrogatories requested very detailed and specific information, and were to be answered by the voting registrars of nineteen Louisiana parishes. Although Mr. Gremillion and the Governor of Louisiana had previously assented to the idea of written interrogatories, on May 28, 1959, Mr. Gremillion sent a letter to Mr. Tiffany indicating that the voting registrars refused to answer the interrogatories. The reasons given for the refusal were that many of the questions seemed unrelated to the functions of voting registrars, that the questions were neither accompanied by specific complaints nor related to specific complaints, and that the time and research required to answer the questions placed an unreasonable burden upon the voting registrars. In response to this refusal, on May 29, 1959, Mr. Tiffany sent a telegram to Mr. Gremillion, informing the latter that the interrogatories were based upon specific allegations received by the Commission, and reaffirming the Commission's position that the identity of specific complainants would not be disclosed. Mr. Tiffany's letter contained a further request that the interrogatories be answered and sent to the Commission by June 5, 1959. On June 2, 1959, Mr. Gremillion wrote a letter to Mr. Tiffany reiterating the registrars' refusal, and again requesting that the names of complainants be disclosed. Finally, as a result of this exchange of correspondence, and because the Commission's attempts to obtain information ex parte had been frustrated, the Commission, acting pursuant to Section 105(f) of the Civil Rights Act of 1957,5 decided to hold the Shreveport hearing commencing on July 13, 1959. Notice of the scheduled hearing was sent to Mr. Gremillion, and between June 29 and July 6, subpoenas duces tecum were served on the respondents in No. 549, ordering them to appear at the hearing and to bring with them various voting and registration records within their custody and control. Subpoenas were also served upon the respondents in No. 550. These private citizens were apparently summoned to explain their activities with regard to alleged deprivations of Negro voting rights.6 On July 8, 1959, Mr. Tiffany wrote to Mr. Gremillion, enclosing copies of the Civil Rights Act and of the Commission's Rules of Procedure.7 Mr. Gremillion's attention was also drawn to Section 102(h) of the Civil Rights Act, which permits witnesses to submit, subject to the discretion of the Commission, brief and pertinent sworn statements for inclusion in the record.8 Two days later, on July 10, 1959, the respondents in No. 549 and No. 550 filed two separate complaints in the District Court for the Western District of Louisiana. Both complaints alleged that the respondents would suffer irreparable harm by virtue of the Commission's refusal to furnish the names of persons who had filed allegations of voting deprivations, as well as the contents of the allegations, and by its further refusal to permit the respondents to confront and cross-examine the persons making such allegations. In addition, both complaints alleged that the Commission's refusals not only violated numerous provisions of the Federal Constitution, but also constituted 'ultra vires' acts not authorized either by Congress or the Chief Executive. The respondents in No. 549 also alleged that they could not comply with the subpoenas duces tecum because Louisiana law prohibited voting registrars from removing their voting records except 'upon an order of a competent court,' and because the Commission was not such a 'court.' Finally, the complaint in No. 549 alleged that the Civil Rights Act was unconstitutional because it did not constitute 'appropriate legislation within the meaning of Section (2) of the XV Amendment.' Both complaints sought a temporary restraining order and a permanent injunction prohibiting the members of the Commission (a) from compelling the 'testimony from or the production of any records' by the respondents until copies of the sworn charges, together with the names and addresses of the persons filing such charges were given to the respondents;9 (b) from 'conducting any hearing pursuant to the rules and regulations adopted by' the Commission; and (c) from 'conspiring together * * * or with any other person * * * to deny complainants their rights and privileges as citizens' of Louisiana or the United States 'or to deny to complainants their right to be confronted by their accusers, to know the nature and character of the charges made against them,' and to be represented by counsel. The complaint in No. 549 also sought a declaratory judgment that the Civil Rights Act of 1957 was unconstitutional. On the day that the complaints were filed, the district judge held a combined hearing on the prayers for temporary restraining orders. On July 12, 1959, he found that the respondents would suffer irreparable harm if the hearings were held as scheduled, and he therefore issued the requested temporary restraining orders and rules to show cause why a preliminary injunction should not be granted. Larche v. Hannah, D.C., 176 F.Supp. 791. The order prohibited the Commission from holding any hearings which concerned the respondents or others similarly situated until a determination was made on the motion for a preliminary injunction. Inasmuch as the complaint in No. 549 attacked the constitutionality of the Civil Rights Act, a three-judge court was convened pursuant to 28 U.S.C. § 2282, 28 U.S.C.A. § 2282. Since the complaint in No. 550 did not challenge the constitutionality of the Civil Rights Act of 1957, that case was scheduled to be heard by a single district judge. That district judge was also a member of the three-judge panel in No. 549, and a combined hearing was therefore held on both cases on August 7, 1959. On October 7, 1959, a divided three-judge District Court filed an opinion in No. 549. Larche v. Hannah, 177 F.Supp. 816. The court held that the Civil Rights Act of 1957 was constitutional since it 'very definitely constitutes appropriate legislation' authorized by the Fourteenth and Fifteenth Amendments and Article I, Section 2, of the Federal Constitution. Id., at page 821. The court then held that since the respondents' allegations with regard to apprisal, confrontation, and cross-examination raised a 'serious constitutional issue,' this Court's decision in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, required a preliminary determination as to whether Congress specifically authorized the Commission 'to adopt rules for investigations * * * which would deprive parties investigated of their rights of confrontation and cross-examination and their right to be apprised of the charges against them.' 177 F.Supp. at page 822. The court found that Congress had not so authorized the Commission, and an injunction was therefore issued. In deciding the case on the issue of authorization, the court never reached the 'serious constitutional issue' raised by the respondents' allegations.10 The injunction prohibits the Commission from holding any hearing in the Western District of Louisiana wherein the registrars, 'accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation, and cross examination.'11 The single district judge rendered a decision in No. 550 incorporating by reference the opinion of the three-judge District Court, and an injunction, identical in substance to that entered in No. 549, was issued. We held last Term in Greene v. McElroy, supra, that when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not 'the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.' Id., 360 U.S. at page 507, 79 S.Ct. at page 1419. The considerations which prompted us in Greene to analyze the question of authorization before reaching the constitutional issues presented are no less pertinent in this case. Obviously, if the Civil Rights Commission was not authorized to adopt the procedures complained of by the respondents, the case could be disposed of without a premature determination of serious constitutional questions. See Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129. We therefore consider first the question of authorization. As indicated above, the Commission specifically refused to disclose to the respondents the identity of persons who had submitted sworn complaints to the Commission and the specific charges contained in those complaints. Moreover, the respondents were informed by the Commission that they would not be permitted to cross-examine any witnesses at the hearing. The respondents contend, and the court below held, that Congress did not authorize the adoption of procedural rules which would deprive those being investigated by the Commission of the rights to apprisal, confrontation, and cross-examination. The court's holding is best summarized by the following language from its opinion: '(W)e find nothing in the Act which expressly authorizes or permits the Commission's refusal to inform persons, under investigation for criminal conduct, of the nature, cause and source of the accusations against them, and there is nothing in the Act authorizing the Commission to deprive these persons of the right of confrontation and cross-examination.' 177 F.Supp., at page 822. After thoroughly analyzing the Rules of Procedure contained in the Civil Rights Act of 1957 and the legislative history which led to the adoption of that Act, we are of the opinion that the court below erred in its conclusion and that Congress did authorize the Commission to adopt the procedures here in question. It could not be said that Congress ignored the procedures which the Commission was to follow in conducting its hearings. Section 102 of the Civil Rights Act of 1957 lists a number of procedural rights intended to safeguard witnesses from potential abuses. Briefly summarized, the relevant subdivisions of Section 102 provide that the Chairman shall make an opening statement as to the subject of the hearing; that a copy of the Commission's rules shall be made available to witnesses; that witnesses 'may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights'; that potentially defamatory, degrading, or incriminating testimony shall be received in executive session, and that any person defamed, degraded, or incriminated by such testimony shall have an opportunity to appear voluntarily as a witness and to request the Commission to subpoena additional witnesses; that testimony taken in executive session shall be released only upon the consent of the Commission; and that witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record.12 The absence of any reference to apprisal, confrontation, and cross-examination, in addition to the fact that counsel's role is specifically limited to advising witnesses of their constitutional rights, creates a presumption that Congress did not intend witnesses appearing before the Commission to have the rights claimed by respondents. This initial presumption is strengthened beyond any reasonable doubt by an investigation of the legislative history of the Act. The complete story of the 1957 Act begins with the 1956 House Civil Rights Bill, H.R. 627. That bill was reported out of the House Judiciary Committee without any reference to the procedures to be used by the Commission in conducting its hearings. H.R.Rep. No. 2187, 84th Cong., 2d Sess. During the floor debate, Representative Dies of Texas introduced extensive amendments designed to regulate the procedure of Commission hearings. 102 Cong.Rec. 13542. Those amendments would have guaranteed to witnesses appearing before the Commission all of the rights claimed by the respondents in these cases. The amendments provided, in pertinent part, that a person who might be adversely affected by the testimony of another 'shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented'; that a person adversely affected by evidence or testimony given at a public hearing could 'appear and testify or file a sworn statement in his own behalf'; that such a person could also 'have the adverse witness recalled' within a stated time; and that he or his counsel could cross-examine adverse witnesses.13 The bill, as finally passed by the House, contained all of the amendments proposed by Representative Dies. 102 Cong.Rec. 13998—13999. However, before further action could be taken, the bill died in the Senate. Although many proposals relating to civil rights were introduced in the 1957 Session of Congress, two bills became the prominent contenders for support. One was S. 83, a bill introduced by Senator Dirksen containing the same procedural provisions that the amended House bill in 1956 had contained. The other bill, H.R. 6127, was introduced by Representative Celler, Chairman of the House Judiciary Committee, and this bill incorporated the so-called House 'fair play' rules as the procedures which should govern the conduct of Commission hearings.14 After extensive debate and hearings, H.R. 6127 was finally passed by both Houses of Congress, and the House 'fair play' rules, which make no provision for advance notice, confrontation, or cross-examination, were adopted in preference to the more protective rules suggested in S. 83.15 The legislative background of the Civil Rights Act not only provides evidence of congressional authorization, but it also distinguishes these cases from Greene v. McElroy, supra, upon which the court below relied so heavily. In Greene there was no express authorization by Congress or the President for the Department of Defense to adopt the type of security clearance program there involved. Nor was there any legislative history or executive directive indicating that the Secretary of Defense was authorized to establish a security clearance program which could deprive a person of his government employment on the basis of secret and undisclosed information. Therefore, we concluded in Greene that because of the serious constitutional problems presented, mere acquiescence by the President or the Congress would not be sufficient to constitute authorization for the security clearance procedures adopted by the Secretary of Defense. The facts of this case present a sharp contrast to those before the Court in Greene. Here, we have substantially more than the mere acquiescence upon which the Government relied in Greene. There was a conscious, intentional selection by Congress of one bill, providing for none of the procedures demanded by respondents, over another bill, which provided for all of those procedures. We have no doubt that Congress' consideration and rejection of the procedures here at issue constituted an authorization to the Commission to conduct its hearings according to the Rules of Procedure it has adopted, and to deny to witnesses the rights of apprisal, confrontation, and cross-examination. The existence of authorization inevitably requires us to determine whether the Commission's Rules of Procedure are consistent with the Due Process Clause of the Fifth Amendment.16 Since the requirements of due process frequently vary with the type of proceeding involved, e.g., compare Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 152, 61 S.Ct. 524, 536, 85 L.Ed. 624, with Interstate Commerce Comm. v. Louisville & N.R. CO., 227 U.S. 88, 91, 33 S.Ct. 185, 186, 57 L.Ed. 431, we think it is necessary at the outset to ascertain both the nature and function of this Commission. Section 104 of the Civil Rights Act of 1957 specifies the duties to be performed by the Commission. Those duties consist of (1) investigating written, sworn allegations that anyone has been discriminatorily deprived of his right to vote; (2) studying and collecting information 'concerning legal developments constituting a denial of equal protection of the laws under the Constitution'; and (3) reporting to the President and Congress on its activities, findings, and recommendations.17 As is apparent from this brief sketch of the statutory duties imposed upon the Commission, its function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action. The specific constitutional question, therefore, is whether persons whose conduct is under investigation by a governmental agency of this nature are entitled, by virtue of the Due Process Clause, to know the specific charges that are being investigated, as well as the identity of the complainants,18 and to have the right to crossexamine those complainants and other witnesses. Although these procedures are very desirable in some situations, for the reasons which we shall now indicate, we are of the opinion that they are not constitutionally required in the proceedings of this Commission. 'Due process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account. An analysis of these factors demonstrates why it is that It is probably sufficient merely to indicate that the rights claimed by respondents are normally associated only with adjudicatory proceedings, and that since the Commission does not adjudicate it need not be bound by adjudicatory procedures. Yet, the respondents contend and the court below implied, that such procedures are required since the Commission's proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions. That any of these consequences will result is purely conjectural. There is nothing in the record to indicate that such will be the case or that past Commission hearings have had any harmful effects upon witnesses appearing before the Commission. However, even if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function.19 On the other hand, the investigative process could be completely disrupted if investigative hearings were transformed into trial-like proceedings, and if persons who might be indirectly affected by an investigation were given an absolute right to cross-examine every witness called to testify. Fact-finding agencies without any power to adjudicate would be diverted from their legitimate duties and would be plagued by the injection of collateral issues that would make the investigation interminable. Even a person not called as a witness could demand the right to appear at the hearing, cross-examine any witness whose testimony or sworn affidavit allegedly defamed or incriminated him, and call an unlimited number of witnesses of his own selection.20 This type of proceeding would make a shambles of the investigation and stifle the agency in its gathering of facts. In addition to these persuasive considerations, we think it is highly significant that the Commission's procedures are not historically foreign to other forms of investigation under our system. Far from being unique, the Rules of Procedure adopted by the Commission are similar to those which, as shown by the Appendix to this opinion,21 have traditionally governed the proceedings of the vast majority of governmental investigating agencies. A frequently used type of investigative agency is the legislative committee. The investigative function of such committees is as old as the Republic.22 The volumes written about legislative investigations have proliferated almost as rapidly as the legislative committees themselves, and the courts have on more than one occasion been confronted with the legal problems presented by such committees.23 The procedures adopted by legislative investigating committees have varied over the course of years. Yet, the history of these committees clearly demonstrates that only infrequently have witnesses appearing before congressional committees been afforded the procedural rights normally associated with an adjudicative proceeding. In the vast majority of instances, congressional committees have not given witnesses detailed notice or an opportunity to confront, cross-examine and call other witnesses.24 The history of investigations conducted by the executive branch of the Government is also marked by a decided absence of those procedures here in issue.25 The best example is provided by the administrative regulatory agencies. Although these agencies normally make determinations of a quasi-judicial nature, they also frequently conduct purely fact-finding investigations. When doing the former, they are governed by the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. §§ 1001—1011, 5 U.S.C.A. §§ 1001—1011, and the parties to the adjudication are accorded the traditional safeguards of a trial. However, when these agencies are conducting nonadjudicative, fact-finding. Investigations, rights such as apprisal, confrontation, and cross-examination generally do not obtain. A typical agency is the Federal Trade Commission. its rules draw a clear distinction between adjudicative proceedings and investigative proceedings. 16 CFR, 1958 Supp., § 1.34. Although the latter are frequently initiated by complaints from undisclosed informants, id., §§ 1.11, 1.15, and although the Commission may use the information obtained during investigations to initiate adjudicative proceedings, id., § 1.42, nevertheless, persons summoned to appear before investigative proceedings are entitled only to a general notice of 'the purpose and scope of the investigation,' id., § 1.33, and while they may have the advice of counsel, 'counsel may not, as a matter of right, otherwise participate in the investigation.' Id., § 1.40. The reason for these rules is obvious. The Federal Trade Commission could not conduct an efficient investigation if persons being investigated were permitted to convert the investigation into a trial. We have found no authorities suggesting that the rules governing Federal Trade Commission investigations violate the Constitution, and this is understandable since any person investigated by the Federal Trade Commission will be accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding, just as any person investigated by the Civil Rights Commission will have all of these safeguards, should some type of adjudicative proceeding subsequently by instituted. Although regulatory agency which distinguishes between adjudicative and investigative proceedings is the Securities and Exchange Commission. This Commission conducts numerous investigations, many of which are initiated by complaints from private parties. 17 CFR § 202.4. Although the Commission's Rules provide that parties to adjudicative proceedings shall be given detailed notice of the matters to be determined, id., 1959 Supp., § 201.3, and a right to cross-examine witnesses appearing at the hearing, id., § 201.5, those provisions of the Rules are made specifically inapplicable to investigations, id., § 201.20,26 even though the Commission is required to initiate civil or criminal proceedings if an investigation discloses violations of law.27 Undoubtedly, the reason for this distinction is to prevent the sterilization of investigations by burdening them with trial-like procedures. Another type of executive agency which frequently conducts investigations is the presidential commission. Although a survey of these commissions presents no definite pattern of practice, each commission has generally been permitted to adopt whatever rules of procedure seem appropriate to it,28 and it is clear that many of the most famous presidential commissions have adopted rules similar to those governing the proceedings of the Civil Rights Commission.29 For example, the Roberts Commission established in 1941 to ascertain the facts relating to the Japanese attack upon Pearl Harbor, and to determine whether the success of the attack resulted from any derelictions of duty on the part of American military personnel, did not permit any of the parties involved in the investigation to cross-examine other witnesses. In fact, many of the persons whose conduct was being investigated were not represented by counsel and were not present during the interrogation of other witnesses. Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79th Cong., 1st Sess., pts. 22—25. Having considered the procedures traditionally followed by executive and legislative investigating agencies, we think it would be profitable at this point to discuss the oldest and, perhaps, the best known of all investigative bodies, the grand jury. It has never been considered necessary to grant a witness summoned before the grand jury the right to refuse to testify merely because he did not have access to the identity and testimony of prior witnesses. Nor has it ever been considered essential that a person being investigated by the grand jury be permitted to come before that body and cross-examine witnesses who may have accused him of wrongdoing. Undoubtedly, the procedural rights claimed by the respondents have not been extended to grand jury hearings because of the disruptive influence their injection would have on the proceedings, and also because the grand jury merely investigates and reports. It does not try. We think it is fairly clear from this survey of various phases of governmental investigation that witnesses appearing before investigating agencies, whether legislative, executive, or judicial, have generally not been accorded the rights of apprisal, confrontation, or cross-examination. Although we do not suggest that the grand jury and the congressional investigating committee are identical in all respects to the Civil Rights Commission,30 we mention them, in addition to the executive agencies and commissions created by Congress, to show that the rules of this Commission are not alien to those which have historically governed the procedure of investigations conducted by agencies in the three major branches of our Government. The logic behind this historical practice was recognized and described by Mr. Justice Cardozo's landmark opinion in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796. In that case, the Court was concerned with the type of hearing that the Tariff Commission was required to hold when conducting its investigations. Specifically, the Court was asked to decide whether the Tariff Act of 1922, 42 Stat. 858, gave witnesses appearing before the Commission the right to examine confidential information in the Commission files and to cross-examine other witnesses testifying at Commission hearings. Although the Court did not phrase its holding in terms of due process, we think that the following language from Mr. Justice Cardozo's opinion is significant: 'The Tariff Commission advises; these others ordain. There is indeed this common bond that all alike are instruments in a governmental process which according to the accepted classification is legislative, not judicial. * * * Whatever the appropriate label, the kind of order that emerges from a hearing before a body with power to ordain is one that impinges upon legal rights in a very different way from the report of a commission which merely investigates and advises. The traditionary forms of hearing appropriate to the one body are unknown to the other. What issues from the Tariff Commission as a report and recommendation to the President, may be accepted, modified, or rejected. If it happens to be accepted, it does not bear fruit in anything that trenches upon legal rights.' 288 U.S., at page 318, 53 S.Ct. at page 359. And in referring to the traditional practice of investigating bodies, Mr. Justice Cardozo had this to say: '(W)ithin the meaning of this act the 'hearing' assured to one affected by a change of duty does not include a privilege to ransack the records of the Commission, and to subject its confidential agents to an examination as to all that they have learned. There was no thought to revolutionize the practice of investigating bodies generally, and of this one in particular.' Id., 288 U.S. at page 319, 53 S.Ct. at page 360. (Emphasis supplied.) Thus, the purely investigative nature of the Commission's proceedings, the burden that the claimed rights would place upon those proceedings, and the traditional procedure of investigating agencies in general, leads us to conclude that the Commission's Rules of Procedure comport with the requirements of due process.31 Nor do the authorities cited by respondents support their position. They rely primarily upon Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; and Greene v. McElroy, supra. Those cases are all distinguishable in that the government agency involved in each was found by the Court to have made determinations in the nature of adjudications affecting legal rights. Thus, in Morgan, the action of the Secretary of Agriculture in fixing the maximum rates to be charged by market agencies at stockyards was challenged. In voiding the order of the Secretary for his failure to conduct a trial-like hearing, the Court referred to the adjudicatory nature of the proceeding: 'Congress, in requiring a 'full hearing,' had regard to judicial standards—not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature.' 304 U.S. at page 19, 58 S.Ct. at page 777. Likewise, in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 140—141, 71 S.Ct. 624, 632—633, 95 L.Ed. 817, this Court held that the Attorney General's action constituted an adjudication. Finally, our decision last year in Greene v. McElroy lends little support to the respondents' position. The governmental action there reviewed was certainly of a judicial nature. The various Security Clearance Boards involved in Greene were not conducting an investigation; they were determining whether Greene could have a security clearance—a license in a real sense, and one that had a significant impact upon his employment. By contrast, the Civil Rights Commission does not make any binding orders or issue 'clearances' or licenses having legal effect. Rather, it investigates and reports leaving affirmative action, if there is to be any, to other governmental agencies where there must be action de novo. The respondents have also contended that the Civil Rights Act of 1957 is inappropriate legislation under the Fifteenth Amendment. We have considered this argument, and we find it to be without merit. It would unduly lengthen this opinion to add anything to the District Court's disposition of this claim. See 177 F.Supp., at pages 819—821. Respondents' final argument is that the Commission's hearings should be governed by Section 7 of the Administrative Procedure Act, 60 Stat. 241, 5 U.S.C. § 1006, 5 U.S.C.A. § 1006, which specifies the hearing procedures to be used by agencies falling within the coverage of the Act. One of those procedures is the right of every party to conduct 'such cross-examination as may be required for a full and true disclosure of the facts.' However, what the respondents fail to recognize is that Section 7, by its terms, applies only to proceedings under Section 4, 60 Stat. 238, 5 U.S.C. § 1003, 5 U.S.C.A. § 1003 (rule making), and Section 5, 60 Stat. 239, 5 U.S.C. § 1004, 5 U.S.C.A. § 1004 (adjudications), of the Act. As we have already indicated, the Civil Rights Commission performs none of the functions specified in those sections. From what we have said, it is obvious that the District Court erred in both cases in enjoining the Commission from holding its Shreveport hearing. The court's judgments are accordingly reversed, and the cases are remanded with direction to vacate the injunctions. Reversed and remanded.

363.US.202

A railroad sued in the Court of Claims to recover from the United States.the difference between its "domestic rates" and its "export rates" on certain shipments of iron and steel intended for export but which actually were not exported because of war conditions. The Court of Claims suspended proceedings to enable the parties to have the Interstate Commerce Commission pass on the reasonableness of the rates. After hearings, the Commission found and reported that thd domestic rates were "unjust and unreasonable" as to 62 of the shipments but "just and reasonable" as to 13 of them. The railroad then invoked the jurisdiction of a Federal District Court under 28 U. S. C. §§ 1336, 1398 and 49 U. S. C. § 17 (9) to enjoin and set aside the Commission's order, and it moved that the Court of Claims stay its proceedings until the District Court could pass upon the validity of the order. Held: The railroad was entitled to have the Commission's order judicially reviewed; only the District Court had jurisdiction to review it; and the Court of Claims should have stayed its proceedings pending review of the Commission's order by the District Court. Pp. 202206. Reversed.

This case involves the power of District Courts to review Interstate Commerce Commission orders determining the reasonableness of rates. In 1941 and 1942 the United States made 75 shipments of iron and steel over the Pennsylvania Railroad intended for export from the port of New York to Great Britain. War conditions prevented exportation from New York. This caused a dispute about applicable transportation charges since the Pennsylvania had in effect tariffs for 'domestic rates' that were higher than 'export rates.' Since the goods were not exported as planned the Railroad billed the United States for the higher domestic rates which the Government paid because required to do so by § 322 of the Transportation Act of 1940, 54 Stat. 955, 49 U.S.C. § 66, 49 U.S.C.A. § 66. Later, under authority of the same section, the General Accounting Office deducted from other bills due the Railroad the difference between the higher and lower rates, claiming that the higher domestic rates were inapplicable, unreasonable and unlawful. The Railroad then brought this action in the Court of Claims to recover the amount deducted. Properly relying on our holding in United States v. Western Pacific R. Co., 352 U.S. 59, 62—70, 77 S.Ct. 161, 164—168, 1 L.Ed.2d 126, the Court of Claims suspended proceedings to enable the parties to have the Interstate Commerce Commission pass on the reasonableness of the rates. After hearings the Commission found and reported that the domestic rates were 'unjust and unreasonable' as to 62 of the shipments but 'just and reasonable' as to 13. 305 I.C.C. 259, 265. The Railroad then took two steps to challenge that part of the order adverse to it: (1) it invoked the jurisdiction of a United States District Court in Pennsylvania under 28 U.S.C. §§ 1336, 1398, 28 U.S.C.A. §§ 1336, 1398, and 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9), to enjoin and set aside the order; and (2) it moved that the Court of Claims stay its proceedings until the District Court could pass upon the validity of the order. The United States objected to further stay in the Court of Claims and asked for dismissal of the case or judgment in its favor. It urged in support of dismissal that the Railroad had deprived the Court of Claims of jurisdiction when it filed the District Court action to enjoin the Commission order because 28 U.S.C. § 1500, 28 U.S.C.A. § 1500, declares that 'The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff * * * has pending in any other court any suit or process against the United States * * *.' The Court of Claims rejected this contention and its action in this respect is not challenged here. The United States argued in support of its motion for judgment that the order of the Commission did not require anything to be done or not done, that it was therefore an advisory opinion only, and consequently not the kind of 'order' subject to review by 28 U.S.C. § 1336, 28 U.S.C.A. § 1336, 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9), or any other provision of law. The contention of the United States was that although the Court of Claims was compelled to submit the question of the reasonableness of the rates to the Commission, neither that court nor any other court had power to review the Commission's determination. The Court of Claims agreed with this contention of the United States, accordingly refused to stay the case for the District Court to pass on the validity of the order, and entered judgment for the Railroad for only $1,663.39, which the Commission had held to be recoverable, instead of the $7,237.87 which the Railroad claimed. The result is that the Railroad has been held bound by the Commission's order although completely denied any judicial review of that order. We granted certiorari to consider this denial. 361 U.S. 922, 80 S.Ct. 291, 4 L.Ed.2d 239. The Railroad contends that it was error for the Court of Claims to refuse to stay its proceedings while the District Court reviewed the Commission's order. The Solicitor General concedes here that this was error. We reach the same conclusion on the basis of our independent consideration of the record. We decided some years ago that while a mere 'abstract declaration' on some issue by the Commission may not be judicially reviewable, an order that determines a 'right or obligation' so that 'legal consequences' will flow from it is reviewable. Rochester Telephone Corp. v. United States, 307 U.S. 125, 131, 132, 143, 59 S.Ct. 754, 757, 763, 83 L.Ed. 1147. The record shows that the Commission order here meets this standard. The Commission found that the Railroad's domestic rates were 'unreasonable' as to 62 shipments. This order is by no means a mere 'advisory opinion,' its 'legal consequences' are obvious, for if valid it forecloses the 'right' of the Railroad to recover its domestic rates on those shipments. We have held that judicial review is equally available whether a Commission order relates to past or future rates, or whether its proceeding follows referral by a court or originates with the Commission. El Dorado Oil Works v. United States, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053. For these reasons we conclude that the Railroad was entitled to have this Commission order judicially reviewed. We have already determined, however, that the power to review such an order cannot be exercised by the Court of Claims. United States v. Jones, 336 U.S. 641, 651—653, 670—671, 69 S.Ct. 787, 793—794, 802, 93 L.Ed. 938. That jurisdiction is vested exclusively in the District Courts. 28 U.S.C. § 1336, 28 U.S.C.A. § 1336, 49 U.S.C. § 17(9), 49 U.S.C.A. § 17(9). See Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 122, 68 S.Ct. 426, 428, 92 L.Ed. 580. Moreover, this order is properly reviewable by a one-judge rather than a three-judge District Court because it is essentially one 'for the payment of money' within the terms of 28 U.S.C. §§ 2321 and 2325, 28 U.S.C.A. §§ 2321, 2325, which exempt such orders from the three-judge procedure of 28 U.S.C. § 2284, 28 U.S.C.A. § 2284. United States v. Interstate Commerce Comm., 337 U.S. 426, 441, 443, 69 S.Ct. 1410, 1418, 1419, 93 L.Ed. 1451. It necessarily follows, of course, that since the Railroad had a right to have the Commission's order reviewed, and only the District Court had the jurisdiction to review it, the Court of Claims was under a duty to stay its proceedings pending this review. Other questions argued by the Government are not properly presented by this record. It was error for the Court of Claims to render judgment on the basis of the Commission's order without suspending its proceedings to await determination of the validity of that order by the Pennsylvania District Court. Reversed.

364.US.441

In this suit against a railroad under the Federal Employers' Liability Act by a waitress in the grill car of one of the railroad's trains to recover damages for injuries allegedly sustained when an emergency application of the brakes brought the train to a sudden stop, held: The proofs were insufficient to submit to the jury the question whether employer negligence played a part in the emergency application of the brakes which allegedly produced the injury. 272 F. 2d 153, reversed.

The respondent was a waitress in the grill car of one of petitioner's trains. She brought this action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq., for damages for injuries allegedly sustained when an emergency application of the brakes brought the train to a sudden stop. A jury which heard the case in the District Court for the District of Massachusetts returned a verdict for respondent. The trial judge denied the petitioner's motions for judgment notwithstanding the verdict and for a new trial. The Court of Appeals for the First Circuit affirmed, 272 F.2d 153. We granted certiorari, 362 U.S. 967, 80 S.Ct. 954, 4 L.Ed.2d 899. The train was pulling into petitioner's station at Providence, Rhode Island, for a scheduled stop. One Montell apparently to commit suicide, stepped on the track from the station platform as the train approached alongside the platform. The engineer made the emergency application of the brakes in an unsuccessful effort to stop the train before it reached Montell. We have examined the trial record and hold that the proofs were insufficient to submit to the jury the question whether employer negligence played a part in the emergency application of the brakes which allegedly produced the respondent's injury. See Herdman v. Pennsylvania R. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508. The judgment of the Court of Appeals is reversed and the cause remanded to the District Court with direction to enter judgment for the petitioner notwithstanding the verdict. It is so ordered. Judgment of Court of Appeals reversed and cause remanded to District Court with direction. Mr. Justice BLACK and Mr. Justice DOUGLAS dissent. They believe there was evidence of negligence sufficient for the jury, as summarized by Judge Woodbury, speaking for a unanimous Court of Appeals. 272 F.2d 153. They also dissent from the direction to enter judgment for the petitioner, since they are of the view that if there is a reversal, there should be a new trial. See Galloway v. United States, 319 U.S. 372, 396, 63 S.Ct. 1077, 1090, 87 L.Ed. 1458 (dissenting opinion). For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice FRANKFURTER is of the view that the writ of certiorari was improvidently granted.

364.US.446

When the Small Business Administration created by the Small Business Act of 1953, with authority inter alia to lend government funds to small brMesses, has joined a private bank in making a loan and the borrower becomes a bankrupt, the Administration's interest in the unpaid balance of the loan is entitled to the priority provided for "debts due to the United States" under R. S. § 3466 and § 64 of the Bankruptcy Act-even though the Administration has agreed to share with the bank any money collected on the loan. Pp. 447-453. (a) The Small Business Administration is an integral part of the governmental mechanism-not a separate legal entity-and it is entitled to the priority of the United States in collecting loans made by it out of government funds. Sloan Shipyards Corp. v. United States Fleet Corp., 258 U. S. 549, and Reconstruction Finance Corp. v. Menihan Corv., 312 U. S. 81, distinguished. United States v. Remund, 330 U.S. 539, followed. Pp. 448-450. (b) Since the Administration participated in making the loan and acquired a beneficial interest in it prior to the petition in bankruptcy, it is immaterial that formal assignment to the Administration of the note evidencing the debt was not made by the bank until after the filing of the petition. P. 450. _(e) The Administration did not forfeit its right to priority by agreeing to turn over to the bank part of any distribution obtained because of its priority. Pp. 451-453. (d) Governmental priority 'in bankruptcy proceedings is not inconsistent with the basic_ purposes and provisions of the Small Business Act. P. 453. 272 F. 2d 143, reversed.

The Small Business Act of 19531 created the Small Business Administration to 'aid, counsel, assist, and protect insofar as is possible the interests of small-business concerns in order to preserve free competitive enterprise * * * and to maintain and strengthen the overall economy of the Nation.'2 The Administration was given extraordinarily broad powers to accomplish these important objectives, including that of lending money to small businesses whenever they could not get necessary loans on reasonable terms from private lenders.3 When a part, but not all, of a necessary loan can be obtained from a bank or other private lender, the Administration is empowered to join that private lender in making the loan.4 The basic question this case presents is whether, when the Administration has joined a private bank in a loan and the borrower becomes a bankrupt, the Administration's interest in the unpaid balance of the loan is entitled to the priority provided for 'debts due to the United States' in R.S. § 3466 and § 64 of the Bankruptcy Act,5 even though the Administration has agreed to share any money collected on the loan with the private bank. That question arises out of a joint bank-Administration loan of $20,000 to a small business, $5,000 of the loan having come from the funds of the bank and $15,000 from the Government Treasury. Nine months later, an involuntary petition in bankruptcy was filed against the borrower by other creditors. The Administration appeared in the proceedings upon that petition, filed a claim for $16,355.69, the amount then due on the loan, including interest, and asserted priority for its claim to the extent of $12,266.75, its 75 per cent interest in the debt. After a hearing, the referee in bankruptcy denied priority on the ground that the Administration is a 'legal entity' and therefore not entitled to the 'privileges and immunities of the United States.' The District Court, on review, rejected the ground upon which the referee had relied but concluded that since the bankrupt's note evidencing the loan was not assigned by the bank to the Administration until after the commencement of bankruptcy proceedings, the debt is not entitled to priority.6 The Court of Appeals affirmed on a third ground—that the Administration, having contracted to pay the participating private bank one-fourth of any distribution received, could not assert its priority and thus permit a private party to benefit from a priority which, under R.S. § 3466 and the Bankruptcy Act, belongs to the Government alone.7 We granted certiorari to consider the Government's contention that the denial of priority to the Small Business Administration handicaps that agency in the effective performance of the duties imposed upon it by Congress.8 First. It is contended that the referee was correct in holding that the Small Business Administration is a separate legal entity and therefore not entitled to governmental priority in a bankruptcy proceeding. The contention rests upon a supposed analogy between this case and Sloan Shipyards Corp. v. United States Shipping Board Emergency Fleet Corporation9 and Reconstruction Finance Corp. v. J. G. Menihan Corp.,10 in which cases this Court refused to treat the corporate governmental agencies involved as the United States. Neither of those cases, however, is controlling here. The agency involved in Sloan Shipyards, the Fleet Corporation, was organized under the laws of the District of Columbia pursuant to authority of an Act of Congress which 'contemplated a corporation in which private persons might be stockholders.'11 This fact alone is enough to distinguish the Fleet Corporation from the Small Business Administration, which, as was contemplated from the beginning, gets all of its money from the Government Treasury. Our decision in the Reconstruction Finance Corp. case is equally inapplicable for that case involved only the question of whether the Reconstruction Finance Corporation, having been endowed by Congress with the capacity to sue and be sued, could be assessed costs in connection with a suit it brought. The holding that such costs could be assessed would not support a holding that the Small Business Administration is not the United States for the purpose of bankruptcy priority.12 Thus neither of these cases requires us to hold that the Small Business Administration, an agency created to lend the money of the United States, is not entitled to all the priority that must be accorded to the United States when the time comes to collect that money. Under like circumstances we refused to deny priority for debts due to the Farm Credit Administration in United States Dept. of Agriculture, etc., v. Remund.13 As was said there of the Farm Credit Administration, the Small Business Administration is 'an integral part of the governmental mechanism'14 created to accomplish what Congress deemed to be of national importance. And it, like the Farm Credit Administration, is entitled to the priority of the United States in collecting loans made by it out of government funds. Second. Respondent contends, as the District Court held, that the Small Business Administration's assertion of priority is precluded by our holding in United States v. Marxen15 that priority attaches only to those debts owing to the United States on the date of the commencement of bankruptcy proceedings and not to debts that come into existence after that date. But this requirement of the Marxen case is fully met here by virtue of the fact that the debt due the Administration arises out of the loan made jointly by the bank and the United States nine months prior to the petition in bankruptcy. Since beneficial ownership of the three-fourths of the debt for which priority is asserted belonged to the Administration from the date of the loan, it is immaterial that formal assignment of the note evidencing the debt was not made by the bank until after the filing of the petition. Third. The Court of Appeals held, and the contention is reiterated here, that the Administration forfeited any right it might otherwise have had to priority by agreeing to turn over to the bank one-fourth of any distribution obtained because of its priority. By this arrangement, it is urged, the Administration is attempting 'to give priority to a claim which the United States is collecting for the benefit of a private party,' contrary to the principles announced by this Court in Nathanson v. National Labor Relations Board.16 But the Nathanson case involved a significantly different situation. There the National Labor Relations Board sought to obtain governmental priority for back-pay claims belonging to employees based upon their loss of pay as a result of allegedly discriminatory discharges by the bankrupt. This Court's denial of priority in that case, involving claims in which the United States had no financial interest, would not justify a denial here where the money was loaned by, and the debt sought to be collected is due to, the United States. The fact that the Administration has contracted to pay the participating private bank one-fourth of any money it later collects on its loan does not mean the Government must lose its priority. Respondent's argument to the contrary seems to rest upon the assumption that the Government is deprived of its priority by making a contract to pay a part of its funds to another creditor of the bankrupt who has no priority. This argument finds no support whatever in § 3466, in § 64 of the Bankruptcy Act, or in the Small Business Act. Section 3466 declares in unequivocal language that the United States is entitled to priority '(w)henever any person indebted to the United States is insolvent,' and § 64 recognizes that priority in bankruptcy proceedings. The purpose of these sections is simply to protect the interest of the Government in collecting money due to it.17 Once that money is collected and placed in the Government Treasury, the end sought to be achieved by § 3466 and § 64 of the Bankruptcy Act is completely satisfied. At that point, there is no difference between the money so received and money received from any other source and, like other money, it may be disbursed in any way the Government sees fit, including the satisfaction of obligations already incurred, so long as the purpose is lawful. The Small Business Administration is authorized to enter into contracts calculated to induce private banks to make loans to small businesses.18 The contract involved in this case, by providing additional security to the private bank at the Government's expense, is well adapted to that end. Indeed, in many cases such a contract may be the only way the Administration could induce private bank participation in a necessary loan. In those cases, acceptance of respondent's argument would make it more difficult for the Administration to perform its statutory duties. Clearly Congress did not intend, by the very act of imposing duties upon the Administration, to take away a privilege necessary to the effective performance of those duties. Respondent's argument from the policy of equality of distribution for similar creditors expressed in the Bankruptcy Act19 is no more convincing. It is true that the allowance of the priority asserted here will place the bank, a private unsecured creditor, in a better position than other private unsecured creditors. But this position is a result, not of any inequality of distribution on the part of the bankruptcy court, but of the bank's valid contract with the Small Business Administration. Fourth. Respondent's last contention, urged throughout these proceedings, is that governmental priority is inconsistent with the basic purposes and provisions of the Small Business Act. The contention rests upon the fact that having a creditor with governmental priority tends to make it more difficult for a small businessman to borrow money from other persons, and, in this respect, handicaps rather than aids borrowers, thus conflicting with the Act's basic policy. In United States v. Emory, we rejected this same argument, with reference to priority for Federal Housing Administration debts, stating that '(o)only the plainest inconsistency would warrant our finding an implied exception to * * * so clear a command as that of § 3466.'20 The same conclusion must be reached here. It was error for the courts below to refuse the Government's claim for priority. Reversed and remanded. Mr. Justice DOUGLAS dissents.

362.US.440

The criminal provisions of the Smoke Abatement Code of the City of Detroit are constitutional, as applied to prosecution for the emission of dense black smoke by appellant's ships while docked at the Port of Detroit, even though such ships operate in interstate commerce and have been .inspected, approved and licensed by the Federal Government for that purpose in accordance with a-comprehensive system of regulation enacted by Congress. Pp. 440-448. (a) The federal inspection laws, which are designed to afford protection from the perils of maritime navigation, do not so preempt the field as to prevent local regulation to protect the- health and enhance the cleanliness of the local community; and the local regulation here involved does not unconstitutionally burden the federal licenses issued to these vessels. Pp. 444-448. (b) The criminal provisions of the Smoke Abatement Code, as applied to appellant's ships, do not impose an undue burden on interstate commerce. P. 448. 355 Mich. 227, 93 N. W. 2d 888, affirmed.

This appeal from a judgment of the Supreme Court of Michigan draws in question the constitutional validity of certain provisions of Detroit's Smoke Abatement Code as applied to ships owned by the appellant and operated in interstate commerce. The appellant is a Michigan corporation, engaged in the manufacture and sale of cement. It maintains a fleet of five vessels which it uses to transport cement from its mill in Alpena, Michigan, to distributing plants located in various states bordering the Great Lakes. Two of the ships, the S. S. Crapo and the S. S. Boardman, are equipped with handfired Scotch marine boilers. While these vessels are docked for loading and unloading it is necessary, in order to operate deck machinery, to keep the boilers fired and to clean the fires periodically. When the fires are cleaned, the ship's boiler stacks emit smoke which in density and duration exceeds the maximum standards allowable under the Detroit Smoke Abatement Code. Structural alterations would be required in order to insure compliance with the Code. Criminal proceedings were instituted in the Detroit Recorder's Court against the appellant and its agents for violations of the city law during periods when the vessels were docked at the Port of Detroit. The appellant brought an action in the State Circuit Court to enjoin the city from further prosecuting the pending litigation in the Recorder's Court, and from otherwise enforcing the smoke ordinance against its vessels, 'except where the emission of smoke is caused by the improper firing or the improper use of the equipment upon said vessels.' The Circuit Court refused to grant relief, and the Supreme Court of Michigan affirmed, 355 Mich. 227, 93 N.W.2d 888. An appeal was lodged here, and we noted probable jurisdiction, 361 U.S. 806, 80 S.Ct. 53, 4 L.Ed.2d 53. In support of the claim that the ordinance cannot constitutionally be applied to appellant's ships, two basic arguments are advanced. First, it is asserted that since the vessels and their equipment, including their boilers, have been inspected, approved and licensed to operate in interstate commerce in accordance with a comprehensive system of regulation enacted by Congress, the City of Detroit may not legislate in such a way as, in effect, to impose additional or inconsistent standards. Secondly, the argument is made that even if Congress has not expressly pre-empted the field, the municipal ordinance (materially affects interstate commerce in matters where uniformity is necessary.' We have concluded that neither of these contentions can prevail, and that the Federal Constitution does not prohibit application to the appellant's vessels of the criminal provisions of the Detroit ordinance.1 The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city's inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23; Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 13 L.Ed. 996; The Steamboat New York v. Rea, 18 How. 223, 15 L.Ed. 359; Morgan's Louisiana & T.R. & S.S. Co. v. Louisiana Board of Health, 118 U.S. 455, 6 S.Ct. 1114, 30 L.Ed. 237; The Minnesota Rate Cases, Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511; Wilmington Transp. Co. v. R.R. Commission of California, 236 U.S. 151, 35 S.Ct. 276, 59 L.Ed. 508; Vandalia R.R. Co. v. Public Service Commission, 242 U.S. 255, 37 S.Ct. 93, 61 L.Ed. 276; Stewart & Co. v. Rivara, 274 U.S. 614, 47 S.Ct. 718, 71 L.Ed. 1234; Welch Co. v. State of New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500. The basic limitations upon local legislative power in this area are clear enough. The controlling principles have been reiterated over the years in a host of this Court's decisions. Evenhanded local regulation to effectuate a legitimate local public interest is valid unless pre-empted by federal action, Erir R.R. Co. v. People of State of New York 233 U.S. 671, 34 S.Ct. 756, 58 L.Ed. 1149; Oregon-Washington R. & Nav. Co. v. State of Washington, 270 U.S. 87, 46 S.Ct. 279, 70 L.Ed. 482; Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432; Missouri Pacific R. Co. v. Porter, 273 U.S. 341, 47 S.Ct. 383, 71 L.Ed. 672; Service Storage & Transfer Co. v. Commonwealth of Virginia, 359 U.S. 171, 79 S.Ct. 714, 3 L.Ed.2d 717, or unduly burdensome on maritime activities or interstate commerce, State of Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455; Morgan v. Commonwealth of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317; Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003. In determining whether state regulation has been pre-empted by federal action, 'the intent to supersede the exercise by the state of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state.' Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct. 715, 726, 56 L.Ed. 1182. See also Reid v. State of Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; Asbell v. State of Kansas, 209 U.S. 251, 28 S.Ct. 485, 52 L.Ed. 778; Welch Co. v. State of New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500; Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969. In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when 'conferring upon Congress the regulation of commerce, * * * never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution.' Sherlock v. Alling, 93 U.S. 99, 103, 23 L.Ed. 819; Austin v. State of Tennessee, 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224; Louisville & Nashville R. Co. v. Commonwealth of Kentucky, 183 U.S. 503, 22 S.Ct. 95, 46 L.Ed. 298; The Minnesota Rate Cases, Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511; Boston & Maine R. Co. v. Armburg, 285 U.S. 234, 52 S.Ct. 336, 76 L.Ed. 729; Collins v. American Buslines, Inc., 350 U.S. 528, 76 S.Ct. 582, 100 L.Ed. 672. But a state may not impose a burden which materially affects interstate commerce in an area where uniformity of regulation is necessary. Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547; Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915; Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003. Although verbal generalizations do not of their own motion decide concrete cases, it is nevertheless within the framework of these basic principles that the issues in the present case must be determined. For many years Congress has maintained an extensive and comprehensive set of controls over ships and shipping. Federal inspection of steam vessels was first required in 1838, 5 Stat. 304, and the requirement has been continued ever since. 5 Stat. 626; 10 Stat. 61; 14 Stat. 227; 16 Stat. 440; 22 Stat. 346; 28 Stat. 699; 32 Stat. 34; 34 Stat. 68; 60 Stat. 1097; 73 Stat. 475. Steam vessels which carry passengers must pass inspection annually, 46 U.S.C. § 391(a), 46 U.S.C.A. § 391(a), and those which do not, every two years. 46 U.S.C. § 391(b), 46 U.S.C.A. § 391(b). Failure to meet the standards invoked by law results in revocation of the inspection certificate, or refusal to issue a new one, 46 U.S.C. § 391(d), 46 U.S.C.A. § 391(d). It is unlawful for a vessel to operate without such a certificate. 46 U.S.C. § 390c(a), 46 U.S.C.A. § 390c(a). These inspections are broad in nature, covering 'the boilers, unfired pressure vessels, and appurtenances thereof, also the propelling and auxiliary machinery, electrical apparatus and equipment, of all vessels subject to inspection * * *.' 46 U.S.C. § 392(b), 46 U.S.C.A. § 392(b). The law provides that 'No boiler * * * shall be allowed to be used if constructed in whole or in part of defective material or which because of its form, design, workmanship, age, use or for any other reason is unsafe.' 46 U.S.C. § 392(c), 46 U.S.C.A. § 392(c). As is apparent on the face of the legislation, however, the purpose of the federal inspection statutes is to insure the seagoing safety of vessels subject to inspection. Thus 46 U.S.C. § 392(c), 46 U.S.C.A. § 392(c), makes clear that inspection of boilers and related equipment is for the purpose of seeing to it that the equipment 'may be safely employed in the service proposed.' The safety of passengers, 46 U.S.C. § 391(a), 46 U.S.C.A. § 391(a), and of the crew, 46 U.S.C. § 391(b), 46 U.S.C.A. § 391(b), is the criterion. The thrust of the federal inspection laws is clearly limited to affording protection from the perils of maritime navigation. Cf. Ace Waterways v. Fleming, D.C., 98 F.Supp. 666. See also Steamship Co. v. Joliffe, 2 Wall. 450, 17 L.Ed. 805. By contrast, the sole aim of the Detroit ordinance is the elimination of air pollution to protect the health and enhance the cleanliness of the local community. Congress recently recognized the importance and legitimacy of such a purpose, when in 1955 it provided: '(I)n recognition of the dangers to the public health and welfare, injury to agricultural crops and livestock, damage to and deterioration of property, and hazards to air and ground transportation, from air pollution, it is hereby declared to be the policy of Congress to preserve and protect the primary responsibilities and rights of the States and local governments in controlling air pollution, to support and aid technical research to devise and develop methods of abating such pollution, and to provide Federal technical services and financial aid to State and local government air pollution control agencies and other public or private agencies and institutions in the formulation and execution of their air pollution abatement research programs.' 69 Stat. 322, 42 U.S.C. § 1857, 42 U.S.C.A. § 1857. Congressional recognition that the problem of air pollution is peculiarly a matter of state and local concern is manifest in this legislation. Such recognition is underlined in the Senate Committee Report: 'The committee recognizes that it is the primary responsibility of State and local governments to prevent air pollution. The bill does not propose any exercise of police power by the Federal Government and no provision in it invades the sovereignty of States, counties, or cities.' S.Rep. No. 389, 84th Cong., 1st Sess. 3, U.S.Code Congressional and Administrative News 1955, p. 2459 We conclude that there is no overlap between the scope of the federal ship inspection laws and that of the municipal ordinance here involved.2 For this reason we cannot find that the federal inspection legislation has pre-empted local action. To hold otherwise would be to ignore the teaching of this Court's decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists. Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182; Welch Co. v. State of New Hampshire, 306 U.S. 79, 59 S.Ct. 438, 83 L.Ed. 500; Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969. An additional argument is advanced, however, based not upon the mere existence of the federal inspection standards, but upon the fact that the appellant's vessels were actually licensed. 46 U.S.C. § 263, 46 U.S.C.A. § 263, and enrolled, 46 U.S.C. §§ 259, 260, 46 U.S.C.A. §§ 259, 260, by the national government. It is asserted that the vessels have thus been given a dominant federal right to the use of the navigable waters of the United States, free from the local impediment that would be imposed by the Detroit ordinance. The scope of the privilege granted by the federal licensing scheme has been well delineated. A state may not exclude from its waters a ship operating under a federal license. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23. A state may not require a local occupation license, in addition to that federally granted, as a condition precedent to the use of its waters. Moran v. City of New Orleans, 112 U.S. 69, 5 S.Ct. 38, 28 L.Ed. 653. While an enrolled and licensed vessel may be required to share the costs of benefits it enjoys, Huse v. Glover, 119 U.S. 543, 7 S.Ct. 313, 30 L.Ed. 487, and to pay fair taxes imposed by its domicile, Transportation Co. v. Wheeling, 99 U.S. 273, 25 L.Ed. 412, it cannot be subjected to local license imposts exacted for the use of a navigable waterway, Harman v. City of Chicago, 147 U.S. 396, 13 S.Ct. 306, 37 L.Ed. 216. See also Sinnot v. Davenport, 22 How. 227, 16 L.Ed. 243. The mere possession of a federal license, however, does not immunize a ship from the operation of the normal incidents of local police power, not constituting a direct regulation of commerce. Thus, a federally licensed vessel is not, as such, exempt from local pilotage laws, Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 13 L.Ed. 996, or local quarantine laws, Morgan's Louisiana & T.R. & S.S. Co. v. Louisiana Board of Health, 118 U.S. 455, 6 S.Ct. 1114, 30 L.Ed. 237, or local safety inspections, Kelly v. State of Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3, or the local regulation of wharves and docks, Packet Co. v. Catlettsburg, 105 U.S. 559, 26 L.Ed. 1169. Indeed this Court has gone so far as to hold that a state, in the exercise of its police power, may actually seize and pronounce the forfeiture of a vessel 'licensed for the coasting trade, under the laws of the United States, while engaged in that trade.' Smith v. Maryland, 18 How. 71, 74, 15 L.Ed. 269. The present case obviously does not even approach such an extreme, for the Detroit ordinance requires no more than compliance with an orderly and reasonable scheme of community regulation. The ordinance does not exclude a licensed vessel from the Port of Detroit, nor does it destroy the right of free passage. We cannot hold that the local regulation so burdens the federal license as to be constitutionally invalid. The claim that the Detroit ordinance, quite apart from the effect of federal legislation, imposes as to the appellant's ships and undue burden on interstate commerce needs no extended discussion. State regulation, based on the police power, which does not discriminate against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand. Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166; Lake Shore & Michigan Southern Railway Co. v. State of Ohio, 173 U.S. 285, 19 S.Ct. 465, 43 L.Ed. 702; Pennsylvania Gas Co. v. Public Service Commission, 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434; Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752; Bob-Lo Excursion Co. v. People of State of Michigan, 333 U.S. 28, 68 S.Ct. 358, 92 L.Ed. 455. It has not been suggested that the local ordinance, applicable alike to 'any person, firm or corporation' within the city, discriminates against interstate commerce as such. It is a regulation of general application, designed to better the health and welfare of the community. And while the appellant argues that other local governments might impose differing requirements as to air pollution, it has pointed to none. The record contains nothing to suggest the existence of any such competing or conflicting local regulations. Cf. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003. We conclude that no impermissible burden on commerce has been shown. The judgment is affirmed.

363.US.263

The "favored-nation" clause of a contract for the sale of natural gas by respondent to a pipeline company provided that respondent would be entitled to a price increase should the pipeline company thereafter "enter into a contract providing for the purchase by it of gas" at a higher price. Thereafter, the pipeline company agreed to a higher price under a pre-existing, long-term contract with another producer, which required that the price be redetermined every five years, either by agreement of the parties or by arbitration. In proceedings under the Natural Gas Act to determine its effective rate as' of June 7, 1954, respondent filed, its contract with the Federal Power Commission as a rate schedule. The Commission held that the price redetermination under the pipeline company's -pre-existing contract with the other producer was not a contract for the purchase of'gas.within the meaning of the "favorednation" clause in respondent's contract and that, therefore, the price payable by the pipeline company to respondent had not been increased. The Court of Appeals vacated the Commission's order. Held: 1. Since the Commission disposed of the case solely upon its view of the result called for by the application of ordinary rules of contract construction employed by the courts and did not rely on matters within its own special competence, the Court of Appeals was justified in making its own independent determination of the correct application of the governing principles. Pp. 268-270. 2. In the circumstances, consideration of the scope of judicial review of administrative determinations need not deter this Court from reviewing the decision of the Court of Appeals and deciding the proper construction of the "favored-nation" clause. P. 270. 3. The Commission correctly construed the "favored-nation" clause as not effecting an increase in respondent's price by reason of the increased price agreed upon between- the pipeline company and the other producer under their pre-existing agreement. Pp. 270-276. 4. The judgment is reversed and the cause is remanded to the Court of Appeals for further proceedings, including consideration of the question whether the enforceability of the contract between the pipeline company and the other producer is material to the decision of this case, and, if so, whether that contract was enforceable. Pp. 276-277. 263 F. 2d 223, reversed.

One of the series of orders issued by the Federal Power Commission after this Court's decision in Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, required affected independent producers of natural gas to submit rate schedules in effect on June 7, 1954, the date Phillips was decided.1 The respondent. Shell Oil Company, on November 18, 1954, submitted its contract dated May 1, 1951, with Texas Gas Transmission Corporation,2 as a rate schedule on June 7, 1954, for gas from its Chalkley Field, Cameron Parish, Louisiana. The Commission, on March 13, 1957, accepted the contract as a rate schedule but ordered a hearing for the purpose of determining and fixing the price effective thereunder on June 7, 1954.3 At the hearing, Texas Gas contended that paragraph 1 of Article VI of the contract specifying the price of 8.997 cents per thousand cubic feet (Mcf.) for the period which included June 7, 1954, established that price for the date.4 This was the price at which Shell was billing Texas Gas for gas at the time. However, Shell contended that when Texas Gas, prior to June 7, 1954, began paying 12.5 cents per Mcf. to Atlantic Refining Company, for gas produced in nearby Acadia Parish, Shell became entitled to receive the same price under the so-called 'favored nation' clause of the Shell contract. That clause, paragraph 3 of Article VI, provides that '(i)f at any time after December 31, 1951, (Texas Gas) shall enter into a contract providing for the purchase by it of gas' at a higher price (than that currently being paid under this—the Shell contract), the price currently being paid will be increased to equal the 'price payable under such other contract.'5 When Texas Gas and Shell made the contract of May 1, 1951, Atlantic Refining Company was selling gas to the former from Acadia Parish production under a contract concluded in 1943 for a 25-year term. The Atlantic contract specified a price effective for the first five years and provided that during succeeding five-year periods, 'prices to be paid will be determined at the beginning of each period. * * *' 'The price to be paid * * * is to be agreed upon * * * after a survey of prevailing prices for gas being sold in similar quantities in the southwestern part of Louisiana.' The contract further provided that '(i)n the event that the parties are unable to agree upon the price * * * such determination shall be submitted to arbitration'; the arbitrators to be selected as provided in the agreement.6 Negotiations between Atlantic and Texas Gas as to the price to be effective for the five-year period beginning September 1, 1953, terminated with a letter agreement dated February 17, 1954, which recited: '(I)t is hereby agreed that the price to be paid * * * between September 1, 1953, and August 31, 1958, both inclusive, shall be 12.2 cents net' plus .3 cent for severance tax, or 12.5 cents. It is this letter agreement which Shell contends triggered the Shell contract's 'favored nation' clause. The Commission's examiner issued his decision on August 9, 1957. He held that in making the Atlantic letter agreement Texas Gas 'enter(ed) into a contract providing for the purchase by it of gas' within the meaning of the Shell 'favored nation' clause and that this had escalated the Shell price to 12.5 cents per Mcf. The Commission reversed the examiner's decision and determined that the effective price on June 7, 1954, was 8.997 cents per Mcf., the price fixed in paragraph 1 of Article VI. 18 F.P.C. 617. Shell's petition for rehearing was denied. 19 F.P.C. 74. The Court of Appeals for the Third Circuit, on review, vacated the Commission's order. 263 F.2d 223. We granted the separate petitions for certiorari of Texas Gas and Louisville Gas and Electric Company in No. 167, and of the Federal Power Commission in No. 170, being particularly moved to do so by the contention made in both petitions that the Court of Appeals exceeded the appropriate scope of judicial review of the Commission's determination. 361 U.S. 811, 80 S.Ct. 68, 4 L.Ed.2d 59. We may assume with the petitioners that the Court of Appeals did not treat the Commission's order as one which it was required to accept if reasonably supported in the record, and instead considered that it could examine de novo the question of the proper interpretation to be given the Shell 'favored nation' clause. The petitioners' argument that the Court of Appeals exceeded the allowable limits of judicial review is based upon the premise that the Commission's interpretation of the 'favored nation' clause reflects the application of its expert knowledge and judgment to a highly technical field, so that the Court of Appeals was required to accept the Commission's interpretation if it had "warrant in the record' and a 'reasonable basis in law," citing Unemployment Compensation Commission of Territory of Alaska v. Aragon, 329 U.S. 143, 153—154, 67 S.Ct. 245, 250, 91 L.Ed. 136. But the record nowhere discloses that the Commission arrived at its interpretation of the 'favored nation' clause on the basis of specialized knowledge gained from experience in the regulation of the natural gas business, or upon the basis of any trade practice concerning 'favored nation' clauses. On the contrary the opinions of the examiner and the Commission show that both treated the question as one to be determined simply by the application of ordinary rules of contract construction. The examiner stated that '(t)he language (of the 'favored nation' clause) is clear enough to reveal the intent of the parties without resort to parole evidence or self-serving memoranda. * * * (I)ts plain meaning is * * * Shell sought to cause its selling price to rise to that called for by any other contract Buyer made for gas after an agreed date. * * * The language was evidently broad; not narrowly technical in character.' The examiner concluded that 'elemental principles of contract law * * * too commonly known to the legal profession to require citations in support thereof' compelled the decision he reached. The Commission, in turn, relying for authority entirely upon court decisions and texts, construed the 'favored nation' clause to be applicable only when Texas Gas entered into a 'new' contract after December 31, 1951, and held that the February 17, 1954, 'agreement with Atlantic does not constitute a new contract as required by Shell's escalation clause, but merely represents action taken under a pre-existing contract between Texas Gas and Atlantic.' 18 F.P.C., at 618—619. It is apparent that the Commission rested its determination upon a construction of the words of the contract as it supposed a court would interpret them.7 'The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.' Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626. Therefore, since the Commission professed to dispose of the case solely upon its view of the result called for by the application of canons of contract construction employed by the courts, and did not in any wise rely on matters within its special competence, the Court of Appeals was fully justified in making its own independent determination of the correct application of the governing principles. See Federal Communications Commission v. RCA Communications, Inc., 346 U.S. 86, 91, 73 S.Ct. 998, 97 L.Ed. 1470. There applies here what the Court said in Chenery: 'Since the decision of the Commission was explicitly based upon the applicability of principles (of contract interpretation) announced by courts, its validity must likewise be judged on that basis.' 318 U.S. at page 87, 63 S.Ct. at page 459. In the circumstances, considerations of the scope of review of administrative determinations need not deter us from reviewing the decision of the Court of Appeals and deciding the proper construction of the 'favored nation' clause. We proceed to do so since the question of interpretation of the clause was presented in both petitions, our grant of certiorari was not limited to exclude it, and the question has been briefed and argued. The question to be decided is: did the parties to the Shell contract mean that an agreement of the nature of the Atlantic letter agreement of February 17, 1954, should constitute the 'enter(ing) into a contract (by Texas Gas) providing for the purchase by it of gas * * *'? We first consider the nature of the letter agreement. The pricing provisions of the Atlantic contract specify a price for the first five-year period, and provide that prices for the four succeeding five-year periods should be determined by agreement of the parties, or failing such agreement, by arbitration.8 In either case the determination is to be made 'after a survey of prevailing prices for gas being sold in similar quantities in the southwestern part of Louisiana.' Pursuant to this provision a letter agreement dated October 29, 1948, and a modification agreement dated February 16, 1949, established prices for the five-year period from September 1, 1948, to August 31, 1953. The letter agreement of February 17, 1954, setting the price for the 1953—1958 period was thus the second such agreement. Shell urges that the letter agreement is in actuality an entirely new contract which incorporates by inferential reference the terms of the 1943 contract. There is nothing in the letter agreement or otherwise in the record to substantiate this contention. On the contrary, the letter agreement affirmatively states that the action was taken 'in accordance with' the 1943 contract.9 To be sure, the letter agreement may be said to have been a 'contract' insofar as Atlantic and Texas Gas agreed therein upon a price and gave up the right to have arbitrators determine the price for them. But their act was merely in the performance of an undertaking they assumed in 1943 when they chose this binding method for periodic price adjustments instead of some method which would have foreordained the adjustments in precise amounts. The letter agreement in discharge of this obligation assumed in 1943 is thus simply 'executory of the (1943) contract between the parties.' Phillips Petroleum Co. v. Federal Power Commission, 10 Cir., 227 F.2d 470, 475. We therefore agree with the Commission's holding that the letter agreement 'merely represents action taken under a pre-existing contract between Texas Gas and Atlantic.' 18 F.P.C., at 619. In the light of this, we do not think that in being party to the letter agreement Texas Gas 'enter(ed) into a contract for the purchase * * * of gas' within the meaning of those words as employed by the parties in the 'favored nation' clause. The language of that clause of the Shell contract is virtually the same as the parties used several times at the very outset of that contract. The sense in which the parties used the language there reveals its meaning in the 'favored nation' clause and, so interpreted, the Atlantic letter agreement is not a 'contract' within the meaning of the clause. The contract begins: 'This Contract, made and entered into as of May 1, 1951 * * *. 'Whereas, under date of October 1, 1943, Shell Oil Company, Inc., entered into a contract for the sale of gas * * *. 'Whereas, * * * Buyer and Seller now desire to rescind said contract and enter into a new contract for the purchase of gas * * *.' (Emphasis added.) What follows are the nine Articles which detail the many aspects of the parties' relationship for the 20-year term of the contract. The Articles are captioned 'Sale of Gas,' 'Quantity of Gas,' 'Pressure Decline,' 'Point of Delivery,' 'Warranty of Title to Gas,' 'Prices,' 'Arbitration,' 'Term of Contract,' and 'Miscellaneous.' In addition an exhibit made part of the contract deals with such matters as 'Quality of Gas,' 'Measurements,' 'Billing and Payment,' 'Regulatory Bodies' and 'Force Majeure.' In other words 'enter(ing) into a contract providing for the purchase of gas' meant to the parties the making of a full-fledged contract containing all the terms defining the complete relationship. This conclusion is borne out in the 'Prices' Article itself. That Article divides the contract term into five periods, one from May 1, 1951, until January 1, 1952, and four others each of five years. Paragraph 1 specifies the price for each period according to a schedule of automatic step-increases. Adjustment otherwise to higher prices may result in one of two ways: (1) under paragraph 3, the 'favored nation' clause, or (2) under paragraph 4 applicable only to the last two five-year periods—if Shell requests a 'price redetermination.' Upon such request 'determination is to be made by the parties or, if they are unable to agree, by the arbitrators' upon the basis of 'the three (3) highest prices to be paid during such period by operating interstate transporters of natural gas, including (Texas Gas)' for gas purchased from named Louisiana fields. In all probability any 'price redetermination' agreed upon by Shell and Texas Gas under paragraph 4 would be evidenced by a writing stating the determination. Surely the parties who used the language 'enter(ing) into a contract' as they did in the preamble to their agreement would not conceive of such a 'price redetermination' as 'enter(ing) into a contract providing for the purchase * * * of gas.' No more does the similar periodic price adjustment under the Atlantic contract partake of the nature of 'enter(ing) into a contract providing for the purchase * * * of gas,' within the meaning of the language of the Shell 'favored nation' clause. The Court of Appeals, in holding that the letter agreement came within the intendment of 'enter(ing) into a contract providing for the purchase * * * of gas,' stressed that Shell's objective was to assure itself a 'top price for its gas' and said that the facts tended to show 'that the intention of the parties was for any higher price paid by (Texas Gas) to another producer to trigger a rise on the Shell contract to the same figure * * *.' 363 F.2d at page 225. We think the contract demonstrates the contrary, and we find the record barren of any other evidence which would support this conclusion. Of course, we recognize that Shell desired to protect itself during so extended a contract period by provisions for price increases; and it did so. Indeed in this respect the contract is a one-way street. Shell is guaranteed automatic periodic step-increases and in addition, during the last 10 years of the contract term, at Shell's option, prices are to be redetermined to reflect any higher prevailing market prices. Then there is the 'favored nation' clause—also part of the protection afforded Shell. Shell is entitled to the highest price which any of these methods will yield. In contrast, there is no provision allowing Texas Gas the possibility of a price decrease. Even assuming that the parties assigned paramount importance to giving Shell the 'top price,' the 'favored nation' clause as written is not as broad as it might have been. Shell has made other contracts with 'favored nation' clauses which are triggered by every higher price paid by the buyer to other producers.10 In contrast, Shell concedes that this 'favored nation' clause would not be triggered by higher prices paid by Texas Gas to other producers under pre-existing contracts by way of automatic increases or increases which are mathematically determined. The most reasonable explanation for the inclusion of the concededly more limited clause is that the parties meant to distinguish between increases which Texas Gas was contractually bound to pay under provisions of pre-1951 contracts and higher prices which Texas Gas voluntarily assumed to pay after 1951. In deciding which increases do and which to not trigger this 'favored nation' clause we would be making an irrational distinction were we to focus upon the mechanics chosen in the Atlantic contract and conclude that the Shell clause was activated by a post-1951 price determination under the Atlantic contract, although it would not have been activated by price increases pursuant to a more mathematically precise formula. In its essential respects the Atlantic price adjustment was no different from the latter, for the Atlantic adjustment was required under a pre-existing contract, and Texas Gas was powerless to prevent it. We therefore hold that the Court of Appeals erred in its interpretation of the 'favored nation' clause and that the Commission correctly construed it as not effecting an increase in price by reason of the letter agreement. There remains for mention an argument of Shell which the Court of Appeals found unnecessary to consider because of the rationale which it adopted. This is the contention that the 1943 Atlantic agreement did not provide for a fixed and determined price beyond the first five-year period, so that under applicable state law enforceability was suspended until the contract price for a particular succeeding five-year term was supplied by agreement or arbitration. From this premise it is argued that when the second five-year period came to an end on August 31, 1953, neither Atlantic nor Texas Gas was under any enforceable obligation to continue the prior relationship and therefore when on February 17, 1954, Texas Gas signed the letter agreement it was not acting pursuant to any pre-existing obligation but was exercising its free choice to enter what was in effect a new contract. In its petition for writ of certiorari the Commission argued that not only was there no doubt about the enforceability of the Atlantic contract but that the issue is immaterial because the parties to that contract treated the contract as binding and that it is not for Shell, a stranger to the contract, to say that it was not legally enforceable. However, the Commission suggested that should we reverse the decision of the Court of Appeals, premised as it is upon the assumption that the 1943 Atlantic contract imposed a binding obligation for its entire stated term, and if we considered the question of enforceability to be material, we should remand the issue of enforceability to the Court of Appeals for its decision. Shell has maintained in this Court that the issue of enforceability is material but, in view of the Commission's statement, has argued neither that issue nor the issue of enforceability. We agree that it is appropriate that the Court of Appeals address itself to the enforceability issue, if it is material, but under the circumstances we think the Court of Appeals should first decide the question of materiality.11 We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. Judgment reversed and cause remanded with directions. Mr. Justice BLACK concurs in the result.

361.US.376

Under Art. 5248 of the Revised Civil Statutes of Texas, as amended in 1950, which .pertains to taxation of private users of property of the United States, a Texas School District assessed against appellant a tax measured by the full value of real property owned by the United States but leased to appellant for use in its private manufacturing business, under a lease subject to termination at the option of the United States in the event of a national emergency or a sale of the property. The Texas Supreme Court construed Art. 5248 as authorizing this assessment against appellant; but it had construed Art. 7173, which gc., :ns taxation of private lessees of real property owned by the State and its political subdivisions, as not authorizing taxation of a lessee under a lease subject to termination at the lessor's option in the event of a sale. Held: As construed and applied in this case, Art. 5248 discriminates unconstitutionally against the United States and its lessees, and the tax levied against appellant is invalid. Pp. 377-387. (a) Since Texas law authorizes taxation of lessees of federal property but not lessees of property of the State or one of its political subdivisions, when the leases are subject to termination at the option of the lessors, it discriminates against the United States and its lessees. Pp. 379-382. (b) Such discrimination between lessees of federal property and lessees of state property is not justified by any significant difference between them. United States v. City of Detroit, 355 U. S. 466, distinguished. Pp. 383-387. 159 Tex. -, 316 S. W. 2d 382, reversed.

In this case, among other issues which we need not reach, we are asked to decide whether a Texas tax statute, Article 5248 of the Revised Civil Statutes of Texas, as amended in 1950,1 discriminates unconstitutionally against the United States and those with whom it deals. We hold that it does. Appellant, Phillips Chemical Company, engages in the commercial manufacture of ammonia on valuable industrial property leased from the Federal Government in Moore County, Texas. The lease, executed in 1948 pursuant to the Military Leasing Act of 1947, 61 Stat. 774, is for a primary term of 15 years and calls for an annual rental of over $1,000,000. However, it reserves to the Government the right to terminate upon 30 days' notice in the event of a national emergency and upon 90 days' notice in the event of a sale of the property. In 1954, appellee, Dumas Independent School District, assessed a tax against Phillips for the years 1949 through 1954. The tax, measured by the estimated full value of the leased premises, was assessed in accordance with the District's ordinary ad valorem tax procedures. When the District assessed the tax, Phillips commenced the present action in the state courts to enjoin its collection. Phillips contested both the District's right to levy the tax and the valuation figure upon which the amount of the tax was calculated. The latter issue was severed by the trial court for later decision and is not involved in this appeal. The lower state courts denied relief for the years subsequent to the effective date of the 1950 amendment to Article 5248, and on writ of error the Supreme Court of Texas, by a divided court, affirmed. 316 S.W.2d 382. Phillips appealed from the decision, and we noted probable jurisdiction. 359 U.S. 987, 79 S.Ct. 1118, 3 L.Ed.2d 977. The District's power to levy the tax was found to lie in amended Article 5248. Before 1950, Article 5248 provided a general tax exemption for land and improvements 'held, owned, used and occupied by the United States' for public purposes. In 1950, the Texas Legislature added two provisions to Article 5248, one providing for taxation of privately owned personal property located on federal lands, and the other reading as follows: '(P)rovided, further, that any portion of said lands and improvements which is used and occupied by any person, firm, association of persons or corporation in its private capacity, or which is being used or occupied in the conduct of any private business or enterprise, shall be subject to taxation by this State and its political subdivisions.' As construed by a majority of the Texas court, this provision is an affirmative grant of authority to the State and its political subdivisions to tax private users of government realty. While the subject of the tax is the right to the use of the property, i.e., the leasehold, its measure is apparently the value of the fee.2 The constitutionality of the provision, thus construed, depended upon the court's interpretation of our decisions in the Michigan cases two Terms ago, where we held that a State might levy a tax on the private use of government property, measured by the full value of the property. United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424; United States v. Township of Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436; cf. City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441. However, three members of the Texas court, joined by a fourth on petition for rehearing, were of the opinion that under the majority's construction the statute discriminates unconstitutionally against the United States and its lessees. Their conclusion rested on the fact that Article 7173 of the Revised Civil Statutes of Texas3 imposes a distinctly lesser burden on similarly situated lessees of exempt property owned by the State and its political subdivisions. We agree with the dissenters' conclusion. Article 7173 is the only Texas statute other than Article 5248 which authorizes a tax on lessees. It provides in part that: 'Property held under a lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this State, or that is exempt by law from taxation in the hands of the owner thereof, shall be considered for all the purposes of taxation, as the property of the person so holding the same, except as otherwise specially provided by law.' As construed by the Texas courts, Article 7173 is less burdensome than Article 5248 in three respects. First, the measure of a tax under Article 7173 is not the full value of leased tax-exempt premises, as it apparently is under Article 5248, but only the price the taxable leasehold would bring at a fair voluntary sale for cash—the value of the leasehold itself.4 Second, by its very terms, Article 7173 imposes no tax on a lessee whose lease is for a term of less than three years. Finally, and crucial here, a lease for three years or longer but subject—like Phillips'—to termination at the lessor's option in the event of a sale is not 'a lease for a term of three years or more' for purposes of Article 7173. Trammell v. Faught, 74 Tex. 557, 12 S.W. 317. Therefore, because of the termination provisions in its lease, Phillips could not be taxed under Article 7173. Although Article 7173 is, in terms, applicable to all lessees who hold tax-exempt property under a lease for a term of three years or more, it appears that only lessees of public property fall within this class in Texas. Tax exemptions for real property owned by private organizations—charities, churches, and similar entities—do not survive a lease to a business lessee.5 The full value of the leased property becomes taxable to the owner, and the lessee's indirect burden consequently is as heavy as the burden imposed directly on federal lessees by Article 5248. Under these circumstances, there appears to be no discrimination between the Government's lessees and lessees of private property. However, all lessees of exempt public lands would appear to belong to the class defined by Article 7173.6 In view of the fact that lessees in this class are taxed because they use exempt property for a nonexempt purpose, they appear to be similarly situated and presumably should be taxed alike. Yet by the amendment of Article 5248, the Texas Legislature segregated federal lessees and imposed on them a heavier tax burden than is imposed on the other members of the class by Article 7173. In this case the resulting difference in tax, attendant upon the identity of Phillips' lessor, is extreme; the State and the School District concede that Phillips would not be taxed at all if its lessor were the State or one of its political subdivisions instead of the Federal Government. The discrimination against the United States and its lessee seems apparent. The question, however, is whether it can be justified. Phillips argues that because Article 5248 applies only to private users of federal property, it is invalid for that reason, without more. For this argument, it relies on Miller v. Milwaukee, 272 U.S. 713, 47 S.Ct. 280, 71 L.Ed. 487; see also Macallen Co. v. Massachusetts, 279 U.S. 620, 49 S.Ct. 432, 73 L.Ed. 874. Macallen might be deemed to support the argument, but to the extent that it does, it no longer has precedential value. See United States v. City of Detroit, supra, 355 U.S. at page 472, note 2, 78 S.Ct. at page 477. Miller was a rather different case. In Miller it was thought that a State had attempted indirectly to levy a tax on exempt income from government bonds. Phillips' use of the Government's property, by way of contrast, is not exempt. 10 U.S.C. § 2667(e), 10 U.S.C.A. § 2667(e);7 United States v. City of Detroit, supra. It is true that in Miller the ostensible incidence of the tax—shareholders' income from corporate dividends—was not itself exempt, but the measure of the tax excluded all income not attributable to federal bonds owned by the corporation; that was the defect in the tax. See Pacific Co. v. Johnson, 285 U.S. 480, 493, 52 S.Ct. 424, 427, 76 L.Ed. 893. Therefore, in practical operation, the tax was either an indirect tax on the exempt income, or a discriminatory tax on shareholders of corporations which as bondholders, dealt with the Government. Thus, if Miller has any relevance here, it is only to the extent that it may support the proposition that a State may not single out those who deal with the Government, in one capacity or another, for a tax burden not imposed on others similarly situated. A determination that Article 5248 is invalid, under this test, cannot rest merely on an examination of that article. It does not operate in a vacuum. First, it is necessary to determine how other taxpayers similarly situated are treated. Such a determination requires 'an examination of the whole tax structure of the state.' Cf. Tradesmens' National Bank v. Oklahoma Tax Comm., 309 U.S. 560, 568, 60 S.Ct. 688, 693, 84 L.Ed. 947. Although Macallen may have departed somewhat from this rule, nothing in Miller, at least as it has been interpreted in later cases, should be read as indicating that less is required. Cf. Educational Films Corp. v. Ward, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400; Pacific Co. v. Johnson, 285 U.S. 480, 52 S.Ct. 424. Therefore, we must focus on the nature of the classification erected by Articles 5248 and 7173. The imposition of a heavier tax burden on lessees of federal property than is imposed on lessees of other exempt public property must be justified by significant differences between the two classes. The School District addresses this problem, essentially, as one of equal protection, and argues that we must uphold the classification, though apparently discriminatory, 'if any state of facts reasonably can be conceived that would sustain it.' Allied Stores of Ohio, Inc., v. Bowers, 358 U.S. 522, 528, 79 S.Ct. 437, 441, 3 L.Ed.2d 480. The argument, in this context, turns on three supposed differences between the two classes. First, the School District and the State say that the State can collect in rent what it loses in taxes from its own lessees—something it cannot do, of course, with the Federal Government's lessees. Second, they argue that the State may legitimately foster its own interests by adopting measures which facilitate the leasing of its property. Finally, they claim that because of its allegedly greater magnitude, federal leasing of exempt land has a more serious impact on the finances and operations of local government than does the State's own leasing activities. None of these considerations provides solid support for the classification. It is undoubtedly true, as a general proposition, that the State is free to adopt measures reasonably designed to facilitate the leasing of its own land. But if the incentive which it provides is in the form of a reduction in tax which discriminates against the Government's lessees, the question remains, is it permissible? Likewise, it is not enough to say that the State can make up in rent what it loses in taxes from its lessees. What the State's political subdivisions lose in taxes from the State's lessees cannot be made up in this fashion. Other local taxpayers—including the Government's lessees—must make up the difference. Nor is the classification here supported by the allegedly serious impact of federal leasing, as contrasted with state leasing, on the operations of local government. It is claimed, in this respect, that neither the State nor its subdivisions lease property exactly comparable—in size, value, or number of employees involved—to the ordnance works leased by Phillips from the Government. However, the classification erected by Article 5248 is not based on such factors. Article 5248 imposes its burdens on all lessees of federal property. It is conceded that the State and its subdivisions lease valuable property to commercial and business enterprises, as does the Federal Government. Warehouse facilities are an example.8 But the identity of the exempt lessor bears no relation to the impact on local government of otherwise identical leasing activities. Still, the variant tax consequences to the lessee, under Article 7173 on the one hand and Article 5248 on the other, differ widely. It is true that perfection is by no means required under the equal protection test of permissible classification. But we have made it clear, in the equal protection cases, that our decisions in that field are not necessarily controlling where problems of intergovernmental tax immunity are involved. An Allied Stores of Ohio, Inc., v. Bowers, supra, for example, we noted that the State was 'dealing with (its) proper domestic concerns, and not trenching upon the prerogatives of the National Government.' 358 U.S. at page 526, 79 S.Ct. at page 440. When such is the case, the State's power to classify is, indeed, extremely broad, and its discretion is limited only by constitutional rights and by the doctrine that a classification may not be palpably arbitrary. Id., 358 U.S. at pages 526—528, 79 S.Ct. at pages 440—441. But where taxation of the private use of the Government's property is concerned, the Government's interests must be weighed in the balance. Accordingly, it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself. Compare Esso Standard Oil Co. v. Evans, 345 U.S. 495, 500, 73 S.Ct. 800, 802, 97 L.Ed. 1174. Nevertheless, it is claimed that the classification here is supported by our decision in United States v. City of Detroit, supra, because of the assertedly similar nature of the classification created by the statute involved in that case.9 The Michigan statute, although applicable generally to lessees of exempt property,10 contained an exception for property owned by state-supported educational institutions. Appellee's argument, essentially, is that the exemption of lessees of school-owned property from the Michigan statute supports the imposition here of a heavier tax on federal lessees than is imposed on lessees of other exempt public property, in general This argument misconceives the scope of the Michigan decisions. In those cases we did not decide—in fact, we were not asked to decide—whether the exemption of school-owned property rendered the statute discriminatory. Neither the Government nor its lessees, to whom the statute was applicable, claimed discrimination of this character.11 Since the issue was not raised, the basis for the separate classification of property owned by schools was not examined. Therefore, the Michigan cases shed no light on the classification problem here.12 None of these arguments, urged in support of the Texas classification, seems adequate to justify what appears to be so substantial and transparent a discrimination against the Government and its lessees. Here, Phillips is taxed under Article 5248 on the full value of the real property which it leases from the Federal Government, while businesses with similar leases, using exempt property owned by the State and its political subdivisions, are not taxed on their leaseholds at all. The differences between the two classes, at least when the Government's interests are weighed in the balance, seem too impalpable to warrant such a gross differentiation. It follows that Article 5248, as applied in this case, discriminates unconstitutionally against the United States and its lessee. As we had occasion to state, quite recently, it still remains true, as it has from the time of M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that a state tax may not discriminate against the Government or those with whom it deals. See United States v. City of Detroit, supra, 355 U.S. at page 473, 78 S.Ct. at page 478. Therefore, this tax may not be exacted. Reversed. Mr. Justice FRANKFURTER concurs in the result.

362.US.327

In order to afford shippers additional time to find a market for lumber while in transit, appellant railroad renders a 14-day delayed lumber service over a route ordinarily requiring from two to four days. In doing so, it incurs additional operational problems and costs not present in its fast freight service and not included in its published tariff. Held: Such delayed service constitutes the furnishing of additional "privileges or facilities," within the meaning of § 6 (7) of the Interstate Commerce Act, and must be published and filed in appellant's tariff. Pp. 327-328. 173 F. Supp. 397, affirmed.

Appellant, along with other railroads, has for years engaged in the 'roller lumber traffic' by performing intentionally delayed service in the transportation of lumber from the West Coast to market. Six roads so engaged have filed tariffs covering such services at the same rate as their fast freight, and the Interstate Commerce Commission now has such tariffs under investigation and consideration. Appellant, however, has refused to file a tariff covering such service but continues to handle roller lumber traffic on the same tariff as its fast freight. The United States, at the instance of the Interstate Commerce Commission, sought and obtained a permanent injunction restraining appellant from performing its roller lumber traffic service until it publishes and files a tariff covering the same. The District Court found that appellant renders a 14-day delayed lumber service over a route ordinarily requiring from two to four days. The delay is accomplished by the holding of cars on sidings at certain points on its trunk lines awaiting diversion orders to move the shipment forward over the railroad's regular service. This affords the shipper additional time to find a market for the lumber while it is in transit. This service, the District Court found, (173 F.Supp. 401) incurred additional 'operational problems and costs' for appellant, including switching, siding, storage and 'per diem cost for the use of foreign cars' not present in its fast freight service and not included in its published tariff. We agree with the District Court that such delayed service constitutes the furnishing of additional 'privileges or facilities' under § 6(7) of the Interstate Commerce Act, 49 U.S.C.A. § 6(7), and, therefore, must be published and filed in its tariff. 49 U.S.C. § 6(1), 49 U.S.C.A. § 6(1). See Turner, Dennis & Lowry Lumber Co. v. Chicago, M. & St. P.R. Co., 1926, 271 U.S. 259, 262, 46 S.Ct. 530, 531, 70 L.Ed. 934. If and when appellant publishes and files such a tariff, as other roads have already done, the Commission can then consider the reasonableness and justness of appellant's service in the light of that rate, giving due regard to any unjust or unreasonable preferences or advantages that might result to shippers or other roads should the same not be approved. Affirmed.

364.US.519

Appeal dismissed since the judgment below is based on a nonfederal ground adequate to support it.

The appeal is dismissed for the reason that the judgment of the Supreme Court of Michigan, sought here to be reviewed, is based upon a non-federal ground adequate to support it.

362.US.60

Over petitioner's protest that it invaded his freedom of speech and press in violation of the Fourteenth and First Amendments to the Federal Constitution, he was convicted of violating a city ordinance which forbade distribution, in any place under any circumstances, of any handbill which did not have printed thereon the name and address of the person who prepared, distributed or sponsored it. Held: The ordinance is void on its face, and the conviction is reversed. Lovell v. Griffin. 303 U. S. 444. Pp. 60-66. 172 Cal. App. 2d Supp. 797, 332 P. 2d 447, reversed.

The question presented here is whether the provisions of a Los Angeles City ordinance restricting the distribution of handbills 'abridge the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution.'1 The ordinance, § 28.06 of the Municipal Code of the City of Los Angeles, provides: 'No person shall distribute any hand-bill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of the following: '(a) The person who printed, wrote, compiled or manufactured the same. '(b) The person who caused the same to be distributed; provided, however, that in the case of a fictitious person or club, in addition to such fictitious name, the true names and addresses of the owners, managers or agents of the person sponsoring said hand-bill shall also appear thereon.' The petitioner was arrested and tried in a Los Angeles Municipal Court for violating this ordinance. It was stipulated that the petitioner had distributed handbills in Los Angeles, and two of them were presented in evidence. Each had printed on it the following: National Consumers Mobilization, Box 6533, Los Angeles 55, Calif. PLeasant 9—1576. The handbills urged readers to help the organization carry on a boycott against certain merchants and businessmen, whose names were given, on the ground that, as one set of handbills said, they carried products of 'manufacturers who will not offer equal employment opportunities to Negroes, Mexicans, and Orientals.' There also appeared a blank, which, if signed, would request enrollment of the signer as a 'member of National Consumers Mobilization,' and which was preceded by a statement that 'I believe that every man should have an equal opportunity for employment no matter what his race, religion, or place of birth.' The Municipal Court held that the information printed on the handbills did not meet the requirements of the ordinance, found the petitioner guilty as charged, and fined him $10. The Appellate Department of the Superior Court of the County of Los Angeles affirmed the conviction, rejecting petitioner's contention, timely made in both state courts, that the ordinance invaded his freedom of speech and press in violation of the Fourteenth and First Amendments to the Federal Constitution.2 172 Cal.App.2d Supp. 797, 332 P.2d 447. Since this was the highest state court available to petitioner, we granted certiorari to consider this constitutional contention. 360 U.S. 928, 79 S.Ct. 1457, 3 L.Ed.2d 1543. In Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, we held void on its face an ordinance that comprehensively forbade any distribution of literature at any time or place in Griffin, Georgia, without a license. Pamphlets and leaflects it was pointed out, 'have been historic weapons in the defense of liberty'3 and enforcement of the Griffin ordinance 'would restore the system of license and censorship in its baldest form.' Id., 303 U.S. at page 452, 58 S.Ct. at page 669. A year later we had before us four ordinances each forbidding distribution of leaflets—one in Irvington, New Jersey, one in Los Angeles, California, one in Milwaukee, Wisconsin, and one in Worcester, Massachusetts. Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. Efforts were made to distinguish these four ordinances from the one held void in the Griffin case. The chief grounds urged for distinction were that the four ordinances had been passed to prevent either frauds, disorder, or littering, according to the records in these cases, and another ground urged was that two of the ordinances applied only to certain city areas. This Court refused to uphold the four ordinances on those grounds pointing out that there were other ways to accomplish these legitimate aims without abridging freedom of speech and press. Frauds, street littering and disorderly conduct could be denounced and punished as offenses, the Court said. Several years later we followed the Griffin and Schneider cases in striking down a Dallas, Texas, ordinance which was applied to prohibit the dissemination of information by the distribution of handbills. We said that although a city could punish any person for conduct on the streets if he violates a valid law, 'one who is rightfully on a street * * * carries with him there as elsewhere the constitutional right to express his views in an orderly fashion * * * by handbills and literature as well as by the spoken word.' Jamison v. State of Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 672, 87 L.Ed. 869. The broad ordinance now before us, barring distribution of 'any hand-bill in any place under any circumstances,'4 falls precisely under the ban of our prior cases unless this ordinance is saved by the qualification that handbills can be distributed if they have printed on them the names and addresses of the persons who prepared, distributed or sponsored them. For, as in Griffin, the ordinance here is not limited to handbills whose content is 'obscene or offensive to public morals or that advocates unlawful conduct.'5 Counsel has urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose. Therefore we do not pass on the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires. There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. 'Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.' Lovell v. City of Griffin, 303 U.S. at page 452, 58 S.Ct. at page 669. Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books.6 Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day.7 Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes. We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412; N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face. The judgment of the Appellate Department of the Superior Court of the State of California is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion. It is so ordered. Judgment reversed and cause remanded with directions.

362.US.145

November 12, 1959.-Decided March 21,. 1960.

The question presented is whether a Federal District Court has jurisdiction under 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1), of a suit by a taxpayer for the refund of income tax payments which did not discharge the entire amount of his assessment. This is our second consideration of the case. In the 1957 Term, we decided that full payment of the assessment is a jurisdictional prerequisite to suit, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165. Subsequently the Court granted a petition for rehearing. 360 U.S. 922, 79 S.Ct. 1430, 3 L.Ed.2d 1538. The case has been exhaustively briefed and ably argued. After giving the problem our most careful attention, we have concluded that our original disposition of the case was correct. Under such circumstances, normally a brief epilogue to the prior opinion would be sufficient to account for our decision. However, because petitioner in reargument has placed somewhat greater emphasis upon certain contentions than he had previously, and because our dissenting colleagues have elaborated upon the reasons for their disagreement, we deem it advisable to set forth our reasoning in some detail, even though this necessitates repeating much of what we have already said. The Facts. The relevant facts are undisputed and uncomplicated. This litigation had its source in a dispute between petitioner and the Commissioner of Internal Revenue concerning the proper characterization of certain losses which petitioner suffered during 1950. Petitioner reported them as ordinary losses, but the Commissioner treated them as capital losses and levied a deficiency assessment in the amount of $28,908.60, including interest. Petitioner paid $5,058.54 and then filed with the Commissioner a claim for refund of that amount. After the claim was disallowed, petitioner sued for refund in a District Court. The Government moved to dismiss, and the judge decided that the petitioner 'should not maintain' the action because he had not paid the full amount of the assessment. But since there was a conflict among the Courts of Appeals on this jurisdictional question, and since the Tenth Circuit had not yet passed upon it, the judge believed it desirable to determine the merits of the claim. He thereupon concluded that the losses were capital in nature and entered judgment in favor of the Government. 142 F.Supp. 602. The Court of Appeals for the Tenth Circuit agreed with the district judge upon the jurisdictional issue, and consequently remanded with directions to vacate the judgment and dismiss the complaint. 246 F.2d 929. We granted certiorari because the Courts of Appeals were in conflict with respect to a question which is of considerable importance in the administration of the tax laws.1 The question raised in this case has not only raised a conflict in the federal decisions, but has also in recent years provoked controversy among legal commentators.2 In view of this divergence of expert opinion, it would be surprising if the words of the statute inexorably dictated but a single reasonable conclusion. Nevertheless, one of the arguments which has been most strenuously urged is that the plain language of the statute precludes, or at the very least strongly militates against, a decision that full payment of the income tax assessment is a jurisdictional condition precedent to maintenance of a refund suit in a District Court. If this were true, presumably we could but recite the statute and enter judgment for petitioner—though we might be pardoned some perplexity as to how such a simple matter could have caused so much confusion. Regrettably, this facile an approach will not serve. Section 1346(a)(1) provides that the District Courts shall have jurisdiction, concurrent with the Court of Claims, of '(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws * * *.' (Emphasis added.) It is clear enough that the phrase 'any internal-revenue tax' can readily be construed to refer to payment of the entire amount of an assessment. Such an interpretation is suggested by the nature of the income tax, which is 'A tax * * * imposed for each taxable year,' with the 'amount of the tax' determined in accordance with prescribed schedules.3 (Emphasis added.) But it is argued that this reading of the statute is foreclosed by the presence in § 1346(a)(1) of the phrase 'any sum.' This contention appears to be based upon the notion that 'any sum' is a catchall which confers jurisdiction to adjudicate suits for refund of part of a tax. A catchall the phrase surely is; but to say this is not to define what it catches. The sweeping role which petitioner assigns these words is based upon a conjunctive reading of 'any internal-revenue tax,' any penalty,' and 'any sum.' But we believe that the statute more readily lends itself to the disjunctive reading which is suggested by the connective 'or.' That is, 'any sum,' instead of being related to 'any internal-revenue tax' and 'any penalty,' may refer to amounts which are neither taxes nor penalties. Under this interpretation, the function of the phrase is to permit suit for recovery of items which might not be designated as either 'taxes' or 'penalties' by Congress or the courts. One obvious example of such a 'sum' is interest. And it is significant that many old tax statutes described the amount which was to be assessed under certain circumstances as a 'sum' to be added to the tax, simply as a 'sum,' as a 'percentum,' or as 'costs.'4 Such a rendition of the statute, which is supported by precedent,5 frees the phrase 'any internal-revenue tax' from the qualifications imposed upon it by petitioner and permits it to be given what we regard as its more natural reading—the full tax. Moreover, this construction, under which each phrase is assigned a distinct meaning, imputes to Congress a surer grammatical touch than does the alternative interpretation, under which the 'any sum' phrase completely assimilates the other two. Surely a much clearer statute could have been written to authorize suits for refund of any part of a tax merely by use of the phrase 'a tax or any portion thereof,' or simply 'any sum paid under the internal revenue laws.' This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments. Cf. Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127. We conclude that the language of § 1346(a)(1) can be more readily construed to require payment of the full tax before suit than to permit suit for recovery of a part payment. But, as we recognized in the prior opinion, the statutory language is not absolutely controlling, and consequently resort must be had to whatever other materials might be relevant.6 Legislative History and Historical Background. Although frequently the legislative history of a statute is the most fruitful source of instruction as to its proper interpretation, in this case that history is barren of any clue to congressional intent. The precursor of § 1346(a)(1) was § 1310(c) of the Revenue Act of 1921,7 in which the language with which we are here concerned appeared for the first time in a jurisdictional statute. Section 1310(c) had an overt purpose unrelated to the question whether full payment of an assessed tax was a jurisdictional prerequisite to a suit for refund. Prior to 1921, tax refund suits against the United States could be maintained in the District Courts under the authority of the Tucker Act, which had been passed in 1887.8 Where the claim exceeded $10,000, however, such a suit could not be brought, and in such a situation the taxpayer's remedy in District Court was against the Collector. But because the Collector had to be sued personally, no District Court action was available if he was deceased.9 The 1921 provision, which was an amendment to the Tucker Act, was explicitly designed to permit taxpayers to sue the United States in the District Courts for sums exceeding $10,000 where the Collector had died.10 The ancestry of the language of § 1346(a)(1) is no more enlightening than is the legislative history of the 1921 provision. This language, which, as we have stated, appeared in substantially its present form in the 1921 amendment, was apparently taken from R.S. § 3226 (1878). But § 3226 was not a jurisdictional statute at all; it simply specified that suits for recovery of taxes, penalties, or sums could not be maintained until after a claim for refund had been submitted to the Commissioner.11 Thus there is presented a vexing situation—statutory language which is inconclusive and legislative history which is irrelevant. This, of course, does not necessarily mean that § 1346(a)(1) expresses no congressional intent with respect to the issue before the Court; but it does make that intent uncommonly difficult to divine. It is argued, however, that the puzzle may be solved through consideration of the historical basis of a suit to recover a tax illegally assessed. The argument proceeds as follows: A suit to recover taxes could, before the Tucker Act, be brought only against the Collector. Such a suit was based upon the common-law count of assumpsit for money had and received, and the nature of that count requires the inference that a suit for recovery of part payment of a tax could have been maintained. Neither the Tucker Act nor the 1921 amendment indicates an intent to change the nature of the refund action in any pertinent respect. Consequently, there is no warrant for importing into § 1346(a)(1) a full-payment requirement. For reasons which will appear later, we believe that the conclusion would not follow even if the premises were clearly sound. But in addition we have substantial doubt about the validity of the premises. As we have already indicated, the language of the 1921 amendment does in fact tend to indicate a congressional purpose to require full payment as a jurisdictional prerequisite to suit for refund. Moreover, we are not satisfied that the suit against the collector was identical to the common-law action of assumpsit for money had and received. One difficulty is that, because of the Act of February 26, 1845, c. 22, 5 Stat. 727, which restored the right of action against the Collector after this Court had held that it had been implicitly eliminated by other legislation,12 the Court no longer regarded the suit as a common-law action, but rather as a statutory remedy which 'in its nature (was) a remedy against the Government.' Curtis's Administratrix v. Fiedler, 2 Black 461, 479, 17 L.Ed. 273. On the other hand, it is true that none of the statutes relating to this type of suit clearly indicate a congressional intention to require full payment of the assessed tax before suit.13 Nevertheless, the opinion of this Court in Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561, prevents us from accepting the analogy between the statutory action against the Collector and the common-law count. In this 1875 opinion, the Court described the remedies available to taxpayers as follows: 'So also, in the internal-revenue department, the statute which we have copied allows appeals from the assessor to the commissioner of internal revenue; and, if dissatisfied with his decision, on paying the tax the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay. '* * * While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. * * * If the compliance with this condition (that appeal must be made to the Commissioner and suit brought within six months of his decision) requires the party aggrieved to pay the money, he must do it. He cannot, after the decision is rendered against him, protract the time within which he can contest that decision in the courts by his own delay in paying the money. It is essential to the honor and orderly conduct of the government that its taxes should be promptly paid, and drawbacks speedily adjusted; and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. * * * 'The objecting party can take his appeal. He can, if the decision is delayed beyond twelve months, rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period. So, after the decision, he can pay at once, and commence suit within the six months * * *.' 92 U.S. at pages 88—89, 23 L.Ed. 561. (Emphasis added.) Reargument has not changed our view that this language reflects an understanding that full payment of the tax was a prerequisite to suit. Of course, as stated in our prior opinion, the Cheatham statement is dictum; but we reiterate that it appears to us to be 'carefully considered dictum.' 357 U.S. at page 68, 78 S.Ct. at page 1083. Equally important is the fact that the Court was construing the claim-for-refund statute from which, as amended, the language of § 1346(a)(1) was presumably taken.14 Thus it seems that in Cheatham the Supreme Court interpreted this language not only to specify which claims for refund must first be presented for administrative reconsideration, but also to constitute an additional qualfication upon the statutory right to sue the Collector. It is true that the version of the provision involved in Cheatham contained only the phrase 'any tax.' But the phrase 'any penalty' and 'any sum' were added well before the decision in Cheatham;15 the history of these amendments makes it quite clear that they were not designed to effect any change relevant to the Cheatham rule;16 language in opinions of this Court after Cheatham is consistent with the Cheatham statement;17 and in any event, as we have indicated, we can see nothing in these additional words which would negate the full-payment requirement. If this were all the material relevant to a construction of § 1346(a)(1), determination of the issue at bar would be inordinately difficult. Favoring petitioner would be the theory that, in the early nineteenth century, a suit for recovery of part payment of an assessment could be maintained against the Collector, together with the absence of any conclusive evidence that Congress has ever intended to inaugurate a new rule; favoring respondent would be the Cheatham statement and the language of the 1921 statute. There are, however, additional factors which are dispositive. We are not here concerned with a single sentence in an isolated statute, but rather with a jurisdictional provision which is a keystone in a carefully articulated and quite complicated structure of tax laws. From these related statutes, all of which were passed after 1921, it is apparent that Congress has several times acted upon the assumption that § 1346(a)(1) requires full payment before suit. Of course, if the clear purpose of Congress at any time had been to permit suit to recover a part payment, this subsequent legislation would have to be disregarded. But, as we have stated, the evidence pertaining to this intent is extremely weak, and we are convinced that it is entirely too insubstantial to justify destroying the existing harmony of the tax statutes. The laws which we consider especially pertinent are the statute establishing the Board of Tax Appeals (now the Tax Court), the Declaratory Judgment Act, 28 U.S.C.A. § 2201 et seq., and § 7422(e) of the Internal Revenue Code of 1954. The Board of Tax Appeals. The Board of Tax Appeals was established by Congress in 1924 to permit taxpayers to secure a determination of tax liability before payment of the deficiency.18 The Government argues that the Congress which passed this 1924 legislation thought full payment of the tax assessed was a condition for bringing suit in a District Court; that Congress believed this sometimes caused hardship; and that Congress set up the Board to alleviate that hardship. Petitioner denies this, and contends that Congress' sole purpose was to enable taxpayers to prevent the Government from collecting taxes by exercise of its power of distraint.19 We believe that the legislative history surrounding both the creation of the Board and the subsequent revisions of the basic statute supports the Government. The House Committee Report, for example, explained the purpose of the bill as follows: 'The committee recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excess-profits, war-profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination on the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in nonliquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment.'20 (Emphasis added.) Moreover, throughout the congressional debates are to be found frequent expressions of the principle that payment of the full tax was a precondition to suit: 'pay his tax * * * then * * * file a claim for refund'; 'pay the tax and then sue'; 'a review in the courts after payment of the tax'; 'he may still seek court review, but he must first pay the tax assessed'; 'in order to go to court he must pay his assessment'; 'he must pay it (his assessment) before he can have a trial in court'; 'pay the taxes adjudicated against him, and then commence a suit in a court'; 'pay the tax * * * (t)hen * * * sue to get it back'; 'paying his tax and bringing his suit'; 'first pay his tax and then sue to get it back'; 'take his case to the district court—conditioned, of course, upon his paying the assessment.'21 Petitioner's argument falls under the weight of this evidence. It is true, of course, that the Board of Tax Appeals procedure has the effect of staying collection,22 and it may well be that Congress so provided in order to alleviate hardships caused by the long-standing bar against suits to enjoin the collection of taxes. But it is a considerable leap to the further conclusion that amelioration of the hardship of prelitigation payment as a jurisdictional requirement was not another important motivation for Congress' action.23 To reconcile the legislative history with this conclusion seems to require the presumption that all the Congressmen who spoke of payment of the assessment before suit as a hardship understood—without saying—that suit could be brought for whatever part of the assessment had been paid, but believed that, as a practical matter, hardship would nonetheless arise because the Government would require payment of the balance of the tax by exercising its power of distraint. But if this was in fact the view of these legislators, it is indeed extraordinary that they did not say so.24 Moreover, if Congress' only concern was to prevent distraint, it is somewhat difficult to understand why Congress did not simply authorize injunction suits. It is interesting to note in this connection that bills to permit the same type of prepayment litigation in the District Courts as is possible in the Tax Court have been introduced several times, but none has ever been adopted.25 In sum, even assuming that one purpose of Congress in establishing the Board was to permit taxpayers to avoid distraint, it seems evident that another purpose was to furnish a forum where full payment of the assessment would not be a condition precedent to suit. The result is a system in which there is one tribunal for prepayment litigation and another for post-payment litigation, with no room contemplated for a hybrid of the type proposed by petitioner. The Federal Declaratory Judgment Act of 193426 was amended by § 405 of the Revenue Act of 1935 expressly to except disputes 'with respect to Federal taxes.'27 The Senate Report explained the purpose of the amendment as follows: 'Your committee has added an amendment making it clear that the Federal Declaratory Judgments Act of June 14, 1934, has no application to Federal taxes. The application of the Declaratory Judgments Act to taxes would constitute a radical departure from the long-continued policy of Congress (as expressed in Rev.Stat. 3224 and other provisions) with respect to the determination, assessment, and collection of Federal taxes. Your committee believes that the orderly and prompt determination and collection of Federal taxes should not be interfered with by a procedure disigned to facilitate the settlement of private controversies, and that existing procedure both in the Board of Tax Appeals and the courts affords ample remedies for the correction of tax errors.'28 (Emphasis added.) It is clear enough that one 'radical departure' which was averted by the amendment was the potential circumvention of the 'pay first and litigate later' rule by way of suits for declaratory judgments in tax cases.29 Petitioner would have us give this Court's imprimatur to precisely the same type of 'radical departure,' since a suit for recovery of but a part of an assessment would determine the legality of the balance by operation of the principle of collateral estoppel. With respect to this unpaid portion, the taxpayer would be securing what is in effect—even though not technically—a declaratory judgment. The frustration of congressional intent which petitioner asks us to endorse could hardly be more glaring, for he has conceded that his argument leads logically to the conclusion that payment of even $1 on a large assessment entitles the taxpayer to sue—a concession amply warranted by the obvious impracticality of any judicially created jurisdictional standard midway between full payment and any payment. One distinct possibility which would emerge from a decision in favor of petitioner would be that a taxpayer might be able to split his cause of action, bringing suit for refund of part of the tax in a Federal District Court and litigating in the Tax Court with respect to the remainder. In such a situation the first decision would, of course, control. Thus if for any reason a litigant would prefer a District Court adjudication,30 he might sue for a small portion of the tax in that tribunal while at the same time protecting the balance from distraint by invoking the protection of the Tax Court procedure. On the other hand, different questions would arise if this device were not employed. For example, would the Government be required to file a compulsory counterclaim for the unpaid balance in District Court under Rule 13 of the Federal Rules of Civil Procedure, 28 U.S.C.A.? If so, which party would have the burden of proof?31 Section 7422(e) of the 1954 Internal Revenue Code makes it apparent that Congress has assumed these problems are nonexistent except in the rare case where the taxpayer brings suit in a District Court and the Commissioner then notifies him of an additional deficiency. Under § 7422(e) such a claimant is given the option of pursuing his suit in the District Court or in the Tax Court, but he cannot litigate in both. Moreover, if he decides to remain in the District Court, the Government may—but seemingly is not required to—bring a counterclaim; and if it does, the taxpayer has the burden of proof.32 If we were to overturn the assumption upon which Congress has acted, we would generate upon a broad scale the very problems Congress believed it had solved.33 These, then, are the basic reasons for our decision, and our views would be unaffected by the constancy or inconstancy of administrative practice. However, because the petition for rehearing in this case focused almost exclusively upon a single clause in the prior opinion—'there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due,' 357 U.S. at page 69, 78 S.Ct. at page 1083—we feel obliged to comment upon the material introduced upon reargument. The reargument has, if anything, strengthened, rather than weakened, the substance of this statement, which was directed to the question whether there has been a consistent understanding of the 'pay first and litigate later' principle by the interested government agencies and by the bar. So far as appears, Suhr v. United States, 18 F.2d 81, decided by the Third Circuit in 1927, is the earliest case in which a taxpayer in a refund action sought to contest an assessment without having paid the full amount then due.34 In holding that the District Court had no jurisdiction of the action, the Court of Appeals said: 'None of the various tax acts provide for recourse to the courts by a taxpayer until he has failed to get relief from the proper administrative body or has paid all the taxes assessed against him. The payment of a part does not confer jurisdiction upon the courts. * * * There is no provision for refund to the taxpayer of any excess payment of any installment or part of his tax, if the whole tax for the year has not been paid.' Id., at page 83. Although the statement by the court might have been dictum,35 it was in accord with substantially contemporaneous statements by Secretary of the Treasury A. W. Mellon, by Under Secretary of the Treasury Garrard B. Winston, by the first Chairman of the Board of Tax Appeals, Charles D. Hamel, and by legal commentators.36 There is strong circumstantial evidence that this view of the jurisdiction of the courts was shared by the bar at least until 1940, when the Second Circuit Court of Appeals rejected the Government's position in Coates v. United States, 111 F.2d 609. Out of the many thousands of refund cases litigated in the pre-1940 period—the Govern-

363.US.709

The Internal Revenue Codes of 1939, § 3405 (c), and 1954, § 4111, placed a 10% excise tax on sales of "self-contained air-conditioning units" and gave the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, power to prescribe needful rules and regulations for the enforcement of the provisions relating to such taxes. The Commissioner published revenue rulings in 1948 and 1954 holding that the statute taxed air-conditioning units which had certain physical features, were designed for installation in a window or other opening and had "a total motor horsepower of less than 1 horsepower." Held: 1. These rulings were ,alid. Pp. 711-712. 2. The case is remanded to the Court of Appeals for consideration of the question what is meant by "horsepower" and any other questions which may remain. P. 712. 3. This disposition of the case is without prejudice to such action as the lower courts may deem appropriate to prevent taxpayers, should they ultimately prevail, from obtaining a windfall by reason of taxes collected by them but not paid to the Government. P. 712. 266 F. 2d 58, 267 F. 2d .802, reversed.

This suit was instituted by petitioners in the District Court for a refund of excise taxes collected on the sales of two air-conditioning units sold in 1954 and 1955. Section 3405(c) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 3405(c), 26 U.S.C.A. § 3405(c), placed a 10% tax on '(s)elf-contained air-conditioning units.'1 Section 3450 gave the Commissioner, with the approval of the Secretary, power to prescribe needful rules and regulations for the enforcement of the provisions relating to such taxes. Pursuant to this power, the Commissioner published revenue rulings in 19482 and in 19543 holding that the statute taxed air-conditioning units which had certain physical features, were designed for installation in a window or other opening and had 'a total motor horsepower of less than 1 horsepower.' These rulings represented the Commissioner's construction of the Act until a different construction, applied prospectively only, was expressed in regulations issued in 1959.4 The parties stipulated that the statute applied only to 'self-contained air conditioning units of the household type' and that each of the two units in question had an actual motor horsepower of one horsepower. The taxpayers contended that the words 'motor horsepower' in the revenue rulings meant actual horsepower; the Government contended that they meant the nominal horsepower given by the manufacturer or 'rated' horsepower assigned on the basis of standards established by trade associations. The District Court construed the revenue rulings as referring to actual, not nominal or rated, horsepower and found, in accordance with the stipulation, that each each of the two units had an actual horsepower in excess of one horsepower. It found additionally that even the 'rated' horsepower of the two units in question was greater than one horsepower. On appeal the Court of Appeals reversed. 7 Cir., 266 F.2d 58; 267 F.2d 802. It did not reach the question as to the meaning of the revenue rulings, for it held that 'household type' was the controlling statutory criterion, that the horsepower of the units is irrelevant to that issue, that the units in question were clearly of the household type because they were 'made to meet the needs of a household,' and that the revenue rulings, insofar as they referred to horsepower, were therefore void. The case is here on petition for a writ of certiorari, 361 U.S. 899, 80 S.Ct. 209, 4 L.Ed.2d 155. There is much said in the briefs and in oral argument about this case as a test case. It is said that taxes on the sale of about 50,000 units turn on this decision. We intimate no opinion as to the taxes on any sales except the two involved here. The only issues before the Court are the construction and validity of the revenue rulings. Hence we do not reach the question as to what other defenses might have been made. Respondent urges in this Court, contrary to the stipulation below, that the statute taxes all self-contained air-conditioning units, not merely those of the household type. We need not consider which view of the statute is correct for under either view we think the horsepower test is a permissible one. We hold that the revenue rulings which were in force from 1948 to 19595 were not void. The factor of horsepower in our opinion may have had some relation to size in the then stage of engineering development and size might well have been relevant to what was then a 'self-contained air-conditioning unit.' There is indeed evidence that the less-than-one-horsepower test was designed to draw the line between household and commercial types of air-conditioning equipment. Moreover, it appears that the rulings in question were issued after consultation with industry representatives, who asserted that horsepower was a factor relevant to the definition of the statutory term as they understood it. The Commissioner consistently adhered to the horsepower test for more than 10 years, and Congress did not change the statute though it was specifically advised in 1956 that that was the test which was being applied.6 We cannot say that such a construction was not a permissible one, cf. Universal Battery Co. v. United States, 281 U.S. 580, 50 S.Ct. 422, 74 L.Ed. 1051, especially where it continued without deviation for over a decade. Cf. United States v. Leslie Salt Co., 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441. The District Court found that 'Among engineers, the horsepower of a motor does not mean its nominal horsepower rating but means the actual horsepower which the motor will deliver continuously under its full normal load.' The Court of Appeals did not reach that question nor review that finding in view of its conclusion that the horsepower test was not valid. Accordingly we remand the case to the Court of Appeals for consideration of that and any other questions which may remain. And we add that our disposition is without prejudice to such action as the lower courts may deem appropriate to prevent taxpayers, should they ultimately prevail, from obtaining a windfall by reason of taxes collected by them but not paid to the Government. Reversed.

363.US.574

This suit under § 301 (a) of the Labor Management Relations Act, 1947, was b rought by a labor union to compel arbitration of a grievance based upon the employer's practice of contracting out work while laying off employees who could have performed such work. The collective bargaining agreement between the parties contained "no strike" and "no lock-out" provisions and set up a grievance procedure culminating in arbitration. It provided that "matters which are strictly a function of management shall not be subject to arbitration"; but it also provided that "Should differences arise . . . as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise," the grievance procedure should be followed. The Court of Appeals ruled that deciding whether to contract out work was "strictly a function of management" within the meaning of the agreement, and it sustained a judgment of the District Court dismissing the complaint. Held: It erred in doing so, and the judgment is reversed. Pp. 575-585. (a) In a suit under § 301 (a), judicial inquiry must be strictly confined.to the question whether the reluctant party did agree to arbitrate the grievance or to give the arbitrator power to make the award he made; an order to arbitrate the particular grievance should not be denied unless-it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute; and doubts should be resolved in favor of coverage. Pp. 582-583. (b) In the absence of any express provision excluding a particular grievance from arbitration, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Pp. 583-585. (c) Since, in this case, the parties had agreed that any dispute "as to the meaning of this Agreement" would be determined by arbitration, it was for the arbitrator, not the courts, to decide whether the contracting out here involved violated the agreement. P. 585. 269 F. 2d 633, reversed.

Respondent transports steel and steel products by barge and maintains a terminal at Chickasaw, Alabama, where it performs maintenance and repair work on its barges. The employees at that terminal constitute a bargaining unit covered by a collective bargaining agreement negotiated by petitioner union. Respondent between 1956 and 1958 laid off some employees, reducing the bargaining unit from 42 to 23 men. This reduction was due in part to respondent contracting maintenance work, previously done by its employees, to other companies. The latter used respondent's supervisors to lay out the work and hired some of the laid-off employees of respondent (at reduced wages). Some were in fact assigned to work on respondent's barges. A number of employees signed a grievance which petitioner presented to respondent, the grievance reading: 'We are hereby protesting the Company's actions, of arbitrarily and unreasonably contracting out work to other concerns, that could and previously has been performed by Company employees. 'This practice becomes unreasonable, unjust and discriminatory in lieu (sic) of the fact that at present there are a number of employees that have been laid off for about 1 and 1/2 years or more for allegedly lack of work. 'Confronted with these facts we charge that the Company is in violation of the contract by inducing a partial lock-out, of a number of the employees who would otherwise be working were it not for this unfair practice.' The collective agreement had both a 'no strike' and a 'no lockout' provision. It also had a grievance procedure which provided in relevant part as follows: 'Issues which conflict with any Federal statute in its application as established by Court procedure or matters which are strictly a function of management shall not be subject to arbitration under this section. 'Should differences arise between the Company and the Union or its members employed by the Company as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise, there shall be no suspension of work on account of such differences but an earnest effort shall be made to settle such differences immediately in the following manner: 'A. For Maintenance Employees: 'First, between the aggrieved employees, and the Foreman involved; 'Second, between a member or members of the Grievance Committee designated by the Union, and the Foreman and Master Mechanic. 'Fifth, if agreement has not been reached the matter shall be referred to an impartial umpire for decision. The parties shall meet to decide on an umpire acceptable to both. If no agreement on selection of an umpire is reached, the parties shall jointly petition the United States Conciliation Service for suggestion of a list of umpires from which selection shall be made. The decision of the umpire will be final.' Settlement of this grievance was not had and respondent refused arbitration. This suit was then commenced by the union to compel it.1 The District Court granted respondent's motion to dismiss the complaint. 168 F.Supp. 702. It held after hearing evidence, much of which went to the merits of the grievance, that the agreement did not 'confide in an arbitrator the right to review the defendant's business judgment in contracting out work.' Id., at page 705. It further held that 'the contracting out of repair and maintenance work, as well as construction work, is strictly a function of management not limited in any respect by the labor agreement involved here.' Ibid. The Court of Appeals affirmed by a divided vote, 269 F.2d 633, 635, the majority holding that the collective agreement had withdrawn from the grievance procedure 'matters which are strictly a function of management' and that contracting out fell in that exception. The case is here on a writ of certiorari. 361 U.S. 912, 80 S.Ct. 255, 4 L.Ed.2d 183. We held in Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 923, 1 L.Ed.2d 972, that a grievance arbitration provision in a collective agreement could be enforced by reason of § 301(a) of the Labor Management Relations Act2 and that the policy to be applied in enforcing this type of arbitration was that reflected in our national labor laws. Id., 353 U.S. at pages 456—457, 77 S.Ct. at page 917—918. The present federal policy is to promote industrial stabilization through the collective bargaining agreement.3 Id., 353 U.S. at pages 453—454, 77 S.Ct. at page 916. A major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the collective bargaining agreement.4 Thus the run of arbitration cases, illustrated by Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 becomes irrelevant to our problem. There the choice is between the adjudication of cases or controversies in courts with established procedures or even special statutory safeguards on the one hand and the settlement of them in the more informal arbitration tribunal on the other. In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility evinced by courts toward arbitration of commercial agreements has no place here. For arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself. The collective bargaining agreement states the rights and duties of the parties. It is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. See Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L. Rev. 999, 1004—1005. The collective agreement covers the whole employment relationship.5 It calls into being a new common law—the common law of a particular industry or of a particular plant. As one observer has put it:6 '* * * (I)t is not unqualifiedly true that a collective-bargaining agreement is simply a document by which the union and employees have imposed upon management limited, express restrictions of its otherwise absolute right to manage the enterprise, so that an employee's claim must fail unless he can point to a specific contract provision upon which the claim is founded,. There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties. One cannot reduce all the rules governing a community like an industrial plant to fifteen or even fifty pages. Within the sphere of collective bargaining, the institutional characteristics and the governmental nature of the collective-bargaining process demand a common law of the shop which implements and furnishes the context of the agreement. We must assume that intelligent negotiators acknowledged so plain a need unless they stated a contrary rule in plain words.' A collective bargaining agreement is an effort to erect a system of industrial self-government. When most parties enter into contractual relationship they do so voluntarily, in the sense that there is no real compulsion to deal with one another, as opposed to dealing with other parties. This is not true of the labor agreement. The choice is generally not between entering or refusing to enter into a relationship, for that in all probability pre-exists the negotiations. Rather it is between having that relationship governed by an agreed-upon rule of law or leaving each and every matter subject to a temporary resolution dependent solely upon the relative strength, at any given moment, of the contending forces. The mature labor agreement may attempt to regulate all aspects of the complicated relationship, from the most crucial to the most minute over an extended period of time. Because of the compulsion to reach agreement and the breadth of the matters covered, as well as the need for a fairly concise and readable instrument, the product of negotiations (the written document) is, in the words of the late Dean Shulman, 'a compilation of diverse provisions: some provide objective criteria almost automatically applicable; some provide more or less specific standards which require reason and judgment in their application; and some do little more than leave problems to future consideration with an expression of hope and good faith.' Shulman, supra, at 1005. Gaps may be left to be filled in by reference to the practices of the particular industry and of the various shops covered by the agreement. Many of the specific practices which underlie the agreement may be unknown, except in hazy form, even to the negotiators. Courts and arbitration in the context of most commercial contracts are resorted to because there has been a breakdown in the working relationship of the parties; such resort is the unwanted exception. But the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties. The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement. Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement. The labor arbitrator performs functions which are not normal to the courts; the considerations which help him fashion judgments may indeed by foreign to the competence of courts. 'A proper conception of the arbitrator's function is basic. He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. * * *' Shulman, supra, at 1016. The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law—the practices of the industry and the shop—is equally a part of the collective bargaining agreement although not expressed in it. The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties' objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs. The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed. The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.7 We do not agree with the lower courts that contracting-out grievances were necessarily excepted from the grievance procedure of this agreement. To be sure, the agreement provides that 'matters which are strictly a function of management shall not be subject to arbitration.' But it goes on to say that if 'differences' arise or if 'any local trouble of any kind' arises, the grievance procedure shall be applicable. Collective bargaining agreements regulate or restrict the exercise of management functions; they do not oust management from the performance of them. Management hires and fires, pays and promotes, supervises and plans. All these are part of its function, and absent a collective bargaining agreement, it may be exercised freely except as limited by public law and by the willingness of employees to work under the particular, unilaterally imposed conditions. A collective bargaining agreement may treat only with certain specific practices, leaving the rest to management but subject to the possibility of work stoppages. When, however, an absolute no-strike clause is included in the agreement, then in a very real sense everything that management does is subject to the agreement, for either management is prohibited or limited in the action it takes, or if not, it is protected from interference by strikes. This comprehensive reach of the collective bargaining agreement does not mean, however, that the language, 'strictly a function of management,' has no meaning. 'Strictly a function of management' might be thought to refer to any practice of management in which, under particular circumstances prescribed by the agreement, it is permitted to indulge. But if courts, in order to determine arbitrability, were allowed to determine what is permitted and what is not, the arbitration clause would be swallowed up by the exception. Every grievance in a sense involves a claim that management has violated some provision of the agreement. Accordingly, 'strictly a function of management' must be interpreted as referring only to that over which the contract gives management complete control and unfettered discretion. Respondent claims that the contracting out of work falls within this category. Contracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators.8 A specific collective bargaining agreement may exclude contracting out from the grievance procedure. Or a written collateral agreement may make clear that contracting out was not a matter for arbitration. In such a case a grievance based solely on contracting out would not be arbitrable. Here, however, there is no such provision. Nor is there any showing that the parties designed the phrase 'strictly a function of management' to encompass any and all forms of contracting out. In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator. The grievance alleged that the contracting out was a violation of the collective bargaining agreement. There was, therefore, a dispute 'as to the meaning and application of the provisions of this Agreement' which the parties had agreed would be determined by arbitration. The judiciary sits in these cases to bring into operation an arbitral process which substitutes a regime of peaceful settlement for the older regime of industrial conflict. Whether contracting out in the present case violated the agreement is the question. It is a question for the arbiter, not for the courts. Reversed. Mr. Justice FRANKFURTER concurs in the result. Mr. Justice BLACK took no part in the consideration or decision of this case. (For opinion of Mr. Justice BRENNAN, joined by Mr. Justice FRANKFURTER and Mr. Justice HARLAN, see 363 U.S. 569, 80 S.Ct. 1363.)

361.US.220

Under the Federal Rules of Criminal Procedure, the filing of a notice of appeal in a criminal case after expiration of the time prescribed in Rule 37 (a) (2) does not confer jurisdiction upon the Court of Appeals, even though the District Court, proceeding under Rule 45 (b), has found that the late filing of the notice of appeal was the result of "excusable neglect." Pp. 220-230. (a) To recognize a late notice of appeal is actually to "enlarge" the period for taking an appeal, which is explicitly forbidden by Rule 45 (b). Pp. 224-229. (b) The policy question whether greater flexibility should be allowed with respect to the time for taking an appeal must be resolved through the rule-making process, not by judicial decision; aid it cannot be resolved by the Court of Appeals. Pp. 229-230. 104 U. S. App. D. C. 200, 260 F. 2d 718, reversed.

Respondents were indicted for murder in the District Court for the District of Columbia, and upon a trial were found guilty by a jury of the lesser included offense of manslaughter. After their motions for a new trial were considered and denied, the court entered judgment of conviction on May 7, 1958. Twenty-one days thereafter, on May 28, respondents separately filed in the District Court their notices of appeal. On the same day they each asked, and were granted by the District Court, leave to prosecute their appeals in forma pauperis. On June 30, the Government moved the Court of Appeals to dismiss respondents' appeals for want of jurisdiction, because their notices of appeal were not filed within 10 days after entry of the judgment. In opposition to the motion, affidavits of respondent Travit Robinson, and of counsel for both respondents, were filed in the Court of Appeals. They tended to show that the late filing of the notices of appeal was due to a misunderstanding as to whether the notices were to be filed by respondents themselves or by their counsel.1 The Court of Appeals, one judge dissenting, held that the notices of appeal, although filed 11 days after expiration of the time prescribed in Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,2 were sufficient to confer jurisdiction of the appeals if the District Court actually had found, under Rule 45(b), that the failure to file the notices of appeal within 10 days after entry of the judgment 'was the result of excusable neglect.' Being unable to determine from the record whether the District Court had so found, the Court of Appeals, on October 2, remanded to the District Court 'for supplementation of the record' on that score, meanwhile holding in abeyance the Government's motion to dismiss. On October 8, the District Court 'ordered that the record reflect that the appeals were allowed and failure to act was due to excusable englect under Rule 45(b) of the Federal Rules of Criminal Procedure.' On November 5, the Court of Appeals en banc, two judges dissenting, denied the Government's petition for rehearing, 104 U.S.App.D.C. 200, 260 F.2d 718. Because of the importance of the question to the proper and uniform administration of the Federal Rules of Criminal Procedure, we granted certiorari. 358 U.S. 940, 79 S.Ct. 347, 3 L.Ed.2d 348. The single question presented is whether the filing of a notice of appeal in a criminal case after expiration of the time prescribed in Rule 37(a)(2) confers jurisdiction of the appeal upon the Court of Appeals if the District Court, proceeding under Rule 45(b), has found that the late filing of the notice of appeal was the result of excusable neglect. There being no dispute about the fact that the notices of appeal were not filed within the 10-day period prescribed by Rule 37(a)(2),3 the answer to the question presented depends upon the proper interpretation of Rule 45(b). It provides: 'Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect; but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal.' In interpreting that Rule, the Court of Appeals took the view that, although (104 U.S.App.D.C. 200, 260 F.2d 419) 'the District Court has no authority to grant a greater period than ten days for taking an appeal, it may, however, if satisfied that the failure to note an appeal within ten days is excusable, permit late filing.' It thought that there was 'ample justification in reason for different treatment of pre-expiration and post-expiration applications'; that if a defendant 'can make a timely application for an extension of time, he can readily and with less effort file the notice of appeal itself.' But if, 'for some cause amounting legally to 'excusable neglect' the party fails to take any action during the prescribed time, the rule seems plainly to allow the District Court discretion to permit him to file a late notice of appeal.' It thought that so doing would not be to 'enlarge' the period for taking an appeal, but rather would be only to 'permit the act to be done' after expiration of the specified period. This conclusion has, at least, enough surface plausibility to require a detailed examination of the language, judicial interpretations, and history of Rule 45(b) and the related Federal Rules of Criminal Procedure. On its face, Rule 45(b) appears to be quite plain and clear. It specifically says that 'the court may not enlarge * * * the period for taking an appeal.' We think that to recognize a late notice of appeal is actually to 'enlarge' the period for taking an appeal. Giving the words of 45(b) their plain meaning, it would seem that the conclusion of the Court of Appeals is in direct conflict with that Rule. No authority was cited by the Court of Appeals in support of its conclusion, nor is any supporting authority cited by respondents here. The Government insists, it appears correctly, that there is no case that supports the Court of Appeals' conclusion. Every other decision to which we have been cited, and that we have found, holds that the filing of a notice of appeal within the 10-day period prescribed by Rule 37(a)(2) is mandatory and jurisdictional.4 It is quite significant that Rule 45(b) not only prohibits the court from enlarging the period for taking an appeal, but, by the same language in the same sentence, also prohibits enlargement of the period for taking any action under Rules 33, 34 and 35, except as provided in those Rules. That language is: '* * * but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal.' If, as the Court of Appeals has held, the delayed filing of a notice of appeal—found to have resulted from 'excusable neglect'—is sufficient to confer jurisdiction of the appeal, it would consistently follow that a District Court may, upon a like finding, permit delayed filing of a motion for new trial under Rule 33,5 of a motion in arrest of judgment under Rule 34,6 and the reduction of sentence under Rule 35,7 at any time months or even years—after expiration of the periods specifically prescribed in those Rules. This is not only contrary to the language of those Rules, but also contrary to the decisions of this Court. In United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610, it was held that the power of the District Court sua sponte to grant a new trial under Rule 33 is limited to the time fixed in that Rule. There, quite like here, it was argued 'that because the literal language of the Rule places the five-day limit only on the making of the motion (for a new trial), it does not limit the power of the court later to grant (a new trial) * * *.' 331 U.S., at page 473, 67 S.Ct. at page 1332. This Court rejected the contention that such power 'lingers on indefinitely,' and pointed out that the Rules, in abolishing the limitation based on the Court Term, did not substitute indefiniteness, but prescribed precise times within which the power of the courts must be confined. 331 U.S. at page 474, 67 S.Ct. at page 1333. See also Marion v. United States, 9 Cir., 171 F.2d 185; Drown v. United States, 9 Cir., 198 F.2d 999. The same rule must apply with respect to the time within which a motion in arrest of judgment may be filed under Rule 34. Similarly, it has been held that a District Court may not reduce a sentence under Rule 35 after expiration of the 60-day period prescribed by that Rule regardless of excuse. United States ex rel. Quinn v. Hunter, 7 Cir., 162 F.2d 644. Cf. Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62. The right of appeal in criminal cases in federal courts is of relatively recent origin. Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442. By the Act of February 24, 1933, 47 Stat. 904 (now 18 U.S.C. § 3772) 18 U.S.C.A. § 3772, Congress first gave this Court authority to promulgate rules regulating the time and manner for taking appeals in criminal cases. One of the principal purposes was to eliminate delays in such appeals. H.R.Rep. No. 2047, 72d Cong., 2d Sess., to accompany S. 4020. The first Criminal Appeals Rules promulgated under that Act were the 13 Rules effective September 1, 1934. 292 U.S. 661 670. Rule III provided a 5-day time limit for the taking of an appeal from a judgment of conviction. It was uniformly held that Rule III was mandatory and jurisdictional, and appeals not taken within that time appear always to have been dismissed regardless of excuse.8 From this review, it would seem that there is nothing in the language of Rule 45(b), or in the judicial interpretations of that Rule or its predecessor, which supports the conclusion of the Court of Appeals. We turn, then, to the history of Rule 45(b) to see whether any support for the court's conclusion can be found in that source. Under the Act of June 29, 1940, 54 Stat. 688, as amended (now 18 U.S.C. § 3771, 18 U.S.C.A. § 3771), this Court was authorized to prescribe Rules of Criminal Procedure to and including verdict, which would become effective upon passive acceptance by Congress. Under that Act and the previous authority (the Act of February 24, 1933, 47 Stat. 904—now 18 U.S.C. § 3772, 18 U.S.C.A. § 3772), and with the aid of an advisory committee, this Court promulgated the Federal Rules of Criminal Procedure. Rules 32 through 39 were made effective by order of the Court, 327 U.S. 825, and the remaining Rules became effective by acceptance of Congress. What are now Rules 37(a)(2) and 45(b) underwent a number of draft changes before adoption. The first preliminary draft of Rule 37(a)(2) changed from 5 days to 10 days the time limit for the taking of an appeal, but of more significance is the fact that the preliminary draft of that Rule stated, in effect, that when a court imposes sentence upon a defendant, represented by appointed counsel or not represented by any counsel, the court shall ask the defendant whether he wishes to appeal and, if he answers in the affirmative, 'the court shall direct the clerk forthwith to prepare, file, and serve on behalf of the defendant a notice of appeal or shall extend the time specified by rule for the filing of a notice of appeal.'9 (Emphasis added.) In conformity with that draft proposal, the preliminary draft of what is now Rule 45(b)10 stated: '* * * but it may not enlarge * * * the period for taking an appeal except as provided in Rule 37(a)(2).' The limited provision for an extension of the time within which to appeal that was contained in the First Preliminary Draft of those Rules was eliminated by the Second Preliminary Draft11 and never reappeared. This seems almost conclusively to show a deliberate intention to eliminate any power of the courts to extend the time for the taking of an appeal. But there is more. The prototype for Rule 45(b) was Rule 6 of the Federal Rules of Civil Procedure, 28 U.S.C.A.12 When the original Criminal Rules were being prepared, the limiting clause of Rule 6(b) of the Federal Rules of Civil Procedure stated: '* * * but it may not enlarge the period for taking any action under Rule 59, except as stated in subdivision (c) thereof, or the period for taking an appeal as provided by law.' It had consistently been held that Civil Rule 6(b) was mandatory and jurisdictional and could not be extended regardless of excuse.13 It must be presumed that the Advisory Committee and the Justices of this Court were aware of the limiting language of Civil Rule 6(b) and of the judicial construction it had received when they prepared and adopted the Federal Rules of Criminal Procedure. No support for the conclusion of the Court of Appeals can be found in this history of Rule 45(b). Rule 45(b) says in plain words that '* * * the court may not enlarge * * * the period for taking an appeal.' The courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional. The history of Rule 45(b) shows that consideration was given to the matter of vesting a limited discretion in the courts to grant an extension of time for the taking of an appeal, but, upon further consideration, the idea was deliberately abandoned. It follows that the plain words, the judicial interpretations, and the history, of Rule 45(b) not only fail to support, but actually oppose, the conclusion of the Court of Appeals, and therefore its judgment cannot stand. That powerful policy arguments may be made both for and against greater flexibility with respect to the time for the taking of an appeal is indeed evident. But that policy question, involving, as it does, many weighty and conflicting considerations, must be resolved through the rule-making process and not by judicial decision. United States v. Isthmian S.S. Co., 359 U.S. 314, 79 S.Ct. 857, 3 L.Ed.2d 845. If, by that process, the courts are ever given power to extend the time for the filing of a notice of appeal upon a finding of excusable neglect, it seems reasonable to think that some definite limitation upon the time within which they might do so would be prescribed; for otherwise, as under the decision of the court below, many appeals might—almost surely would—be indefinitely delayed. Certainly that possibility would unnecessarily14 produce intolerable uncertainty and confusion. Whatever may be the proper resolution of the policy question involved, it was beyond the power of the Court of Appeals to resolve it. Reversed. Mr. Justice BLACK and Mr. Justice DOUGLAS dissent, as they share the view of Judge Bazelon, 104 U.S.App.D.C. 200, 201, 260 F.2d 718, 719, that an extension of time, granted after the 10-day period for an appeal has passed, is not an 'enlargement' of the time in the narrow sense in which Rule 45(b) uses the word.

361.US.431

An information filed in a Federal District Court charged appellees with having violated 19 U. S. C. § 1304 by removing from ten violins ifnported from the Soviet Zone of Germany, after their importation but prior to their sale to ultimate purchasers, labels reading "Germany/USSR Occupied," with intent to conceal the identity of the country of origin. The District Court dismissed the information on the ground that removal of the labels did not violate § 1304, because the applicable regulation appeared to require the Soviet Zone marking for tariff purposes only, rather than to apprise the ultimate purchasers of the place of origin, and also that the regulation was not sufficiently clear and unambiguous to justify a criminal prosecution. The Government appealed to the Court of Appeals, which held that the order of dismissal was appealable directly to this Court under 18 U. S. C. § 3731 because (a) the District Court's interpretation of the regulation was tantamount to a construction of the statute upon which the information was founded, and (b) the effect of the dismissal was to sustain a motion in bar. Accordingly, the Court of Appeals certified the case to this Court. Held; 1. The charges in the inf6rmation are founded on § 1304 and the regulations thereunder; the information was. dismissed solely ,because its allegations did not state an offense under § 1304, as amplified by the regulations; the statute and regulations are so inextricably intertwined that an interpretation of the regulations necessarily is a construction of the statute; and the case was properly certified to this Court by the Court of Appeals under 18 U. S. C. § 3731. Pp. 434-438. 2. The regulation here involved appears to be aimed at the collection of duties, -rather than the protection of ultimate purchasers in the United States; it is not sufficiently clear and unambiguous to furnish a basis for a criminal prosecution for violation of 19 U.. S. C. § 1304; and the information was properly dismissed. Pp. 438-441. Affirmed.

The Congress has provided in the Tariff Act of 1930, 46 Stat. 590, as amended, that imported articles be marked to indicate to an ultimate purchaser in the United States the English name of the country of origin. 19 U.S.C. § 1304, 19 U.S.C.A. § 1304.1 Pursuant to the Act, the Secretary of the Treasury adopted implementing regulations. This case tests the application of these provisions to the importation of 10 violins from the Soviet Zone of Germany. Appellees were charged with removing the labels from the violins with intent to conceal from the ultimate purchasers in the United States the identity of the violins' country of origin. The District Court dismissed the information, holding that the changing of the labels did not violate the Act because the applicable regulation appeared to require the Soviet Zone marking only for tariff purposes rather than to apprise the ultimate purchasers of the place of origin. In any event, the court found, the intent of the regulation was not 'manifested in a manner sufficiently clear and unambiguous to justify a criminal prosecution.' On appeal by the Government, the Court of Appeals held that the District Court's opinion, interpreting the regulation, was tantamount to a construction of the statute upon which the information was founded; and hence, under the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, the order of dismissal was appealable directly to this Court, rather than to the Court of Appeals.2 It was also of the opinion that the effect of the dismissal was to sustain a motion in bar, which, under s 3731, likewise required appeal to this Court. Accordingly, it certified the appeal, 2 Cir., 261 F.2d 40, and we postponed the question of jurisdiction to a hearing on the merits, 359 U.S. 951, 79 S.Ct. 740, 3 L.Ed.2d 760. We have concluded to accept the certification of the Court of Appeals and, on the merits, to affirm the District Court judgment dismissing the information. Appellees, dealers in musical instruments in the United States, had purchased the violins from importers and thereafter sold them to other dealers. Upon obtaining possession of the violins from the importers, appellees replaced labels marked 'Germany/USSR Occupied,' then on each of the violins, with others inscribed 'Made in Germany.' After resale of the violins, an information was filed against appellees, charging that they removed the original labels attached to the violins with intent to conceal from the ultimate purchasers the identity of the country of origin.3 The Government's theory was that the removal of the labels violated 19 U.S.C. § 1304, 19 U.S.C.A. § 1304, and its implementing regulations. Our first consideration is the jurisdictional issue. The Criminal Appeals Act specifies several conditions, any one of which permits a direct appeal by the Government to this Court, and makes our jurisdiction in such cases exclusive. In the event that an appeal which should have been taken here is erroneously effected to a Court of Appeals, that court is directed to certify it here. Prior to 1907, the date of the original Act, the United States had no appeal whatever in criminal cases. As passed by the House, the bill gave the Government 'the same right of review by writ of error that is given to the defendant.' However, in the Senate, the bill was amended so as to allow review from judgments setting aside indictments, 'where the ground for such motion or demurrer is the invalidity or construction of the statute upon which the indictment is founded.' 41 Cong.Rec. 2819. The final language emerged from the Conference Committee of the two Houses. See H.R.Conf.Rep. No. 8113, 59th Cong., 2d Sess. As was stated by Senator Knox, one of the proponents of the measure, a member of the Judiciary Committee and a former Attorney General of the United States, the bill 'only proposed to give it (the Government) an appeal upon questions of law raised by the defendant to defeat the trial * * *.' 41 Cong.Rec. 2752. The bill was intended to create 'the opportunity to settle important questions of law,' its 'great purpose' being 'to secure the ultimate decision of the court of final resort on questions of law.'4 The situation sought to be remedied was outlined by Senator Patterson, also of the Judiciary Committee and a proponent of the bill, in these words: 'We have a district court in one jurisdiction holding that a law is ineffective for one reason or another—it may be that it is unconstitutional, or for some other reason—and we have a district court in another jurisdiction holding the reverse; and as the cases multiply in the several sections of the country we may find one half of the courts of the country arrayed against the other half of the courts of the country upon the same identical law; one half holding that it is entirely constitutional and the other half holding that it is unconstitutional. So, Mr. President, that confusion, that ridiculous condition, exists and must continue to exist, because, as the law now stands, until a case involving the question shall go to the Supreme Court and it is brought there by the defendant, there can be no adjudication by a court whose decision and judgment is controlling. * * * The bill is intended to cure a defect in the administration of justice * * *.'5 It therefore appears abundantly clear that the remedial purpose of the Act was to avert 'the danger of frequent conflicts, real or apparent, in the decisions of the various district or circuit courts, and the unfortunate results thereof'; and to eliminate 'the impossibility of the government's obtaining final and uniform rulings by recourse to a higher court.' 20 Harv.L.Rev. 219. Moreover, the desirability of expedition in the determination of the validity of Acts of Congress, which is pointed to as a desideratum for direct appeal, applies equally, to regulations. In practical operation correction of a regulation by agency revision invariably awaits judicial action. The information charged violations of 19 U.S.C. § 1304, 19 U.S.C.A. § 1304, 'and the regulations promulgated thereunder.' This section requires imported articles to be marked 'to indicate to an ultimate purchaser * * * the country of origin,' and imposes criminal sanctions on anyone who removes such a mark with intent to conceal the information contained therein. The Secretary of the Treasury is authorized to implement it by appropriate regulations. The term 'country,' as used by the Congress in requiring the markings, was defined by regulation to mean 'the political entity known as a nation.' 19 CFR § 11.8. By Treasury Decision 51527, August 28, 1946, Germany was to be considered the country of origin of articles manufactured or produced in all parts of Germany. Following a change in duty rates applicable to Soviet Zone products, T.D. 53210 was issued in 1953, providing that articles from Eastern Germany should be 'marked to indicate Germany (Soviet occupied).'6 The issue posed to the District Court was whether this last regulation carried with it the sanctions of § 1304. As we see it, a construction of the regulation necessarily is an interpretation of the statute. An administrative regulation, of course, is not a 'statute.' While in practical effect regulations may be called 'little laws,'7 they are at most but off-spring of statutes. Congress alone may pass a statute, and the Criminal Appeals Act calls for direct appeals if the District Court's dismissal is based upon the invalidity or construction of a statute. See United States v. Jones, 1953, 345 U.S. 377, 73 S.Ct. 759, 97 L.Ed. 1086. This Court has always construed the Criminal Appeals Act narrowly, limiting it strictly 'to the instances specified.' United States v. Borden Co., 1939, 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181. See also United States v. Swift & Co., 1943, 318 U.S. 442, 63 S.Ct. 684, 87 L.Ed. 889. Here the statute is not complete by itself, since it merely declares the range of its operation and leaves to its progeny the means to be utilized in the effectuation of its command. But it is the statute which creates the offense of the willful removal of the labels of origin and provides the punishment for violations. The regulations, on the other hand, prescribe the identifying language of the label itself, and assign the resulting tags to their respective geographical areas. Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other. The charges in the information are founded on § 1304 and its accompanying regulations, and the information was dismissed solely because its allegations did not state an offense under § 1304, as amplified by the regulations. When the statute and regulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute. This, we believe, gives recognition to the congressional purpose to give the Government the right of appeal upon 'questions of law raised by the defendant to defeat the trial' and thus promptly to 'secure the ultimate decision' of this Court, affording a desired 'uniform enforcement of the law throughout the entire limits of the United States.' In view of this conclusion, we need not pass upon the claim that the District Court sustained in effect a 'motion in bar.' Our disposition requires that the case come directly here, and accordingly we accept the certificate of the Court of Appeals and now turn to the merits. In 1946, the Treasury implemented the country-of-origin provisions of § 1304 by issuance of T.D. 51527, which provided that, 'For the purposes of the marking provisions of the Tariff Act of 1930, * * * Germany shall be considered the country of origin of articles manufactured * * * in all parts of the German area subject to the authority of the Allied Control Commission and the United States, British, Soviet, and French zone Commanders * * *.' Thus the marking on articles produced in the Soviet Zone were required to be labeled 'Made in Germany.' In 1951 the Congress directed the President to suspend or withdraw any reduction in the rates of custom duties or other concessions then applicable to the importation of articles manufactured in any areas dominated by the Soviet Union. 65 Stat. 73; 19 U.S.C. § 1362, 19 U.S.C.A. § 1362. In Proclamation No. 2935, 65 Stat. C25, 19 U.S.C.A. § 1362 note, the President suspended any reduction in rates of duty applicable to any articles manufactured in the Soviet Zone of Germany and the Soviet Sector of Berlin. Treasury Decision 52788, issued the same day, changed the rate of duty as provided in this proclamation. In 1953 the Secretary issued T.D. 53210, the regulation in controversy. This Treasury Decision is headed: 'Tariff status, marking to indicate the name of the country of origin, and customs valuation of products of Germany, Poland, and Danzig.' The first paragraph of T.D. 53210 refers to the presidential proclamation changing the structure of the rates of duty. The second paragraph specifies that, 'For the purposes of the value provisions of section 402, Tariff Act of 1930 (19 U.S.C.A. § 1402),' Western Germany shall be treated as one country, and 'the Soviet Zone * * * shall be treated as another 'country." The third paragraph is the one crucial to this prosecution: it provides that products of Western Germany shall be 'marked to indicate Germany as the 'country of origin,' but products of the Soviet Zone * * * shall be marked to indicate Germany (Soviet occupied) as the 'country of origin." The District Court concluded that T.D. 53210 was 'issued primarily to establish markings for purposes of the differences in the duties applicable'; thus the indication of Soviet Zone origin would not be required beyond entry into this country, the stage at which duty is payable. We agree with the District Court. It appears that T.D. 53210, unlike T.D. 51527, is aimed at the collection of duties rather than the protection of the ultimate purchaser in the United States. Its caption indicates that it deals with 'tariff status' and 'customs valuation,' and the marking requirements are but aids thereof. Taking up the body of the document, we note that the first paragraph deals entirely with the fact that Soviet-dominated areas 'shall not receive reduced rates of duty,' while Western Germany and the Western Sectors of Berlin shall 'continue to receive most-favored-nation treatment.' The second paragraph is introduced by the phrase, 'For the purposes of the value provisions' of the Tariff Act, and provides that 'the Soviet Zone * * * shall be treated as another 'country." This language, as well as the make-up of the regulation, suggests that the third paragraph (the one involved here), requiring distinctive marking for Soviet Zone products, is but another step in the implementation of the tariff changes. It contains no reference to the requirement of § 1304 that the article be marked in a 'conspicuous place,' 'legibly, indelibly, and permanently,' so that an 'ultimate purchaser in the United States' would be on notice. We note that appellees placed on the violins the labels 'Made in Germany' as required by T.D. 51527. In the context of criminal prosecution, we must apply the rule of strict construction when interpreting this regulation and statute. United States v. Halseth, 1952, 342 U.S. 277, 280, 72 S.Ct. 275, 277, 96 L.Ed. 308; United States v. Wiltberger, 1820, 5 Wheat. 76, 95—96, 5 L.Ed. 37. A reading of the regulation leaves the distinct impression that it was intended to protect and expedite the collection of customs duties. Certainly its emphasis on duties and its silence on the protection of the public from deceit support the conclusion that the old provisions were to continue insofar as markings after importation are concerned.8 If the intent were otherwise, it should not have been left to implication. There must be more to support criminal sanctions: businessmen must not be left to guess the meaning of regulations. The appellees insist that they changed the labels in good faith, believing their actions to be permissible under the law. There is nothing in the record to the contrary. A United States district judge concurred in their reading of the regulation. In the framework of criminal prosecution, unclarity alone is enough to resolve the doubts in favor of defendants. Accordingly, the judgment of the District Court is affirmed. Affirmed.

361.US.354

In this action under the Federal Employers' Liability Act to recover damages for injuries resulting from petitioner's fall from a freight car while acting as a conductor in charge of shifting various railroad cars on respondent's tracks at an industrial plant, held: 1. The issue whether the injury was caused by respondent's direction to complete the shifting operation in 30 minutes, plus the inexperience of the brakemen assigned to help him, should have been left to the jury. Pp. 355-357. 2. The evidence was insufficient to support petitioner's claim that the physician furnished by respondent to petitioner after the accident administered improper treatment. Pp. 357-358. Judgment reversed and cause remanded.

This is a negligence case under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. § 51, 45 U.S.C.A. § 51. Petitioner, an employee of respondent, was injured while shifting various railroad cars on its tracks in and about the Ford Motor Company plant at Norfolk, Virginia. His first cause of action charged respondent with negligence in requiring the shifting of the cars in such an accelerated time and with such inexperienced help that petitioner was injured in attempting to carry out his instructions. In his second claim petitioner alleged that the physician furnished petitioner by respondent subsequent to his injury administered him improper treatment, thus aggravating his injury, and that respondent was responsible for such negligence. At the close of the case, the trial judge sustained the motion of respondent to strike petitioner's evidence and discharged the jury. On petition for writ of error claiming that the issues should have been presented to the jury, the Virginia Supreme Court of Appeals rejected the petition and, in effect, affirmed the judgment, without written opinion. Believing that the question posed was of importance in the uniform administration of this federal statute, we granted certiorari. 359 U.S. 964, 79 S.Ct. 883, 3 L.Ed.2d 833. We conclude that the issue of negligence as to the injury should have been submitted to the jury, but that the evidence was insufficient to support the malpractice claim. Petitioner was a yard conductor for respondent. On July 3, 1957, he was instructed to 'shift' or 'spot' various railway cars to a loading platform on a spur track of the Ford Motor Company at Norfolk. There were 43 cars involved. Some were empty and standing at the loading tracks at the plant. These had to be moved out to make way for the loaded cars which were outside the plant in respondent's shifting yards. The job called for them to be lined up and then moved to particular positions or spots on the tracks at the loading platform in the plant where Ford employees might remove their contents. On the morning of the accident there were designated at the Ford loading platform some 22 spots to which the loaded cars were to be switched. Two brakemen were assigned to assist petitioner in the operation. Petitioner was to complete the spotting during the lunch period at the Ford plant, which was 30 minutes. The evidence shows that neither of the brakemen assigned to petitioner was experienced in this particular operation. The senior brakeman had never spotted cars at the plant before, nor had he worked as a senior brakeman. The other brakeman had spotted cars at the plant for only a short period. Railroad employees classed the Ford 'switching operation' as 'a hot job' because 'you do your job a little faster there than you would in the yard.' In the opinion of brakemen who had spotted cars there, the minimum time for completion of an operation involving this many cars was 50 minutes, and the maximum well over an hour. Since petitioner was instructed to perform the task in 30 minutes, it was necessary for him to work faster than he normally would. In addition, the senior brakeman had informed petitioner of his inexperience, which required petitioner to take a position on top of the boxcars in order to be ready to assist the brakemen. Normally, petitioner would have taken his position on the ground where a conductor, such as he, usually carried out his assigned duties. When one of the brakemen called for assistance in the spotting operation, petitioner ran along the top of the boxcars toward the brakeman to give him help, but, upon coming to a gondola car, was obliged to descend the ladder of the boxcar next to it. Petitioner slipped on the ladder and fell to the ground, suffering the injury complained of here. The record indicates that petitioner would have taken his position on the ground rather than on the railroad cars but for the inexperience of the brakemen. This required petitioner to take his position on top of the cars in order to assist the brakemen—a function not ordinarily performed by a yard conductor. We think it should have been left to the jury to decide whether the respondent's direction to complete the spotting operation within 30 minutes,1 plus the inexperience of the brakemen assigned to perform this 'hot job,' might have precipitated petitioner's injury. 'The debatable quality of that issue, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness of leaving the question to the jury. The jury is the tribunal under our legal system to decide that type of issue (Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610) as well as issues involving controverted evidence. Jones v. East Tennessee, V. & G.R. Co., 128 U.S. 443, 445, 9 S.Ct. 118, 32 L.Ed. 478; Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235. To withdraw such a question from the jury is to usurp its functions.' Bailey v. Central Vermont R. Co., 1943, 319 U.S. 350, 353—354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444.2 As to the malpractice claim, the trial court held that the railroad would not be liable for any negligence on the part of Dr. Leigh, the physician it furnished petitioner. We need not pass on this issue, however, since we find no evidence sufficient to support a malpractice recovery. Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff. The trial judge acknowledged these to be the tests of malpractice and allowed petitioner's counsel to make an offer of proof, although ruling that the railroad was not responsible for Dr. Leigh's actions. The evidence shows that the physician was of unquestioned qualification ad treated petitioner in accordance with his best medical judgment and long practice. The only evaluation concerning his treatment was that of Dr. Thiemeyer, another physician who had treated petitioner, who testified that he did not 'think that (the treatment) is proper.' Dr. Thiemeyer's opinion was that 'a fracture should be immobilized until it is healed sufficiently to bear weight without jeopardy of its healing,' and that he 'would say that activity would aggravate this fracture in that period.' This offer of proof was fatally deficient. No foundation was laid as to the recognized medical standard for the treatment of such a fracture. No standard having been established, it follows that the offer of proof was not sufficient. The trial judge, therefore, was correct in declining to submit the malpractice claim to the jury. In view of our holding on the first cause of action, the judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Reversed and remanded. For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice FRANKFURTER is of the view that the writ of certiorari was improvidently granted. As I read the record and the briefs, petitioner's theory was that this accident would not have happened had he not been forced to work on top of the cars, instead of on the ground where he usually worked, in consequence of (1) the company's instructions to perform the car-shifting operation in unusually short order, and (2) its failure to supply him with experienced helpers. Under the Rogers 'rule of reason,' 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, I suppose it could be said that there was an issue for the jury on both scores, in light of the not unequivocal testimony of the petitioner, quoted in my Brother WHITTAKER'S opinion, and the other matters referred to in the Court's opinion. Even so, this makes out no case for the jury, unless there is evidence that one or both of these factors contributed to increase the normal hazards of petitioner's employment. I think there is no such evidence. The record is barren of anything showing why this accident occurred. There was no evidence whatever that either the car or the ladder from which the petitioner fell was faulty. Petitioner admitted to being an experienced railroad worker whose duties had at times carried him up and down ladders and on the tops of railroad cars. At the time of his fall the cars had stopped moving, or nearly so. When asked by the trial court to explain how he happened to fall, all petitioner could say was 'it might have been grease or anything on my shoe'; and this was pure conjecture, as the record shows. More especially, petitioner did not say that he fell because he was 'rushed.' In these circumstances, to hold that the jury might have found that what respondent did contributed to enhance the normal hazards of petitioner's employment is, in my opinion, to say in effect that the jury should have been allowed to substitute atmosphere for evidence and speculation for reason. On the basis of the criteria governing our certiorari jurisdiction, this case has not been profitable business for this Court. I would affirm.

363.US.144

Section 8 of the New York Waterfront Commission Act of 1953 in effect disqualifies from holding office in any waterfront labor organization any person who has been convicted of a felony and has not subsequently been pardoned or had his disability removed by a certificate of good conduct from the Board of Parole. Held: This section does not violate the Supremacy Clause of the Constitution by conflicting invalidly with the National Labor Relations Act or the Labor-Management Reporting and Disclosure Act of. 1959; it does not violate the Due Process Clause of the Fourteenth Amendment; and it is not an ex post facto law or bill of attainder forbidden by Article I, § 10 of the Constitution. Pp. 144-161. 5 N. Y. 2d 236, 157 N. E. 2d 165, affirmed.

This is an action brought in the Supreme Court of Richmond County, New York, for a declaratory judgment regarding the constitutional validity of § 8 of the New York Waterfront Commission Act of 1953 (N.Y.Laws 1953, cc. 882, 883; McK.Unconsol.Laws, § 6700aa et seq.), and for an injunction restraining its operation. The section is claimed to be in conflict with the Supremacy Clause of the United States Constitution; it is also challenged under the Due Process Clause of the Fourteenth Amendment, and as an ex post facto law and bill of attainder forbidden by Art. I, § 10, of the Constitution. The Waterfront Commission Act formulates a detailed scheme for governmental supervision of employment on the waterfront in the Port of New York. The relevant part of the specific provision, § 8, under attack follows: 'No person shall solicit, collect or receive any dues, assessments, levies, fines or contributions within the state from employees registered or licensed pursuant to the provisions of this act (pier superintendents, hiring agents, longshoremen and port watchmen) for or on behalf of any labor organization representing any such employees, if any officer or agent of such organization has been convicted by a court of the United States, or any state or territory thereof, of a felony unless he has been subsequently pardoned therefor by the governor or other appropriate authority of the state or jurisdiction in which such conviction was had or has received a certificate of good conduct from the board of parole pursuant to the provisions of the executive law to remove the disability.' The compliant upon which this action is based makes the following allegations. Appellant was a member, and beginning in 1950 had been Secretary-Treasurer, of Local 1346, International Longshoremen's Association, a labor organization with offices in Richmond County, New York, representing 'employees registered or licensed pursuant to' the Waterfront Commission Act. As Secretary-Treasurer appellant had control of the Local's funds and also served as a bargaining representative. In 1920 appellant had pleaded guilty to a charge of grand larceny in New York and had received a suspended sentence. It is not alleged that appellant has ever applied for or received a pardon or a 'certificate of good conduct.' Three years after the enactment of the Waterfront Commission Act, in 1956, the President of the International Longshoremen's Association was informed by the appellee, who was and is the District Attorney of Richmond County, New York, that because of appellant's conviction § 8 of the Act prohibited any person from collecting dues on behalf of Local 1346, so long as appellant remained its officer or agent. Appellee threatened to prosecute anyone collecting dues for the Local while appellant remained its officer. By reason of § 8 and this threat appellant was suspended as an officer of Local 1346, whereupon he brought this action. The appellee moved to dismiss the complaint, and for judgment on the pleadings in his favor. This motion was granted. The court, holding that appellant's 1920 conviction was a conviction for a felony within the meaning of § 8, sustained the validity of that section. 11 Misc.2d 661, 166 N.Y.S.2d 751. This judgment was affirmed by the Appellate Division of the Supreme Court, 5 A.D.2d 603, 174 N.Y.S.2d 596, and by the Court of Appeals of New York, 5 N.Y.2d 236, 183 N.Y.S.2d 793, 157 N.E.2d 165. See also Hazelton v. Murray, 21 N.J. 115, 121 A.2d 1. Since a statute of a State has been upheld by the highest court of the State against a federal constitutional attack, the case is properly here on appeal. 361 U.S. 806, 80 S.Ct. 51, 4 L.Ed.2d 53.1 Due consideration of the constitutional claims that are made requires that § 8 be placed in the context of the structure and history of the legislation of which it is a part. The New York Waterfront Commission Act was an endeavor by New York and New Jersey to cope with long-standing evils on their joint waterfront in the Port of New York. The solution which was evolved between the two States embodies not only legislation by each but also joint action by way of a constitutional compact between them, approved by Congress, including the establishment of a bi-state Waterfront Commission. For years the New York waterfront presented a notoriously serious situation. Urgent need for drastic refrom was generally recognized. Thorough going investigations of the mounting abuses were begun in 1951 by the New York State Crime Commission and the Law Enforcement Council of New Jersey. After extensive hearings, the New York Crime Commission in May 1953 published a detailed report (4th Report of the New York State Crime Commission, New York State Leg.Doc.No.70 (1953)) on the evils its investigation disclosed and the legislative remedies these were thought to require. The Commission reported that the skulduggeries on the waterfront were largely due to the domination over waterfront employment gained by the International Longshoremen's Association, as then conducted. Its employment practices easily led to corruption, and many of its officials participated in dishonesties. The presence on the waterfront of convicted felons in many influential positions was an important causative factor in this appalling situation. It was thus described to Congress in the compact submitted by New York and New Jersey for its consent: '* * * the conditions under which waterfront labor is employed within the Port of New York district are depressing and degrading to such labor, resulting from the lack of any systematic method of hiring, the lack of adequate information as to the availability of employment, corrupt hiring practices and the fact that persons conducting such hiring are frequently criminals and persons notoriously lacking in moral character and integrity and neither responsive or responsible to the employers nor to the uncoerced will of the majority of the members of the labor organizations of the employees; that as a result waterfront laborers suffer from irregularity of employment, fear and insecurity, inadequate earnings, an unduly high accident rate, subjection to borrowing at usurious rates of interest, exploitation and extortion as the price of securing employment and a loss of respect for the law; that not only does there result a destruction of the dignity of an important segment of American labor, but a direct encouragement of crime which imposes a levy of greatly increased costs on food, fuel and other necessaries handled in and through the Port of New York district. '* * * many of the evils above described result not only from the causes above described but from the practices of public loaders at piers and other waterfront terminals; that such public loaders serve no valid economic purpose and operate as parasites exacting a high and unwarranted toll on the flow of commerce in and through the Port of New York district, and have used force and engaged in discriminatory and coercive practices including extortion against persons not desiring to employ them; * * * '* * * stevedores have engaged in corrupt practices to induce their hire by carriers of freight by water and to induce officers and representatives of labor organizations to betray their trust to the members of such labor organizations.' 67 Stat. 541—542. Shortly after the Crime Commission submitted its report, the Governor of New York conducted hearings based upon the Crime Commission report. As a result, a Waterfront Commission Act was introduced into and passed by the Legislatures of both States in June 1953. N.Y.Laws 1953, cc. 882, 883; N.J.Laws 1953, cc. 202, 203, N.J.S.A. 32:23—1 et seq. Part I of both Acts constitutes what became the compact between the two States. This is the heart of the legislation. It establishes as a bi-state agency a Waterfront Commission of New York Harbor with power to license, register and regulate the waterfront employment of pier superintendents, hiring agents, longshoremen and port watchmen, and to license and regulate stevedores. It entirely prohibits one class of waterfront employment, public loading, found to be unnecessary and particularly infested with corruption. Manifestly, one of the main aims of the compact is to keep criminals away from the waterfront. The issue of licenses to engage in waterfront occupations, or the right to be registered, depends upon findings by the Commission of good character. In particular, past convictions for certain felonies constitute specific disabilities for each occupation, with discretion in the Commission to lift the disability, except in the case of port watchmen, where it constitutes an absolute bar to waterfront employment. A new procedure for the employment of longshoremen is also provided under the supervision of the Commission, replacing the archaic, corrupt 'shape-up.' Under the requirement of Art. I, § 10, of the Constitution the compact was submitted to the Congress for its consent, and it was approved. This was no perfunctory consent. Congress had independently investigated the evils that gave rise to the Waterfront Commission Acts, and the Subcommittee of the Senate Committee on Interstate and Foreign Commerce had in a Report endorsed the state legislative solution embodied in these Acts. See S.Rep.No.653, 83d Cong., 1st Sess., pp. 49—50. After the compact's submission to Congress, hearings were held upon it by the Committee on the Judiciary of the House of Representatives, at which arguments were made by interested parties for and against the compact. Approval was recommended by both the House Judiciary Committee and the Senate Committee on Interstate and Foreign Commerce. The House Committee concluded that '(t)he extensive evidence of crime, corruption, and racketeering on the waterfront of the port of New York, as disclosed by the State investigations reported to this committee at its hearings and by the recent report of the Senate Committee on Interstate and Foreign Commerce (S.Rep.No. 653, supra), has made it clear beyond all question that the plan proposed by the States of New York and New Jersey to eradicate those public evils is urgently needed.' H.R.Rep.No.998, 83d Cong., 1st Sess., p. 1. The Senate Committee Report stated its conclusion in similar terms. S.Rep.No.583, 83d Cong., 1st Sess., p. 1. The compact was approved by Congress in August 1953. Act of Aug. 12, 1953, 67 Stat. 541, c. 427. In addition to the compact, New York enacted, as Parts II and III of its 1953 Waterfront Commission Act, supplementary legislation dealing, in most part, with the administration of New York's responsibility under the compact. This supplementary legislation also contains two substantive provisions in furtherance of the objectives of the compact, but not calling for bi-state enforcement, and thus not included in the compact. These are § 8, which is here challenged, and a prohibition against loitering on the waterfront. New Jersey enacted a supplementary provision essentially similar to § 8. N.J.Laws 1953, c. 202, § 8, N.J.S.A. 32:23—80. Although § 8 does not require enforcement by the bi-state Waterfront Commission, and was therefore not formally submitted as part of the compact to Congress, in giving its approval to the compact Congress explicitly gave its authority to such supplementary legislation in accord with the objectives of the compact by providing in the clause granting consent '(t)hat the consent of Congress is hereby given to the compact set forth * * * and to the carrying out and effectuation of said compact, and enactments in furtherance thereof.' In giving this authorization Congress was fully mindful of the specific provisions of § 8. Not only had § 8 already been enacted by the States as part of the Waterfront Commission Acts when the compact was submitted to Congress, but, in the hearings held before the House Committee on the Judiciary, it was specifically urged by counsel for the International Longshoremen's Association, as a ground of opposition to congressional consent, that approval of the compact by Congress would carry with it sanction of § 8. See Hearing before Subcommittee No. 3 of the Committee on the Judiciary, House of Representatives, 83d Cong., 1st Sess., on H.R.6286, H.R. 6321, H.R.6343, and S.2383, p. 136. The ground of objection to the section which is appellant's primary reliance here, namely, that it conflicts with existing federal labor policy, was urged as ground for rejecting the compact. It is in light of this legislative history that the compact was approved, and that congressional consent was given to 'enactments in furtherance thereof.' With this background in mind, we come to consider appellant's objection that § 8 is in conflict with and therefore pre-empted by the National Labor Relations Act, specifically §§ 1 and 7 of that Act, 29 U.S.C. §§ 151, 157, 29 U.S.C.A. §§ 151, 157. The argument takes this course. Section 1 of the National Labor Relations Act declares a congressional purpose to protect 'the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.' Section 7 grants employees 'the right * * * to bargain collectively through representatives of their own choosing.' Under § 8 of the Waterfront Commission Act, waterfront employees do not have complete freedom of choice in the selection of their representatives, for if they choose a convicted felon the union is disabled from collecting dues. Thus, it is said, with reliance on Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, there is a conflict and the state legislation must fall. This is not a situation where the operation of a state statute so obviously contradicts a federal enactment that it would preclude both from functioning together or, at least, would impede the effectiveness of the federal measure. Section 8 of the Waterfront Commission Act does not operate to deprive waterfront employees of opportunity to choose bargaining representatives. It does disable them from choosing as their representatives ex-felons who have neither been pardoned nor received 'good conduct' certificates. The fact that there is some restriction due to the operation of state law does not settle the issue of pre-emption. The doctrine of pre-emption does not present a problem in physics but one of adjustment because of the interdependence of federal and state interests and of the interaction of federal and state powers. Obviously, the National Labor Relations Act does not exclude every state policy that may in fact restrict the complete freedom of a group of employees to designate 'representatives of their own choosing.' For example, by reason of the National Labor Relations Act a State surely is not forbidden to convict and imprison a defendant in a criminal case merely because he is a union official and therefore could not serve as a bargaining representative. It would misconceive the constitutional doctrine of pre-emption—of the exclusion because of federal regulation of what otherwise is conceded state power—to decide this case mechanically on an absolute concept of free choice of representatives on the part of employees, heedless of the light that Congress has shed for our guidance. The relevant question is whether we may fairly infer a congressional purpose incompatible with the very narrow and historically explained restrictions upon the choice of a bargaining representative embodied in § 8 of the New York Waterfront Commission Act. Would Congress, with a lively regard for its own federal labor policy, find in this state enactment a true, real frustration, however dialectically plausible, of that policy? In light of the purpose, scope and background of this New York legislation and Congress' relation to it, such an inference of incompatibility has no foundation. In this case we need not imaginatively summon the likely reaction of Congress to the state legislation, as a basis for ascertaining whether due regard for congressional purpose bars the state regulation. Here the States presented their legislative program to cope with an urgent local problem to the Congress, and the Congress unambiguously supported what is at the core of this reform. Had § 8 been written into the compact, even the most subtle casuistry could not conjure up a claim of pre-emption. Here the challenged state legislation was not in terms approved by Congress, but was part of the legislative history and of the revealed purpose of the compact which was approved. Formal inclusion of § 8 in the compact was not called for since its enforcement was to be unilateral on the part of each State. Both New York and New Jersey enacted § 8 at the time they enacted the proposed compact. Section 8 is the same kind of regulation as is contained in the compact: it effectively disqualifies ex-felons from waterfront union office, just as the compact makes prior conviction of certain felonies a bar to waterfront employment, unless there is a favorable exercise of execulative discretion. The total state legislative program represents a drastic effort to rid the waterfront of criminal elements by generally excluding ex-felons. What sensible reason is there to suppose that Congress would approve the major part of this local effort, as it has expressly done through its approval of the compact, and disapprove its application to union officials who, as history proved, had emerged as a powerful and corrupting influence on the waterfront second to none? This is not all. As we have seen, § 8 was brought to the attention of Congress as part of the legislation which would come into effect as an adjunct to the compact, and the objection was raised at that time and not heeded that § 8 unduly interfered with federal labor policy. Finally, it is of great significance that in approving the compact Congress did not merely remain silent regarding supplementary legislation by the States. Congress expressly gave its consent to such implementing legislation not formally part of the compact. This provision in the consent by Congress to a compact is so extraordinary as to be unique in the history of compacts. Of all the instances of congressional approval of state compacts—the process began in 1791, Act of Feb. 4, 1791, 1 Stat. 189, with more than one hundred compacts approved since—we have found no other in which Congress expressly gave its consent to implementing legislation. It is instructive that this unique provision has occurred in connection with approval of a compact dealing with the prevention of crime where, because of the peculiarly local nature of the problem, the inference is strongest that local policies are not to be thwarted. The sum of these considerations is that it would offend reason to attribute to Congress a purpose to pre-empt the state regulation contained in § 8. The decision in Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, in no wise obstructs this conclusion. An element most persuasive here, congressional approval of the heart of the state legislative program explicitly brought to its attention, was not present in that case. Nor was it true of Hill v. State of Florida, as it is here, that the challenged state legislation was part of a program, fully canvassed by Congress through its own investigations, to vindicate a legitimate and compelling state interest, namely, the interest in combatting local crime infesting a particular industry. Appellant also asks us to find evidence of federal pre-emption of § 8 of the Waterfront Commission Act in the enactment by Congress of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C.A. § 401 et seq. Title V of the 1959 Act imposes restrictions upon union officers, and defines qualifications for such officers. Specifically, § 504(a) provides that '(n)o person * * * who has been convicted of, or served any part of a prison term resulting from his conviction of (a group of serious felonies) * * * shall serve—(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization * * * for five years after * * * such conviction or after the end of such imprisonment, unless prior to the end of such fiveyear period, in the case of a person so convicted or imprisoned, (A) his citizenship rights, having been revoked as a result of such conviction, have been fully restored, or (B) the Board of Parole of the United States Department of Justice determines that such person's service in any capacity referred to in clause (1) * * * would not be contrary to the purposes of this Act.' The fact that Congress itself has thus imposed the same type of restriction upon employees' freedom to choose bargaining representatives as New York seeks to impose through § 8, namely, disqualification of ex-felons for union office, is surely evidence that Congress does not view such a restriction as incompatible with its labor policies. Appellant, however, argues that any state disablement from holding union office on account of a prior felony conviction, such as § 8, which has terms at variance with § 504(a), is impliedly barred by it. Just the opposite conclusion is indicated by the 1959 Act, which reflects congressional awareness of the problems of pre-emption in the area of labor legislation, and which did not leave the solution of questions of pre-emption to inference. When Congress meant pre-emption to flow from the 1959 Act it expressly so provided. Sections 205(c) and 403, set out in the margin,2 are express provisions excluding the operation of state law, supplementing provisions for new federal regulation. No such pre-emption provision was provided in connection with § 504(a). That alone is sufficient reason for not deciding that § 504(a) pre-empts § 8 of the Waterfront Commission Act. In addition, two sections of the 1959 Act, both relevant to this case, affirmatively preserve the operation of state laws. That § 504(a) was not to restrict state criminal law enforcement regarding the felonies there enumerated as federal bars to union office is provided by § 604 of the 1959 Act: 'Nothing in this Act shall be construed to impair or diminish the authority of any State to enact and enforce general criminal laws with respect to (the same group of serious felonies, with the exception of exclusively federal violations, which are listed in § 504(a)).' And to make the matter conclusive, § 603(a) is an express disclaimer of pre-emption of state laws regulating the responsibilities of union officials, except where such pre-emption is expressly provided in the 1959 Act. Section 603(a) provides: 'Except as explicitly provided to the contrary, nothing in this Act shall reduce or limit the responsibilities of any labor organization or any officer, agent, shop steward, or other representative of a labor organization * * * under the laws of any State * * *.' In view of this explicit and elaborate treatment of pre-emption in the 1959 Act, no inference can possibly arise that § 8 is impliedly pre-empted by § 504(a). Appellant's argument that § 8 of the Waterfront Commission Act is contrary to the Due Process Clause of the Fourteenth Amendment depends, as it must, upon the proposition that barring convicted felons from waterfront union office, unless they are pardoned, or receive a 'good conduct' certificate, is not, in the context of the particular circumstances which gave rise to the legislation, a reasonable means for achieving a legitimate state aim, namely, eliminating corruption on the waterfront. In disqualifying all convicted felons from union office unless executive discretion is exercised in their favor, § 8 may well be deemed drastic legislation. But in the view of Congress and the two States involved the situation on the New York waterfront regarding the presence and influence of ex-convicts called for drastic action. Legislative investigation had established that the presence of ex-convicts on the waterfront was not a minor episode but constituted a principal corrupting influence. The Senate Subcommittee which investigated for Congress conditions on the New York waterfront found that '(c)riminals whose long records belie any suggestion that they can be reformed have been monopolizing controlling positions in the International Longshoremen's Association and in local unions. Under their regimes gambling, the narcotics traffic, loansharking, shortganging, payroll 'phantoms,' the 'shakedown' in all its forms—and the brutal ultimate of murder have flourished, often virtually unchecked.' S.Rep. No. 653, 83d Cong., 1st Sess. (1953), p. 7. In light of these findings, and other evidence to the same effect,3 the Congress approved as appropriate if indeed not necessary a compact, one of the central devices of which was to bar convicted felons from waterfront employment, and from acting as stevedores employing others, either absolutely, or in the Waterfront Commission's discretion. No positions on the waterfront were more conducive to its criminal past than those of union officials, and none, if left unregulated, were felt to be more able to impede the waterfront's reform. Duly mindful as we are of the promising record of rehabilitation by ex-felons, and of the emphasis on rehabilitation by modern penological efforts, it is not for this Court to substitute its judgment for that of Congress and the Legislatures of New York and New Jersey regarding the social surgery required by a situation as gangrenous as exposure of the New York waterfront had revealed. Barring convicted felons from certain employments is a familiar legislative device to insure against corruption in specified, vital areas. Federal law has frequently and of old utilized this type of disqualification. Convicted felons are not entitled to be enlisted or mustered into the United States Army, or into the Air Force, but 'the Secretary * * * may authorize exceptions, in meritorious cases.' 10 U.S.C. §§ 3253, 8253, 10 U.S.C.A. §§ 3253, 8253. This statute dates from 1833. A citizen is not competent to serve on federal grand or petit juries if he has been 'convicted in a state or federal court of record of a crime punishable by imprisonment for more than one year and and (sic) his civil rights have not been restored by pardon or amnesty.' 28 U.S.C. § 1861, 28 U.S.C.A. § 1861. In addition, a large group of federal statutes disqualify persons 'from holding any office of honor, trust, or profit under the United States' because of their conviction of certain crimes, generally involving official misconduct. 18 U.S.C. §§ 202, 205, 206, 207, 216, 281, 282, 592, 1901, 2071, 2381, 18 U.S.C.A. §§ 202, 205—207, 216, 281, 282, 592, 1901, 2071, 2381. For other examples in the federal statutes see 18 U.S.C. § 2387, 18 U.S.C.A. § 2387; 5 U.S.C. § 2282, 5 U.S.C.A. § 2282; 8 U.S.C. § 1481, 8 U.S.C.A. § 1481. State provisions disqualifying convicted felons from certain employments important to the public interest also have a long history. See, e.g., Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002. And it is to be noted that in § 504(a) of the 1959 Federal Labor Act, quoted earlier in this opinion, Congress adopted this same solution in its attempt to rid all unions of criminal elements. Just as New York and New Jersey have done, the 1959 Federal Act makes a prior felony conviction a bar to union office unless there is a favorable exercise of executive discretion. In the face of this wide utilization of disqualification of convicted felons for certain employments closely touching the public interest, remitting them to executive discretion to have the bar removed, we cannot say that it was not open to New York to clean up its waterfront in the way it has. New York was not guessing or indulging in airy assumptions that convicted felons constituted a deleterious influence on the waterfront. It was acting on impressive if mortifying evidence that the presence on the waterfront of ex-convicts was an important contributing factor to the corrupt waterfront situation. Finally, § 8 of the Waterfront Commission Act is neither a bill of attainder nor an ex post facto law. The distinguishing feature of a bill of attainder is the substitution of a legislative for a judicial determination of guilt. See United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252. Clearly, § 8 embodies no further implications of appellant's guilt than are contained in his 1920 judicial conviction; and so it manifestly is not a bill of attainder. The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession. See Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002. No doubt is justified regarding the legislative purpose of § 8. The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony. Affirmed. Mr. Justice HARLAN took no part in the consideration or decision of this case. Mr. Justice BRENNAN is of opinion that Congress has demonstrated its intent that § 8 of the New York Waterfront Commission Act should stand despite the provisions of the National Labor Relations Act, and that the Labor-Management Reporting and Disclosure Act of 1959 explicitly provides that it shall not displace such legislation of the States. He believes that New York's disqualification of ex-felons from waterfront union office, on all the circumstances, and as applied to this specific area, is a reasonable means for achieving a legitimate state aim, and does not deny due process or otherwise violate the Federal Constitution. Accordingly, he agrees that the judgment should be affirmed.

362.US.411

At a time when the union represented less than a majority of the employees, a company and a union entered into a collective bargaining agreement containing a "union security" clause, by which alLemployees were required,-after a 45-day grace period, to become and remain members of the union as a condition of employment. More than six months later, the General Counsel of the National Labor Relations Board filed and served on the company and the union complaints ch aging that continued'enforcement of the agreement (within the preceding six months) was an unfair labor practice in violation of the National Labor Relations- Act. Held: The complaints were barred by the six-month statute of limitations contained in § 10 (b) of the Act, as amended. Pp. 411-429. 105 U. S. App. D. C. 102, 264 F. 2d 575, reversed.

The question we decide in this case is whether unfair labor practice complaints, whose charges against the petitioners were sustained by the National Labor Relations Board, were barred by the six-month statute of limitations contained in § 10(b) of the National Labor Relations Act, as amended, 61 Stat. 146, 29 U.S.C. § 160(b), 29 U.S.C.A. § 160(b). That section reads in pertinent part: 'Provided * * * no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * *.' On August 10, 1954, petitioners Bryan Manufacturing Company and the International Association of Machinists, AFL, entered into a collective bargaining agreement for a unit of Bryan's employees. The agreement, as later supplemented in certain respects not material to this litigation, contained the conventional provisions, of which two are relevant here: the 'recognition' clause, by which the Union was recognized as 'the sole and excusive bargaining agency for all employees' in the unit; and the 'union security' clause, by which all employees were required, subject to a 45-day grace period, to become and remain members of the Union. On August 30, 1955, a new agreement was entered into, with Bryan, the Union, and petitioner Local Lodge No. 1424, IAM, as signatories, replacing the old agreement and applying additionally to employees at a newly opened plant as well as to those covered by the original agreement. When the original agreement was executed on August 10, 1954, the Union did not represent a majority of the employees covered by it.1 Under §§ 7 and 8 of the Act2 the Board has evolved the principle, not drawn in question here, that it is an unfair labor practice for an employer and a labor organization to enter into a collective bargaining agreement which contains a union security clause, if at the time of original execution the union does not represent a majority of the employees in the unit.3 The maintaining of such an agreement in force is a continuing violation of the Act, and the 'majority status' of the union at any subsequent date—including the date of execution of any renewals of the original agreement—is immaterial, for it is presumed that subsequent acquisition of a majority status is attributable to the earlier unlawful assistance received from the original agreement.4 In June and August 1955, 10 months and 12 months after the execution of the original agreement, charges were filed with the Board and served upon the petitioners, alleging the Union's lack of majority status at the time of execution and the consequent illegality of the continued enforcement of the agreement. Complaints were thereafter issued by the Board's General Counsel against the Union and the Company. Petitioners contended before the Board that the complaints were barred by the limitations proviso of § 10(b), set forth above. The Board, two members dissenting, held that the complaints were not barred by limitations, 119 N.L.R.B. 502, and the Court of Appeals affirmed, one judge dissenting. 105 U.S.App.D.C. 102, 264 F.2d 575. We granted certiorari, 360 U.S. 916, 79 S.Ct. 1432, 3 L.Ed.2d 1532, because of the importance of the question in the proper administration of the National Labor Relations Act. For reasons given in this opinion we hold that the complaints against these petitioners are barred by time.5 We first note the opposing contentions of the parties. The Board starts with the premise that a collective bargaining agreement which contains a union security clause valid on its face, but which was entered into when the Union did not have a majority status, gives rise to two independent unfair labor practices, one being the execution of the agreement, the other arising from its continued enforcement. Conceding that a complaint predicated on the execution of the agreement here challenged was barred by limitations, the Board contends that its complaint was nonetheless timely since it was 'based upon' the parties' continued enforcement, within the period of limitations, of the union security clause. It is then said that even though the former was itself time-barred, the unlawful execution of the agreement was nevertheless 'relevant in determining whether conduct within the 6-month period was unlawful,' 119 N.L.R.B., at 504; and that evidence as to it was admissible because § 10(b) is a statute of limitations, and not a rule of evidence. On the other hand, petitioners contend that, standing alone, the union security clause and its enforcement were wholly innocent; that they were tainted only by virtue of the original unlawful execution of the agreement; and that since a complaint based upon that unfair labor practice was barred by limitations, that event itself could not be utilized to infuse with illegality the otherwise legal union security clause or its enforcement. They say, in short, that to apply in this situation the doctrine that § 10(b) is a statute of limitations, and not a rule of evidence, is to circumvent the purposes of the section, and that acceptance of the Board's position would mean that the statute of limitations would never run in a case of this kind. We think petitioners' position represents the correct view of the matter. It is doubtless true that § 10(b) does not prevent all use of evidence relating to events transpiring more than six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence as to the admissibility of past events, due regard for the purposes of § 10(b) requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events.6 The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely 'evidentiary,' since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice. The situation before us is of this latter variety, for the entire foundation of the unfair labor practice charged was the Union's time-barred lack of majority status when the original collective bargaining agreement was signed. In the absence of that fact enforcement of this otherwise valid union security clause was wholly benign.7 The Trial Examiner, whose findings were adopted by the Board, observed: 'The General Counsel concedes that the 6-month limitation of Section 10(b) of the Act precludes currently finding the execution8 of the 1954 agreement to be an unfair labor practice, and also precludes currently finding its enforcement to be an unfair labor practice * * * at any time prior to the * * * periods beginning 6 months prior to the * * * charges * * *. However, this concession in no way detracts from the crucial nature of the earlier events, because at the core of the General Counsel's contentions as to all of the unfair labor practices is his fundamental position that, because of the circumstances prevailing when made, the original union-security agreement of 1954 has never been valid or legal, since it has never met certain overriding requirements of Section 8(a)(3) of the Act.' 119 N.L.R.B., at 530. (Emphasis added, except as indicated.)9 Where, as here, a collective bargaining agreement and its enforcement are both perfectly lawful on the face of things, and an unfair labor practice cannot be made out except by reliance on the fact of the agreement's original unlawful execution, an event which, because of limitations, cannot itself be made the subject of an unfair labor practice complaint, we think that permitting resort to the principle that § 10(b) is not a rule of evidence, in order to convert what is otherwise legal into something illegal, would vitiate the policies underlying that section. These policies are to bar litigation over past events 'after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused,' H.R.Rep.No. 245, 80th Cong., 1st Sess., p. 40,10 and of course to stabilize existing bargaining relationships. Our view of the matter is lent support by the attitude of the Board itself, whose previous decisions, albeit not always with unanimity among its members or even perhaps with perfect consistency, have recognized that evidentiary rules as to past events must be regarded differently in the two situations we have already depicted. Compare, e.g., Potlatch Forests, Inc., 87 N.L.R.B. 1193, where evidence as to events during the barred period was used to illuminate current conduct claimed in itself to be an unfair labor practice,11 with Bowen Products Corp., 113 N.L.R.B. 731, and Greenville Cotton Oil Co., 92 N.L.R.B. 1033, affirmed sub nom. American Federation of Grain Millers, A.F.L. v. National Labor Relations Board, 5 Cir., 197 F.2d 451, where the gravamen of the unfair labor practice complained of lay in a fact or event occurring during the barred period.12 Indeed, some Board cases have gone even further and held § 10(b) a bar in circumstances when, although none of the material elements of the charge in a timely complaint need necessarily be proved through reference to the barred period—so that utilization of evidence from that period is ostensibly only for the purpose of giving color to what is involved in the complaint—yet the evidence in fact marshalled from within the six-month period is not substantial, and the merit of the allegations in the complaint is shown largely by reliance on the earlier events. See, e.g., News Printing Co., 116 N.L.R.B. 210, 212; Universal Oil Products Co., 108 N.L.R.B. 68; Tennessee Knitting Mills, Inc., 88 N.L.R.B. 1103.13 However, we express no view on the problem raised by such cases, for here we need not go beyond saying that a finding of violation which is inescapably grounded on events predating the limitations period is directly at odds with the purposes of the § 10(b) proviso.14 The applicability of these principles cannot be avoided here by invoking the doctrine of continuing violation. It may be conceded that the continued enforcement, as well as the execution, of this collective bargaining agreement constitutes an unfair labor practice, and that these are two logically separate violations, independent in the sense that they can be described in discrete terms. Nevertheless, the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agreement invalid on its face or with one validly executed, but unlawfully administered. As the dissenting Board members in this case recognized, in dealing with an agreement claimed to be void by reason of the union's lack of majority status at the time of its execution, '* * * the circumstances which cause the agreement to be invalid existed only at the point in time in the past when the agreement was executed and are not thereafter repeated. For this reason, therefore, the continuing invalidity of the agreement is directly related to and is based solely on its initial invalidity, and has no continuing independent basis.' 119 N.L.R.B., at 516. In any real sense, then, the complaints in this case are 'based upon' the unlawful execution of the agreement, for its enforcement, though continuing, is a continuing violation solely by reason of circumstances existing only at the date of execution. To justify reliance on those circumstances on the ground that the maintenance in effect of the agreement is a continuing violation is to support a lifting of the limitations bar by a characterization which becomes apt only when that bar has already been lifted. Put another way, if the § 10(b) proviso is to be given effect, the enforcement, as distinguished from the execution, of such an agreement as this constitutes a suable unfair labor practice only for six months following the making of the agreement.15 The Board's ruling is further sought to be supported on the ground that it did not rest on a formal finding that the execution of the 1954 agreement constituted an unfair labor practice. The Court of Appeals, while stating that the Board could not draw 'any legal conclusion with regard to events outside the statutory period,' distinguished the decision here as resting on the 'mere existence (of the facts surrounding the making of the 1954 contract) rather than on ascribing legal significance to those facts standing alone.' 105 U.S.App.D.C. at page 108, 264 F.2d at page 581 (emphasis by the court). This distinction sacrifices the policy of the Act to procedural formalities. If, as is not disputable, the § 10(b) limitation was prompted by 'complaint that people were being brought to book upon stale charges,' National Labor Relations Board v. Pennwoven, Inc., 3 Cir., 194 F.2d 521, 524, it is a particular use of the prelimitations facts or conduct at which the section is aimed, and it can hardly be thought relevant that the proscribed use has not been labeled as such. The applicability of the policy of § 10(b) in the Grain Millers case, supra, where in the particular circumstances of that case, and not because of anything arising from § 10(b), the challenged acts within the limitations period could not be condemned as unlawful without an express declaration that earlier conduct constituted an unfair labor practice (see note 12, ante), was not greater than it is here, where although there was no 'finding' that execution of the agreement constituted an unfair labor practice, it is manifest that were that not in fact the case enforcement of the agreement would carry no taint of illegality. The availability of the repose sought to be assured by § 10(b) cannot turn on the vagaries of any such hypertechnical distinctions, bearing no relation to the purpose of the legislation. It is apparently not disputed that the Board's position would withdraw virtually all limitations protection from collective bargaining agreements attacked on the ground asserted here. For, once the principle on which the decision below rests is accepted, so long as the contract—or any renewal thereof—is still in effect, the six-month period does not even begin to run. Cf. Bowen Products Corp., supra, at 732. In Lively Photos, Inc., 123 N.L.R.B. 1054, the Board unhesitatingly applied the doctrine of the case at bar to an attack upon an agreement executed more than three and one-half years prior to the filing of the charge. The cease-and-desist order entered in that case directed the severance of a bargaining relationship which had been initiated five years earlier. A doctrine which does such disservice to stability of bargaining relationships could be upheld, in light of the language and evident purpose of § 10(b), only by a convincing showing that Congress did not intend that provision to be applied so as to bar attacks on collective agreements with unions lacking majority status unless brought within six months of their execution. Far from providing such a showing, the legislative history contains affirmative evidence that Congress was specifically advertent to the problem of agreements with minority unions, had previously been at pains to protect such agreements from belated attack, and manifested an intention, in enacting § 10(b), not to withdraw that protection. Four years prior to the enactment of the Taft-Hartley amendments, of which the § 10(b) limitations proviso was one, Congress barred the Board from proceeding, under certain conditions not here relevant, in cases 'arising over an agreement between management and labor which has been in existence for three months or longer without complaint being filed.' National Labor Relations Board Appropriation Act, 1944, 57 Stat. 515. This legislation was enacted with specific reference to agreements with minority unions,16 and was re-enacted in each succeeding session through 1947.17 At the time the Senate Committee on Labor and Public Welfare reported S. 1126 (the Senate version of the proposed legislation enacted as the Labor Management Relations Act, 1947), a rider to the appropriations bill for the fiscal year 1948 (H.R. 2700, 80th Cong., 1st Sess.) was pending before the Senate Appropriations Committee, having been previously reported by the House Appropriations Committee in language identical with that of its predecessors. The Labor Committee's discussion of the proposed § 10(b) amendment is illuminating: 'The principal substantive change in this section is a provision for a 6-month period of limitations upon the filing of charges. The Board itself by adopting a doctrine of laches has to some extent discouraged dilatory filing of charges, and a rider to the current appropriations bill (which if this amendment was adopted would no longer be necessary) contains a 3-month period of limitations with respect to certain kinds of unfair labor practices.' S.Rep.No.105, 80th Cong. 1st Sess., p. 26. (Emphasis added.) This language cannot be squared with an interpretation of § 10(b) which would ascribe to Congress, in enacting for the first time a general limitations provision, a purpose to eliminate the then-existing all-embracing limitation specifically applicable to agreements with minority unions.18 In sustaining the Board's position, the Court of Appeals also relied on the public character of the right sought to be vindicated by the Board, and the limited scope of judicial review of Board determinations. Observing that 'in interpreting, applying and administering a statute of limitations prescribed by Congress in this context (the field of labor relations), the Board—and the courts—are not confronted by precisely the same considerations as apply to statutes of limitations affecting the private rights of two individual litigants,' the Court reasoned that '(t)he Board may have thought that the interests of (employee) self determination outweighed otherwise important competing considerations of burying stale disputes.' 105 U.S.App.D.C. at pages 108—109, 264 F.2d, at pages 581—582. We think this analysis inadmissible here, for the reason that the accommodation between these competing factors has already been made by Congress. It is a commonplace, but one too easily lost sight of, that labor legislation traditionally entails the adjustment and compromise of competing interests which in the abstract or from a purely partisan point of view may seem irreconcilable. The 'police of the Act' is embodied in the totality of that adjustment, and not necessarily in any single demand which may have figured, however weightily, in it. Cf. note 7, ante. It may be asserted, without fear of contradiction, that the interest in employee freedom of choice is one of those given large recognition by the Act as amended. But neither can one disregard the interest in 'industrial peace which it is the overall purpose of the Act to secure.' National Labor Relations Board v. Childs Co., 2 Cir., 195 F.2d 617, 621—622 (concurring opinion of L. Hand, J.). Cf. Colgate-Palmolive Peet Co. v. National Labor Relations Board, 338 U.S. 355, 362—363, 70 S.Ct. 166, 170, 94 L.Ed. 161. As expositor of the national interest, Congress, in the judgment that a six-month limitations period did 'not seem unreasonable,' H.R.Rep.No. 245, 80th Cong., 1st Sess., p. 40, barred the Board from dealing with past conduct after that period had run, even at the expense of the vindication of statutory rights.19 'It is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute. That policy cannot be defeated by the Board's policy * * *.' Colgate-Palmolive Peet Co. v. National Labor Relations Board, supra, 338 U.S. at page 363, 70 S.Ct. at page 171. Cf. Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 47, 62 S.Ct. 886, 894, 86 L.Ed. 1246. Reversed.

364.US.278

'Certiorari granted; judgment vacated and case remanded. Reported below: 271 F. 2d 87.

The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded for reconsideration in light of Brotherhood of Locomotive Engineers et al. v. Missouri-Kansas-Texas R. Co., 363 U.S. 528, 80 S.Ct. 1326.

362.US.628

1. In this case, in which a taxpayer did not explicitly challenge a state tax statute as being repugnant to the Federal Constitution, treaties or statutes, but challenged a local tax assessment on the ground that it infringed the taxpayer's federal rights; privileges or immunities, this Court did not have jurisdiction under 28 U. S. C. § 1257 of an appeal from a decision of a state Supreme Court sustaining the validity of the tax; but the appeal was treated under 28 U. S. C. § 2103 as a petition for certiorari, and certiorari was granted. Pp. 629-630. 2. Certain real estate owned by the Reconstruction Finance Corporation and subjected by § 8 of the Reconstruction Finance Corporation Act to state and local taxation was declared surplus and surrendered to the War Assets Administration for disposal under the provisions of the Surplus Property Act of 1944, which, inter alia, authorized the War Assets Administration and its successor, the General Services Administration, to make disposition of the property on such terms as it saw fit and to execute and deliver all necessary papers incident to transfer of title. Held: Even before execution of a quitclaim deed transferring title from the Reconstruction Finance Corporation to the United States, such real estate had ceased to be subject to state and local taxation as "real property of the Reconstruction Finance Corporation," even though the property was leased to a private lessee in the name of both the Reconstruction Finance Corporation and the United States. Pp. 630-636. 51 Cal. 2d 759, 336 P. 2d 521, reversed.

The question to be decided is whether real property declared to be surplus under the Surplus Property Act of 1944, 58 Stat. 765, but the record title to which is in the Reconstruction Finance Corporation, continues to be subject to local taxation under the exemption of § 8 of the Reconstruction Finance Corporation Act, 47 Stat. 5.1 The Supreme Court of California and the Supreme Court of Michigan2 have held that it does. The Court of Claims has reached the opposite conclusion.3 In view of this conflict we agreed to hear this case, but postponed consideration of the question of jurisdiction to the hearing on the merits. 361 U.S. 859, 80 S.Ct. 122, 4 L.Ed.2d 99. On the question of jurisdiction, we believe that appellant did not make the required 'explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws. * * * And it has long been settled that an attack upon a tax assessment or levy, such as (appellant) here made, on the ground that it infringes a taxpayer's federal rights, privileges, or immunities, will not sustain an appeal * * *.' Charleston Federal Savings & Loan Ass'n v. Alderson, 1945, 324 U.S. 182, 185, 65 S.Ct. 624, 627, 89 L.Ed. 857.4 The appeal is therefore dismissed. While the case is not properly here by appeal, we treat the same as a petition for certiorari under 28 U.S.C. § 2103, 28 U.S.C.A. § 2103.5 The petition is granted. On the merits, we conclude that the property involved is not within the waiver provision of the federal Act. The language of § 8 of the Reconstruction Finance Corporation Act was borrowed from earlier federal legislation dealing with federal financial institutions.6 The congressional policy appears to have been to waive tax exemption on real property owned by government corporations whose functions were primarily financial in nature. Originally conceived for the purpose of making loans to distressed business concerns, the Reconstruction Finance Corporation was in this category. Apparently Congress was concerned that property obtained by the Corporation through its financial operations in aid of economic recovery policies would lose its taxable status. Through § 8, therefore, Congress preserved the right of state and local governmental bodies to tax property even though it came into the hands of the Corporation. Success crowned the economic efforts of the Corporation, and, as the country approached the critical period immediately preceding its entry into World War II, Congress in 1940 extended the Corporation's functions to include the stockpiling of critical supplies and the operation of plants engaged in the manufacture of war mate rial. 54 Stat. 573. It was soon apparent that large tracts of land would be necessary in this operation, and the waiver was extended to the real estate holdings of the Defense Plant Corporation, a subsidiary of the Reconstruction Finance Corporation. 55 Stat. 248. The termination of the war quickly threw substantial portions of such property into disuse, there being no further need for the mass production of war mate rial. The President created the War Assets Administration for the purpose of disposing of all government surplus property.7 After March 25, 1946, government agencies possessing property surplus to official needs were required so to declare it and to transfer it to the Administration for disposal.8 By declaration of May 29, 1946, the Reconstruction Finance Corporation declared the subject property to be surplus to its needs and responsibilities. Under the Surplus Property Act, this declaration transferred9 to the War Assets Administration the functions of: caring for and handling the property pending disposal (§ 3(g) and § 6); making disposition of the property on such terms as it saw fit (§ 9(b) and § 15(a), including donation under certain conditions (§ 13(b); and the power of execution and delivery of all necessary papers incident to transfer of title (§ 15(b). It further provided that all funds derived from such disposition would be covered into the United States Treasury as miscellaneous receipts (§ 30(a). Pursuant to this declaration by the Reconstruction Finance Corporation, the War Assets Administration took possession of this property on May 29, 1946, and its successor, the General Services Administration,10 retained possession until September 1, 1949, during which period the property was used as a storage depot and a sales center for surplus property held by the Administration. On the latter date, the property was leased to appellant's predecessor. The lease described the lessor as the 'Reconstruction Finance Corporation * * * and the United States of America, both acting by and through the General Services Administrator under * * * the Surplus Property Act of 1944.' Appellees assessed ad valorem real property taxes on the realty against the Reconstruction Finance Corporation, as owner, for the fiscal tax years 1951 to 1955, inclusive. Appellant paid the taxes11 and filed this suit after claims for refund had been denied. The trial court entered judgment against appellant. On appeal, the Supreme Court of California affirmed the judgment of the trial court, and denied the claim for refund. 51 Cal.2d 759, 336 P.2d 521, 523. There would be no question as to the exemption of the real property involved had the record title been in the name of the United States. Since March 17, 1955, in fact, it has been so recorded; on that date the Reconstruction Finance Corporation executed and recorded a quit-claim deed to the United States. The Supreme Court of California correctly posed as the underlying question, 'whether the land ceased to be 'real property of the Reconstruction Finance Corporation' after it was declared surplus and became subject to the provisions of the Surplus Property Act of 1944. That court found that, since no deed was executed transferring title out of the Reconstruction Finance Corporation until 1955, it remained 'property of the * * * Corporation' and hence subject to taxation until that time. We believe the court placed too much reliance on the fact that the bare record title to the property remained in the name of the Corporation. It appears to us that the purpose of the waiver provision was to permit taxation of real property being used by the Reconstruction Finance Corporation in the performance of its functions. Such use was terminated when the property was declared surplus in 1946. At that time another agency of the Government took both the occupancy and complete control of the property for the purpose of management and disposition. The Reconstruction Finance Corporation, under the specific provisions of the Surplus Property Act, thereby lost all power and control over the property, which came into the hands of the Administrator for the account of the United States, any proceeds therefrom being ordered paid into the United States Treasury. Thereafter, the Administrator elected, as he had the statutory power to do, to lease the property to appellant's predecessor. The real property, however, remained in the account of the United States, not the Reconstruction Finance Corporation. As the Supreme Court of California recognized, the general rule is 'that lands owned by the United States of America or its instrumentalities are immune from state and local taxation.' We think that the land here was 'owned' by the United States. We believe that California overlooks the fact that, while the 1949 lease was formally made in the name of both the United States and the Reconstruction Finance Corporation, as lessors, it recited on its face that the property was 'surplus property of the Government of the United States' and subject to the Surplus Property Act of 1944. Furthermore, this lease noted that the property had 'been assigned to War Assets Administration for disposal,' and that 'the Department of Air Force has determined that the use of the leased premises by the Lessee herein is necessary for the production of military equipment for the National Defense.' Moreover, the property had been occupied by the War Assets Administration during the two years immediately preceding its lease. The appellees' contention seems to be that, since the lease was in the name of the Reconstruction Finance Corporation as well as the United States, the land was 'property of the Corporation.' We hardly think such a conclusion inevitable. We believe that the appropriate test would turn on practical ownership of the property rather than the naked legal title. This is the more necessary with respect to public property where the record title may often be in a government agency or department—or, for that matter, in an official of the Government—rather than in the name of the United States. Here the Reconstruction Finance Corporation had no proprietary interest in the property, no possession or control thereof, was performing none of its functions with regard thereto, and could receive none of the income or future benefits therefrom. Even though it held the record title, such holding, under the circumstances here, could be only for the benefit of the United States. All of the incidents of beneficial ownership ended by the express mandate of the statute when the property was declared surplus and transferred to another agency for disposition. When confronted with the same issue as presented by the instant case, the Court of Claims reached a conclusion directly contrary to that of the Supreme Court of California. Board of County Comm'rs of Sedgwick County v. United States, 123 Ct.Cl. 304, 105 F.Supp. 995, 123 Ct.Cl. 304. The Court of Claims there noted that, after the declaration of surplus, the Reconstruction Finance Corporation had no 'physical possession, control, or custody of the property. It had neither the use nor the right to use the property.' The court went on to conclude that '(t)here is no indication that Congress intended to waive immunity from taxation under these circumstances.' 123 Ct.Cl. at page 324, 105 F.Supp. at page 1001. We ageee with the Court of Claims 'that the cloak of immunity descended upon the property (when it was declared surplus) and no tax liability for the property could arise thereafter.' 123 Ct.Cl. at page 324, 105 F.Supp. at page 1002. Since the crucial element is the intent of Congress, it is important to note the enactment of a 1955 statute providing the States relief from the effects of federal immunity. 40 U.S.C. §§ 521—524, 40 U.S.C.A. §§ 521—524. The congressional declaration of purpose in that statute 'recognizes that the transfer of real property having a taxable status from the Reconstruction Finance Corporation * * * to another Government department has often operated to remove such property from the tax rolls * * *' 'Transfer' was defined to include 'a transfer of custody and control of, or accountability for the care and handling of,' the property, as well as 'transfer of legal title.' The statute goes on to provide for certain payments in lieu of taxes where such a transfer occurs. The relevance of this statute lies in a congressional sanction of the rule of the Sedgwick County case, construing the waiver provision. We cannot say that Congress in 1932 intended to waive the tax exemption on 'real property of the Corporation' after the Corporation found the property surplus to its needs and responsibilities and transferred it to another agency, for management and disposition as United States property. To say that the Government's land remained taxable merely because no formal deed was executed transferring title, either to itself or any of its designated agencies, would but make a local tollgate of a technicality. Nor can we agree that the short administrative practice claimed here continued the waiver in effect. Even if the responsible agency had permitted the paper title to the Government's property to remain in the Reconstruction Finance Corporation for the sole purpose of allowing it to be taxed, the congressional mandate in the Surplus Property Act of 1944 could not be overridden. As to such matters, any adjustments between the federal and the local governments are strictly legislative ones for the Congress, United States v. City of Detroit, 1958, 355 U.S. 466, 474, 78 S.Ct. 474, 479, 2 L.Ed.2d 424, and not within the discretion of the executive agencies. The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice BLACK and Mr. Justice DOUGLAS dissent.

363.US.685

A circuit judge who has retired under 28 U. S. C. § 371 (b) is not eligible to participate in the decision of a case on rehearing en banc under 28 U. S. C. § 46 (c), which provides that such a proceeding shall be "heard and determined" by a court consisting of all "active circuit judges" of the circuit. Pp. 685-691. 265 F. 2d 136, judgment vacated and cause remanded.

The question to be decided here is a narrow one. The Judicial Code provides that in the United States Courts of Appeals '(c)ases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service.' It further provides that '(a) court in banc shall consist of all active circuit judges of the circuit.' 28 U.S.C. § 46(c), 28 U.S.C.A. § 46(c). The sole issue presented is whether a circuit judge who has retired is eligible under this statute to participate in the decision of a case on rehearing en banc. We have concluded that he is not. This litigation arose when the respondents, who had chartered ships from the Government under the Merchant Ship Sales Act, 50 U.S.C.Appendix, § 1735 et seq., 50 U.S.C.A.Appendix, § 1735 et seq., sued the Government in the District Court for the Southern District of New York to recover amounts of allegedly excessive charter hire which had been assessed by the Maritime Commission. The Government moved to dismiss the libels on the ground that the claims were barred by the two-year limitation period prescribed by the Suits in Admiralty Act, 46 U.S.C. § 745, 46 U.S.C.A. § 745. The libels were dismissed in the District Court on the authority of the Second Circuit decisions in Sword Line, Inc., v. United States, 2 Cir., 228 F.2d 344; 2 Cir., 230 F.2d 75, affirmed as to admiralty jurisdiction 351 U.S. 976, 76 S.Ct. 1047, 100 L.Ed. 1493, and American Eastern Corp. v. United States, 2 Cir., 231 F.2d 664.1 The District Court's decisions were thereafter affirmed by the United States Court of Appeals for the Second Circuit. That court, consisting of Circuit Judges Medina and Hincks and retired District Judge Leibell, held that the issues were controlled by the earlier Sword Line and American Eastern decisions. The court's opinion stated, however, that '(i)f the subject-matter of these appeals were res nova, we are by no means sure that our dispositions would coincide with those made by the majority opinion in Sword Line and by American Eastern. However, we will not overrule these recent decisions of other panels of the court.' 265 F.2d 136, 142. Thereafter, on December 19, 1957, the Court of Appeals granted the libellants' petition for rehearing en banc and ordered that argument thereon be confined to written briefs to be submitted within twenty days. On March 1, 1958, Judge Medina retired pursuant to the provisions of 28 U.S.C. § 371(b), 28 U.S.C.A. § 371(b).2 Almost five months later, on July 28, 1958, the court issued its en banc decision. Circuit Judges Hincks and Moore and retired Circuit Judge Medina joined an opinion ordering the earlier three-judge decision withdrawn and remanding the causes to the District Court, 265 F.2d 136, 144. Judges Clark and Waterman dissented.3 In his dissenting opinion Judge Clark expressed doubt as to a retired judge's eligibility to participate in an en banc decision. 265 F.2d 136, 153. The Government then filed a petition for further rehearing en banc, directed primarily to the question which had been raised by Judge Clark. The petition was denied in an opinion by Judge Hincks joined by Judges Moore and Medina, stating the view that '(s)ince Judge Medina was a member of the court in banc which was duly constituted to hear and determine the issues raised by the petition for rehearing, we think his subsequent retirement did not affect his competence to participate in the decision thereafter reached.' 265 F.2d 136, 154. Judges Clark and Waterman filed a separate statement in which they expressed the opinion that Judge Medina's participation in the en banc determination was precluded by the plain language of the controlling statute. 265 F.2d 136, 155. Certiorari was granted to consider a question of importance to the Court of Appeals in the administration of their judicial business. 361 U.S. 861, 80 S.Ct. 117, 4 L.Ed.2d 101. As a preliminary to decision of the precise question before us it is important to make clear that this case in no way involves the eligibility of a retired judge to participate in the hearing, rehearing or determination of a case as a member of a conventional three-judge Court of Appeals. Such participation is governed by different statutory provisions. The Judicial Code explicitly provides that 'judges designated or assigned' shall be 'competent to sit as judges' of such a court. 28 U.S.C. § 43(b), 28 U.S.C.A. § 43(b). Other provisions of the Code spell out in detail the system under which designations and assignments of retired judges are to be made. 28 U.S.C. §§ 294, 295, 296, 28 U.S.C.A. §§ 294—296.4 Moreover, there is not involved here any issue as to the procedure to be followed by a Court of Appeals in determining whether a hearing or rehearing en banc is to be ordered. In the Western Pacific Railroad Case, Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986, it was held that this question is largely to be left to intramural determination by each of the Courts of Appeals. 'The court is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.' 345 U.S., at page 250, 73 S.Ct. at page 658.5 Here we are concerned only with the specific provision of the Judicial Code which ordains that en banc proceedings shall be 'heard and determined' by a court consisting of all the 'active circuit judges' of the circuit involved. The literal meaning of the words seems plain enough. An 'active' judge is a judge who has not retired 'from regular active service.' 28 U.S.C. § 371(b), 28 U.S.C.A. § 371(b). A case or controversy is 'determined' when it is decided. There is nothing in the history of the legislation to indicate that these words should be understood to mean anything else than what they say. As the Reviser's Note indicates, and as this Court pointed out in the Western Pacific Railroad Case, 345 U.S., at pages 250, 251, 73 S.Ct. at page 658, where the legislative history was fully reviewed, the statutory provision was added to the Judicial Code in 1948 simply as a 'legislative ratification of Textile Mills Securities Corp. v. Commissioner, 1941, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249—a decision which went no further than to sustain the power of a Court of Appeals to order a hearing en banc.'6 The view that a retired circuit judge is eligible to participate in an en banc decision thus finds support neither in the language of the controlling statute nor in the circumstances of its enactment. Indeed, Congress may well have thought that it would frustrate a basic purpose of the legislation not to confine the power of en banc decision to the permanent active membership of a Court of Appeals. En banc courts are the exception, not the rule. They are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit. When such circumstances appear, en banc determinations make 'for more effective judicial administration. Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases.' Textile Mills Securities Corp. v. Commissioner, 314 U.S., at pages 334—335, 62 S.Ct. at pages 277, 278. 'The principal utility of determinations by the courts of appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court at the same time to follow the efficient and time-saving procedure of having panels of three judges hear and decide the vast majority of cases as to which no division exists within the court.' Maris, Hearing and Rehearing Cases in Banc, 1954, 14 F.R.D. 91, at page 96. As Judge Clark put it in the present case, the evident policy of the statute was to provide 'that the active circuit judges shall determine the major doctrinal trends of the future for their court * * *.' 265 F.2d, at page 155. Persuasive arguments could be advanced that an exception should be made to permit a retired circuit judge to participate in en banc determination of cases where, as here, he took part in the original three-judge hearing, or where, as here, he had not yet retired when the en banc hearing was originally ordered. Indeed, the Judicial Conference of the United States has approved suggested legislative changes that would provide such an exception, and a bill to amend the statute has been introduced in the Congress.7 But this only serves to emphasize that if the statute is to be changed, it is for Congress, not for us, to change it. We conclude for these reasons that under existing legislation a retired circuit judge is without power to participate in an en banc Court of Appeals determination, and accordingly that the judgment must be set aside. American Construction Co. v. Jacksonville, T. & K. W.R. Co., 148 U.S. 372, 387, 13 S.Ct. 758, 764, 37 L.Ed. 486; Frad v. Kelly, 302 U.S. 312, 316—319, 58 S.Ct. 188, 191—192, 82 L.Ed. 282. In reaching this conclusion we intimate no view as to the merits of the underlying litigation. The judgment is vacated, and the case remanded for further proceedings consistent with this opinion. Vacated and remanded.

363.US.528

After changing from short-range steam locomotives to longer-range diesel locomotives, respondent railroads issued general orders doubling the length of their way-freight runs, thereby eliminating the jobs of two of their five-man way-freight crews and changing the home or away-from-home terminals of the remaining crews. After unsuccessfully invoking the services of the National Mediation Board, the unions representing the members of these crews called a strike. The railroads submitted the dispute to the National Railroad Adjustment Board and sued for injunctive relief. The District Court enjoined the strike pending decision by the Adjustment Board, but only on condition that the railroads either (1) restore the pre-existing situation, or (2) pay the employees adversely affected the wages they would have received had the orders not been issued. Held: In granting an injunction to protect the jurisdiction of the Adjustment Board, the District Court had the equitable power to impose these conditions to protect the employees against a harmful change in working conditions during pendency of the dispute before the Adjustment Board. Pp. 529-535. 266 F. 2d 335, reversed.

This case presents a question concerning the jurisdiction of a Federal District Court to impose certain conditions upon a strike injunction issued in a railway labor dispute. The essential facts are not complicated. The respondent Railroads operate a 302-mile branch between Wichita Falls, Texas, and Forgan, Oklahoma. The line was originally operated with steam locomotives capable of only short runs, and this necessitated the stationing of five way-freight crews along the route. After longer-range diesel locomotives were purchased to replace the steam equipment, the Railroads issued general orders which doubled the length of the way-freight runs, thereby eliminating the jobs of two of the five way-freight crews and changing the home or away-from-home terminals of the remaining crews. The petitioner Brotherhoods, representing the engineers, firemen, conductors and brakemen affected, protested the issuance of the orders and invoked the services of the National Mediation Board. Nonetheless, the Railroads put the change into effect. After the Board advised the parties that it did not consider the dispute one subject to mediation, the unions called a strike. On the same day the Railroads filed a complaint for injunctive relief in the Federal District Court and obtained a temporary restraining order. The Railroads then submitted the dispute to the National Railroad Adjustment Board, to National Committees and Disputes Committees established by the collective bargaining agreements, and to the National Mediation Board. They amended their complaint in the District Court to allege the various submissions. After a hearing, the District Court granted the injunction pending decision by the Adjustment Board, but it did so upon certain conditions which are the subject of the controversy before us. These conditions required that the Railroads either (1) restore the situation which existed prior to the General Orders, or (2) pay the employees adversely affected by the orders, the wages they would have received had the orders not been issued. Both sides appealed, the unions from the injunction against the strike, and the Railroads from the conditions requiring preservation of the status quo. The Court of Appelas sustained the injunction but vacated the conditions, holding that the District Court had no power to attach them. 266 F.2d 335. In so holding, the Court of Appeals reasoned that imposition of conditions of this character involved a preliminary judgment on the merits of a 'minor dispute,' the resolution of which is committed by the Railway Labor Act, § 3(i), 48 Stat. 1189, 45 U.S.C. § 153, 45 U.S.C.A. § 153, subd. 1(i), to the exclusive jurisdiction of the Adjustment Board. The question of a district judge's jurisdiction to impose this type of condition upon an injunction issued to preserve the Adjustment Board's jurisdiction is both recurring and important in the field of labor-management relations. Consequently, we granted certiorari, but limited the grant to this issue.1 This Court held in Brotherhood of Railroad Trainmen v. Chicago River & Ind. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, that a Federal District Court may enjoin strikes arising out of 'minor disputes'—generally speaking, disputes relating to construction of a contract2—when they have been properly submitted to the National Railroad Adjustment Board. We concluded that such an injunction does not fall within the prohibitions of the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., 29 U.S.C.A. § 101 et seq., because of the superseding purpose of the Railway Labor Act to establish a system of compulsory arbitration for this type of dispute, a purpose which might be frustrated if strikes could not be enjoined during the consideration of such a dispute by the Board. This case presents a further question as to nature of the relief which may be granted under the Chicago River rule specifically, whether the injunction granted the Railroad may be qualified by conditions imposed by the District Court under traditional equitable considerations.3 If the District Court is free to exercise the typical powers of a court of equity, it has the power to impose conditions requiring maintenance of the status quo. Conditions of this nature traditionally may be made the price of relief when the injunctive powers of the court are invoked and the conditions are necessary to do justice between the parties.4 'The award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff. * * * (The court) will avoid * * * injury so far as may be, by attaching conditions to the award * * *.' Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 674, 88 L.Ed. 834. '(I)t is the duty of a court of equity granting injunctive relief to do so upon conditions that will protect all * * * whose interests the injunction may affect.' Inland Steel Co. v. United States, 306 U.S. 153, 157, 59 S.Ct. 415, 417, 83 L.Ed. 557. Since the power to condition relief is essential to ensure that extraordinary equitable remedies will not become the engines of injustice, it would require the clearest legislative direction to justify the truncation of that power. Such direction, if it exists, presumably must be derived from the Railway Labor Act itself, and since that Act contains no express provisions circumscribing the equitable powers of the court, such limitations, if any, must be created by clear implication. The Court of Appeals found the limiting legislative direction in the provision of the Railway Labor Act granting exclusive primary jurisdiction over 'minor disputes' to the National Railroad Adjustment Board. Its theory was that the conditions imposed by the District Court constituted a preliminary decision on the merits of the parties' dispute and therefore encroached upon the jurisdiction of the Board. It is true that the federal courts ought not act in such a way as to infringe upon the jurisdiction of the Board, Order of Ry. Conductors of America v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318. But neither this principle nor the Pitney case itself leads us to the Court of Appeals' conclusion. In Pitney, we held that the District Court in exercise of its equity powers ancillary to its jurisdiction as a railroad reorganization court under 11 U.S.C. § 205, 11 U.S.C.A. § 205, should not have granted a permanent injunction finally determining the merits of a dispute which was within the jurisdiction of the Board, but that, instead, it should have withheld such relief pending a determination by the Board. In the case at bar, however, there was no determination of the merits of the dispute by the District Court. Nothing in the record of the proceedings in the District Court suggests that any view on the merits was considered. Instead, the record affirmatively discloses that the district judge was quite aware that it was not his function to construe the contractual provisions upon which the parties relied for their respective positions on the merits. In sum, the judge was scrupulous to avoid encroaching upon the jurisdiction of the Board.5 The Court of Appeals apparently concluded that a decision on the merits was inherent in the very conditioning of the injunction. It is true that a District Court must make some examination of the nature of the dispute before conditioning relief since not all disputes coming before the Adjustment Board threaten irreparable injury and justify the attachment of a condition. To fulfill its function the District Court must also consider the hardships, if any, that would arise if the employees were required to await the Board's sometimes long-delayed decisions without recourse to a strike. But this examination of the nature of the dispute is so unlike that which the Adjustment Board will make of the merits of the same dispute, and is for such a dissimilar purpose, that it could not interfere with the labor consideration of the grievance by the Adjustment Board. Moreover, such an examination is inherent in the grant of the injunction itself. Yet it is settled, since Chicago River, that an injunction may issue to preserve the Board's jurisdiction. We think that, in logic, we must hold that the conditions are proper also, at least where they are designed not only to promote the interests of justice, but also to preserve the jurisdiction of the Board. It is not difficult to perceive how the conditions imposed in this case could be deemed to serve to protect the jurisdiction of the Board. The dispute out of which the judicial controversy arose does not merely concern rates of pay or job assignments, but rather involves the discharge of employees from positions long held and the dislocation of others from their homes. From the point of view of these employees, the critical point in the dispute may be when the change is made, for, by the time of the frequently long-delayed Board decision, it might well be impossible to make them whole in any realistic sense. If this be so, the action of the district judge, rather than defeating the Board's jurisdiction, would operate to preserve that jurisdiction by preventing injury so irreparable that a decision of the Board in the union's favor would be but an empty victory. It is true that preventing the Railroad from instituting the change imposed upon it the burden of maintaining what may be a less efficient and more costly operation. The balancing of these competing claims of irreparable hardship is, however, the traditional function of the equity court, the exercise of which is reviewable only for abuse of discretion. And although respondents maintain that there has been such an abuse in ths case, scrutiny of the record does not persuade us that the evidence was insufficient to support the judge's action. The judgment of the Court of Appeals is reversed. Reversed. Mr. Justice HARLAN and Mr. Justice STEWART, while agreeing with the Court that the District Court had power to condition the issuance of the injunction, would vacate the judgment of the Court of Appeals and remand the case to that court for consideration of respondents' contention that the District Court's action involved an abuse of discretion.

364.US.443

Judgment reversed and cause remanded.

The judgment of the Circuit Court of Arlington County of the Commonwealth of Virginia is reversed and the case is remanded to that court. Blodgett v. Silberman, 277 U.S. 1, 18, 48 S.Ct. 410, 72 L.Ed. 749. Mr. Justice BLACK dissents for the same reason expressed by Mr. Justice HOLMES in Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 211, 26 S.Ct. 36, 41, 50 L.Ed. 150: 'It seems to me that the result reached by the Court probably is a desirable one, but I hardly understand how it can be deducted from the Fourteenth Amendment * * *.'

361.US.398

The National Labor Relations Board petitioned the Court of Appeals to adjudge respondents in civil contempt for refusing to pay certain amounts of back pay due to various employees as a result of their discriminatory discharge by respondent, Deena Artware, which -is one of several subsidiaries wholly owned, except for qualifying shares, by a parent corporation which in turn; is wholly owned, except for qualifying shares, by an individual who serves as president and treasurer. He and his wife, son, and secretary, constitute all of the officers and directors of the parent corporation and each of the subsidiaries. TheBoard alleged that (1) between the date of entry of a decree of the Court of Appeals enforcing the Board's original back-pay order 9nd the Court's entry of a supplemental decree approving the Board's determination of the specific amounts of back pay due, respondents had siphoned off the assets of Deena Artware for the purpose of avoiding payment of any back pay found to be due and owing, and (2) that respondents are integral parts of a single enterprise and, as such, were-and are answerable to the Court's decrees, which explicitly run against Deena Artware and its officers, agents, successors and assigns. The Board also moved for discovery, inspection and depositions. Without considering the Board's contention that the various corporate respondents were in fact "a single enterprise," the Court of Appeals dismissed the. petition and denied the Board's motion for discovery, inspection and depositions, on the ground that, at the time of the alleged siphoning of assets, its decree was not sufficiently definite and mandatory to serve as a basis for contempt proceedings. Held: The Board is entitled to a hearing on its theory that the respondent corporations are bilt divisions of "a single enterprise," and it is entitled to discover'y, inspection and depositions in aid of such a showing. Pp. 399-404. 261 F. 2d 503, reversed.

This litigation has been long and drawn out and the present case is merely a small segment of it. In 1949 petitioner found that respondent Deena Artware, Inc. (Artware), had violated the National Labor Relations Act, 61 Stat. 136, 29 U.S.C. § 158(a), 29 U.S.C.A. § 158(a), by discharging and refusing to reinstate 66 employees who had engaged in a strike (86 N.L.R.B. 732, 95 N.L.R.B. 9); and it ordered Artware 'and its officers, agents, successors, and assigns' to offer reinstatement to those employees and to make them whole for any loss of pay suffered by them as a result of the discriminating action. The Court of Appeals in 1952 affirmed the Board's decision with respect to 62 of the 66 employees and entered a decree enforcing the Board's order, 6 Cir., 198 F.2d 645, remanding the case to the Board to determine the amounts due the individual employees. In 1953 Artware offered reinstatement to all of these employees but shortly closed its plant (which was located in Kentucky), never resumed operations, and never paid any back pay to the employees in question. It appears that Weiner, one of the respondents, created a series of corporations, at the top of which was Deena Products, Inc., (Products), an Illinois corporation. Beneath it was a group of subsidiaries—formed under Kentucky law—Artware, Deena of Arlington, Inc., Sippi Products Co., Inc., and Industrial Realty Co., Inc.—all of whose shares, except for qualifying shares, were owned by Products. Weiner owned all the shares of Products, except for qualifying shares; and all the officers and directors of Products and the several subsidiaries were Weiner, his wife, his son, and his secretary. Weiner was president and treasurer of Products and of each of the subsidiaries, including Artware. Artware in 1949 gave Products a promissory note secured by a mortgage on Artware's property, allegedly for advances made. In 1952 Artware made an assignment to Products in partial satisfaction of its indebtedness. In 1953 the Board applied to the Court of Appeals for an order restraining that assignment. It also asked for an order of discovery, alleging that the affairs of Products and Artware were being conducted in such a way as to dissipate Artware's assets and to avoid making the back wage payments. The court denied these motions, holding that, until the amount of back pay was liquidated and payment of the fixed sum refused, there was no warrant for granting that relief (6 Cir., 207 F.2d 798), the court adding that if upon liquidation of Artware 'any financial inability' on its part to pay the awards was shown to be 'the result of improper actions on its part in the meantime, appropriate contempt action can then be taken.' Id., at page 802. At that time, the Board had not issued an order determining the specific amounts of back pay owed the individual employees. In 1955—nearly two years later—it made that determination and entered an order, directing payment of back pay totaling about $300,000; and the Court of Appeals ordered Artware, 'its officers, agents, successors and assigns' to pay that amount to specified employees. 6 Cir., 228 F.2d 871, 872. That was on December 16, 1955. In 1957 the Board moved the Court of Appeals for discovery, inspection, and depositions, naming Artware, Weiner, Products, and the other subsidiaries of Products. It alleged that Weiner had caused the assets of Artware to be siphoned off through the other corporations under his control for the purpose of evading the back pay obligation. The Court of Appeals denied the motion, 6 Cir., 251 F.2d 183, holding that a contempt proceeding, rather than discovery, was the proper procedure. On August 20, 1958, the Board petitioned the Court of Appeals to hold Artware, Weiner, Products and the other subsidiaries in civil contempt for failure to pay the amounts due employees under the back pay order. On October 11, 1958, the Board renewed its motion for discovery, inspection, and the taking of depositions from Artware, the affiliated corporations, and Weiner, and other officers of these corporations. In its petition the Board made charges of dealings between these corporations and between them and Weiner occurring from 1949 to 1955 which, it maintained, showed both (1) fraud and wrongdoing for the purpose of frustrating the back pay order and (2) the operation of these various corporations 'as a single enterprise,' each of the corporations performing 'a particular function, as a department or division of the one enterprise in the manufacture, sale and distribution of the common product.' The allegations (which are summarized in the opinion below, 261 F.2d 503, 506—507) need not be repeated here, as the Court of Appeals merely held that, although the enforcement order was entered July 30, 1952, it was not made specific as to amounts owed until December 16, 1955. It, therefore, concluded that prior to the latter date the decree was 'not sufficiently definite and mandatory to serve as the basis for contempt proceedings.' Id., at page 510. It, therefore, dismissed the Board's petition for adjudication in civil contempt. It also denied the Board's motion for discovery, inspection, and depositions. 261 F.2d 503, 510. The case is here on a petition for certiorari, 359 U.S. 983, 79 S.Ct. 942, 3 L.Ed.2d 932, which we granted in order to consider the validity of the action of the Court of Appeals in dismissing the petition insofar as it charged the existence of 'a single enterprise.' The Court of Appeals dismissed the petition without considering the second group of allegations made by the Board, viz., that these various corporations were in fact 'a single enterprise.' And it denied the motion for discovery even as it pertained to that alternative theory of liability. It may have done so because it thought that the issues tendered in the petition related solely to intercompany transactions alleged to be conveyances in fraud of creditors or preferences in favor of some creditors. That seemed to be its preoccupation, as is evident by its references to possible causes of action under Kentucky law to set those transactions aside. Id., 261 F.2d at page 509. We do not stop to consider what would be a proper formulation of a rule of law governing liability in contempt for frustration of a decree. The Court of Appeals may have considered the transactions and assignments as if they were made between separate and distinct corporations. If they are viewed in that light, we cannot say they are so colorable as to warrant us in reversing the Court of Appeals. But we think the Board is entitled to show that these separate corporations are not what they appear to be, that in truth they are but divisions or departments of a 'single enterprise.' That is the alternative theory of liability which the Court of Appeals did not consider. We think that the Board is entitled to a hearing on that alternative theory and to discovery in aid of it. The question whether the corporations under Weiner's ownership were only departments or divisions in one single enterprise is in a different category than those that arise under either 13 Eliz. or the modern law of preferences. Whether one corporation is liable for the obligations of an affiliate turns on other considerations. The insulation of a stockholder from the debts and obligations of his corporation is the norm, not the exception. See Pullman's Palace Car Co. v. Missouri Pacific R. Co., 115 U.S. 587, 597, 6 S.Ct. 194, 198, 29 L.Ed. 499. Yet as Mr. Justice Cardozo said in Berkey v. Third Avenue R. Co., 244 N.Y. 84, 95, 155 N.E. 58, 61, 50 A.L.R. 599, 'Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent. Where control is less than this, we are remitted to the tests of honesty and justice.' That is not a complete catalogue. The several companies may be represented as one.1 Apart from that is the question whether in fact the economic enterprise is one, the corporate forms being largely paper arrangements that do not reflect the business realities. One company may in fact be operated as a division of another;2 one may be only a shell, inadequately financed;3 the affairs of the group may be so intermingled that no distinct corporate lines are maintained.4 These are some, though by no means all,5 of the relevant considerations, as the authorities recognize. See Lattin on Corporations (1959) ch. 2, §§ 13, 14; Stevens on Corporations (1949) § 17; Berle, The Theory of Enterprise Entity, 47 Col.L.Rev. 343. We do not intimate an opinion on the merits of this alternative theory of liability. The authorities we have cited merely indicate the range of inquiry which the petition of the Board presented. Discovery is useful in determining what the facts are. It is, indeed, necessary to determine whether the decree of the court enforcing the Board's order should run to any of the affiliated corporations or their stockholders. When the facts are resolved, it will be time enough to consider what further enforcement decree, if any, would be appropriate.6 The petition should be reinstated insofar as it charges the existence of 'a single enterprise,' and the motion for discovery should be granted so that the Board will have an opportunity to prove those allegations. Reversed. Mr. Justice STEWART took no part in the consideration or decision of this case.

364.US.297

Certiorari granted; judgment vacated; and case remanded. Reported below:- 108 U. S. App. D. C. 1, 278 F. 2d 446.

On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. Petition for writ of certiorari granted. On writ of certiorari, judgment vacated and case remanded to the Court of Appeals with instructions to retain jurisdiction until such time as further legislation has been enacted or Public Law 86-661, 74 Stat. 527, has expired.

364.US.388

For refusing to comply with a state court order to produce the names of persons attending his summer camp during 1954 and 1955 for use in an investigation by the Attorney General of New Hampshire on behalf of the State Legislature to determine whether "subversive persons" were then in the State, petitioner was adjudged guilty of civil contempt and ordered committed to jail until he complied. That judgment was sustained by the State Supreme Court and by this Court. He then appealed again to the State Supreme Court, claiming that, since his former appeal, the State Legislature had terminated the Attorney General's authority to make such an investigation on its behalf; but the State Supreme Court held that such authority had not been terminated. Held: An appeal to this Court from that judgment is dismissed for want of jurisdiction, since that judgment is based on a nonfederal ground. Reported below: 102 N. H. 461, 159 A. 2d 160.

In view of the Court's decision in Uphaus v. Wyman. 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090, rehearing denied, 361 U.S. 856, 80 S.Ct. 40, 4 L.Ed.2d 95, the motion to dismiss is granted and the appeal herein is dismissed for want of jurisdiction, in that the judgment sought to be reviewed is based on a non-federal ground. Appeal dismissed. Mr. Justice BRENNAN. The New Hampshire Supreme Court has held in this proceeding that the New Hampshire Legislature still wanted Dr. Uphaus' answers on December 14, 1959, notwithstanding the omission from Laws 1957, c. 178, of the provision of Laws 1955, cc. 340 and 197, authorizing the Attorney General 'to determine whether subversive persons * * * are presently located within this state,' Wyman v. Uphaus, 102 N.H. 461, 159 A.2d 160, on denial of motion for bail, 102 N.H. 517, 162 A.2d 611. We are bound by the highest state court's construction of the pertinent New Hampshire statutes. We must therefore consider the substantiality of the federal constitutional questions presented on this appeal on the basis of that construction and not upon the premise urged by Dr. Uphaus that the 1957 statute shows that the legislature on December 14, 1959, no longer wanted him to produce the list of names. In consequence, while I remain of the view that the Court in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090, incorrectly sustained the previous order of civil contempt made against Dr. Uphaus, see dissent at page 82, of 360 U.S., at page 1047 of 79 S.Ct., that holding, while it stands, also sustains the order challenged on this appeal. Solely under compulsion of that decision, I think that the appeal must be dismissed as not presenting a substantial federal question.

361.US.288

In an action by the Secretary of Labor under § 17 of the Fair Labor Standards Act of 1938, as amended, to restrain violations of § 15 (a) (3), a district court has jurisdiction to order an employer to reimburse employees unlawfully discharged or otherwise discriminated against for wages lost because of that discharge or discrimination. Pp. 289-296. (a) The jurisdiction conferred by § 17 is not to be narrowly construed as including only the powers expressly conferred- or necessarily implied from its language. The jurisdiction is equitable and includes the power to provide complete relief in the light of the statutory purpose. Pp. 290-292. (b) By the "proscription of retaliatory acts set forth in § 15 (a) (3) and its enforcement in'equity by the Secretary under § 17, Congress sought to foster a climate in which compliance with the Act would be enhanced. P. 292. (c) The Act should not be construed as enabling employees to resort to statutory remedies to obtain restitution of partial deficiencies in wages due for past work, only at the risk of irremediable loss of entire pay for an unpredictable future period. Pp. 292-293. (d) The proviso added to § 17 by the 1949 amendment, which disabled courts in actions under § 17 from awarding "unpaid minimum wages or unpaid overtime compensation or ah additiondl equal amount as liquidated damages," was not intended to apply to reimbursemient of lost wages incident to wrongful discharge. Pp. 293296. 260 F. 2d 929, reversed.

Section 15(a)(3) of the Fair Labor Standards Act of 1938, 52 Stat. 1068, 29 U.S.C. § 215(a)(3), 29 U.S.C.A. § 215(a)(3), makes it unlawful for an employer covered by that Act— 'to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act * * *.' By § 17 of the Act, 52 Stat. 1069, as amended, 29 U.S.C. § 217, 29 U.S.C.A. § 217, the District Courts are given jurisdiction 'for cause shown, to restrain violations of section 15:1 Provided, That no court shall have jurisdiction, in any action brought by the Secretary of Labor to restrain such violations, to order the payment to employees of unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages in such action.' The question for decision is whether, in an action brought by the Secretary of Labor to enjoin violations of § 15(a)(3), Section 17 empowers a District Court to order reimbursement for loss of wages caused by an unlawful discharge or other discrimination. The facts, as found by the District Court,2 are not in dispute. Several of the employees of the respondent corporation had sought the aid of the Secretary of Labor, petitioner here, in seeking to recover wages allegedly unpaid in violation of §§ 6(a) and 7(a) of the Act. The Secretary instituted an action pursuant to § 16(c) of the statute, 63 Stat. 919, 29 U.S.C. § 216(c), 29 U.S.C.A. § 216(c), on behalf of the aggrieved employees, for the recovery of the unpaid compensation. After the commencement of such action, respondents commenced a course of discriminatory conduct against three of the complaining employees, culminating in their discharge. In a second action by the Secretary, pursuant to § 17, this discrimination was found by the District Court to have been caused by respondents' 'displeasure' over the actions of the employees in authorizing suit. Finding the evidence of unlawful discrimination 'clear and convincing,' the District Court granted an injunction against further discrimination and ordered reinstatement of the three discharged employees, without loss of seniority. As to reimbursement for loss of wages, the court, expressly reserving the question whether it had jurisdiction to order such reimbursement, declined in the exercise of its discretion to do so. On appeal, the Court of Appeals did not reach the question of abuse of discretion, for it held that the District Court lacked jurisdiction to order reimbursement of lost wages resulting from an unlawful discharge. 5 Cir., 260 F.2d 929. The decision being in conflict with that of the Court of Appeals for the Second Circuit in Walling v. O'Grady, 146 F.2d 422, we granted certiorari. 359 U.S. 964, 79 S.Ct. 879, 3 L.Ed.2d 833. We initially consider § 17 apart from the effect of its proviso, which was added in 1949. The court below took as the touchstone for decision the principle that to be upheld the jurisdiction here contested 'must be expressly conferred by an act of Congress or be necessarily implied from a congressional enactment.' 260 F.2d at page 933. In this the court was mistaken. The proper criterion is that laid down in Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332. This Court there dealt with an action brought by the Price Administrator under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925, to enjoin the collection of excessive rents and to require the landlord to reimburse its tenants for moneys paid as a result of past violations. We upheld the implied power to order reimbursement, in language of the greatest relevance here: 'Thus the Administrator invoked the jurisdiction of the District Court to enjoin acts and practices made illegal by the Act and to enforce compliance with the Act. Such a jurisdiction is an equitable one. Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction. And since the public interest is involved in a proceeding of this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. * * * (T)he court may go beyond the matters immediately underlying its equitable jurisdiction * * * and give whatever other relief may be necessary under the circumstances. * * * 'Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508. * * *' 328 U.S. at pages 397—398, 66 S.Ct. at page 1089. The applicability of this principle is not to be denied, either because the Court there considered a wartime statute, or because, having set forth the governing inquiry, it went on to find in the language of the statute affirmative confirmation of the power to order reimbursement. Id., 328 U.S. at page 399, 66 S.Ct. at page 1089. When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in the light of statutory purposes. As this Court long ago recognized, 'there is inherent in the Courts of Equity a jurisdiction to * * * give effect to the policy of the legislature.' Clark v. Smith, 13 Pet. 195, 203, 10 L.Ed. 123. To the policy of the Fair Labor Standards Act we therefore now turn. The central aim of the Act was to achieve, in those industries within its scope, certain minimum labor standards. See § 2 of the Act, 52 Stat. 1060, 29 U.S.C. § 202, 29 U.S.C.A. § 202. The provisions of the statute affect weekly wage dealings between vast numbers of business establishments and employees. For weighty practical and other reasons, Congress did not seek to secure compliance with prescribed standards through continuing detailed federal supervision or inspection of payrolls. Rather it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. This ends the prohibition of § 15(a)(3) against discharges and other discriminatory practices was designed to serve. For it needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions. Cf. Holden v. Hardy, 169 U.S. 366, 397, 18 S.Ct. 383, 390, 42 L.Ed. 780. By the proscription of retaliatory acts set forth in § 15(a)(3), and its enforcement in equity by the Secretary pursuant to § 17, Congress sought to foster a climate in which compliance with the substantive provisions of the Act would be enhanced. In this context, the significance of reimbursement of lost wages becomes apparent. To an employee considering an attempt to secure his just wage deserts under the Act, the value of such an effort may pale when set against the prospect of discharge and the total loss of wages for the indeterminate period necessary to seek and obtain reinstatement. Resort to statutory remedies might thus often take on the character of a calculated risk, with restitution of partial deficiencies in wages due for past work perhaps obtainable only at the cost of irremediable entire loss of pay for an unpredictable period. Faced with such alternatives, employees understandably might decide that matters had best be left as they are. We cannot read the Act as presenting those it sought to protect with what is little more than a Hobson's choice. Respondents argue that, in the absence of a contrary contractual provision, an employee cannot recover lost wages owing to a discriminatory discharge, and that the jurisdiction here invoked is therefore to be regarded as 'punitive,' outside the function of equity unless expressly authorized by the statute. We intimate no view as to the validity of the premise, for it in no way supports the conclusion. Whatever the rights of the parties may be under traditional notions of contract law, it is clear that under § 15(a)(3) such a discharge is not permissible. Even assuming, without deciding, that the Act did not contemplate the private vindication of rights it bestowed,3 the public remedy is not thereby rendered punitive, where the measure of reimbursement is compensatory only. Respondents cannot be heard to assert that wages are ordered to be paid for services which were not performed, for it was the employer's own unlawful conduct which deprived the employees of their opportunity to render services. It is contended, however, that even though equitable jurisdiction to restore lost wages resulting from an unlawful discharge may originally have existed under § 17, such jurisdiction was withdrawn by the 1949 proviso which disabled courts in § 17 actions from awarding 'unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages * * *.' 80 S.Ct. at page 334. When considered against its background we think the proviso has no such effect. Shortly before the enactment of this proviso the Court of Appeals for the Second Circuit had decided in McComb v. Frank Scerbo & Sons, 177 F.2d 137, that in a § 17 suit brought by the Secretary to enjoin violations of the minimum wage and overtime provisions of the Act, the court had power to order reimbursement of unpaid overtime wages. The effect of this decision was to enable the Secretary in such a suit to recover on behalf of employees that which would otherwise have been recoverable only in an action brought by the employees themselves under § 16(b) of the statute, 52 Stat. 1069, 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b). The § 17 proviso was aimed at doing away with this result. Even so, Congress did not see fit to undo the effects of Scerbo entirely, for at the time it enacted the § 17 proviso it also added to the Act § 16(c), whereby the Secretary was empowered to bring a representative action on behalf of employees to recover unpaid wages in cases other than those involving 'an issue of law which has not been settled finally by the courts.' 63 Stat. 919, 29 U.S.C. § 216(c), 29 U.S.C.A. § 216(c).4 Thus, presumably Congress felt that the Secretary should not lend his weight to, nor be burdened with, actions for unpaid wages except in the clearest cases. We find no indication in the language of the § 17 proviso, or in the legislative history, that Congress intended the proviso to have a wider effect, that is, that it was intended to apply to reimbursement of lost wages incident to a wrongful discharge, as distinguished from the recoupment of underpayments of the statutorily prescribed rates for those while still employed. The proviso speaks entirely in terms of unpaid minimum wages and overtime. In effectuating the policies of the Act the proper reach of equity power in suits by the Secretary under the wage provisions of the statute, and that in suits under the discharge provisions, are attended by quite different considerations, which, in passing the 1949 amendments, Congress evidently had in mind. We are not persuaded by respondents' argument that because the Second Circuit in Scerbo partially relied on its earlier decision in Walling v. O'Grady, supra, and because the House Conference Report on the 1949 amendments stated that the § 17 proviso 'will have the effect of reversing such decisions as McComb v. Scerbo * * * in which the court included a restitution order in an injunction decree granted under section 17,' H.R.Conf.Rep. No. 1453, 81st Cong., 1st Sess., p. 32, the proviso must be taken as having been intended to overrule the O'Grady case as well. O'Grady was a discriminatory discharge case, not a wage case as was Scerbo. And before the 1949 amendments expressions of other lower courts had indicated a point of view similar to that espoused in Scerbo. See Fleming v. Alderman, D.C., 51 F.Supp. 800; Walling v. Miller, 8 Cir., 138 F.2d 629; Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622. Rather than expressing a general repudiation of equitable jurisdiction to order reimbursement to effectuate the policies of the Act, we think that the 1949 amendments evidence a purpose to make only limited modifications in the nature and extent of the Secretary's power to obtain reimbursement of unpaid compensation.5 This being so, there is no warrant for construing the § 17 proviso as reaching beyond suits to enjoin violations of the minimum wage and overtime provisions of the statute, so as wholly to eradicate any jurisdiction to restore wage losses to employees discharged in violation of § 15(a)(3). To the contrary, in view of the related character of the issues presented in O'Grady and Scerbo, the modification in the area treated by the latter case bespeaks an intention to leave the O'Grady decision intact. The 1949 amendments, then, only serve to confirm the result we reach independently of them. We hold that, in an action by the Secretary to restrain violations of § 15(a) (3), a District Court has jurisdiction to order an employer to reimburse employees, unlawfully discharged or otherwise discriminated against, for wages lost because of that discharge or discrimination. The Court of Appeals did not reach the question whether the District Court abused its discretion in declining to order reimbursement. While, because of what we have found to be the statutory purposes there is doubtless little room for the exercise of discretion not to order reimbursement, since we do not have the entire record before us we shall remand the case to the Court of Appeals for consideration of that issue. Reversed and remanded. Mr. Justice DOUGLAS, while joining in this opinion, agrees with Mr. Justice WHITTAKER that other remedies are available and that any remedy obtained in this equity action is complementary to them.

361.US.375

Certiorari granted; judgment vacated; and case remanded to the District Court for disposition of question respecting racial discrimination in selection of petit jury panels. Reported below: 267 F. 2d 307.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case remanded to the District Court for disposition of the question whether members of petitioner's race were deliberately and intentionally limited and excluded in the selection of petit jury panels, in violation of the Federal Constitution.

364.US.51

A husband and wife are not legally incapable of violating 18 U. S. C. § 371 by conspiring with each other to commit an offense against the United States. Pp. 51-55. Order dismissing indictment reversed.

This is an indictment charging husband and wife with conspiring to commit an offense against the United States in violation of § 371 of Title 18 of the United States Code, 18 U.S.C.A. § 371, which was enacted by Congress on June 25, 1948, 62 S.Ct. 683, 701, in connection with § 545 of that Code, 18 U.S.C.A. § 545, id., 716, in that they sought illicitly to bring goods into the United States with intent to defraud it. On authority of controlling decisions of its Circuit, Dawson v. United States, 9 Cir., 10 F.2d 106, and Gros v. United States, 9 Cir., 138 F.2d 261, the District Court dismissed the indictment on the ground that it did not state an offense, to wit, a husband and wife are legally incapable of conspiring within the condemnation of § 371. The case came here on direct review of the order dismissing the indictment, 358 U.S. 944, 79 S.Ct. 352, 3 L.Ed.2d 351, under the Criminal Appeals Act of March 2, 1907, now 18 U.S.C. s 3731, 18 U.S.C.A. § 3731. The construction of § 371 by the Court of Appeals for the Ninth Circuit has been explicitly rejected by the Court of Appeals for the District of Columbia Circuit, Johnson v. United States, 81 U.S.App.D.C. 254, 157 F.2d 209, and by the Court of Appeals for the Fifth Circuit, Thompson v. United States, 227 F.2d 671, and Wright v. United States, 243 F.2d 569. The question raised by these conflicting views is clear-cut and uncomplicated. The claim that husband and wife are outside the scope of an enactment of Congress in 1948, making it an offense for two persons to conspire, must be given short shrift once we heed the admonition of this Court that 'we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule,' United States v. Union Supply Co., 215 U.S. 50, 55, 30 S.Ct. 15, 16, 54 L.Ed. 87, and therefore do not allow ourselves to be obfuscated by medieval views regarding the legal status of woman and the common law's reflection of them. Considering that legitimate business enterprises between husband and wife have long been commonplaces in our time, it would enthrone an unreality into a rule of law to suggest that man and wife are legally incapable of engaging in illicit enterprises and therefore, forsooth, do not engage in them. None of the considerations of policy touching the law's encouragement or di couragement of domestic felicities on the basis of which this Court determined appropriate rules for testimonial compulsion as between spouses, Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, and Wyatt v. United States, 362 U.S. 525, 80 S.Ct. 901, are relevant to yielding to the claim that an unqualified interdiction by Congress against a conspiracy between two persons precludes a husband and wife from being two persons. Such an immunity to husband and wife as a pair of conspirators would have to attribute to Congress one of two assumptions: either that responsibility of husband and wife for joint participation in a criminal enterprise would make for marital disharmony, or that a wife must be presumed to act under the coercive influence of her husband and, therefore, cannot be a willing participant. The former assumption is unnourished by sense; the latter implies a view of American womanhood offensive to the ethos of our society. The fact of the matter is that we are asked to write into law a doctrine that parrot-like has been repeated in decisions and texts from what was given its authoritative expression by Hawkins early in the eighteenth century. He wrote: 'It plainly appears from the Words of the Statute, That one Person alone cannot be guilty of Conspiracy within the Purport of it; from whence it follows, * * * That no such Prosecution is maintainable against a Husband and Wife only, because they are esteemed but as one Person in Law, and are presumed to have but one 'Will.' (Hawkins, Pleas of the Crown, 4th ed. 1762, Bk. I, chap. lxxii, Sect. 8, p. 192.) The pronouncement of Hawkins apparently rests on a case in a Year Book of 38 Edward III, decided in 1365. The learning invoked for this ancient doctrine has been questioned by modern scholarship. See Williams, The Legal Unity of Husband and Wife, 10 Mod.L.Rev., 16 (1947); and cf. Winfield, The History of Conspiracy (1921), § 27, p. 64, and § 37, p. 88. But in any event the answer to Hawkins with his Year Book authority, as a basis for a decision by the Supreme Court of the United States in 1960 construing a statute enacted in 1948, was definitively made long ago by Mr. Justice Holmes: 'It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.' Holmes, Collected Legal Papers, 187 (1920), reprinting The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). For this Court now to act on Hawkins's formulation of the medieval view that husband and wife 'are esteemed but as one Person in Law, and are presumed to have but one Will' would indeed be 'blind imitation of the past.' It would require us to disregard the vast changes in the status of woman—the extension of her rights and correlative duties—whereby a wife's legal submission to her husband has been wholly wiped out, not only in the English-speaking world generally but emphatically so in this country. How far removed we were even nearly a century ago when Congress passed the original statute against criminal conspiracy, the Act of March 2, 1867, 14 Stat. 484, from the legal and social climate of eighteenth century common law regarding the status of woman is pithily illustrated by recalling the self-deluding romanticism of Blackstone, whereby he could conscientiously maintain that 'even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.' Blackstone, Commentaries on the Laws of England (1765), Bk. I, ch. 15, p. 433. It would be an idle parade of learning to document the statement that these common-law disabilities were extensively swept away in our different state of society, both by legislation and adjudication, long before the originating conspiracy Act of 1867 as passed. Suffice it to say that we cannot infuse into the conspiracy statute a fictitious attribution to Congress of regard for the medieval notion of woman's submissiveness to the benevolent coercive powers of a husband in order to relieve her of her obligation of obedience to an unqualifiedly expressed Act of Congress by regarding her as a person whose legal personality is merged in that of her husband making the two one. Reversed.

362.US.404

Acting under statutory authority to levy, distrain or seize property or rights to property belonging to a delinquent taxpayer, a District Director of Internal Revenue served notices of levy on a city demanding that it pay to him money alleged to be due from the city to a contractor for construction work. The surety on the contractor's performance and payment bonds then instituted a summary proceeding in a Federal District Court to have the levy quashed, claiming that the money was due to it, instead of to the contractor, since the surety had been compelled to complete performance of the contract when the contractor defaulted. Held: The District Court was without jurisdiction to determine the rights of the parties in a summary proceeding. Pp. 405-410. (a) Especially when a controversy like this is begun by peremptory seizure without an initial determination of the taxpayer's liability, there is neither justification nor authority for carving out an exception to the uniform and regular civil procedure laid down by the Federal Rules, either for the benefit of the party from whom the property was seized or for any other claimant. Pp. 406-408. (b) Such a summary trial of a claim for property seized by Internal Revenue officers is not authorized by 28 U. S. C. § 2463. Pp. 408-410. 267 F. 2d 941, affirmed.

Acting pursuant to statutory authority to levy, distrain or seize property or rights to property belonging to a delinquent taxpayer,1 respondent Scanlon, District Director of Internal Revenue, served notices of levy on the City of New York demanding that it pay to the Director money alleged to be due from the city to respondent Acme Cassa, Inc., under a contract for the construction of a school playground. The purpose of this distraint was to secure payment of taxes owing by taxpayer Acme Cassa to the Federal Government. The petitioner, New Hampshire Fire Insurance Co., then brought this summary proceeding, by a 'petition' in a United States District Court, seeking to have the levy quashed. The 'petition' alleged that the indebtedness of the city for the construction work was not owing to Acme Cassa but to the petitioner because, under its obligation as surety for Cassa's faithful performance of the construction contract, the insurance company had been compelled to complete the playground after Cassa got into financial difficulties and defaulted on the job. Pointing out that petitioner could institute a plenary suit for recovery on the indebtedness if it chose, the District Court held that it was without jurisdiction to determine the respective rights of the parties in a summary proceeding, and accordingly dismissed the petition.2 The Court of Appeals for the Second Circuit affirmed upon the opinion of the District Court.3 Because the Court of Appeals for the Third Circuit had previously held that a claimant of property so distrained for tax delinquencies need not resort to a plenary action but could adjudicate the controversy summarily, Ersa, Inc. v. Dudley, 3 Cir., 234 F.2d 178, 180; Raffaele v. Granger, 3 Cir., 196 F.2d 620; Rothensies v. Ullman, 3 Cir., 110 F.2d 590, we granted certiorari to resolve the intercircuit conflict. 361 U.S. 881, 80 S.Ct. 152, 4 L.Ed.2d 118. Summary trial of controversies over property and property rights is the exception in our method of administering justice. Supplementing the constitutional, statutory, and common-law requirements for the adjudication of cases or controversies, the Federal Rules of Civil Procedure, 28 U.S.C.A., provide the normal course for beginning, conducting, and determining controversies. Rule 1 directs that the Civil Rules shall govern all suits of a civil nature, with certain exceptions stated in Rule 81 none of which is relevant here. Rule 2 directs that 'There shall be one form of action to be known as 'civil action." Rule 3 provides that 'A civil action is commenced by filing a complaint with the court.' Rule 56 sets forth an expeditious motion procedure for summary judgment in an ordinary, plenary civil action. Other rules set out in detail the manner, time, form and kinds of process, service, pleadings, objections, defenses, counterclaims and many other important guides and requirements for plenary civil trials. The very purpose of summary rather than plenary trials is to escape some or most of these trial procedures. Summary trials, as is pointed out in the petitioner's brief, may be conducted without formal pleadings, on short notice, without summons and complaints, generally on affidavits, and sometimes even ex parte.4 Such summary trials, it has been said, were practically unknown to the English common law and it may be added that they have had little acceptance in this country.5 In the absence of express statutory authorization,6 courts have been extremely reluctant to allow proceedings more summary than the full court trial at common law.7 Especially when a controversy like this is begun by peremptory seizure without an initial determination of the taxpayer's liability, there is neither justification nor authority for carving out an exception to the uniform and regular civil procedure laid down by the Federal Rules, either for the benefit of the party from whom the property was seized or for any other claimant. Petitioner contends, however, that there is express statutory approval for summary trial of a claim for property seized by Internal Revenue officers. For this contention petitioner relies on 28 U.S.C. § 2463, 28 U.S.C.A. § 2463, which reads as follows: 'All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.' Petitioner's argument is that this section puts property seized by revenue officers in the custody of the courts and that it necessarily follows that a court having such custody has power to dispose of the issue of ownership summarily. We cannot agree with either contention. Property seized by a revenue officer for delinquent taxes is lawfully held by that officer in his administrative capacity and he has broad powers over such property. See Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372, and Phillips v. Commissioner, 283 U.S. 589, 595—597, 51 S.Ct. 608, 611 612, 75 L.Ed. 1289. The history of § 2463 plainly indicates a congressional purpose to protect that property in the revenue officer's custody and not to transfer that custody either actually or fictionally into the custody of the federal courts. The section was originally adopted in 1833 to meet a particular necessity brought about by South Carolina's adoption of an 'Ordinance of Mullification.'8 That state ordinance authorized state officials to seize property that had been distrained or levied on by federal officers and provided that South Carolina state courts could issue writs of replevin to take such property out of the hands of federal officials. The plain object of the 1833 Act was to counteract this state ordinance and it therefore specifically provided that property held under United States revenue laws should not be 'repleviable.' This statute went on to say that property so seized should be considered as 'in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.' 4 Stat. 633. This law, originally passed to protect the custody of property seized by federal revenue officers against more or less summary state court action, should not now be construed as justifying summary proceedings for determining the rights of any litigant to property seized by federal officers. In placing these cases exclusively within the jurisdiction of the federal courts, Congress did not indicate any intention to relax or alter the safeguards of plenary proceedings generally applicable to property controversies in federal courts. Even if § 2463 could somehow be construed as transferring custody of property seized by revenue officers into the hands of officers of the federal courts it would by no means follow that cases and controversies involving ownership of that property should be tried in summary fashion. It is true that courts have sometimes passed on ownership of property in their custody without a plenary proceeding where, for illustration, such a proceeding was ancillary to a pending action or where property was held in the custody of court officers, subject to court orders and court discipline. See, e.g., Go-Bart Importing Co. v. United States, 282 U.S. 344, 355, 51 S.Ct. 153, 157, 75 L.Ed. 374.9 But here there is no situation kindred to that in Go-Bart. What is at issue here is an ordinary dispute over who owns the right to collect a debt—an everyday, garden-variety controversy that regular, normal court proceedings are designed to take care of. As the District Court pointed out in its opinion, there is ample authority for petitioner to have its claim adjudicated by the Federal District Court but that should be done in a plenary not in a summary proceeding.

364.US.294

Appeal dismissed and certiorari denied. Reported below: 53 Cal. 2d 772, 349 P. 2d 956.

The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied. The CHIEF JUSTICE and Mr. Justice BLACK are of the opinion that probable jurisdiction should be noted.

364.US.295

Certiorari granted; judgment vacated; and case remanded. Reported below: 275 F.2d 191.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for consideration in light of Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941.

362.US.605

Ohio's antitrust law may not be applied to prevent the contracting parties from carrying out a collective bargaining agreement upon a subject matter as to which the National Labor Relations Act directs them to bargain. Teamsters Union v. Oliver, 358 U. S. 283. Therefore, certiorari is granted and the judgment below is reversed. Pp. 605-606. 170 Ohio St. 207, 163 N. E: 2d 383, reversed.

The motion for leave to use record in No. 49, October Term, 1958, is granted. The petition for certiorari is also granted. After our remand to the Court of Appeals of the State of Ohio, Ninth Judicial District, for proceedings not inconsistent with the opinion of this Court, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312, the Court of Appeals set aside its previous order 'as it concerns and applies to Revel Oliver, appellee, as a lessor-driver' but continued the order in full force and effect 'as it concerns and applies to Revel Oliver, appellee, as a lessor-owner and employer of drivers of his equipment.' We read the judgment of the Court of Appeals as enjoining petitioner and respondents A.C.E. Transportation Co. and Interstate Truck Service, Inc., for enforcing against respondent Oliver those parts of Article 32 which provide that hired or leased equipment, if not owner-driven, shall be operated only by employees of the certificated or permitted carriers and require those carriers to use their own available equipment, before hiring any extra equipment. Art. 32, §§ 4 and 5, 358 U.S. at 298—299, 79 S.Ct. at pages 305—306. While we do not think the issue was tendered to us when the case was last here, we are of opinion that these provisions are at least as intimately bound up with the subject of wages as the minimum rental provisions we passed on then. Accordingly, as in the previous case, we hold that Ohio's antitrust law here may not 'be applied to prevent the contracting parties from carrying out their agreement upon a subject matter as to which federal law directs them to bargain.' 358 U.S., at page 295, 79 S.Ct. at page 304. The judgment accordingly is reversed. Reversed. Mr. Justice WHITTAKER dissents. Mr. Justice FRANKFURTER and Mr. Justice STEWART took no part in the consideration or decision of this case.

364.US.298

Judgment vacated and case remanded. Reported below: 177 F. Sulp. 398.

Judgment vacated and case remanded to the District Court for such further proceedings as may be appropriate in light of Act No. 700 of the Laws of the General Assembly of the Commonwealth of Pennsylvania, passed at the Session of 1959 and approved by the Governor of the Commonwealth on December 17, 1959. 24 P.S.Pa. § 15-1516.

364.US.1

1. In this proceeding under § 209 (b) of the Interstate Commerce. Act, the Commission exceeded its statutory authority by granting to a motor carrier subsidiary of a: railrbad permits to act as a contract carrier for a single shipper from points on the railroad's line in California to points*o n its line in certain other States. since the Commission neither (1) imposed conditions upon the permits suficient to assure that the service to be rendered would be truly auxiliary to, and supplemental of, the rail service, nor (2) made findings sufficient to establish the existence of "special circumstances" justifying the waiver of such- restrictions. Pp. 3-15. (a) The general policy under § 5 (2) (b) and the National. Transportation Policy of restricting the services of motor carrier subsidiaries of railroads to those which are auxiliary to, or supplemental of, the parent railroad's services is applicable to. permits under § 209 (b). Pp. 6-7. (b) If a trucking service can fairly be characterized as auxiliary to, or supplemental of, train service, there is compliance with the mandate of § 5 (2) (b) that the railroad should be able to "ise service by motor yehicle to public advantage in its operations"; but, if the motor transportation is essentially unrelated to the rail service, the parent railroad is invading the field of trucking, and, under normal circumstances, the National Transportation Policy is thereby offended. Pp. 7-9. (c) When there are "special circumstances" sufficient to justify such action in the public interest, however, the Commission may sometimes refrain from imposing the condition that the trucking service be auxiliary to, or supplemental of, the rail service. American Trucking Associations v. United States, 355 U. S. 141. Pp. 10-11. (d) The conditions imposed upon the permits in this case were not sufficient to restrict the motor carrier to operations truly auxiliary to, or supplemental of, the rail service. Pp. 11-13. (e) The Commission's findings in this case were not sufficient to establish the existence of "special circumstances" justifying the waiver of such restrictions. Pp. 13-15. 2. Insofar as it pertains to the permits to serve points on the railroad's lines, the judgment of the District Court denying relief is reversed, and the case is remanded to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate. Pp. 15-17. 3. The reversal and remand, however, do not apply to the Commission's grant of authority to provide contract carrier service to three nonrail points in Nevada. P. 17. 4. Appellants, six- motor carriers and three associations of motor carriers, had standing to maintain their action to set aside the Commission's order, under the "party in interest" criterion of § 205 (g) of the Interstate Commerce Act and under the "person suffering legal wrong ...or adversely affected or aggrieved" criterion of § 10 (a) of the Administrative Procedure Act. Pp. 17-18. 170 F. Supp. 38, reversed.

The principal question presented on this appeal is whether the appellee Interstate Commerce Commission properly declined to impose certain restrictions upon motor carrier permits it issued to a trucking company which is a subsidiary of a railroad. T e permits in question are designed to allow appellee Pacific Motor Trucking Company, a wholly owned subsidiary of Southern Pacific Company, to perform a particular type of transportation service for appellee General Motors Corporation. Prior to issuance of these permits, Pacific Motor already had been authorized to conduct certain trucking activities in a number of States into which Southern Pacific's extensive railway system penetrates. Without adverting to immaterial details, that authority may be described as follows: Pacific Motor held common carrier certificates from the Commission for the transportation of commodities, by way of service auxiliary to and supplemental of Southern Pacific rail service, over routes paralleling Southern Pacific lines in Oregon, California, Nevada, Arizona, New Mexico, and Texas. It also held contract carrier authority from the State of California for intrastate transportation of trucks and automobiles. Finally, it had been granted contract carrier permits by the Commission for the transportation of automobiles, trucks, and buses from certain points in California to three nonrail points in Nevada, to two points on the Mexican border, to certain points in Los Angeles Harbor, and to points in Nevada located on the Southern Pacific line. These latter contract carrier permits did not contain restrictions designed to make the service auxiliary to and supplemental of Southern Pacific rail service, Pacific Motor's only contract carrier shipper has been General Motors. By the four applications which gave rise to the present controversy, Pacific Motor sought to extend the scope of its contract carrier service for General Motors. It requested authorization from the Commission for the transportation of new automotive equipment from plants of General Motors at Oakland, Raymer, and South Gate, California, to various interstate destinations not included within its prior permits. Generally speaking, the first application, designated Sub 34, covered contract carrier service from the Oakland plants to points on the Southern Pacific line in Oregon; the second, Sub 35, covered similar service to three Nevada nonrail points; the third, Sub 36, covered transportation from the Raymer plant to points in Arizona which are stations on the Southern Pacific line; and the last—and broadest—application, Sub 37, covered transportation from the Oakland, Raymer, and South Gate plants to points in seven States, whether or not on the Southern Pacific line.1 The Commission proceedings resulted in the grant of some, but not all, of the requested authority. On May 8, 1957, the Commission acted favorably on the Sub 34 application. 71 M.C.C. 561. However, the Commission thereafter consolidated the four applications and heard oral argument. On September 9, 1958, the Commission issued its final report, 77 M.C.C. 605, which may be described specifically enough for our purposes as authorizing transportation by Pacific Motor to the three additional Nevada nonrail points and to points on the Southern Pacific line in Nevada, Utah, Arizona, Oregon, and New Mexico.2 Otherwise, the applications were denied. There were certain other conditions imposed by the Commission, which we will detail later, but the major restriction was the limitation of points of destination to points on the Southern Pacific line. Appellants—American Trucking Associations, Inc., its Contract Carrier Conference, the National Automobile Transporters Association, and six motor carriers—brought § it in Federal District Court to set aside the Commission's order. See 28 U.S.C. § 1336, 28 U.S.C.A. § 1336. Appellees Pacific Motor and General Motors intervened in support of the order. The United States was named a party defendant, together with the Interstate Commerce Commission, but did not either participate in or oppose the defense. See 28 U.S.C. § 2323, 28 U.S.C.A. § 2323. A three-judge court, which was convened pursuant to 28 U.S.C. §§ 2325 and 2284, 28 U.S.C.A. §§ 2325, 2284, denied relief. D.C., 170 F.Supp. 38. Our appellate jurisdiction was invoked under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we noted probable jurisdiction. 361 U.S. 806, 80 S.Ct. 51, 4 L.Ed.2d 53. In this Court, the Commission opposes and the United States supports the appellants. There is a preliminary challenge by Pacific Motor and General Motors to appellants' standing, a challenge which was sustained by two members of the lower court. We disagree with this holding. Since the basis for our view on the problem of standing will be more readily appreciated after the merits of the case have been fully treated, we postpone our discussion of this matter. The critical issue raised by appellants is whether the Commission exceeded its statutory authority by granting the permits in question to a railroad subsidiary without imposing more stringent limitations than it did. On this question, the lower court unanimously ruled against appellants. This judgment must be evaluated in the light of this Court's previous decisions, set against the background of Commission practice. Both the Commission and this Court have recognized that Congress has expressed a strong general policy against railroad invasion of the motor carrier field. This policy is evinced in a general way in the preamble to the 1940 amendments to the Interstate Commerce Act—the National Transportation Policy, 54 Stat. 899—which articulates the congressional purpose that the Act be 'so administered as to recognize and preserve the inherent advantages' of 'all modes of transportation.' More particularly, Congress' attitude is reflected by a proviso to § 5(2)(b) of the Act,3 which enjoins the Commission to withhold approval of an acquisition by a railroad of a motor carrier 'unless it finds that the transaction proposed will be consistent with the public interest and will enable such carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.' The Commission long ago concluded that the policy of the transportation legislation requires that the standards of § 5(2)(b)—then § 213(a) of the Motor Carrier Act of 1935, 49 Stat. 555—be followed as a general rule in other situations, notably in applications for common carrier certificates of convenience and necessity under § 207.4 Kansas City Southern Transport Co., Common Carrier Application, 10 M.C.C. 221 (1938). And this Court has confirmed the correctness of the Commission's conception of its responsibilities under both § 5(2)(b) and § 207. See United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391; United States v. Texas & Pacific Motor Transport Co., 340 U.S. 450, 71 S.Ct. 422, 95 L.Ed. 409; Interstate Commerce Commission v. Parker, 326 U.S. 60, 65 S.Ct. 1490, 89 L.Ed. 2051. The Court has also taken cognizance of the congressional confirmation of the Commission's policy by the 1940 reenactment in § 5(2)(b) of the provisions of § 213(a), after some of the pertinent Commission decisions had been specifically called to Congress' attention. See United States v. Rock Island Motor Transit Co., supra, 340 U.S. at page 432, 71 S.Ct. 382, at page 389. And although the instant proceeding involves contract carrier applications and hence falls under § 209,5 the Commission in its opinion recognized that, for purposes of the relevance of the § 5(2)(b) standards, there is no distinction between th § type of case and proceedings arising under § 207. 77 M.C.C. 621—622. Nor can we discern any grounds for differentiation. Thus it is evident that the policy of opposition to railroad incursions into the field of motor carrier service has become firmly entrenched as a part of our transportation law. Moreover, this general policy fortunately has not been implemented merely by way of a more or less unguided suspicion of railroad subsidiaries, but rather has evolved through a series of Commission decisions from embryonic form into a set of reasonably firm, concrete standards.6 The Commission's opinion in the case at bar describes these standards as follows: 'The restrictions usually imposed in common-carrier certificates issued to rail carriers or their affiliates in order to insure that the service rendered thereunder shall be no more than that which is auxiliary to or supplemental of train service are: (1) the service by motor vehicle to be performed by rail carrier or by a rail-controlled motor subsidiary should be limited to service which is auxiliary to or supplemental of rail service, (2) applicant shall not serve any point not a station on the railroad, (3) a key-point requirement or a requirement that shipments transported by motor shall be limited to those which it receives from or delivers to the railroad under a through bill of lading at rail rates covering, in addition to the movement by applicant, a prior or subsequent movement by rail, (4) all contracts between the rail carrier and the motor carrier shall be reported to the Commission and shall be subject to revision if and as the Commission finds it to be necessary in order that such arrangements shall be fair and equitable to the parties, and (5) such further specific conditions as the Commission, in the future, may find it necessary to impose in order to insure that the service shall be auxiliary to, or supplemental of, train service. * * *' The key phrase in this summary is obviously 'auxiliary to or supplemental of train service.' If a trucking service can fairly be so characterized, it is clear enough that there is compliance with the mandate of § 5(2)(b) that the carrier should be able 'to use service by motor vehicle to public advantage in its operations.' But if, on the other hand, the motor transportation is e sentially unrelated to rail service, the railroad parent is invading the field of trucking, and, under normal circumstances, the National Transportation Policy is thereby offended. It is this 'auxiliary to or supplemental of' verbalization of the policy of § 5(2)(b), as applied to § 207, that has found favor in this Court. See American Trucking Assns. v. United States, 355 U.S. 141, 78 S.Ct. 165, 2 L.Ed.2d 158; United States v. Rock Island Motor Transit Co., supra; United States v. Texas & Pacific Motor Transport Co., supra; Interstate Commerce Commission v. Parker, supra. Moreover, while the Court has not specified the more particularized restrictions which it might regard as essential constituents of the 'auxiliary to or supplemental of' concept, it is significant that the Court in Rock Island apparently accepted the Commission's view that the phrase implies a limitation of function, i.e., type of trucking service, and not merely a geographical limitation, i.e., place where the service is performed.7 340 U.S., at pages 436—444, 71 S.Ct. at pages 392—396. But while the judicial and administrative current has run strongly in favor of auxiliary and supplemental restrictions on motor carrier subsidiaries of railroads, the Commission has determined, and this Court has agreed, that the public interest may sometimes be promoted by not imposing such limitations. A prime example is American Trucking Ass'ns v. United States, supra, where the trucking service was not being performed adequately by independent motor concerns. We there observed that the mandatory provisions of § 5(2)(b) do not appear in § 207, and approved the Commission's policy of not attaching auxiliary and supplemental restrictions where 'special circumstances' prevail. We concluded: 'We repeat * * * that the underlying policy of § 5(2)(b) must not be divorced from proceedings for new certificates under § 207. Indeed, the Commission must take 'cognizance' of the National Transportation Policy and apply the Act 'as a whole.' But * * * we do not believe that the Commission acts beyond its statutory authority when in the public interest it occasionally departs from the auxiliary and supplementary limitations in a s 207 proceeding.' 355 U.S., at pages 151 152, 78 S.Ct. at page 171. These, then, are the guiding principles which have been established by what has gone before and which mark the range of our inquiry in this case. Since, as we have indicated, the Commission believes, and we agree, that there is no relevant difference between a § 207 proceeding and a § 209 proceeding so far as the problem here involved is concerned, the decisive questions are : (1) Did the Commission impose conditions upon the permits issued to Pacific Motor under which the service to be rendered would be truly auxiliary to and supplemental of Southern Pacific's rail service? (2) If not, was the Commission's waiver of such restrictions justified by 'special circumstances'? The first question need not detain us long. The principal permits were qualified only by the following conditions: (1) the service was to be restricted to points which are stations on the Southern Pacific line; (2), 'there may from time to time in the future be attached to the permits * * * such reasonable terms, conditions, and limitations as the public interest and national transportation policy may require'; and (3), Pacific Motor was to request the imposition of restrictions upon its outstanding certificates with respect to the transportation of automobiles and trucks. The last restriction was designed to obviate any dual operation problem under § 210,8 and is not pertinent to the auxiliary and supplemental standard. See 77 M.C.C., at 624. The second condition obviously is no restriction at all on present operations, and hence can hardly be said to limit the trucking to an auxiliary or supplemental service. We so recognized in American Trucking Associations, where the certificates contained a similar restriction. 355 U.S., at page 154, 78 S.Ct. at page 172. And the first limitation, upon which appellees principally rely, is but a geographical, not a functional, restriction. As we have noted, Rock Island gives strong support to the view there expressed by the Commission that the essence of auxiliary and supplemental limitation is functional control. While it may be true, as appellees argue, that such a geographical limitation is a necessary ingredient of an auxiliary and supplemental restriction, it does not by any means follow that this ingredient makes the whole. Moreover, we have the strongest evidence that the Commission did not believe that it did, since the Commission specifically refrained from imposing the most general, but obviously the most significant, restriction—that 'the service by motor vehicle * * * should be limited to service which is auxiliary to or supplemental of rail service.' 77 M.C.C., 622, 623. The conclusion seems inescapable that the conditions imposed upon the permits to Pacific Motor, though undoubtedly 'restrictions' in a general sense, were not limitations sufficient to hold Pacific Motor to a truly auxiliary and supplemental service. Appellees urge that nonetheless there were 'special circumstances' within the meanin of American Trucking Associations. Appellees point to various findings of fact by the Commission, such as the need of General Motors for a service of the type here involved, Pacific Motor's experience and qualifications, and the unlikelihood that a significant amount of traffic would be diverted from rail to motor transportation even if the permits were granted. The difficulty with appellees' argument is that the Commission did not find that considerations of this nature constituted 'special circumstances' under the American Trucking Associations rule, but rather viewed them simply as supporting the basic determinations which it was required to make under § 209(b) in order to issue a contract carrier permit to any applicant.9 And naturally we should not substitute our judgment for the Commission's on a matter like this, for '(t)he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.' Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626. The Commission assigned but a single reason for not imposing the normal restrictions upon the Pacific Motor permits: to do so would compel Pacific Motor to conduct a common carrier service. Appellees support this decision upon the ground that the Commission is without authority under § 209(b) to impose such character-destroying conditions upon a contract carrier permit.10 We need not determine whether the Commission possesses the power to attach such limitations, or, in the alternative, to award a common carrier certificate, since we believe that, in any event, the Commission's reason is insufficient justification for its action. Assuming that the restrictions which would limit Pacific Motor's operations to an auxiliary and supplemental service would also be incompatible with a contract carrier operation, and that the Commission was consequently powerless to impose those restrictions, this alone does not, in our view, meet the 'special circumstances' test. There is, for example, no finding that independent contract carriers were unable or unwilling to perform the same type of service as Pacific Motor. In such a situation we do not believe that the policy of the Act allows the Commission to authorize service by Pacific Motor, limited only to points on the Southern Pacific line, sim ly because General Motors wants a contract carrier operation. If that desire of General Motors, in combination with the policy of the Act, disables a railroad subsidiary from obtaining the business, that is simply the result of the National Transportation Policy.11 The consequence, we believe, does not meet the compelling public interest standard established by American Trucking Associations. A contrary conclusion would open the door to approval of over-the-road contract trucking by railroad subsidiaries to most, if not virtually all, major destinations, and hence would greatly attenuate the safeguards which have been painstakingly erected to prevent railroad domination of trucking. Appellees say that these safeguards are no longer needed, because independent trucking is no longer an 'infant industry.' This is an immaterial argument in this forum. We do not condemn the wisdom of the Commission's action. We simply say that the transportation legislation does, and that the pardoning power in this case belongs to Congress. Thus the decision of the District Court must be reversed, because we conclude that the Commission fell into error of law. The question then arises whether there should be a remand which permits further proceedings. Appellants argue that there should not be, because the Commission, according to apellants, found that there were no special circumstances aside from the alleged impossibility of imposing the usual restrictions upon a contract carrier. It is true that the Commission based the rail-point restriction upon 'the absence of any showing of unusual conditions.' 77 M.C.C., at 623. But we cannot be certain that the Commission thereby intended to say that there were no special circumstances within the meaning of the American Trucking Associations principle. As we have pointed out, the rail-point restriction, standing alone, is different in kind from limitations which impose an auxiliary and supplemental service. Consequently, we cannot be sure that the Commission believes the same sort of circumstances determine the applicability of both types of restrictions. Moreover, the Commission's discussion of this point is open to the interpretation that it was repeating some of its conclusions with respect to the § 209(b) standards, e.g., 'the effect which granting the permit would have upon the services of the protesting carriers.' See note 9, supra.12 Under these circumstances, we would be warranted in precluding further proceedings only if, by an independent search of the record, we were able to conclude that, as a matter of law, there are no factors present which the Commission could have regarded as special circumstances. Although the findings of the Commission which are reflected in its opinion do not seem to us to comply with the American Trucking Associations standard, as the silence of the Commission seems to imply, we are unwilling in a complicated proceeding of this nature to deal with this problem ab initio or to say that the Commission could not have made additional findings on the basis of the evidence had it een aware that the ground its decision rested upon was insufficient. Consequently, under the particular circumstances of this case, we believe that it should be remanded to the Commission so that it can apply what we hold to be the applicable principles in such further proceedings as it may find to be consistent with this opinion. The reversal and remand, however, will not include one aspect of the Commission's action—the grant of authority to provide a service to three nonrail points in Nevada—which is not governed by the rationale of our opinion. This small segment of the controversy has been submerged in the dispute over the much broader permit covering transportation to rail points in various States. It is obvious, of course, that 'special circumstances' would have to be present to justify this Nevada award. Appellees maintain that there was such justification, and appellants have not established that it was lacking. Nor do we perceive any other reason to upset this award. Consequently, we affirm with respect to this particular permit. There remains only the question of standing. Although the threejudge court concluded that the Commission had not exceeded its authority in this case, two members of the court also believed that 'there was no showing of actual or anticipated direct injury such as would entitle (the appellants) to institute this action.' D.C., 170 F.Supp., at page 48. In support of this conclusion, appellees rely principally upon Atchison, T. & S.F.R. Co. v. United States, D.C., 130 F.Supp. 76, affirmed per curiam, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785. That decision held that certain railroads had no standing to challenge a Commission order authorizing acquisition by one motor carrier of others. Since the lower court in Atchison stressed the fact that the Commission there had not created any additional motor carrier service, the decision clearly is not in point. In the instant case, not only has the Commission created new operating rights, but they are rights in which appellants have a stake. And surely the statement by General Motors that it would not in any event give the the business to any appellant cannot deprive appellants of standing. The interests of these independents cannot be placed in the hands of a shipper to do with as it sees fit through predictions as to whom its business will or will not go. The decision we believe to be controlling is not Atchison, but rather Alton R. Co. v. United States, 315 U.S. 15, 62 S.Ct. 432, 86 L.Ed. 586, where the Court confirmed the standing of a railroad to contest the award of a certificate to a competing trucker. We conclude, then, that appellants had standing to maintain their action to set aside the Commission's order under the 'party in interest' criterion of § 205(g) of the Interstate Commerce Act, 49 Stat. 550, 49 U.S.C. § 305(g), 49 U.S.C.A. § 305(g), and under the 'person suffering legal wrong * * * or adversely affected or aggrieved' criterion of § 10(a) of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. § 1009(a), 5 U.S.C.A. § 1009(a). Our disposition of the case makes it unnecessary to consider the other issues raised by appellants. We have no desire to hamper the Commission in the discharge of its heavy responsibilities, and we have always recognized that the Commission has been given a wide discretion by Congress. But that discretion has limits; our decision in favor of the Commission in American Trucking Associations established the limits relevant to this case; and we conclude that those limits have been transgressed. Of course, in remanding the case we do not intend to circumscribe the Commission in determining whether appropriate 'special circumstances' do exist in this instance which would take the case out of the otherwise conventional standards. The judgment of the District Court is reversed and the case is remanded to that court with directions to remand to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate. It is so ordered. Affirmed in part; reversed and remanded in part with directions.

364.US.19

While a barge was being loaded at Memphis, it sank with resulting damage to both the barge and the cargo. The barge owner sued the cargo owner in a Tennessee State Court for damages alleged to have resulted from negligence in loading it, and that case was removed to the Federal District Court at Memphis. The cargo owner then brought this action in the Federal District Court at New Orleans against the barge and its owner, claiming damages to the cargo resulting from unseaworthiness. The barge owner then moved under 28 U. S. C. § 1404 (a) for transfer of this case to the Federal District Court at Memphis, alleging that such transfer was "necessary for the convenience of the parties and witnesses and in the interest of justice." Finding these allegations to be true, the District Court at New Orleans transferred the case to the. District Court at Memphis. Held: It did not err in doing so. Pp. 20-27. (a) Insofar as this is a "civil action" against the barge owner, it clearly was transferable to the District Court at Memphis, since the plaintiff could have brought this action in that court. Hoffman v,B laski, 363 U. S. 335, distinguished. P. 22. (b) Transfer of this action to the District Court at Memphis is not barred by the fact that fictionally it is also an in rem proceeding against the barge itself, which was not within the jurisdiction of the District Court at Memphis when this action was brought. Pp. 22-27. 268 F. 2d 240, affirmed.

The single issue presented for decision in this case is whether the United States District Court in New Orleans, acting under 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a), erred in ordering that this action for damages to cargo from alleged unseaworthiness be transferred for trial, 'in the interest of justice,' to the United States District Court at Memphis, Tennessee, where the sinking of the barge occurred. The Court of Appeals affirmed the District Court's transfer order. 268 F.2d 240. We granted certiorari to consider this important question. 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed.2d 59. The facts and circumstances on which the District Court transferred this case are these. Barge FBL—585, a respondent here under an ancient admiralty fiction, is owned by Federal Barge Lines, Inc., the other respondent. After the barge was partially loaded by petitioner, Continental Grain Co., with its soybeans at its wharf in Memphis, the barge sank, causing damage both to the barge and to the soybeans. A dispute arose over what caused it to sink. The barge owner, Federal Barge Lines, Inc., brought an action for damages in a Tennessee state court charging that the barge sank because the cargo owner, Continental Grain Co., had been negligent in loading it. The cargo owner later brought this action in the United States District Court in New Orleans against the barge and its owner, in a single complaint, charging that the vessel had sunk because of its defects and unseaworthiness, and claiming damages for injury to the cargo. In the meantime the damage case against the grain company had been removed from the Tennessee state court to the United States District Court at Memphis. While the litigation arising out of this single occurrence was in this posture in the New Orleans and Memphis courts, the barge-owner defendant, at New Orleans, filed a motion and accompanying affidavits under s 1404(a) to transfer 'this action' to the United States District Court at Memphis alleging that such transfer was 'necessary for the convenience of the parties and witnesses and in the interest of justice. * * *' This followed the language of § 1404(a), which provides: 'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' The New Orleans District Court found that the issue in the Memphis case 'that is, the cause of the casualty, is precisely the issue in the case at bar. The convenience of the great majority of witnesses in this case dictates that this case be tried in Memphis. The efficient administration of justice requires that this claim for cargo damage be tried by the same court which is trying the claim for hull damage, both claims being between the same parties, and relate to the same incident.' These findings were well supported by evidence, were approved by the Court of Appeals, are not challenged here, and we accept them. The case, therefore, if tried in New Orleans, will bring about exactly the kind of mischievous consequences against 'the interest of justice' that § 1404(a) was designed to prevent, that is, unnecessary inconvenience and expense to parties, witnesses, and the public. The grain company argues that this frustration of the basic purpose of Congress in passing § 1404(a) is compelled by the language of the section that prevents the transfer of a 'civil action' by a District Court to any District Court other than one 'where it might have been brought.' Two weeks ago this Court decided in Hoffman v. Blaski and Sullivan v. Behimer, 363 U.S. 335, 80 S.Ct. 1084, that this language bars transfer of a 'civil action' properly pending in one District Court to another in which that 'civil action' could not have been brought because the defendant legally could not have been subjected to suit there at the time when the case was originally filed. Those cases involved transfers in which the plaintiffs filing the suits would have had no right whatever to proceed originally against the defendants on the 'civil actions' in the District Courts to which transfer was sought without the defendants, consent. But in this case there was admittedly a right on the part of the grain company to subject the owner of the barge, with or without its consent, to a 'civil action' in Memphis at the time the New Orleans action was brought. Under these circumstances it would plainly violate the express command of § 1404(a), as construed in our two prior cases, to reverse the District Court's judgment ordering this single civil action to be transferred to Memphis, unless transfer is barred by the joinder of the in rem claim against the barge with the claim against the owner itself. The grain company takes this view of the effect of joinder, arguing that since the barge was in New Orleans when this 'civil action' was brought and the admiralty in rem claim therefore could not have been brought in Memphis at that time, the entire civil action must remain in the inconvenient New Orleans forum. This view is reached by labeling this single civil action as two, one against the barge and one against the owner. It asserts this view despite the fact that the grain company's suit against the barge and its suit against the owner are in the same complaint for the loss of the same cargo in the same sinking of the same barge producing the same damages. The basis of this view that there are two distinct civil actions for § 1404(a) purposes is a long-standing admiralty fiction that a vessel may be assumed to be a person for the purpose of filing a lawsuit and enforcing a judgment.1 The fiction relied upon has not been without its critics even in the field it was designed to serve. It has been referred to as 'archaic,' 'an animistic survival from remote times,' 'irrational' and 'atavistic.'2 Perhaps this is going too far since the fiction is one that certainly had real cause for its existence in its context and in the day and generation in which it was created. A purpose of the fiction, among others, has been to allow actions against ships where a person owning the ship could not be reached, and it can be very useful for this purpose still. We are asked here, however, to transplant this ancient salt-water admiralty fiction into the dry-land context of forum non conveniens, where its usefulness and possibilities for good are questionable at best. In fact, the fiction appears to have no relevance whatever in a District Court's determination of where a case can most conveniently be tried. A fiction born to provide convenient forums should not be transferred into a weapon to defeat that very purpose. This Court has not hesitated in the past to refuse to apply this same admiralty fiction in a way that would cut down, as it would here, the scope of congressional enactments. In fact, Mr. Justice Bradley, speaking for the Court, said at one time, in construing a statute which had limited a shipowner's liability but had failed to refer to the 'personal' liability of the vessel: 'To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles. A man's liability for a demand against him is measured by the amount of the property that may be taken from him to satisfy that demand. In the matter of liability, a man and his property cannot be separated * * *.' The City of Norwich, 118 U.S. 468, 503, 6 S.Ct. 1150, 1162, 30 L.Ed. 134. Fifty-seven years later this Court was confronted with a similar argument about another section of the same statute, and after referring to the analysis in The City of Norwich concluded, 'The riddle after more than half a century repeated to us in different context does not appear to us to have improved with age. * * * Congress has said that the owner shall not 'answer for' this loss in question. Claimant says this means in effect that he shall answer only with his ship. But the owner would never answer for a loss except with his property, since execution against the body was not at any time in legislative contemplation. There could be no practical exoneration of the owner that did not at the same time exempt his property.' Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U.S. 249, 253—254, 64 S.Ct. 15, 17, 88 L.Ed. 30. We follow the common- sense approach of these two cases in interpreting § 1404(a). Failure to do so would practically scuttle the forum non conveniens statute so far as admiralty actions are concerned. All a plaintiff would need to do to escape from it entirely would be to bring his action against both the owner and the ship, as was done here. This would be all the more unfortunate since courts have long recognized 'admiralty's approach to do justice with slight regard to formal matters,'3 and, as this Court has recently observed, 'Admiralty practice, which has served as the origin of much of our modern federal procedure, should not be tied to the mast of legal technicalities it has been the forerunner in eliminating from other federal practices.' British Transport Comm. v. United States, 354 U.S. 129, 139, 77 S.Ct. 1103, 1108, 1 L.Ed.2d 1234. It is relevant that the law of admiralty itself is unconcerned about the technical distinctions between in rem and in personam actions for purposes of transferring admiralty actions from one court to a more convenient forum. This Court's Admiralty Rule 54, 28 U.S.C.A., which prescribes the procedures for owners' limiting their liability after vessels have been libeled, provides in language broader than § 1404(a): 'The District Court may, in its discretion, transfer the proceedings to any district for the convenience of the parties.' And it may be further observed that courts have not felt themselves bound by this fiction when confronted with the argument that because in rem and in personam actions involve different parties, therefore res judicata does not apply from an in personam action against an owner to an in rem action against his ship.4 It is interesting in this connection to take note of the fact that, according to the Court of Appeals opinion, the case at Memphis has already been tried.5 To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent. Moreover, such a situation is conductive to a race of diligence among litigants for a trial in the District Court each prefers. These are additional reasons why § 1404(a) should not be made ambiguous by the importation of irrelevant fictions. The idea behind § 1404(a) is that where a 'civil action' to vindicate a wrong—however brought in a court—presents issues and requires witnesses that make one District Court more convenient than another, the trial judge can, after findings, transfer the whole action to the more convenient court. That situation exists here. Although the action in New Orleans was technically brought against the barge itself as well as its owner, the obvious fact is that, whatever other advantages may result, this is an alternative way of bringing the owner into court. And although any judgment for the cargo owner will be technically enforceable against the barge as an entity as well as its owner, the practical economic fact of the matter is that the money paid in satisfaction of it will have to come out of the barge owner's pocket—including the possibility of a levy upon the barge even had the cargo owner not prayed for 'personified' in rem relief. The crucial issues about fault and damages suffered were identical, whether considered as a claim against the ship or its owner. The witnesses were identical. Thus, while two methods were invoked to bring the owner into court and enforce any judgment against it, the substance of what had to be done to adjudicate the rights of the parties was not different at all. Treating both methods for § 1404(a) purposes for what they are in a case like this—inseparable parts of one single 'civil action' merely permits or requires parties to try their issues in a single 'civil action' in a court where it 'might have been brought.' To construe § 1404(a) this way merely carries out its design to protect litigants, witnesses and the public against unnecessary inconvenience and expense, not to provide a shelter for in rem admiralty proceedings in costly and inconvenient forums. For the reasons stated here the judgment is affirmed. Affirmed. Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins. Although this case also involves some nice questions of admiralty procedure, since the claimant barge owner has moved for transfer and has agreed to 'pay any final decree which may be rendered against', the barge, the controlling considerations for me are those set forth in my opinion in Sullivan v. Behimer, 1960, 363 U.S. 351, 80 S.Ct. 1084. Accordingly, I would affirm the judgment.

364.US.518

Reported below: 186 F. Supp. 776.

The motion to dismiss is granted and the appeal is dismissed. Mr. Justice BLACK and Mr. Justice DOUGLAS are of the opinion that probable jurisdiction should be noted. Mr. Justice FRANKFURTER is of the opinion that the motion to affirm should be granted.

361.US.388

'etitioner sued respondent under § 16 (b) of the Fair Labor Standards Act for payment of overtime wages claimed under § 7. Respondent claimed exemption from the Act's overtime requirements as a "retail or service establishment" under § 13 (a) (2), as amended in 1949. Respondent conducts an interior decorating and custom furniture business, but also -fabricates on the same premises plastic aircraft parts which it sells in interstate commerce to manufacturers which incorporate them into aircraft or parts thereof which they sell to others. Sales of such plastic parts account for more than 25% of respondent's annual sales, and respondent introduced no evidence to prove that at least 75% of its sales were recognized in the industry as retail. Held: Respondent failed to satisfy the requirements of § 13 and is not entitled to exemption thereunder. Pp. 389-394. (a) That respondent's manufacture of plastic parts may be .considered a "sideline" from respondent's viewpoint does not remove petitioner from coverage under the Fair Labor Standards Act unless respondent's activities fall within the specific exemptions enumerated in § 13. P. 391. (b) Since respondent, through its fabrication of such plastic parts, is making or processing the goods that it sells, it must comply with the requirements of § 13 (a) (4), as well as § 13 (a) (2), in order to be exempt. Pp. 392-393. (c) Respondent failed to satisfy the requirements of § 13 (a) (2), because sales of plastic parts accounted for more than 25% of its annual sales, and respondent introduced no evidence to prove that 75% of its sales were recognized in the industry as "retail." Pp. 393-394. (d) The sale of parts to be incorporated into aircraft that were to be sold by the purchasers of such parts were sales for resale; and, since such sales exceeded 25% of respondent's total sales, respondent failed to meet the requirement of § 13 (a) (2) that 75% of its annual sales be "not for resale." P. 394. 250 F. 2d 47, 252 F. 2d 787, reversed and cause remanded.

This case concerns the provisions of the Fair Labor Standards Act of 1938 exempting from wages-and-hours coverage certain retail sales and service establishments.1 The suit was brought by petitioner individually under § 16(b) of the Act, 29 U.S.C.A. § 216(b) for payment of overtime wages claimed under § 7, 29 U.S.C.A. § 207. The Court of Appeals for the Fifth Circuit reversed a District Court judgment for petitioner2 and we granted certiorari, 359 U.S. 983, 79 S.Ct. 943, 3 L.Ed.2d 932. The proceedings in this Court are in forma pauperis. Both sides submitted on their briefs, and oral argument was heard only from the representative of the Secretary of Labor appearing as amicus curiae. Respondent conducts an interior decorating and custom furniture business in Dallas, Texas. On the same premises he fabricates aircraft parts from phenolic, a cloth-impregnated phenol resin. This plastic is widely used in aircraft and automotive parts and can be machined on the woodworking equipment respondent has available in his furniture shop. Petitioner was employed by respondent from October 17, 1954, through September 2, 1955, primarily in the fabrication of phenolic parts. At the trial, a representative of Chance Vought Aircraft, Inc., testified that his company purchased over $34,000 worth of phenolic parts from respondent in 1955, and that these parts were used in aircraft and missiles sold to the United States Navy. A representative of Temco Aircraft Company testified that it purchased about $2,000 worth of phenolic parts annually from Kanowsky for use in manufacturing aircraft subassemblies for the Air Force or for prime contractors, many of whom were located outside the State. Respondent also shipped a small amount of sheet phenolic directly outside the State. During the year beginning October 1, 1954, respondent's sales totaled $99,117.52, and its sales of phenolic and phenolic parts were $39,751.71, or almost exactly 40% of its total sales. Its secretary-treasurer admitted that phenolic aircraft parts alone accounted for at least 25% of the company's total sales. Respondent introduced no evidence concerning the amount or nature of sales of phenolic in forms other than aircraft parts. Notwithstanding the admitted percentage of its total sales attributable to phenolic parts, respondent claimed exemption from the provisions of the Fair Labor Standards Act because of the retail character of its business. The District Court found that petitioner was engaged in the production of goods for commerce within the meaning of the Act, and upon respondent's admission that petitioner had been paid for overtime hours only at straight time rates, entered judgment for petitioner for unpaid overtime compensation plus an attorney's fee. The Court of Appeals reversed on the ground that respondent was exempt from the Act's overtime requirements under § 13(a)(2) as a 'retail or service establishment.' We believe that the Court of Appeals was in error and must be reversed. The wording of the statute, the clear legislative history, and the decisions of this Court require this conclusion. Petitioner admittedly is engaged in the manufacture of phenolic parts for commerce. That this activity may be considered a 'sideline' from respondent's viewpoint does not remove petitioner from coverage under the Fair Labor Standards Act unless the respondent's activities fall within the specific exemptions enumerated in § 13 of the Act. As originally passed in 1938, the Fair Labor Standards Act exempted from coverage 'any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.'3 In 1949 Congress substituted a three-part definition for this provision. Any employee employed by a retail or service establishment is to be exempt if more than 50% of the establishment's annual dollar volume of sales is made within the State, if 75% of its annual sales volume is not for resale, and if 75% of its annual sales volume is recognized within the industry as retail sales. This Court had occasion at the last Term to point out that the 1949 revision does not represent a general broadening of the exemptions contained in § 13.4 Rather, Congress 'was acting in implementation of a specific and particularized purpose' to replace the unsatisfactory 'business use' test, which had developed around the 1938 provision, with a formula that would be at once flexible and at the same time provide clear statutory guidance to the Administrator.5 We have held that these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.6 The three conditions of § 13(a)(2) are explicit prerequisites to exemption, not merely suggested guidelines for judicial determination of the employer's status.7 While § 13(a)(2) contains the requirements every retail establishment must satisfy to qualify for exemption, a retailer-manufacturer must satisfy the additional requirements of § 13(a)(4) since it 'makes or processes' the goods it sells.8 Turning to the facts of this case, it is clear that respondent, through its fabrication of phenolic parts, is 'making or processing the goods that it sells.' To gain exemption it therefore must comply with the criteria of § 13(a)(2) as they are incorporated by reference in § 13(a)(4), as well as the additional requirements of § 13(a)(4) itself. It is clear that respondent does not meet at least two of the three standards of § 13(a)(2) as included in § 13(a)(4). First, sales of phenolic parts account for more than 25% of the respondent's annual sales volume. The court below assumed that respondent's sales were recognized in the community as retail sales without any evidence to support the fact. This conclusion was not justified, since it is clear that Congress intended that 'any employer who asserts that his establishment is exempt must assume the burden of proving that at least 75 percent of his sales are recognized in his industry as retail.'9 Second, the Court of Appeals assumed that the sales of phenolic and phenolic parts were not for resale, but in doing so, it was in error. The sales of parts to one company alone for incorporation in airplanes and missiles that were to be sold to the United States Navy exceeded 25% of the total. These sales indisputably were made with the expectation that the parts would be incorporated in aircraft and that the aircraft would be sold. Such transactions are clearly within the concept of resale.10 Since respondent has not sustained its burden of proving that 75% of its annual sales volume is not for resale and is recognized as being retail in the particular industry, we need not reach the question whether the additional standards of § 13(a)(4) itself are met.11 We hold that respondent has not satisfied the requirements of § 13 and is not entitled to exemption thereunder. The judgment of the Court of Appeals is reversed; the judgment of the District Court is reinstated; and the cause is remanded to that court for consideration of the prayer of petitioner for further counsel fees in accordance with the provision of the Act. It is so ordered. Judgment of Court of Appeals reversed; judgment of District Court reinstated and cause remanded with directions.

364.US.170

In 1947, petitioner, an independent producer of natural gas, contracted to sell.gas from a specified field to an interstate pipeline company at a specified price for a term of 10 years. Subsequently petitioner applied for, and obtained from, the Federal Power Commission a certificate of public convenience and necessity authorizing such sales, and its contract-rate schedule was accepted as its rate schedule under the Natural Gas Act. Upon expiration of its 10-year contract, petitioner contracted with the same pipeline company for the sale of gas from the same field for a new 20-year term but at a higher rate. Petitioner then applied for a new certificate covering the new contract and filed the new contract as an initial-rate schedule under the new certificate pursuant to § 5 of the Act. The Commission rejected the certificate application as duplicative of petitioner's existing certificate to make sales from the field in question and rejected the rate-schedule filing on the ground that the purported initial-rate schedule was actually a change in petitioner's existing rate schedule. Petitioner then filed, under protest, as rate changes pursuant to § 4 (d), the rates in its new contract, and the Commission ordered those rates suspended under § 4 (e). Held: The Commission's orders are sustained. Pp. 171-176. (a) In acting upon petitioner's 1947 application, based on its 10-year contract, the Commission was authorized to issue a certificate unlimited as to time. Sunray Mid-Continent Oil Co. v. Federal Power Commission, ante, p. 137. P. 174. (.b) The Commission properly construed the certificate issued pursuant to that application as being unlimited as to time. Pp. 174-176. 266 F. 2d 222, affirmed.

This case presents many of the same issues as Sunray Mid-Continent Oil Co. v. Federal Power Comm., 364 U.S. 137, 80 S.Ct. 1392. Petitioner, Sun Oil Company, is an independent producer making sales of natural gas to transmission companies in interstate commerce for ultimate resale to the public. In 1947 it entered into a contract with the Southern Natural Gas Company, a transmission company, for the sale of natural gas which petitioner controlled in the Gwinville Gas Field in Jefferson Davis and Simpson Counties, Mississippi. The term of the contract was 10 years and the sales price was roughly eight cents per Mcf. After this Court's decisions in Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, on June 7, 1954, the Commission, in a series of orders, required independent producers engaging in jurisdictional sales on or after the date of the decision to apply for certificates of public convenience and necessity pursuant to § 7(c) of the Natural Gas Act, 15 U.S.C.A. § 717f(c).1 Under protest, petitioner applied for a certificate 'authorizing the sale of natural gas in the circumstances * * * described' in its application. The described circumstances consisted simply of a reference to its contract with Southern Natural, which was at the same time submitted by petitioner as its rate schedule. In an abbreviated and consolidated proceeding disposing of over 100 separate docket certificate applications from 40-odd independent producers, scattered from Colorado and New Mexico to West Virginia, the Commission on May 28, 1956, ordered issued to petitioner and each of the other applicants a certificate of public convenience and necessity, in the terms set out in the margin.2 Petitioner's contract-rate-schedule was accepted as its FPC Gas Rate Schedule No. 55. The 1947 contract between petitioner and Southern Natural expired on August 26, 1957. The parties however entered into a new 20-year contract for continued sale of gas from the same field, commencing on September 3, 1957. The contract called for an initial price increase of roughly 150 per cent, to 20 cents per Mcf.3 Petitioner took the view that the certificate it had received in 1956 was limited in term to the duration of the old contract. It accordingly filed on application for a new certificate covering the new contract, and filed the new contract as an initial rate schedule under the new certificate, pursuant to § 5 of the Act, 15 U.S.C.A. § 717d.4 The Commission, in a letter order of September 12, 1957, rejected the certificate application as duplicative of petitioner's existing certificate to make sales from the field in question, and rejected the rate-schedule filing on the ground that the purported initial rate schedule was actually a change in its existing Schedule No. 55. A motion for reconsideration was later denied; and at the same time the Commission ordered suspended, under § 4(e) of the Act,5 the effectiveness of the rates in the new contract, which petitioner had, after their rejection as an initial rate schedule, filed under protest, as rate changes pursuant to § 4(d). 18 F.P.C. 609, 611. After an application for rehearing of the suspension order was rejected, petitioner petitioned for review of all these orders of the Commission in the Court of Appeals for the Fifth Circuit.6 That court affirmed, by a divided vote. 5 Cir., 266 F.2d 222. We granted certiorari. 361 U.S. 880, 80 S.Ct. 151, 4 L.Ed.2d 117. Petitioner's contention here, as it was below, is that the initial certificate it obtained in 1956 was to remain in effect only during the life of the 1947 contract. This in its view would leave it free to discontinue interstate sales after the 1957 expiration of the contract, or to apply for a new certificate for new sales, and, not unimportantly, file the new sales contract as an initial rate schedule thereunder rather than as a rate change, We reject this contention and affirm the judgment of the Court of Appeals. First. The major part of petitioner's argument is based on a want of authority in the Commission, over objection, to grant an independent producer a certificate for a longer duration than the term of a sales contract which its application seeks permission to fulfill. To be sure, if the Commission had no such authority, we might take pains to read the petitioner's application as seeking a certificate so limited in time, though, as compared with Sunray's in the companion case, it is highly inexplicit as to its desire that only a term certificate be issued. But we have held today in the Sunray case, 364 U.S. at page 137, 80 S.Ct. at page 1392, that in these circumstances the Commission has authority to tender a permanent certificate under an application for a term certificate; and accordingly this keystone of petitioner's argument falls. Second. Of course, if, despite its authority to grant a permanent certificate, the Commission had in 1956 actually granted a term certificate to petitioner, petitioner would after the term have been free to apply for a new certificate to authorize the sale under the new contract. But we agree with the Commission that the 1956 certificate was a permanent one. The application itself, under the construction we have given the statute in Sunray, did not with any explicitness ask for a limited certificate. It asked for one 'authorizing the sale of natural gas' under the 1947 contract; but as we said in Sunray, a permanent certificate would do that. See 364 U.S. at page 149, 80 S.Ct. at page 1399. And the certificate issued makes no reference to any limitation of time. This is in contrast with explicit references to the limitation in those instances where the Commission had previously issued term certificates.7 The Commission's order, which blanketed the many applications before it in the mass proceeding, is no more explicit about limitation than the application, and refers, in fact, to the certificate as both 'authorizing the sale' of natural gas, and authorizing a 'service,' which accords with our construction of § 7(e) in Sunray. Under these circumstances we would hardly see any basis for overturning the Commission's view that no limitation as to time was implied. Cf. Andrew G. Nelson, Inc. v. United States, 355 U.S. 554, 560, 78 S.Ct. 496, 499, 2 L.Ed.2d 484. Moreover, if there were any doubt as to the matter, it would be removed by the fact that the batch of certificates containing petitioner's was issued at a time when the Commission was asserting that it lacked even the power to issue a term certificate. The certificate in question was issued May 28, 1956. The Commission had taken the position that it lacked such authority on July 25, 1955, in Sunray Oil Corp., 14 F.P.C. 877. It was not until October 29, 1956, that judicial rejection of the Commission's position occurred.8 Sunray Mid-Continent Oil Co. v. Federal Power Comm., 10 Cir., 239 F.2d 97, reversed on other grounds, 353 U.S. 944, 77 S.Ct. 792, 1 L.Ed.2d 794. Nothing in petitioner's application shows an attempt to take issue with that conception of the Commission, which of course would mean that every certificate granted under its influence would be intended to be permanent. It would surpass belief to say that under these circumstances the Commission tendered and the applicants received these certificates under the assumption that they were limited in time to the terms of the contracts on which the applications were based. Affirmed. [For dissenting opinion of Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER, Mr. Justice WHITTAKER, and Mr. Justice STEWART join, see ante, p. 159.]

409.US.17

ber 12, 1960-Supplemental Decrees Entered December 13, 1965, December 20, 1971, and October 16, 1972

For the purpose of giving effect to the conclusions of this Court as stated in its opinion, announced May 31, 1960, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025, and other opinions or decrees entered by this Court on December 12, 1960, 364 U.S. 502, 81 S.Ct. 258, 5 L.Ed.2d 247; on December 13, 1965, 382 U.S. 288, 86 S.Ct. 419, 15 L.Ed.2d 331; on March 3, 1969, 394 U.S. 11, 89 S.Ct. 773, 22 L.Ed.2d 44; and on December 20, 1971, No. 9, Original, 404 U.S. 388, 92 S.Ct. 544, 30 L.Ed.2d 525. 1. With the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. § 1313 (1964 ed.), the State of Louisiana is entitled, as against the United States, to all the lands, minerals and other natural resources lying more than one foot landward of the lines described in paragraph 2 hereof and seaward of the ordinary low-water mark on the Louisiana shore, provided that the United States is not hereby required to relinquish any monies presently held by it for off-set purposes solely in connection with accounting problems which have heretofore been deferred by the parties pending resolution of the larger disputes between them, without prejudice to the right of the State of Louisiana to contest either the substance of the United States' offset claims or its right to withhold monies in connection with them. 2. The lines referred to in paragraph 1 hereof are described by coordinates in the Louisiana Plane Coordinate System, South Zone, in two segments, as follows: South and west of the Mississippi-Louisiana border to grid line Y = 158695, north of West Bay. X Y BEGINNING AT... 2769357. .. 575650. BY STRAIGHT LINE TO. 2790258.. . 526390. BY ARC CENTERED AT. 2779032... . 512013. TO............. 2791385. .. 525434. BY STRAIGHT LINE TO. 2793119.. . 523838. BY ARC CENTERED AT. 2780766... . 510417. TO............. 2794594. .. 522313. BY STRAIGHT LINE TO. 2795887.. . 520810. BY ARC CENTERED AT. 2782059... . 508914. TO............. 2796579. .. 519954. BY STRAIGHT LINE TO. 2799209.. . 516495. BY ARC CENTERED AT. 2784689... . 505455. TO............. 2800441. .. 514653. BY STRAIGHT LINE TO. 2804270.. . 508096. BY ARC CENTERED AT. 2788518... . 498898. TO............. 2804495. .. 507699. BY STRAIGHT LINE TO. 2806028.. . 504916. BY ARC CENTERED AT. 2790051... . 496115. TO............. 2807014. .. 502822. BY STRAIGHT LINE TO. 2808653.. . 498677. BY ARC CENTERED AT. 2791690... . 491970. TO............. 2809151. .. 497245. BY STRAIGHT LINE TO. 2812250.. . 486987. BY ARC CENTERED AT. 2794789... . 481712. TO............. 2812519. .. 485996. BY STRAIGHT LINE TO. 2813932.. . 480148. BY ARC CENTERED AT. 2796202... . 475864. TO............. 2814262. .. 478425. BY STRAIGHT LINE TO. 2815269.. . 471324. BY ARC CENTERED AT. 2797209... . 468763. TO............. 2815426. .. 469688. BY STRAIGHT LINE TO. 2815673.. . 464823. BY ARC CENTERED AT. 2797456... . 463898. TO............. 2815697. .. 463895. BY STRAIGHT LINE. 2815696..... . 458116. BY ARC CENTERED AT. 2797455... . 458119. TO............. 2815657. .. 456928. BY STRAIGHT LINE TO. 2815269.. . 450999. BY ARC CENTERED AT. 2797067... . 452190. TO............. 2815171. .. 449960. BY STRAIGHT LINE TO. 2813957.. . 440103. BY ARC CENTERED AT. 2795853... . 442333. TO............. 2813809. .. 439123. BY STRAIGHT LINE TO. 2812678.. . 432796. BY ARC CENTERED AT. 2794722... . 436006. TO............. 2812419. .. 431584. BY STRAIGHT LINE TO. 2810957.. . 425733. BY ARC CENTERED AT. 2793260... . 430155. TO............. 2810699. .. 424807. BY STRAIGHT LINE TO. 2807854.. . 415530. BY ARC CENTERED AT. 2790415... . 420878. TO............. 2807572. .. 414684. BY STRAIGHT LINE TO. 2805322.. . 408452. BY ARC CENTERED AT. 2788165... . 414646. TO............. 2805227. .. 408196. BY STRAIGHT LINE TO. 2803786.. . 404384. BY ARC CENTERED AT. 2786724... . 410834. TO............. 2803319. .. 403263. BY STRAIGHT LINE TO. 2799845.. . 395648. BY ARC CENTERED AT. 2783250... . 403219. TO............. 2798971. .. 393968. BY STRAIGHT LINE TO. 2795394.. . 387889. BY ARC CENTERED AT. 2779673... . 397140. TO............. 2795311. .. 387750. BY STRAIGHT LINE TO. 2793560.. . 384834. BY ARC CENTERED AT. 2777922... . 394224. TO............. 2792249. .. 382934. BY STRAIGHT LINE TO. 2790814.. . 381113. BY ARC CENTERED AT. 2776487... . 392403. TO............. 2789360. .. 379480. BY ARC CENTERED AT. 2774670... . 390293. TO............. 2788262. .. 378129. BY STRAIGHT LINE TO. 2786553.. . 375045. BY ARC CENTERED AT. 2770599... . 383887. TO............. 2785045. .. 372750. BY STRAIGHT LINE TO. 2783942.. . 371319. BY STRAIGHT LINE TO. 2783792.. . 371062. BY ARC CENTERED AT. 2768031... . 380244. TO............. 2780548. .. 366976. BY STRAIGHT LINE TO. 2775735.. . 360553. BY ARC CENTERED AT. 2761138... . 371491. TO............. 2775111. .. 359766. BY STRAIGHT LINE TO. 2773031.. . 357287. BY ARC CENTERED AT. 2757465... . 366796. TO............. 2771721. .. 355417. BY STRAIGHT LINE TO. 2770633.. . 354054. BY STRAIGHT LINE TO. 2770505.. . 353847. BY ARC CENTERED AT. 2755015... . 363480. TO............. 2767788. .. 350458. TO............. 2767788. .. 350458. BY STRAIGHT LINE TO. 2761994.. . 344775. BY ARC CENTERED AT. 2749221... . 357797. TO............. 2760703. .. 343624. BY STRAIGHT LINE TO. 2757791.. . 341265. BY ARC CENTERED AT. 2746309... . 355438. TO............. 2756022. .. 339999. BY STRAIGHT LINE TO. 2754136.. . 338812. BY STRAIGHT LINE TO. 2742173.. . 323079. BY ARC CENTERED AT. 2727653... . 334120. TO............. 2741983. .. 322834. BY STRAIGHT LINE TO. 2741182.. . 321817. BY ARC CENTERED AT. 2726852... . 333103. TO............. 2738042. .. 318698. BY STRAIGHT LINE TO. 2736381.. . 317408. BY STRAIGHT LINE TO. 2736060.. . 316935. BY STRAIGHT LINE TO. 2732627.. . 311249. BY ARC CENTERED AT. 2717012... . 320677. TO............. 2731416. .. 309486. BY STRAIGHT LINE TO. 2729640.. . 307200. BY ARC CENTERED AT. 2715236... . 318391. TO............. 2728702. .. 306088. BY STRAIGHT LINE TO. 2728099.. . 305428. BY ARC CENTERED AT. 2714633... . 317731. TO............. 2725197. .. 302861. BY STRAIGHT LINE TO. 2723888.. . 301931. BY ARC CENTERED AT. 2713324... . 316801. TO............. 2720770. .. 300149. BY STRAIGHT LINE TO. 2719218.. . 299455. BY ARC CENTERED AT. 2711772... . 316107. TO............. 2714238. .. 298034. BY STRAIGHT LINE TO. 2704480.. . 294684. BY STRAIGHT LINE TO. 2704099.. . 293666. BY ARC CENTERED AT. 2687014... . 300054. TO............. 2701338. .. 288761. BY STRAIGHT LINE TO. 2699382.. . 386280. BY ARC CENTERED AT. 2685058... . 297573. TO............. 2697436. .. 284175. BY STRAIGHT LINE TO. 2699302.. . 266715. BY ARC CENTERED AT. 2688235... . 252215. TO............. 2704468. .. 260534. BY ARC CENTERED AT. 2689305... . 250395. TO............. 2707507. .. 251577. BY ARC CENTERED AT. 2700735... . 234640. TO............. 2717908. .. 240788. BY ARC CENTERED AT. 2701500... . 232820. TO............. 2719022. .. 237890. BY ARC CENTERED AT. 2707635... . 223640. TO............. 2721632. .. 235337. BY STRAIGHT LINE TO. 2736873.. . 228413. BY ARC CENTERED AT. 2738320... . 210230. TO............. 2745585. .. 226961. BY ARC CENTERED AT. 2738938... . 209975. TO............. 2749646. .. 224742. BY ARC CENTERED AT. 2750755... . 206535. TO............. 2759837. .. 222354. BY ARC CENTERED AT. 2755325... . 204680. TO............. 2773229. .. 201192. BY ARC CENTERED AT. 2755178... . 203815. TO............. 2770763. .. 194337. BY ARC CENTERED AT. 2754100... . 186915. TO............. 2771780. .. 191404. BY ARC CENTERED AT. 2754263... . 186316. TO............. 2772100. .. 182502. BY ARC CENTERED AT. 2753885... . 183460. TO............. 2765449. .. 169354. BY ARC CENTERED AT. 2752470... . 182170. TO............. 2761213. .. 166161. BY ARC CENTERED AT. 2751045... . 181305. TO............. 2752202. .. 163101. BY ARC CENTERED AT. 2750586... . 181270. TO............. 2749611. .. 163055. BY ARC CENTERED AT. 2736662... . 175902. TO............. 2748316. .. 161869. BY ARC CENTERED AT. 2734720... . 174030. TO............. 2747824. .. 161341. BY STRAIGHT LINE TO. 2746249.. . 159715. BY ARC CENTERED AT. 2728153... . 162005. TO............. 2746094. .. 158715. BY STRAIGHT LINE TO. 2745156.. . 153600. BY ARC CENTERED AT. 2727215... . 156890. TO............. 2745054. .. 153083. BY ARC CENTERED AT. 2726951... . 150846. TO............. 2743622. .. 143444. BY ARC CENTERED AT. 2726105... . 148530. TO............. 2731258. .. 131033. BY STRAIGHT LINE TO. 2716731.. . 112786. BY ARC CENTERED AT. 2702461... . 124148. TO............. 2716719. .. 112772. BY ARC CENTERED AT. 2699435... . 118600. TO............. 2710698. .. 104252. BY ARC CENTERED AT. 2697850... . 117200. TO............. 2683320. .. 106173. BY STRAIGHT LINE TO. 2682980.. . 106621. BY ARC CENTERED AT. 2697510... . 117648. TO............. 2679799. .. 113283. BY STRAIGHT LINE TO. 2679589.. . 114135. BY ARC CENTERED AT. 2697300... . 118500. TO............. 2679155. .. 116635. BY ARC CENTERED AT. 2685325... . 133800. TO............. 2670977. .. 122536. BY STRAIGHT LINE TO. 2670552.. . 122781. BY STRAIGHT LINE TO. 2666743.. . 124295. BY ARC CENTERED AT. 2673482... . 141245. TO............. 2665719. .. 124739. BY ARC CENTERED AT. 2672315... . 141745. TO............. 2661428. .. 127109. BY ARC CENTERED AT. 2644940... . 134910. TO............. 2660589. .. 125539. BY STRAIGHT LINE TO. 2657484.. . 120354. BY ARC CENTERED AT. 2641835... . 129725. TO............. 2656150. .. 118421. BY STRAIGHT LINE TO. 2653860.. . 115521. BY ARC CENTERED AT. 2639545... . 126825. TO............. 2648682. .. 111038. BY STRAIGHT LINE TO. 2648610.. . 110974. BY STRAIGHT LINE TO. 2648531.. . 110887. BY STRAIGHT LINE TO. 2646419.. . 107265. BY ARC CENTERED AT. 2630660... . 116450. TO............. 2646250. .. 106981. BY STRAIGHT LINE TO. 2644270.. . 103721. BY ARC CENTERED AT. 2628680... . 113190. TO............. 2642494. .. 101278. BY STRAIGHT LINE TO. 2640182.. . 98597. BY ARC CENTERED AT. 2624995... . 108700. TO............. 2638408. .. 96339. BY STRAIGHT LINE TO. 2638210.. . 96123. BY STRAIGHT LINE TO. 2637530.. . 95377. BY ARC CENTERED AT. 2624045... . 107660. TO............. 2637471. .. 95312. BY STRAIGHT LINE TO. 2635351.. . 93007. BY ARC CENTERED AT. 2621925... . 105355. TO............. 2634923. .. 92558. BY STRAIGHT LINE TO. 2633653.. . 91268. BY ARC CENTERED AT. 2620655... . 104065. TO............. 2631973. .. 89760. BY STRAIGHT LINE TO. 2631344.. . 89262. BY STRAIGHT LINE TO. 2630156.. . 87770. BY ARC CENTERED AT. 2615885... . 99131. TO............. 2630068. .. 87661. BY STRAIGHT LINE TO. 2629389.. . 86821. BY STRAIGHT LINE TO. 2626027.. . 82661. BY STRAIGHT LINE TO. 2624340.. . 80576. BY ARC CENTERED AT. 2610160... . 92050. TO............. 2621555. .. 77806. BY STRAIGHT LINE TO. 2621180.. . 77506. BY ARC CENTERED AT. 2609785... . 91750. TO............. 2617996. .. 75462. BY STRAIGHT LINE TO. 2617391.. . 75157. BY ARC CENTERED AT. 2609180... . 91445. TO............. 2597416. .. 77505. BY STRAIGHT LINE TO. 2595526.. . 79100. BY ARC CENTERED AT. 2607290... . 93040. TO............. 2589664. .. 97736. BY ARC CENTERED AT. 2607455... . 93710. TO............. 2591541. .. 102625. BY STRAIGHT LINE TO. 2592751.. . 104785. BY ARC CENTERED AT. 2608665... . 95870. TO............. 2593838. .. 106495. BY STRAIGHT LINE TO. 2595167.. . 108350. BY STRAIGHT LINE TO. 2596041.. . 109955. BY ARC CENTERED AT. 2614270... . 110615. TO............. 2597233. .. 117130. BY STRAIGHT LINE TO. 2597210.. . 155899. BY ARC CENTERED AT. 2614790... . 160765. TO............. 2596949. .. 156969. BY STRAIGHT LINE TO. 2596342.. . 158695. BY STRAIGHT LINE TO SHORE AT. 2615450. . 157770 From the vicinity of Bayou Goreau to the vicinity of Sabine Pass, west of grid line X = 2082361 and east of the Texas-Louisiana border. X Y BEGINNING AT... 2082361. . 169358. BY STRAIGHT LINE TO. 2081470. . 169553. BY ARC CENTERED AT. 2085370. . 187372. TO............. 2076984. . 171174. BY ARC CENTERED AT. 2077417. . 189409. TO............. 2071846. . 172040. BY STRAIGHT LINE TO. 2070630. . 172430. BY ARC CENTERED AT. 2076201. . 189799. TO............. 2064747. . 175603. BY STRAIGHT LINE TO. 2063841. . 176334. BY ARC CENTERED AT. 2075295. . 190530. TO............. 2059951. . 180668. BY ARC CENTERED AT. 2071131. . 195080. TO............. 2058843. . 181599. BY ARC CENTERED AT. 2062055. . 199555. TO............. 2057134. . 181991. BY STRAIGHT LINE TO. 2053779. . 182931. BY ARC CENTERED AT. 2058700. . 200495. TO............. 2053474. . 183019. BY STRAIGHT LINE TO. 2052967. . 183053. BY STRAIGHT LINE TO. 2051871. . 183006. BY ARC CENTERED AT. 2051090. . 201230. TO............. 2050845. . 182991. BY STRAIGHT LINE TO. 2048985. . 183016. BY ARC CENTERED AT. 2049230. . 201255. TO............. 2048033. . 183054. BY STRAIGHT LINE TO. 2044865. . 183262. BY STRAIGHT LINE TO. 2041482. . 183446. BY ARC CENTERED AT. 2042475. . 201660. TO............. 2037472. . 184119. BY STRAIGHT LINE TO. 2033139. . 185355. BY STRAIGHT LINE TO. 2032934. . 185387. BY ARC CENTERED AT. 2035775. . 203405. TO............. 2029791. . 186174. BY STRAIGHT LINE TO. 2027401. . 187004. BY ARC CENTERED AT. 2033385. . 204235. TO............. 2026834. . 187211. BY STRAIGHT LINE TO. 2023510. . 188491. BY STRAIGHT LINE TO. 2020959. . 189327. BY ARC CENTERED AT. 2026640. . 206660. TO............. 2019190. . 190010. BY STRAIGHT LINE TO. 2016613. . 191163. BY STRAIGHT LINE TO. 2015796. . 191414. BY ARC CENTERED AT. 2021155. . 208850. TO............. 2013823. . 192148. BY STRAIGHT LINE TO. 2010121. . 193773. BY ARC CENTERED AT. 2017453. . 210475. TO............. 2007660. . 195086. BY STRAIGHT LINE TO. 2006450. . 195856. BY ARC CENTERED AT. 2016243. . 211245. TO............. 2002812. . 198903. BY STRAIGHT LINE TO. 2001329. . 200516. BY STRAIGHT LINE TO. 1998627. . 203119. BY STRAIGHT LINE TO. 1996877. . 204647. BY ARC CENTERED AT. 2008873. . 218388. TO............. 1994484. . 207177. BY STRAIGHT LINE TO. 1993669. . 208223. BY ARC CENTERED AT. 2008058. . 219434. TO............. 1992024. . 210737. BY STRAIGHT LINE TO. 1991723. . 211291. BY STRAIGHT LINE TO. 1991392. . 211653. BY STRAIGHT LINE TO. 1987527. . 215292. BY ARC CENTERED AT. 2000030. . 228573. TO............. 1985881. . 217061. BY STRAIGHT LINE TO. 1984419. . 218858. BY ARC CENTERED AT. 1998568. . 230370. TO............. 1982726. . 221329. BY STRAIGHT LINE TO. 1981279. . 223864. BY ARC CENTERED AT. 1987818. . 204892. TO............. 1975782. . 227186. BY ARC CENTERED AT. 1987371. . 241272. TO............. 1972054. . 231367. BY STRAIGHT LINE TO. 1937446. . 246505. BY ARC CENTERED AT. 1933172. . 264238. TO............. 1920501. . 251117. BY ARC CENTERED AT. 1924399. . 268936. TO............. 1916888. . 252314. BY ARC CENTERED AT. 1914373. . 270380. TO............. 1900989. . 257987. BY ARC CENTERED AT. 1896827. . 275747. TO............. 1895100. . 257588. BY ARC CENTERED AT. 1882306. . 270590. TO............. 1867537. . 259884. BY ARC CENTERED AT. 1872418. . 277460. TO............. 1858534. . 265630. BY ARC CENTERED AT. 1843467. . 275912. TO............. 1848729. . 258447. BY ARC CENTERED AT. 1835344. . 270839. TO............. 1841538. . 253682. BY ARC CENTERED AT. 1834019. . 270301. TO............. 1817077. . 263541. BY ARC CENTERED AT. 1833527. . 271423. TO............. 1815531. . 274401. BY ARC CENTERED AT. 1820994. . 291804. TO............. 1808997. . 278064. BY ARC CENTERED AT. 1809845. . 296285. TO............. 1792971. . 289357. BY ARC CENTERED AT. 1791584. . 307545. TO............. 1773422. . 305849. BY ARC CENTERED AT. 1783067. . 321331. TO............. 1771284. . 307407. BY ARC CENTERED AT. 1782391. . 321876. TO............. 1769317. . 309156. BY ARC CENTERED AT. 1778769. . 324757. TO............. 1763172. . 315299. BY ARC CENTERED AT. 1763190. . 333540. TO............. 1762008. . 315338. BY STRAIGHT LINE TO. 1761238. . 315388. BY ARC CENTERED AT. 1762420. . 333590. TO............. 1761004. . 315404. BY ARC CENTERED AT. 1758630. . 333490. TO............. 1751585. . 316665. BY STRAIGHT LINE TO. 1749527. . 316597. BY STRAIGHT LINE TO. 1745678. . 216238. BY STRAIGHT LINE TO. 1741757. . 315745. BY STRAIGHT LINE TO. 1738098. . 314155. BY ARC CENTERED AT. 1730831. . 330886. TO............. 1737269. . 313819. BY STRAIGHT LINE TO. 1733962. . 312572. BY STRAIGHT LINE TO. 1733065. . 312110. BY ARC CENTERED AT. 1724713. . 328326. TO............. 1729983. . 310863. BY STRAIGHT LINE TO. 1729557. . 310735. BY STRAIGHT LINE TO. 1727510. . 309315. BY ARC CENTERED AT. 1717114. . 324303. TO............. 1726647. . 308752. BY STRAIGHT LINE TO. 1721463. . 305574. BY STRAIGHT LINE TO. 1721351. . 305467. BY ARC CENTERED AT. 1708756. . 318661. TO............. 1715565. . 301739. BY STRAIGHT LINE TO. 1713599. . 300948. BY ARC CENTERED AT. 1706790. . 317870. TO............. 1711471. . 300240. BY STRAIGHT LINE TO. 1707761. . 299255. BY ARC CENTERED AT. 1703080. . 316885. TO............. 1706765. . 299020. BY STRAIGHT LINE TO. 1704365. . 298525. BY ARC CENTERED AT. 1700680. . 316390. TO............. 1702465. . 298237. BY STRAIGHT LINE TO. 1698144. . 297812. BY ARC CENTERED AT. 1696359. . 315965. TO............. 1696239. . 297725. BY STRAIGHT LINE TO. 1692448. . 297750. BY ARC CENTERED AT. 1692568. . 315990. TO............. 1691302. . 297793. BY STRAIGHT LINE TO. 1688714. . 297973. BY ARC CENTERED AT. 1689980. . 316170. TO............. 1687709. . 298071. BY STRAIGHT LINE TO. 1684999. . 298411. BY ARC CENTERED AT. 1687270. . 316510. TO............. 1683393. . 298686. BY STRAIGHT LINE TO. 1674668. . 300584. BY ARC CENTERED AT. 1678545. . 318408. TO............. 1674182. . 300697. BY STRAIGHT LINE TO. 1670983. . 301485. BY ARC CENTERED AT. 1675346. . 319196. TO............. 1670472. . 301619. BY STRAIGHT LINE TO. 1666144. . 302819. BY ARC CENTERED AT. 1671018. . 320396. TO............. 1665216. . 303103. BY STRAIGHT LINE TO. 1663698. . 303612. BY STRAIGHT LINE TO. 1662427. . 303960. BY STRAIGHT LINE TO. 1661678. . 304151. BY STRAIGHT LINE TO. 1659494. . 304616. BY ARC CENTERED AT. 1663290. . 322457. TO............. 1659476. . 304620. BY STRAIGHT LINE TO. 1658120. . 304910. BY ARC CENTERED AT. 1658887. . 323134. TO............. 1656354. . 305070. BY ARC CENTERED AT. 1655896. . 323305. TO............. 1652650. . 305356. BY STRAIGHT LINE TO. 1650184. . 305802. BY ARC CENTERED AT. 1653430. . 323751. TO............. 1648635. . 306152. BY STRAIGHT LINE TO. 1647051. . 306584. BY ARC CENTERED AT. 1649308. . 324684. TO............. 1643681. . 307333. BY STRAIGHT LINE TO. 1636292. . 308607. BY STRAIGHT LINE TO. 1627130. . 309807. BY STRAIGHT LINE TO. 1620757. . 310390. BY ARC CENTERED AT. 1622420. . 328555. TO............. 1619895. . 310490. BY STRAIGHT LINE TO. 1614565. . 311235. BY ARC CENTERED AT. 1617090. . 329300. TO............. 1613148. . 311491. BY STRAIGHT LINE TO. 1611814. . 311591. BY ARC CENTERED AT. 1613190. . 329780. TO............. 1609960. . 311828. BY STRAIGHT LINE TO. 1606070. . 312528. BY ARC CENTERED AT. 1609300. . 330480. TO............. 1604702. . 312829. BY STRAIGHT LINE TO. 1604290. . 312866. BY ARC CENTERED AT. 1605965. . 331030. TO............. 1601325. . 313389. BY STRAIGHT LINE TO. 1601195. . 313403. BY ARC CENTERED AT. 1603140. . 331540. TO............. 1598672. . 313855. BY STRAIGHT LINE TO. 1596370. . 314437. BY STRAIGHT LINE TO. 1596179. . 314483. BY STRAIGHT LINE TO. 1592424. . 315063. BY ARC CENTERED AT. 1595210. . 333090. TO............. 1591479. . 315235. BY ARC CENTERED AT. 1594075. . 333290. TO............. 1589694. . 315583. BY ARC CENTERED AT. 1593010. . 333520. TO............. 1589433. . 315634. BY STRAIGHT LINE TO. 1588108. . 315899. BY ARC CENTERED AT. 1591685. . 333785. TO............. 1585928. . 316477. BY STRAIGHT LINE TO. 1584286. . 317023. BY STRAIGHT LINE TO. 1582201. . 317563. BY ARC CENTERED AT. 1586780. . 335220. TO............. 1581596. . 317732. BY STRAIGHT LINE TO. 1576266. . 319312. BY ARC CENTERED AT. 1581450. . 336800. TO............. 1575360. . 319606. BY STRAIGHT LINE TO. 1570080. . 321476. BY ARC CENTERED AT. 1576170. . 338670. TO............. 1569889. . 321545. BY STRAIGHT LINE TO. 1565349. . 323210. BY ARC CENTERED AT. 1571630. . 340335. TO............. 1563529. . 323992. BY STRAIGHT LINE TO. 1563104. . 324202. BY STRAIGHT LINE TO. 1561073. . 324994. BY ARC CENTERED AT. 1567695. . 341990. TO............. 1558882. . 326020. BY STRAIGHT LINE TO. 1558879. . 326021. BY ARC CENTERED AT. 1564160. . 343480. TO............. 1556225. . 327056. BY STRAIGHT LINE TO. 1556066. . 327133. BY STRAIGHT LINE TO. 1553511. . 327894. BY ARC CENTERED AT. 1558720. . 345375. TO............. 1551769. . 328511. BY STRAIGHT LINE TO. 1549575. . 329415. BY ARC CENTERED AT. 1553840. . 347150. TO............. 1546081. . 330642. BY STRAIGHT LINE TO. 1543911. . 331662. BY ARC CENTERED AT. 1551670. . 348170. TO............. 1541402. . 333094. BY STRAIGHT LINE TO. 1540011. . 333646. BY ARC CENTERED AT. 1546740. . 350600. TO............. 1537927. . 334630. BY STRAIGHT LINE TO. 1531757. . 337418. BY ARC CENTERED AT. 1539270. . 354040. TO............. 1530263. . 338178. BY STRAIGHT LINE TO. 1527498. . 339748. BY ARC CENTERED AT. 1536505. . 355610. TO............. 1526511. . 340351. BY STRAIGHT LINE TO. 1526495. . 340356. BY ARC CENTERED AT. 1532515. . 357575. TO............. 1523959. . 341466. BY ARC CENTERED AT. 1531240. . 358190. TO............. 1522813. . 342013. BY STRAIGHT LINE TO. 1516478. . 345313. BY STRAIGHT LINE TO. 1505572. . 350398. BY ARC CENTERED AT. 1513280. . 366930. TO............. 1504778. . 350792. BY STRAIGHT LINE TO. 1493968. . 356487. BY ARC CENTERED AT. 1502470. . 372625. TO............. 1493740. . 356609. BY STRAIGHT LINE TO. 1488240. . 359607. BY STRAIGHT LINE TO. 1483855. . 361809. BY ARC CENTERED AT. 1492040. . 378110. TO............. 1483320. . 362089. BY STRAIGHT LINE TO. 1481464. . 363099. BY STRAIGHT LINE TO. 1472522. . 367321. BY STRAIGHT LINE TO. 1464632. . 370389. BY ARC CENTERED AT. 1471240. . 387390. TO............. 1464433. . 370467. BY STRAIGHT LINE TO. 1461367. . 371700. BY STRAIGHT LINE TO. 1455041. . 373829. BY STRAIGHT LINE TO. 1449142. . 375498. BY ARC CENTERED AT. 1454105. . 393050. TO............. 1447394. . 376089. BY STRAIGHT LINE TO. 1443224. . 377739. BY ARC CENTERED AT. 1449935. . 394700. TO............. 1442769. . 377926. BY STRAIGHT LINE TO. 1437906. . 380003. BY STRAIGHT LINE TO. 1435142. . 381048. BY STRAIGHT LINE TO. 1431147. . 382502. BY ARC CENTERED AT. 1431465. . 400740. TO............. 1426148. . 383291. BY STRAIGHT LINE TO. 1423703. . 384036. BY ARC CENTERED AT. 1429020. . 401485. TO............. 1421665. . 384793. BY STRAIGHT LINE TO. 1421218. . 384903. BY ARC CENTERED AT. 1425600. . 402610. TO............. 1417428. . 386302. BY STRAIGHT LINE TO. 1411695. . 388054. BY STRAIGHT LINE TO. 1406675. . 389181. BY STRAIGHT LINE TO. 1400158. . 390267. BY STRAIGHT LINE TO. 1395815. . 390681. BY STRAIGHT LINE TO. 1390919. . 390971. BY ARC CENTERED AT. 1392000. . 409180. TO............. 1390575. . 390995. BY STRAIGHT LINE TO. 1386958. . 390977. BY STRAIGHT LINE TO. 1385797. . 390942. BY STRAIGHT LINE TO. 1383281. . 390516. BY ARC CENTERED AT. 1380235. . 408500. TO............. 1382827. . 390444. BY STRAIGHT LINE TO. 1380530. . 390115. BY STRAIGHT LINE TO. 1379793. . 389887. BY ARC CENTERED AT. 1363392. . 397870. TO............. 1364288. . 379651. BY STRAIGHT LINE TO. 1363312. . 379603. BY ARC CENTERED AT. 1362416. . 397822. TO............. 1348021. . 386619. BY STRAIGHT LINE TO. 1347740. . 386685. BY STRAIGHT LINE TO. 1339580. . 387874. BY STRAIGHT LINE TO. 1332311. . 388694. BY STRAIGHT LINE TO. 1328041. . 388886. BY STRAIGHT LINE TO. 1323345. . 388897. BY STRAIGHT LINE TO. 1318624. . 388814. BY STRAIGHT LINE TO. 1313961. . 388548. BY STRAIGHT LINE TO. 1309176. . 388114. BY STRAIGHT LINE TO. 1299212. . 386972. BY STRAIGHT LINE TO. 1294264. . 386189. BY ARC CENTERED AT. 1291413. . 404205. TO............. 1293948. . 386141. BY STRAIGHT LINE TO. 1288689. . 385403. BY ARC CENTERED AT. 1286154. . 403467. TO............. 1288273. . 385350. BY STRAIGHT LINE TO. 1282879. . 384719. BY ARC CENTERED AT. 1280760. . 402836. TO............. 1282343. . 384664. BY STRAIGHT LINE TO. 1277050. . 384203. BY ARC CENTERED AT. 1275467. . 402375. TO............. 1276974. . 384197. BY STRAIGHT LINE TO. 1266567. . 383334. BY STRAIGHT LINE TO. 1261754. . 382855. BY STRAIGHT LINE TO. 1256845. . 382176. BY STRAIGHT LINE TO. 1252082. . 381444. BY STRAIGHT LINE TO. 1247120. . 380489. BY ARC CENTERED AT. 1243670. . 398400. TO............. 1246626. . 380401. BY STRAIGHT LINE TO. 1243866. . 379947. BY STRAIGHT LINE TO. 1240511. . 379144. BY STRAIGHT LINE TO. 1238894. . 378640. BY STRAIGHT LINE TO. 1234692. . 377218. BY ARC CENTERED AT. 1228846. . 394497. TO............. 1233981. . 376994. BY ARC CENTERED AT. 1225768. . 393281. TO............. 1230677. . 375713. BY STRAIGHT LINE TO. 1229077. . 374980. BY ARC CENTERED AT. 1219065. . 390227. TO............. 1227371. . 373987. BY STRAIGHT LINE TO. 1226185. . 373381. BY STRAIGHT LINE TO. 1227214. . 367277. BY ARC CENTERED AT. 1209227. . 364245. TO............. 1214918. . 346915. BY STRAIGHT LINE TO. 1213304. . 346385. 3. The United States is not entitled, as against the State of Louisiana, to any interest in the lands, minerals or natural resources described in paragraph 1 hereof, with the exceptions provided by Section 5 of the Submerged Lands Act, 67 Stat. 32, 43 U.S.C. Sec. 1313. 4. Pending further order of the Court or agreement of the parties, leases of lands lying partly within the area above described and partly seaward of that area shall be in no way affected by anything contained in this decree, and revenues derived from such leases shall remain subject to impoundment under the Interim Agreement of October 12, 1956, as amended, in the same manner as heretofore. 5. All sums now held impounded by the State of Louisiana or the United States under the Interim Agreement of October 12, 1956, as amended, derived from leases of lands wholly within areas referred to in paragraph 1 hereof are hereby released to the State of Louisiana absolutely, and the State of Louisiana is relieved of any obligation under said agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area and the State of Louisiana is and shall be entitled to lease lands wholly within said areas and to directly receive any sums hereafter derivable therefrom. 6. Nothing in this decree or the proceedings leading to it shall prejudice any rights, claims or defenses of the United States or the State of Louisiana with respect to the remainder of the disputed area or past or future payments derived therefrom or attributable thereto or the operation of the Interim Agreement of October 12, 1956, as amended, with respect to such remaining disputed area and payments. Nor shall anything in this decree nor in the proceedings leading to it prejudice any rights, claims or defenses of the State of Louisiana as to its maritime lateral boundaries with the States of Mississippi and Texas, which boundaries are not at issue in this litigation. 7. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this decree or to effectuate the rights of the parties in the premises.

364.US.421

A longshoreman employed by respondent, a stevedoring contractor engaged by a consignee, sued a shipowner for personal injuries sustained aboard a ship while helping to unload its cargo.. The shipowner settled the claim and sought to recover from respondent on the ground that the longshoreman's injuries resulted from respondent's failure to perform its work in a workmanlike manner. Held: Respondent was liable to the shipowner, even though there was no privity of contract between respondent and the shipowner and regardless of whether the longshoreman's original claim was asserted in an in rem or an in personam proceeding, since respondent's warranty of workmanlike service aboard the ship was for the benefit of the ship and its owner as well as of respondent's employer. Crumady v. The J. H. Fisser, 358 U. S. 423. Pp. 421-425. 272 F. 2d 823, reversed.

The petitioner is the owner of the vessel S. S. Afoundria. The respondent is a stevedoring company. A longshoreman employed by the respondent was injured aboard the Afoundria while engaged with other employees of the respondent in unloading the ship at the port of Philadelphia. The cargo consisted of bagged sugar. The longshoreman was working in the hold, and his injuries resulted from the collapse of a vertical column of hundred-pound bags which the unloading operations had left without lateral support. He sued the petitioner in the District Court for the Eastern District of Pennsylvania to recover for his injuries. The petitioner settled the claim and, by way of a third-party complaint, sought to recover from the respondent the amount paid in satisfaction of the longshoreman's claim. The third-party complaint alleged that improper stowage of the cargo1 had created an unseaworthy condition in the ship's hold which had imposed absolute liability upon the petitioner as shipowner for the longshoreman's injuries, but that 'the direct, proximate, active and substantial cause of the accident' had been the negligence of the respondent, who, by 'failing to perform the contracted stevedoring services in a safe, proper, customary, careful and workmanlike manner,' had brought the existing unseaworthy condition into play. As an affirmative defense the respondent stevedore alleged that there had been no direct contractual relationship between it and the petitioner coverting the stevedoring services rendered the Afoundria in Philadelphia. At the trial the parties stipulated that this allegation was correct, it appearing that the consignee of the cargo, not the petitioner, had actually engaged the respondent to unload the ship. The District Court directed a verdict for the respondent, holding that a shipowner had no right of indemnity against a stevedore under the circumstances alleged in the absence of a direct contractual relationship between them. The Court of Appeals for the Third Circuit affirmed in an en banc decision, three judges dissenting.2 Certiorari was granted to consider whether in a situation such as this the absence of a contractual relationship between the parties is fatal to the indemnity claim. 362 U.S. 926, 80 S.Ct. 754, 4 L.Ed.2d 745. In Ryan Stevedoring Co. v. Pan-Atlantic Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, it was established that a stevedoring contractor who enters into a service agreement with a shipowner is liable to indemnify the owner for damages sustained as a result of the stevedore's breach of his warranty to perform the obligations of the contract with reasonable safety. This warranty of workmanlike service extends to the handling of cargo, as in Ryan, as well as to the use of equipment incidental to cargo handling, as in Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491. The warranty may be breached when the stevedore's negligence does no more than call into play the vessel's unseaworthiness. Crumady v. The J. H. Fisser, 358 U.S. 423, 429, 79 S.Ct. 445, 448, 3 L.Ed.2d 413. The factual allegations of the third-party complaint in the present case comprehend the latter situation. In the Ryan and Weyerhaeuser cases considerable emphasis was placed upon the direct contractual relationship between the shipowner and the stevedore. If those decisions stood alone, it might well be thought an open question whether such contractual privity is essential to support the stevedore's duty to indemnify. But the fact is that this bridge was crossed in the Crumady case. There we explicitly held that the stevedore's assumption of responsibility for the shipowner's damages resulting from unsafe and improper performance of the stevedoring services was unaffected by the fact that the shipowner was not the party who had hired the stevedore. That case was decided upon the factual premises that the stevedore had been engaged not by the shipowner, but by the party operating the ship under a charter. The Court's language was unambiguous: 'We think this case is governed by the principle announced in the Ryan case. The warranty which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel whether the vessel's owners are parties to the contract or not. That is enough to bring the vessel into the zone of modern law that recognizes rights in third-party beneficiaries. Restatement, Law of Contracts, § 133. Moreover, as we said in the Ryan case, 'competency and safety of stowage are inescapable elements of the service undertaken.' 350 U.S., at page 133, 76 S.Ct. at page 237. They are part of the stevedore's 'warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured product.' Id., 350 U.S. at pages 133—134, 76 S.Ct. at page 237. See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696. 'We conclude that since the negligence of the stevedores, which brought the unseaworthiness of the vessel into play, amounted to a breach of the warranty of workmanlike service, the vessel may recover over.' 358 U.S. 428—429, 79 S.Ct. 448. This reasoning is applicable here. We can perceive no difference in principle, so far as the stevedore's duty to indemnify the shipowner is concerned, whether the stevedore is engaged by an operator to whom the owner has chartered the vessel or by the consignee of the cargo. Nor can there be any significant distinction in this respect whether the longshoreman's original claim was asserted in an in rem or an in personam proceeding. In the Ryan and Weyerhaeuser cases in personam liability was asserted. In the Crumady case the injured stevedore had brought an in rem proceeding. The ship and its owner are equally liable for a breach by the contractor of the owner's nondelegable duty to provide a seaworthy vessel. The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760; cf. Continental Grain Co. v. Barge FBL—585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540. The owner, no less than the ship, is the beneficiary of the stevedore's warranty of workmanlike service. Accordingly the judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion. Reversed and remanded.

362.US.143

Petitioner applied to a State Supreme Court for writ of habeas corpus, charging that his confinement was in violation of the Due Process Clause of the Fourteenth A'mendment. That Court refused the writ without either a hearing or a response from the State. Held: The facts alleged entitle petitioner to a hearing under Herman v. Claudy, 350 U. S. 116. Certiorari granted; judgment vacated; and case remanded.

The motion to proceed in forma pauperis and the petition for writ of certiorari are granted. Petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Appeals of West Virginia. Petitioner charged that he was being held in prison without lawful authority and in violation of due process of law under the Fourteenth Amendment. The West Virginia Supreme Court of Appeals refused the writ without either a hearing or a response from the State. We hold that the facts alleged are such as to entitle petitioner to a hearing under Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126. The judgment is vacated and the case remanded to the Supreme Court of Appeals of West Virginia for proceedings not inconsistent with this opinion. The CHIEF JUSTICE took no part in the consideration or decision of this case.

362.US.99

Under § 21 of the Federal Power Act, certain lands purchased and, owned in fee simple by the Tuscarora- Indian Nation and lying adjacent to a natural power site on the Niagara River may be taken for the storage reservoir of a hydroelectric power project, upon payment of just compensation, by the Power Authority of the State' of New York under a license issued to it by the Federal Power Commission as directed by Congress in the Act of August 21, 1957, 71 Stat. 401. Pp. 100-124. (1) Inasmuch as the lands here involved are owned in fee simple by the Tuscarora Indian Nation and no "interest" in them is :*'owned by the United States," they are not within a 'reservation," as that term is defined in § 3 (2) of the Federal Power Act, and, therefore, a Commission finding under § 4 (e) "that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired" is not necessary to the issuance of a license embracing the lands in question. Pp. 110-115. (2) By the broad general terms of § 21 of the Federal Power Act, Congress has authorized the Federal Power Commission's licensees to take lands owned by Indians, as well as those of all other citizens, when needed for a licensed project, upon payment of just compensation; the lands in question are not subject to any treaty between the United States and the Tuscarora Indian Nation; and 25 U. S. C. § 177, forbidding a transfer of lands from Indians unless made by a treaty or convention entered into pursuant to the Constitution, does not apply to the United States itself nor prohibit it or its licensees under the Federal Power Act from taking such lands in the manner provided by § 21, upon payment of just compensation. Pp. 115-124. 105 U. S. App. D. C. 146, 265 F. 2d 338, reversed. Solicitor General Rankin argued the cause for petitioner

The ultimate question presented by these cases is whether certain lands, purchased and owned in fee simply by the Tuscarora Indian Nation and lying adjacent to a natural power site on the Niagara River near the town of Lewiston, New York, may be taken for the storage reservoir of a hydroelectric power project, upon the payment of just compensation, by the Power Authority of the State of New York under a license issued to it by the Federal Power Commission as directed by Congress in Public Law 85—159, approved August 21, 1957, 71 Stat. 401, 16 U.S.C.A. §§ 836, 836a. The Niagara River, an international boundary stream and a navigable waterway of the United States, flows from Lake Erie to Lake Ontario, a distance of 36 miles. Its mean flow is about 200,000 cubic feet per second. The river drops about 165 feet at Niagara Falls and an additional 140 feet in the rapids immediately above and below the falls. The 'head' created by these great falls, combined with the large and steady flow of the river, makes the Lewiston power site, located below the rapids, an extremely favorable one for hydroelectric development. For the purpose of avoiding 'continuing waste of a great natural resource and to make it possible for the United States of America and Canada to develop, for the benefit of their respective peoples, equal shares of the waters of the Niagara River available for power purposes,' the United States and Canada entered into the Treaty of February 27, 1950,1 providing for a flow of 100,000 cubic feet per second over Niagara Falls during certain specified daytime and evening hours of the tourist season (April 1 to October 31) and of 50,000 cubic feet per second at other times, and authorizing the equal division by the United States and Canada of all excess waters for power purposes.2 In consenting to the 1950 Treaty, the Senate imposed the condition that 'no project for redevelopment of the United States' share of such waters shall be undertaken until it be specifically authorized by Act of Congress.' 1 U.S.T. 694, 699. To that end, a study was made and reported to Congress in 1951 by the United States Army Corps of Engineers respecting the most feasible plans for utilizing all of the waters available to the United States under the 1950 Treaty, and detailed plans embodying other studies were prepared and submitted to Congress prior to June 7, 1956, by the Bureau of Power of the Federal Power Commission, the Power Authority of New York, and the Niagara Mohawk Power Corporation.3 To enable utilization of all of the United States' share of the Niagara waters by avoiding waste of the nighttime and week-end flow that would not be needed at those times for the generation of power, all of the studies and plans provided for a pumping-generating plant to lift those waters at those times into a reservoir, and for a storage reservoir to contain them until released for use through the pumping-generating plant, when its motors (operating in reverse) would serve as generators—during the daytime hours when the demand for power would be highest and the diversion of waters from the river would be most restricted by the treaty. Estimates of dependable capacity of the several recommended projects varied from 1,240,000 to 1,723,000 kilowatts, and estimates of the needed reservoir capacity varied from 22,000 acre-feet covering 850 acres to 41,000 acre-feet covering 1,700 acres. The variations in these estimates were largely due to differing assumptions as to the length of the daily period of peak demand. Although there was 'no controversy as to the most desirable engineering plan of development,'4 there was serious disagreement in Congress over whether the project should be publicly or privately developed and over marketing preferences and other matters of policy. That disagreement continued through eight sessions of Committee Hearings, during which more than 30 proposed bills were considered, in the Eighty-first to Eighty-fifth Congresses,5 and delayed congressional authorization of the project for seven years. On June 7, 1956, a rock slide destroyed the Schoellkopf plant.6 This created a critical shortage of electric power in the Niagara community. It also required expansion of the plans for the Niagara project if the 20,000 cubic feet per second of water that had been reserved for the Schoellkopf plant was to be utilized. Accordingly, the Power Authority of New York prepared and submitted to Congress a major revision of the project plans. Those revised plans, designed to utilize all of the Niagara waters available to the United States under the 1950 Treaty, provided for an installed capacity of 2,190,000 kilowatts, of which 1,800,000 kilowatts would be dependable power for 17 hours per day, necessitating a storage reservoir of 60,000 acre-feet capacity covering about 2,800 acres.7 Confronted with the destruction of the Schoellkopf plant and the consequent critical need for electric power in the Niagara community, Congress speedily composed its differences in the manner and terms prescribed in Public Law 85—159. approved August 21, 1957. 71 Stat. 401. By § 1(a) of that Act, Congress 'expressly authorized and directed' the Federal Power Commission 'to issue a license to the Power Authority of the State of New York for the construction and operation of a power project with capacity to utilize all of the United States share of the water of the Niagara River permitted to be used by international agreement.' By § 1(b) of the Act the Federal Power Commission was directed to 'include among the licensing conditions, in addition to those deemed necessary and required under the terms of the Federal Power Act,' seven conditions which are of only collateral importance here.8 The concluding section of the Act, § 2, provides: 'The license issued under the terms of this Act shall be granted in conformance with Rules of Practice and Procedure of the Federal Power Commission, but in the event of any conflict, the provisions of this Act shall govern in respect of the project herein authorized.' Thereafter, the Power Authority of the State of New York, a municipal corporation created under the laws of that State to develop the St. Lawrence and Niagara power projects, applied to the Federal Power Commission for the project license which Congress had thus directed the Commission to issue to it. Its application embraced the project plans that it had submitted to the Eighty-fifth Congress shortly before its approval of Public Law 85—159.9 The project was scheduled to be completed in 1963 at an estimated cost of $720,000,000. Hearings were scheduled by the Commission, of which due notice was given to all interested parties, including the Tuscarora Indian Nation, inasmuch as the application contemplated the taking of some of its lands for the reservoir. The Tuscarora Indian Nation intervened and objected to the taking of any of its lands upon the ground 'that the applicant lacks authority to acquire them.' At the hearings, it was shown that the Tuscarora lands needed for the reservoir—then though to be about 1,000 acress—are part of a separate tract of 4,329 acres purchased in fee simple by the Tuscarora Indian Nation, with the assistance of Henry Dearborn, then Secretary of War, from the Holland Land Company on November 21, 1804, with the proceeds derived from the contemporaneous sale of their lands in North Carolina—from which they had removed in about the year 1775 to reside with the Oneidas in central New York.10 After concluding the hearings, the Commission, on January 30, 1958, issued its order granting the license. It found that a reservoir having a usable storage capacity of 60,000 acre-feet 'is required to properly utilize the water resources involved.' Although the Commission found that the Indian lands 'are almost entirely underveloped except for agricultural use,' it did not pass upon the Tuscaroras' objection to the taking of their lands because it then assumed that 'other lands are available for reservoir use if the Applicant is unable to acquire the Indian lands.' But the Commission did direct the licensee to revise its exhibit covering the reservoir, to more definitely show the area and acrease involved, and to resubmit it to the Commission for approval within a stated time. In its application for rehearing, the Tuscarora Indian Nation contended, among other things, that the portion of its lands sought to be taken for the reservoir was part of a 'reservation,' as defined in § 3(2), and as used in § 4(e), of the Federal Power Act,11 and therefore could not lawfully be taken for reservoir purposes in the absence of a finding by the Commission 'that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired.' By its order of March 21, 1958, denying that application for rehearing, the Commission found that '(t)he best location of the reservoir would require approximately 1,000 acres of land owned by Intervener,' and it held that the Indian lands involved 'are not part of a 'reservation' referred to in Section 4(e) as defined in Section 3(2) of the (Federal Power) Act and the finding suggested by Intervener is not required.' On May 5, 1958, the Commission issued its order approving the licensee's revised exhibit which precisely delineated the location, area, and acreage to be embraced by the reservoir—which included 1,383 acres of the Tuscaroras' lands. On May 16, 1958, the Tuscarora Indian Nation filed a petition for review in the Court of Appeals for the District of Columbia Circuit challenging the license issued by the Commission on January 30, 1958, insofar as it would authorize the taking of Tuscarora lands.12 By its opinion and interim judgment of November 14, 1958, the Court of Appeals held that the Tuscarora lands sought to be taken for the reservoir constitute a part of a 'reservation' within the meaning of §§ 3(2) and 4(e) of the Federal Power Act, and that the Commission may not include those lands in the license in the absence of a § 4(e) finding that their taking 'will not interfere or be inconsistent with the purpose for which such reservation was created or acquired,' and the court remanded the case to the Commission that it might 'explore the possibility of making that finding.' 105 U.S.App.D.C. 146, 265 F.2d 338, 343. Upon remand, the Commission held extensive hearings, exploring not only the matter of the making of the finding held necessary by the Court of Appeals but also the possibility of locating the reservoir on other lands. In its order of February 2, 1959, the Commission found that the use of other lands for the reservoir would result in great delay, severe community disruption, and unreasonable expense; that a reservoir with usable storage capacity of 60,000 acre-feet is required to utilize all of the United States' share of the water of the Niagara River, as required by Public Law 85—159; that removal of the reservoir from the Tuscarora lands by reducing the area of the reservoir would reduce the usable storage capacity from 60,000 acre-feet to 30,000 acre-feet and result in a loss of about 300,000 kilowatts of dependable capacity. But it concluded that, although other lands contiguous to their reservation might be acquired by the Tuscaroras,13 the taking of the 1,383 acres of Tuscarora lands for the reservoir 'would interfere and would be inconsistent with the purpose for which the reservation was created or acquired.' That order was transmitted to the Court of Appeals which, on March 24, 1959, after considering various motions of the parties, entered its final judgment approving the license except insofar as it would authorize the taking of Tuscarora lands for the reservoir, and remanded the case to the Commission with instructions to amend the license 'to exclude specifically the power of the said Power Authority to condemn the said lands of the Tuscarora Indians for reservoir purposes.' 105 U.S.App.D.C., at page 152, 265 F.2d at page 344. Because of conflict between the views of the court below and those of the Second Circuit, and of the general importance of the questions involved, we granted certiorari. 360 U.S. 915, 79 S.Ct. 1435, 3 L.Ed.2d 1532. The parties have urged upon us a number of contentions, but we think these cases turn upon the answers to two questions, namely, (1) whether the Tuscarora lands covered by the Commission's license are part of a 'reservation' as defined and used in the Federal Power Act, 16 U.S.C. § 791a et seq., 16 U.S.C.A. §§ 791a et seq., and, if not, (2) whether, those lands may be condemned by the licensee, under the eminent domain powers conferred by § 21 of the Federal Power Act, 16 U.S.C. § 814, 16 U.S.C.A. § 814. We now turn to a consideration of those questions in the order stated. A Commission finding that 'the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired' is required by § 4(e) of the Federal Power Act, 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e), only if the lands involved are within a 'reservation' in the sense of that term as defined and used in that Act. That by generally accepted standards and common understanding these Tuscarora lands may be part of a 'reservation' is not at all decisive of whether they are such within the meaning of the Federal Power Act. Congress was free and competent artificially to define the term 'reservations' for the purposes it prescribed in the Act. And we are bound to give effect to its definition of that term, for it would be idle for Congress to define the sense in which it used it 'if we were free in despite of it to choose a meaning for ourselves.' Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 337, 79 L.Ed. 780. By § 3(2) of the Federal Power Act, 16 U.S.C. § 796(2), 16 U.S.C.A. § 796(2), Congress has provided: 's 3. The words defined in this section shall have the following meanings for purposes of this Act, to wit: '(2) 'reservations' means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from proviate appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks.' (Emphasis added.) The plain words of this definition seem rather clearly to show that Congress intended the term 'reservations,' wherever used in the Act, to embrace only 'lands and interests in lands owned by the United States.' Turning to the definition's legislative history, we find that it, too, strongly indicates that such was the congressional intention. In the original draft bill of the Federal Water Power Act of 1920, as proposed by the Administration and passed by the House in the Sixty-fifth and Sixty-sixth Congresses, the term was defined as follows: "Reservations' means lands and interest in lands owned by the United States and withdrawn, reserved, or withheld from private appropriation and disposal under the publicland laws, and lands and interest in lands acquired and held for any public purpose.'14 It is difficult to perceive how congressional intention could be more clearly and definitely expressed. However, after the bill reached the Senate it inserted the words 'national monuments, national parks, national forests, tribal lands embraced within Indian reservations, military reservations, and other' (emphasis added) at the beginning of the definition.15 When the bill was returned to the House it was explained that the Senate's 'amendment recasts the House definition of 'reservations."16 The bill as enacted contained the definition as thus recast. It remains in that form, except for the deletion of the words 'national monuments, national parks,' which was occasioned by the Act of March 3, 1921 (41 Stat. 1353), 16 U.S.C.A. § 797 note, negating Commission authority to license any project works within 'national monuments or national parks,' and those words were finally deleted from the definition by amendment in 1935. 49 Stat. 838. It seems entirely clear that no change in substance was intended or effected by the Senate's amendment, and that its 'recasting' only specified, as illustrative, some of the 'reservations' on 'lands and interests in lands owned by the United States.' Further evidence that Congress intended to limit 'reservations,' for the 'purpose of this Act' (§ 3), to those located on 'lands owned by the United States' or in which it owns an interest is furnished by its use of the term in the context of § 4(e) of the Act. By that section Congress, after authorizing the Commission to license projects in streams or other bodies of water over which it has jurisdiction under the Commerce Clause of the Constitution (Art. I, § 8, cl. 3), authorized the Commission to license projects 'upon any part of the public lands and reservations of the United States.' Congress must be deemed to have known, as this Court held in Federal Power Comm. v. State of Oregon, 349 U.S. 435, 443, 75 S.Ct. 832, 837, 99 L.Ed. 1215, that the licensing power, 'in relation to public lands and reservations of the United States springs from the Property Clause' of the Constitution—namely, the '* * * Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.' Art. IV, § 3, cl. 2. In thus acting under the Property Clause of the Constitution, Congress must have intended to deal only with 'the Territory or other Property belonging to the United States.' Ibid. Moreover, the Federal Power Act's plan of compensating for lands taken or used for licensed projects is explicable only if the term 'reservations' is confined, as Congress evidently intended, to those located on 'lands owned by the United States' or in which it owns a proprietary interest. By § 21, 16 U.S.C. § 814, 16 U.S.C.A. § 814, licensees are authorized to acquire 'the lands or property of others necessary to the' licensed project 'by the exercise of the right of eminent domain' in the federal or state courts, and, of course, upon the payment of just compensation. But, despite its general and all-inclusive terms, § 21 does not apply to nor authorize condemnation of lands or interests in lands owned by the United States, because § 10(e) of the Act, 16 U.S.C. 803(e), 16 U.S.C.A. § 803(e), expressly provides that 'the licensee shall pay to the United States reasonable annual charges * * * for recompensating it for the use, occupancy, and enjoyment of its lands or other property' (emphasis added) devoted to the licensed project. It therefore appears to be unmistakably clear that by the language of the first proviso of that section saying, in pertinent part, 'That when licenses are issued involving the use of Government dams or other structures owned by the United States or tribal lands embraced within Indian reservations (these italicized words being lifted straight from the § 3(2) definition of 'reservations') the Commission shall * * * fix a reasonable annual charge for the use thereof * * *,' Congress intended to treat and treated only with structures, lands and interests in lands owned by the United States, for, as stated, the section expressly requires the 'reasonable annual charges' to be paid to the United States for the use, occupancy, and enjoyment of 'its lands or other property.' (Emphasis added.) This analysis of the plain words and legislative history of the Act's definition of 'reservations' and of the plan and provisions of the Act leaves us with no doubt that Congress, 'for purposes of this Act' (§ 3(2), intended to and did confine 'reservations,' including 'tribal lands embraced within Indian reservations' (§ 3(2), to those located on lands 'owned by the United States' (§ 3(2), or in which it owns a proprietary interest. The Court of Appeals did not find to the contrary. Indeed, it found that the Act's definition of 'reservations' includes only those located on lands in which they United States 'has an interest.' But it thought that the national paternal relationship to the Indians and the Government's concern to protect them against improper alienation of their lands gave the United States the requisite 'interest' in the lands here involved, and that the result 'must be the same as if the phrase 'owned by the United States, (etc.)' were not construed as a limitation upon the term 'tribal lands (etc.)." 105 U.S.App.D.C. at page 150, 265 F.2d at page 342. We do not agree. The national 'interest' in Indian welfare and protection 'is not to be expressed in terms of property * * *.' Heckman v. United States, 224 U.S. 413, 437, 32 S.Ct. 424, 56 L.Ed. 820. The national 'paternal interest' in the welfare and protection of Indians is not the 'interests in lands owned by the United States' required, as an element of 'reservations,' by § 3(2) of the Federal Power Act. (Emphasis added.) Inasmuch as the lands involved are owned in fee simple by the Tuscarora Indian Nation and no 'interest' in them is 'owned by the United States,' we hold that they are not within a 'reservation' as that term is defined and used in the Federal Power Act, and that a Commission finding under § 4(e) of that Act 'that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired' is not necessary to the issuance of a license embracing the Tuscarora lands needed for the project. We pass now to the question whether the portion of the Tuscarora lands here involved may be condemned by the licensee under the provisions and eminent domain powers of § 21 of the Federal Power Act. Petitioners contend that § 21 is a broad general statute authorizing condemnation of 'the lands or property of others necessary to the construction, maintenance, or operation of any' licensed project, and that lands owned by Indians in fee simple, not being excluded, may be taken by the licensee under the federal eminent domain powers delegated to it by that section. Parrying this contention, the Tuscarora Indian Nation argues that § 21, being only a general Act of Congress, does not apply to Indians or their lands. The Tuscarora Indian Nation heavily relies upon Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 L.Ed. 643. It is true that in that case the Court, dealing with the question whether a native-born American Indian was made a citizen of the United States by the Fourteenth Amendment of the Constitution, said: 'Under the constitution of the United States, as originally established * * * General acts of congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them.' 112 U.S. at pages 99—100, 5 S.Ct. at page 44. However that may have been, it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests. In Superintendent of Five Civilized Tribes v. Commissioner, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517, the funds of a restricted Creek Indian were held and invested for him by the Superintendent, and a question arose as to whether income from the investment was subject to federal income taxes. In an earlier case, Blackbird v. Commissioner, 38 F.2d 976, the Tenth Circuit had held such income to be exempt from federal income taxation. But in this case the Board of Tax Appeals sustained the tax, the Tenth Circuit affirmed, and the Superintendent brought the case here. This Court observed that in the Blackbird case the Tenth Circuit had said that to hold a general act of Congress to be applicable to restricted Indians would be contrary to the almost unbroken policy of Congress in dealing with its Indian wards and their affairs. Whenever they and their interests have been the subject affected by legislation they have been named and their interests specifically dealt with. That is precisely the argument now made here by the Tuscarora Indian Nation. But this Court, in affirming the judgment, said: 'This does not harmonize with what we said in Choteau v. Burnet (1931), 283 U.S. 691, 693, 696, 51 S.Ct. 598, 599, 600, 75 L.Ed. 1353: "The language of (the Internal Revenue Act of 1918) subjects the income of 'every individual' to tax. Section 213(a) includes income 'from any source whatever.' The intent of Congress was to levy the tax with respect to all residents of the United States and upon all sorts of income. The act does not expressly exempt the sort of income here involved, nor a person having petitioner's status respecting such income, and we are not referred to any other statute which does. * * * The intent to exclude must be definitely expressed, where, as here, the general language of the act laying the tax is broad enough to include the subject matter.' 'The court below properly declined to follow its quoted pronouncement in Blackbird's Case. The terms of the 1928 Revenue Act are very broad, and nothing there indicates that Indians are to be excepted. See Irwin v. Gavit, 268 U.S. 161, 45 S.Ct. 475, 69 L.Ed. 897; Heiner v. Colonial Trust Co., 275 U.S. 232, 48 S.Ct. 65, 72 L.Ed. 256; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 55 S.Ct. 50, 79 L.Ed. 211; Pitman v. Commissioner, 10 Cir., 64 F.2d 740. The purpose is sufficiently clear.' 295 U.S. at pages 419—420, 55 S.Ct. at page 821. In Oklahoma Tax Comm. v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612, this Court, in holding that the estate of a restricted Oklahoma Indian was subject to state inheritance and estate taxes under general state statutes, said: 'The language of the statutes does not except either Indians or any other persons from their scope.' (319 U.S., at page 600, 63 S.Ct. at page 1285.) 'If Congress intends to prevent the State of Oklahoma from levying a general non-discriminatory estate tax applying alike to all its citizens, it should say so in plain words. Such a conclusion cannot rest on dubious inferences.' 319 U.S. at page 607, 63 S.Ct. at page 1288. See, e.g., Shaw v. Gibson-Zahniser Oil Corporation, 276 U.S. 575, 581—582, 48 S.Ct. 333, 335—336, 72 L.Ed. 709; United States v. Ransom, 263 U.S. 691, 44 S.Ct. 230, 68 L.Ed. 508; Kennedy v. Becker, 241 U.S. 556, 563—564, 36 S.Ct. 705, 707—708, 60 L.Ed. 1166; Choate v. Trapp, 224 U.S. 665, 673, 32 S.Ct. 565, 568, 56 L.Ed. 941. The Federal Power Act constitutes a complete and comprehensive plan for the development and improvement of navigation and for the development, transmission and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction under its commerce powers, and upon the public lands and reservations of the United States under its property powers. See § 4(e). It neither overlooks nor excludes Indians or lands owned or occupied by them. Instead, as has been shown, the Act specifically defines and treats with lands occupied by Indians—'tribal lands embraced within Indian reservations.' See §§ 3(2) and 10(e). The Act gives every indication that, within its comprehensive plan, Congress intended to include lands owned or occupied by any person or persons, including Indians. The Court of Appeals recognized that this is so. 105 U.S.App.D.C., at page 151, 265 F.2d at page 343. Section 21 of the Act, by broad general terms, authorizes the licensee to condemn 'the lands or property of others necessary to the construction, maintenance, or operation of any' licensed project. That section does not exclude lands or property owned by Indians, and, upon the authority of the cases cited, we must hold that it applies to these lands owned in fee simple by the Tuscarora Indian Nation. The Tuscarora Indian Nation insists that even if its lands are embraced by the terms of § 21 of the Federal Power Act, they still may not be taken for public use 'without the express consent of Congress referring specifically to those lands,' because of the provisions of 25 U.S.C. § 177, 25 U.S.C.A. § 177.17 That section, in pertinent part, provides: 'No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. * * *' The obvious purpose of that statute is to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties, except the United States, without the consent of Congress, and to enable the Government, acting as parens patriae for the Indians, to vacate any disposition of their lands made without its consent. See, e.g., United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 88 L.Ed. 1326; United States v. Candelaria, 271 U.S. 432, 441—442, 46 S.Ct. 561, 562-563, 70 L.Ed. 1023; Henkel v. United States, 237 U.S. 43, 51, 35 S.Ct. 536, 539, 59 L.Ed. 831; United States v. Sandoval, 231 U.S. 28, 46—48, 34 S.Ct. 1, 5—6, 58 L.Ed. 107. But there is no such requirement with respect to conveyances to or condemnations by the United States or its licensees; 'nor is it conceivable that it is necessary, for the Indians are subjected only to the same rule of law as are others in the State * * *.' United States v. Oklahoma Gas & Elec. Co., 318 U.S. 206, 211, 63 S.Ct. 534, 537, 87 L.Ed. 716. As to the Tuscaroras' contention that § 177 prohibits the taking of any of their lands for the reservoir 'without the express and specific consent of Congress,' one thing is certain. It is certain that if § 177 is applicable to alienations effected by condemnation proceedings under § 21 of the Federal Power Act, the mere 'expressed consent' of Congress would be vain and idle. For § 177 at the very least contemplates the assent of the Indian nation or tribe. And inasmuch as the Tuscarora Indian Nation withholds such consent and refuses to convey to the licensee any of its lands, it follows that the mere consent of Congress, however express and specific, would avail nothing. Therefore, if § 177 is applicable to alienations effected by condemnation under § 21 of the Federal Power Act, the result would be that the Tuscarora lands, however imperative for the project, could not be taken at all. But § 177 is not applicable to the sovereign United States nor, hence, to its licensees to whom Congress has delegated federal eminent domain powers under § 21 of the Federal Power Act. The law is now well settled that: 'A general statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect.' United States v. Wittek, 337 U.S. 346, 358—359, 69 S.Ct. 1108, 1114, 93 L.Ed. 1406. In United States v. United Mine Workers of America, 330 U.S. 258, 272—273, 67 S.Ct. 677, 686, 91 L.Ed. 884, the Court said: 'There is an old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect.' See, e.g., Leiter Minerals, Inc., v. United States, 352 U.S. 220, 224—225, 77 S.Ct. 287, 290, 1 L.Ed.2d 267; United States v. Wyoming, 331 U.S. 440, 449, 67 S.Ct. 1319, 1324, 91 L.Ed. 1590; United States v. Stevenson, 215 U.S. 190, 30 S.Ct. 35, 54 L.Ed. 153; United States v. American Bell Telephone Co., 159 U.S. 548, 553—555, 16 S.Ct. 69, 71—72, 40 L.Ed. 255; Lewis v. United States, 92 U.S. 618, 622, 23 L.Ed. 513; United States v. Herron, 20 Wall. 251, 263, 22 L.Ed. 275; Dollar Savings Bank v. United States, 19 Wall. 227, 239, 22 L.Ed. 80. This Court has several times applied, in combination, the rules (1) that general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary, and (2) that general statutes imposing restrictions do not apply to the Government itself without a clear expression to that effect. It did so in Henkel v. United States, 237 U.S. 43, 35 S.Ct. 536 (sustaining the right of the United States to take Indian lands for reservoir purposes under the general Reclamation Act of June 17, 1902, 32 Stat. 388), in Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469 (sustaining the power of the Government to convey a strip of land through a track owned by an Indian tribe to one Chandler for the use of the State of Michigan in constructing a canal, even though the conveyance was in derogation of a treaty with the Indian tribe), and in Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295. There, this Court sustained the right of a licensee of the Government to take so much of the undescribed fee lands of an Indian tribe as was necessary for the licensed project, though in derogation of the terms of a treaty between the United States and the Indian tribe,18 saying: 'It would be very strange if the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several states, and could not exercise the same power in a territory occupied by an Indian nation or tribe, the members of which were wards of the United States, and directly subject to its political control. The lands in the Cherokee territory, like the lands held by private owners everywhere within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it, provided only that they are not taken without just compensation being made to the owner.,' 135 U.S. at pages 656 657, 10 S.Ct. at page 971. See also Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299; Missouri, Kansas & Texas R. Co. v. Roberts, 152 U.S. 114, 117—118, 14 S.Ct. 496, 497, 38 L.Ed. 377; Beecher v. Wetherby, 95 U.S. 517, 24 L.Ed. 440; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. In the light of these authorities we must hold that Congress, by the broad general terms of § 21 of the Federal Power Act, has authorized the Federal Power Commission's licensees to take lands owned by Indians, as well as those of all other citizens, when needed for a licensed project, upon the payment of just compensation; that the lands in question are not subject to any treaty between the United States and the Tuscaroras (see notes 10 and 18); and that 25 U.S.C. § 177, 25 U.S.C.A. § 177 does not apply to the United States itself nor prohibit it, or its licensees under the Federal Power Act, from taking such lands in the manner provided by § 21, upon the payment of just compensation. All members of this Court—no one more than any other—adhere to the concept that agreements are made to be performed—no less by the Government than by others—but the federal eminent domain powers conferred by Congress upon the Commission's licensee, by § 21 of the Federal Power Act, to take such of the lands of the Tuscaroras as are needed for the Niagara project do not breach the faith of the United States, or any treaty or other contractual agreement of the United States with the Tuscarora Indian Nation in respect to these lands for the conclusive reason that there is none. Reversed. Mr. Justice BRENNAN concurs in the result.

361.US.416

In 1953, petitioner and one Seijas were indicted for conspiring from 1942 to 1953 to attempt to evade income taxes of Scijas and his wife for the years 1942 through 1945. Petitioner contended that the conspiracy was consummated in 1946, when the return for 1945 was filed, and that prosecution was barred by the 6-year statute of limitations; and he requested and obtained instructions that the jury must acquit him unless it found that there was a subsidiary conspiracy, continuing to within 6 years of the indictment, to conceal the first conspiracy. He was convicted. On appeal, the Court of Appeals reversed on the ground that a subsidiary conspiracy cannot extend the statute of limitations which had run against the main conspiraty, and it ordered the case remanded with directions to enter a judgment of acquittal. On rehearing, however, it decided that petitioner might have been tried on the theory that the original conspiracy continued until 1952, and it ordered the case remanded for a new trial. Held: This did not subject petitioner to double jeopardy in violation of the Fifth Amendment. Pp. 417-426. (a) The theory on which the case was tried and upon which an instruction should have been given was that there was a continuing conspiracy from 1942 to 1953 to evade income taxes by concealing income, and that this objective was not consummated in 1946 when the 1945. return was filed. Pp. 422-424. (b) The fact that the Court of Appeals had originally ordered .entry of a judgment of acquittal did not deprive it of -the power to amend that direction on rehearing and order a new trial, in the exercise of its power under 28 U. S. C. § 2106 to "require such further proceedings to be had as may be just under the circumstances." P. 424, (c) Petitioner's conviction having been set aside on- his appeal, he was not subjected to double jeopardy by the action of the Court of Appeals in ordering a new trial, on rehearing, after having previously directed entry of a judgment of acquittal. Sapir v. United States, 348 U. S. 373, distinguished. Pp. 425-426. 261 F. 2d 181, 264 F. 2d 955, affirmed.

In this criminal conspiracy case, petitioner raises questions of double jeopardy. Petitioner and one Seijas, his former partner in the pinball business, were convicted1 of conspiracy to commit the offense of willfully attempting to evade the individual income taxes of Seijas and his wife, in violation of § 145(b) of the Internal Revenue Code of 1939,2 and of furnishing false books, records, and financial statements to officers and employees of the Treasury Department for the purpose of concealing the true income tax liabilities of Seijas and his wife, in violation of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001.3 The trial was prior to our decision in Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931. The petitioner requested, and the trial judge included in his charge, language similar to that given in the charge in the Grunewald prosecution directing that petitioner should be acquitted unless the jury found that the partners entered into a subsidiary conspiracy, continuing to within six years of the indictment, to conceal their conspiracy to attempt to evade Seijas' and his wife's taxes. At the time of the appeal, our Grunewald opinion had come down. Citing Grunewald, the Court of Appeals reversed petitioner's conviction and remanded the case with instructions to enter a judgment of acquittal. 259 F.2d 128. On rehearing, however, the Court of Appeals decided that 'the case might have been tried' on an 'alternative theory,' namely, that 'certain of the overt acts listed in the indictment and charged to have occurred in 1948, 1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy having as its objective not the concealment of the conspiractors' conspiracy but tax evasion.' 261 F.2d 181, 183. It modified its original order for an acquittal and entered one directing a new trial. Petitioner then contended that having once ordered his acquittal, the Court of Appeals, by directing a new trial, violated the command of the Fifth Amendment that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' Petitioner's motion for rehearing was denied. 264 F.2d 955. We granted certiorari. 359 U.S. 982, 79 S.Ct. 942, 3 L.Ed.2d 932. We affirm the order directing a new trial. The facts are detailed in the original opinion of the Court of Appeals, 259 F.2d 128, and it is sufficient here merely to summarize them. In 1941 petitioner and Seijas, a lawyer, formed a partnership to engage in the operation of pinball machines in Kitsap County, Washington. Receipts, less expenses, from the individual machines, were to be divided equally between the partners and the location owners. Beginning in 1942 and continuing until December 1945, however, the partners robbed the machines by extracting 'holdout' money from those located at the more profitable locations. These sums, without being split with the location owners, were divided between the partners. None of these amounts were entered on the books of the partnership, nor were they included in its tax returns. Seijas maintained diaries and kept a record of the amount of 'holdout' income that he received, but he paid no tax on it. During this period, tax returns omitting the 'holdout' income were filed each year. The Court of Appeals found that 'there was abundant proof' of petitioner's participation in a conspiracy to 'evade Seijas' income taxes for the years 1942 through 1945' through concealment of the 'holdout' income during that period. It also found that 'numerous false statements' were made by both Forman and Seijas in furtherance of this conspiracy and within the six-year period immediately prior to the indictment. (9 Cir., 259 F.2d 130.) The record shows, as the Court of Appeals indicated, that the concealment of the 'holdout' income continued until soon before the indictment, at which time Seijas turned over to the agents his diaries covering the receipt of this income for the years 1942—1945. The Court of Appeals, on the original submission, however, found that the case was submitted to the jury on the theory of Grunewald as expounded in 2 Cir., 233 F.2d 556, namely, that a subsidiary conspiracy to conceal the main conspiracy to attempt to evade Seijas' tax may be implied from circumstantial evidence showing that the latter conspiracy was kept a secret. This subsidiary conspiracy would make the prosecution timely under the applicable statute of limitations. But the Court of Appeals pointed out that the reversal of that case by this Court soon after the trial of petitioner gave it 'an advantage * * * that the trial court did not have' and required the conviction to be reversed and the case remanded 'with directions to enter judgment for the appellant' Forman. On rehearing,4 as here, the Government contended that the essence of the conspiracy charged in the indictment filed November 19, 1953, was to evade the tax on the 'holdout' income and that at least five overt acts were committed within six years of the return of the indictment for the purpose of furthering that conspiracy to eavde. Contrary to what the trial court found, the Government said that the conspiracy did not end with the filing of the false income tax returns in the years 1943 through 1946, but embraced the subsequent efforts, made during the years 1947 through 1952, to evade those taxes. The only flaw in the record to the contrary, it claimed, was the erroneous 'subsidiary conspiracy' instruction, which it now points out was injected therein by the petitioner himself. The Government concluded that the interests of justice required the entry of an order directing a new trial rather than a judgment of acquittal. Although finding that the Government conceded 'that the case was submitted to the jury on an impermissible theory,' the Court of Appeals read the indictment as alleging that the conspiracy was one "to violate * * * § 145(b) of the Internal Revenue Code * * * by furnishing officers and employees of the Revenue Department false books and records and false financial statements, and by making false statements to such officers and employees, for the purpose of concealing from the Treasury Department their share of the unreported (holdout) income * * * and for the purpose of concealing * * * the true income tax liability of Amador A. Seijas." 261 F.2d at page 182. It held that 'the conspiracy continued past the filing of the returns' and 'that certain of the overt acts listed in the indictment and charged to have occurred in 1948, 1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy having as its objective not the concealment of the conspirators' conspiracy but tax evasion.' Id., at page 183. It, therefore, modified its opinion 'so as to provide that the judgment is reversed and the cause remanded for a new trial.' Ibid. The petitioner then raised his plea of former jeopardy, which is the basis of his petition here. He says that the trial court correctly found that the conspiracy ended with the filing of the last false income tax return in 1946. Since there was no direct evidence of the existence of a subsidiary conspiracy to conceal the crime of attempting to evade, the trial court he concludes, should, have sustained his motion to acquit on that ground. When the Court of Appeals held that the trial court erred in failing to grant the motion, petitioner argues that it gave him a vested right to an acquittal, which matured at the time he so moved in the trial court. A new trial, he contends, would therefore place him in double jeopardy.5 The Government now says that through 'inadvertence' it allowed the case to be submitted to the jury on the 'impermissible theory' condemned in our Grunewald opinion, 353 U.S. at pages 399 406, 77 S.Ct. at pages 971—974; and that the trial judge was led into error by the request of the petitioner for an instruction on the 'subsidiary conspiracy' theory, which error was compounded by the failure of the Government to object thereto. This resulted, it maintains, in a Grunewald instruction being saddled onto a correct charge. In view of this complication, it concludes that the jury might well have based its conviction on either theory, and a new trial was therefore appropriate and would not place petitioner in double jeopardy. We believe that there was a misconstruction of the scope of the alleged conspiracy and its duration in both Grunewald and the present case. In Grunewald the indictment charged a conspiracy 'to fix' criminal tax cases and to conceal the acts of the conspirators. That case was submitted to the jury on the theory that 'the indictment alleges that the conspiracy comprehended within it a conspiracy to conceal the true facts from investigation * * *.' Did the conspiracy end when the 'no prosecution' rulings were issued, the Court charged, 'or was a part of the conspiracy a continuing agreement to conceal the acts done pursuant thereto?' The effect of the charge was that if there was such a continuing agreement, then the prosecution was timely. It appeared to us that the case should have been submitted to the jury on the theory that the central object of the conspiracy was not merely to obtain the 'no prosecution' rulings, but rather to immunize the taxpayers completely from prosecution for tax evasion. The evidence supported such a theory. We said, however, that, since this theory was not adequately submitted to the jury, the case should be remanded for a new trial rather than affirmed. In petitioner's case the indictment charged him and Seijas with conspiracy, extending from 1942 to 1953, to attempt to evade the income taxes of Seijas and his wife for the period 1942—1945. Unlike Grunewald, the indictment did not allege that one of the objects of the conspiracy was to conceal the acts of the conspirators. The indictment specifically alleged that the conspiracy extended from 1942 to 1953 and, of the 33 overt acts charged, some were committed as late as 1953, the year of the indictment. This language, it must be admitted, certainly lends strong support to the Government's theory of the case. The petitioner says that the theory on which the case was submitted to the jury was that the conspiracy to attempt to evade the taxes 'was consummated' when the income tax returns for 1945 were filed and that, unless the jury found 'a subsidiary conspiracy' to conceal the conspiracy to attempt to evade the taxes, the 'verdict would have to be not guilty.' That was the theory he requested, but the charge differs little from the Grunewald one. In fact it appears to have been patterned after the Grunewald charge. The correct theory, we believe, was indicated by the indictment, i.e., that the conspiracy was a continuing one extending from 1942 to 1953 and its principal object was to evade the taxes of Seijas and his wife for 1942—1945, inclusive, by concealing their 'holdout' income. This object was not attained when the tax returns for 1945 concealing the 'holdout' income were filed. As was said in Grunewald, this was but the first step in the process of evasion. The concealment of the 'holdout' income must continue if the evasion is to succeed. It must continue until action thereon is barred and the evasion permanently effected. In this regard, the indictment alleged that the conspiracy to attempt such evasion actually did continue until 1953, when Seijas revealed the 'holdout' income for the first time. It therefore appears that the 'subsidiary conspiracy' theory covered by petitioner's requested charge had no place in the case and should not have been given. There was no such conspiracy alleged or proven. In view of the possible confusion resulting, it was entirely appropriate for a new trial to be ordered. Petitioner's raising this ground on appeal, rather than specifically asserting it in his motion for new trial, had no effect on the power of the Court of Appeals to correct the error. Petitioner insists, however, that the fatal difference between the Grunewald charge and the one here is that here the 'alternative theory' was not submitted to the jury. Even if we agreed with this point, we do not believe that it would be relevant to our conclusion. The indictment was based on one continuing conspiracy to evade Seijas' tax. The evidence supported it and, if the petitioner had not injected the infected language into the charge, this clearly would have been the theory submitted to the jury. Its inclusion did make the charge ambiguous and the Court of Appeals, having power to direct 'such further proceedings to be had as may be just under the circumstances,' believed a new trial 'appropriate,' 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, and so ordered. Petitioner concedes that this would have been appropriate if such action had been taken by the Court of Appeals upon original submission; but he says that, once having ordered the entry of an acquittal judgment, it lost power to amend that direction on rehearing and order a new trial. This would subject him, he says, to double jeopardy. We think not. It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal. United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. See also Green v. United States, 1957, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, which expressly affirmed the principle of the Ball case. Petitioner says that he does not come under that rule because he moved for a judgment of acquittal on the basis of a lack of evidence, and that his right to acquittal 'matured' at that time. A new trial, however, was one of petitioner's remedies. As we said in Bryan v. United States, 1950, 338 U.S. 552, 560, 70 S.Ct. 317, 321, 94 L.Ed. 335, where one seeks reversal of his conviction, 'assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal * * * 'there is no double jeopardy upon a new trial." Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, the Court of Appeals has full power to go beyond the particular relief sought. See Ball and other cases, supra. Nor does Sapir v. United States, 1955, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426, require a different conclusion, as petitioner claims. The Court of Appeals there, 10 Cir., 216 F.2d 722, holding the evidence insufficient to convict, had first reversed and remanded with instructions to dismiss the indictment, and later, on the Government's motion, had remanded instead for a new trial on the ground of newly discovered evidence. This Court held that the original order directing the indictment to be dismissed was the correct one, and refused to pass on questions presented by the order directing a new trial. While petitioner contends that here the action of the Court of Appeal on rehearing was based on new evidence, as in Sapir, this is incorrect. Here there was no lack of evidence in the record. As the Court of Appeals pointed out, 'The jury was simply not properly instructed.' 264 F.2d at page 956. On the other hand, the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence, which the Government assured the court was available. Moreover, Sapir made no motion for a new trial in the District Court, while here petitioner filed such a motion. That was a decisive factor in Sapir's case. See concurring opinion, 348 U.S. at page 374, 75 S.Ct. at page 423. Furthermore, the power of the Court of Appeals to revise its original judgment and order the new trial on rehearing was not questioned in Sapir. We believe petitioner overlooks that, when he opened up the case by appealing from his conviction, he subjected himself to the power of the appellate court to direct such 'appropriate' order as it thought 'just under the circumstances.' Its original direction was subject to revision on rehearing. The original opinion was entirely interlocutory and no mandate was ever issued thereon. It never became final and was subject to further action on rehearing. Department of Banking, State of Nebraska v. Pink, 1942, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254. In Pink, we said that the petition on rehearing 'operates to suspend the finality of the * * * court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.' 317 U.S. at page 266, 63 S.Ct. at page 234. To hold otherwise would deprive the Government of the right to file a petition for certiorari here in criminal cases decided favorably to the defendant in the Court of Appeals, for such a petition might be attacked as a prohibited appeal by the Government on a motion for a new trial. It would be tantamount to a verdict of acquittal at the hands of the jury, not subject to review by motion for rehearing, appeal, or certiorari in this Court. We cannot subscribe to such a theory. Affirmed.

363.US.335

Under 28 U. S. C. § 1404 (a), a federal district court in which a civil action has been properly brought is not empowered to transfer the action on the motion of the' defendant to a district in which the plaintiff did not have a right to bring it. Pp. 335-344. (a) The phrase "where it might have been brought" in § 1404 (a) cannot be interpreted to mean "where it may now be rebrought, with defendants' consent." Pp. 342-343. (b) Under § 1404 (a), the power of a district court to transfer an action to another district is made to depend, not upon the wish or waiver of the defendant, but upon whether the transferee district is one in which the action "might have been brought" by the plaintiff. Pp. 343-344.260 F. 2d 317,'261 F. 2d 467, affirmed.

To relieve against what was apparently thought to be the harshness of dismissal, under the doctrine of forum non conveniens, of an action brought in an inconvenient one of two or more legally available forums, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, and concerned by the reach of Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28,1 Congress, in 1948, enacted 28 U.S.C. § 1404(a), 28 U.S.C.A. § 1404(a), which provides: 's 1404. Change of venue. '(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.' The instant cases present the question whether a District Court, in which a civil action has been properly brought, is empowered by § 1404(a) to transfer the action, on the motion of the defendant, to a district in which the plaintiff did not have a right to bring it. No. 25, Blaski.—Respondents, Blaski and others, residents of Illinois, brought this patent infringement action in the United States District Court for the Northern District of Texas against one Howell and a Texas corporation controlled by him, alleging that the defendants are residents of, and maintain their only place of business in, the City of Dallas, in the Northern District of Texas, where they are infringing respondents' patents. After being served with process and filing their answer, the defendants moved, under § 1404(a), to transfer the action to the United States District Court for the Northern District of Illinois.2 Respondents objected to the transfer on the ground that, inasmuch as the defendants did not reside, maintain a place of business, or infringe the patents in, and could not have been served with process in, the Illinois district, the courts of that district lacked venue over the action3 and ability to command jurisdiction over the defendants;4 that therefore that district was not a forum in which the respondents had a right to bring the action, and, hence, the court was without power to transfer it to that district. Without mentioning that objection or the question it raised, the District Court found that 'the motion should be granted for the convenience of the parties and witnesses in the interest of justice,' and ordered the case transferred to the Illinois district. Thereupon, respondents moved in the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of that order. That court, holding that '(t)he purposes for which § 1404(a) was enacted would be unduly circumscribed if a transfer could not be made 'in the interest of justice' to a district where the defendants not only waive venue but to which they seek the transfer,' denied the motion. Ex parte Blaski, 245 F.2d 737, 738. Upon receipt of a certified copy of the pleadings and record, the Illinois District Court assigned the action to Judge Hoffman's calendar. Respondents promptly moved for an order remanding the action on the ground that the Texas District Court did not have power to make the transfer order and, hence, the Illinois District Court was not thereby vested with jurisdiction of the action. After expressing his view that the 'weight of reason and logic' favored 'retransfer of this case to Texas,' Judge Hoffman, with misgivings, denied the motion. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing Judge Hoffman to reverse his order. After hearing and rehearing, the Seventh Circuit, holding that '(w)hen Congress provided (in § 1404(a)) for transfer (of a civil action) to a district 'where it might have been brought,' it is hardly open to doubt but that it referred to a district where the plaintiff * * * had a right to bring the case,' and that respondents did not have a right to bring this action in the Illinois district, granted the writ, one judge dissenting. 260 F.2d 317, 320. No. 26, Behimer.—Diversity of citizenship then existing, respondents, Behimer and Roberts, residents of Illinois and New York, respectively, brought this stockholders' derivative action, as minority stockholders of Utah Oil Refining Corporation, a Utah corporation, on behalf of themselves and others similarly situated, in the United States District Court for the Northern District of Illinois against Standard Oil Company and Standard Oil Foundation, Inc., Indiana corporations but licensed to do and doing business in the Northern District of Illinois, for damages claimed to have been sustained through the alleged illegal acquisition by defendants of the assets of the Utah corporation at an inadequate price. After being served with process and filing their answer, the defendants moved, under § 1404(a), to transfer the action to the United States District Court for the District of Utah.5 Respondents objected to the transfer on the ground that, inasmuch as the defendants were not incorporated in or licensed to do or doing business in, and could not be served with process in, the district of Utah, the courts of that district lacked venue over the action6 and ability to command jurisdiction over the defendants;7 that therefore that district was not a forum in which the respondents had a right to bring the action, and, hence, the court was without power to transfer it to that district. Without mentioning the question raised by that objection, the court found that the proposed transfer would be 'for the convenience of the parties and witnesses, and in the interest of justice,' and ordered the case transferred to the district of Utah. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing the District Court to reverse its order. After hearing, the Seventh Circuit, following its decision in Blaski v. Hoffman, supra, granted the writ. 261 F.2d 467. To settle the conflict that has arisen among the circuits respecting the proper interpretation and application of § 1404(a),8 we granted certiorari. 359 U.S. 904, 79 S.Ct. 583, 3 L.Ed.2d 570; 361 U.S. 809, 80 S.Ct. 50. Without sacrifice or slight of any tenable position, the parties have in this Court commendably narrowed their contentions to the scope of the only relevant inquiry. The points of contention may be sharpened by first observing what is not in contest. Discretion of the district judges concerned is not involved. Propriety of the remedy of mandamus is not assailed. No claim is made here that the order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case.9 Petitioners concede that these actions were properly brought in the respective transferor forums; that statutory venue did not exist over either of these actions in the respective transferee districts,10 and that the respective defendants were not within the reach of the process of the respective transferee courts.11 They concede, too, that § 1404(a), being 'not unlimited,' 'may be utilized only to direct an action to any other district or division 'where it might have been brought," and that, like the superseded doctrine of forum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055, the statute requires 'an alternative forum in which plaintiff might proceed.' Petitioners' 'thesis' and sole claim is that § 1404(a), being remedial, Ex parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 946, 93 L.Ed. 1207, should be broadly construed, and, when so construed, the phrase 'where it might have been brought' should be held to relate not only to the time of the bringing of the action, but also to the time of the transfer; and that 'if at such time the transferee forum has the power to adjudicate the issues of the action, it is a forum in which the action might then have been brought.'12 (Emphasis added.) They argue that in the interim between the bringing of the action and the filing of a motion to transfer it, the defendants may move their residence to, or, if corporations, may begin the transaction of business in, some other district, and, if such is done, the phrase 'where it might have been brought' should be construed to empower the District Court to transfer the action, on motion of the defendants, to such other district; and that, similarly, if, as here, the defendants move to transfer the action to some other district and consent to submit to the jurisdiction of such other district, the latter district should be held one 'in which the action might then have been brought.' (Emphasis added.) We do not agree. We do not think the § 1404(a) phrase 'where it might have been brought' can be interpreted to mean, as petitioners' theory would required, 'where it may now be rebrought, with defendants' consent.' This Court has said, in a different context, that § 1404(a) is 'unambiguous, direct (and) clear,' Ex parte Collett, 337 U.S. at page 58, 69 S.Ct. at page 946, and that 'the unequivocal words of § 1404(a) and the legislative history * * * (establish) that Congress indeed meant what it said.' United States v. National City Lines, Inc., 337 U.S. 78, 84, 69 S.Ct. 955, 958, 93 L.Ed. 1226. Like the Seventh Circuit, 260 F.2d at page 322, we think the dissenting opinion of Judges Hastie and McLaughlin in Paramount Pictures, Inc. v. Rodney, 3 Cir., 186 F.2d 111, 119, correctly answered this contention: 'But we do not see how the conduct of a defendant after suit has been instituted can add to the forums where 'it might have been brought.' In the normal meaning of words this language of Section 1404(a) directs the attention of the judge who is considering a transfer to the situation which existed when suit was instituted.' It is not to be doubted that the transferee courts, like every District Court, had jurisdiction to entertain actions of the character involved, but it is obvious that they did not acquire jurisdiction over these particular actions when they were brought in the transferor courts. The transferee courts could have acquired jurisdiction over these actions only if properly brought in those courts, or if validly transferred thereto under § 1404(a). Of course, venue, like jurisdiction over the person, may be waived. A defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it, or even simply by making default. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179—180, 49 S.Ct. 98, 99, 73 L.Ed. 252; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. But the power of a District Court under § 1404(a) to transfer an action to another district is made to depend not upon the wish or waiver of the defendant but, rather, upon whether the transferee district was one in which the action 'might have been brought' by the plaintiff. The thesis urged by petitioners would not only do violence to the plain words of § 1404(a), but would also inject gross discrimination. That thesis, if adopted, would empower a District Court, upon a finding of convenience, to transfer an action to any district desired by the defendants and in which they were willing to waive their statutory defenses as to venue and jurisdiction over their persons, regardless of the fact that such transferee district was not one in which the action 'might have been brought' by the plaintiff. Conversely, that thesis would not permit the court, upon motion of the plaintiffs and a like showing of convenience, to transfer the action to the same district, without the consent and waiver of venue and personal jurisdiction defenses by the defendants. Nothing in § 1404(a), or in its legislative history, suggests such a unilateral objective and we should not, under the guise of interpretation, ascribe to Congress any such discriminatory purpose. 'If when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district 'where (the action) might have been brought.' If he does not have that right, independently of the wishes of defendant, it is not a district 'where it might have been brought,' and it is immaterial that the defendant subsequently (makes himself subject, by consent, waiver of venue and personal jurisdiction defenses or otherwise, to the jurisdiction of some other forum).' 260 F.2d at page 321, and 261 F.2d at page 469. Inasmuch as the respondents (plaintiffs) did not have a right to bring these actions in the respective transferee districts, it follows that the judgments of the Court of Appeals were correct and must be affirmed. Affirmed.

364.US.410

The proceeds of two life insurance policies were made payable in monthly payments to the insured's wife for her lifetime, but, if she should die before the expiration of 20 years, his daughter was to receive the payments until the 20 years had elapsed. When he died, he was survived by his wife and daughter, and each insurance company determined.and set up on its books a sum representing the amount necessary to fund the 240 monthly payments for the 20 years and a separate sum representing the amount necessary to fund the monthly payments to the wife so long as she might live beyond the 240 months. Held: The decedent's estate was not entitled to a marital deduction under §,812 (e) of the Internal Revenue Code of 1939, even with respect to that ,jortion of the proceeds necessary to fund the monthly payments to the wife so long as she might live beyond the 240 months, since the proceeds of each policy constituted a single "property" and the interest passing to the wife might "terminate or fail" and another person might "possess or enjoy [a] part of such property after such termination or failure." Pp. 410-416. 275 F. 2d 83, affirmed.

Petitioners, who are executors of the estate of Albert F. Meyer, brought this suit to recover an alleged overpayment of federal estate taxes and the District Court granted the relief asked. 166 F.Supp. 629. The Court of Appeals reversed, 275 F.2d 83, and we granted the executors' petition for certiorari, 361 U.S. 929, 80 S.Ct. 373, 4 L.Ed.2d 352, because of a conflict of decisions in the circuits. Cf. In re Reilly's Estate, 239 F.2d 797, decided by the Court of Appeals for the Third Circuit. Two policies of life insurance are involved,1 but since they are in all material respects identical, we need deal with only one of them. The policy obligated the insurer to pay a death benefit of $25,187.50, and that sum was included by the executors in the federal estate tax return and the tax thereon was paid. The decedent had selected an optional mode of settlement which provided for the payment of equal monthly installments to his wife for her life, with 240 installments guaranteed, and further provided that if the wife should die before receiving the 240 installments his daughter would receive the remainder of them, but if both the wife and the daughter died before receiving the 240 installments the commuted value of those unpaid was to be paid in one sum to the estate of the last one of them to die. Of the total proceeds of the policy of $25,187.50, the insurer determined that $17,956.41 was necessary to fund the 240 monthly payments to the wife, the daughter, or to the estate of the last survivor of them, and that the remaining $7,231.09 was necessary to fund the monthly payments to the wife so long as she might live beyond the 240 months. Accordingly, the insurer made such entries on its books. Thereafter petitioners, as executors, timely filed a claim for refund of the amount of the tax paid upon the $7,231.09 which the insurer had shown upon its books as necessary to fund the monthly payments to the wife for her actuarial expectancy beyond the 240 months certain, on the theory that the insurer's treatment of that sum on its books created a separate 'property' or fund payable to the wife alone, and hence it qualified for the marital deduction under § 812(e)(1) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 812(e) (1).2 The claim was denied, and this suit was brought to recover the tax that had been paid on that sum. Petitioners correctly concede that if the policy constitutes but one 'property,' within the meaning of the statute,3 it would not qualify for the marital deduction because the wife's interest in it would be a 'terminable' one, within the meaning of the statute, inasmuch as the wife may die before receipt of the 240 guaranteed installments, in which event the unpaid ones must go to the daughter if then living. They concede, too, that the $17,956.41, shown on the insurer's books as necessary to fund the monthly payments for the 240 months certain, does not qualify for the marital deduction for the same reasons. But they contend that, although the policy made no provision therefor, the insurer's bookkeeping entries constituted a real division of the insurance proceeds into, and created, two 'properties'—one of $17,956.41 and the other of $7,231.09—and that the latter qualifies for the marital deduction under the statute because it is payable, if at all, only to the wife—during her lifetime beyond the 240 months—and no other person has any interest in it. Whether a policy of life insurance may create several 'properties' or funds, either terminable or nonterminable or both, we need not decide, for we think the policy here involved constituted only one property, and made only so much of its proceeds payable to the wife as she might live to receive in equal monthly installments, and made any guaranteed balance payable to the daughter. Hence, under the terms of the policy, the 'interest passing to the surviving spouse (may) terminate or fail' and a 'person other than (the) surviving spouse * * * may possess or enjoy (a) part of such property after such termination or failure of the interest so passing to the surviving spouse; * * *.' Therefore the policy and its proceeds—considered apart from petitioners' claim that the insurer's bookkeeping division of the proceeds of the policy into two parts created two 'properties'—are disqualified for the marital deduction by the express provisions of § 812(e)(1)(B) of the Internal Revenue Code of 1939. The legislative history of the section further supports and compels this conclusion. Illustrating applications of the terminable interest rule, the Senate Committee Report gave an example that is in no relevant way distinguishable from this case,4 and makes it very clear that the marital deduction is not allowable in the case of an annuity for the surviving spouse for life if 'upon the death of the surviving spouse, the payments are to continue to another person (not through her estate) or the undistributed fund is to be paid to such other person * * *.' We think petitioners' argument—that the insurer's bookkeeping division of the proceeds of the policy into two parts created two properties—cannot withstand the provisions of the policy and the actual facts respecting the insurer's bookkeeping division of its proceeds, under the clear terms of the statute and its legislative history. The policy made no provision for the creation of two separate properties—one a property sufficient to provide payments for 240 months, to the wife while she lived and any remainder to the daughter, and another property sufficient to provide an annuity to the wife for the period of her actuarial expectancy beyond the 240 months—and no such separate properties were in fact created. The allocations made were merely actuarial ones—mere bookkeeping entries—made by the insurer on its own books for its own convenience after the insured, the other party to the contract, had died. The wife and the daughter were, respectively, primary and contingent beneficiaries of the policy alone. Neither of them had any title to, nor right to receive, any special fund, and indeed none was actually created. The bookkeeping entries made by the insurer no more created or measured their rights than the insurer's erasure of those entries—which it was free to make at any time—would destroy their rights. Their rights derive solely from the policy. It, not the insurer's bookkeeping entries, created and constitutes the property involved. Any action by the beneficiaries to enforce their rights against the insurer would have to be upon the policy, not upon the entries the insurer had made on its books for its own actuarial information and convenience. Nor would exhaustion of the sum of those entries constitute any defense to the insurer against the claim of either beneficiary for amounts due her under the policy. The proceeds of the policy were not payable to the wife (or to her estate or appointee) alone and at all events, but were payable in monthly installments to her for life, and if any obligation under the policy remained undischarged at her death it was payable to the daughter if living or, if not, to the estate of the last of them to die. It follows that the 'interest passing to the surviving spouse (may) terminate or fail' and that a 'person other than (the) surviving spouse * * * may possess or enjoy (a) part of such property after such termination or failure of the interest so passing to the surviving spouse; * * *.' and hence the property is disqualified for the marital deduction by the express provisions of § 812(e)(1)(B) of the Internal Revenue Code of 1939. Affirmed.

363.US.278

1. This Court rejects the Government's suggestion that it promulgate a new "test" to serve as a standard to be applied by the lower courts and by the Tax Court in dealing with numerous cases involving the question what is a "gift" excludable from income under the Internal Revenue Code, since the governing principles are necessarily general and have already been spelled out in the opinions of 'this Court. Pp. 284-286. 2. The conclusion whether trdhsfer amounts to a "gift"-is one that must be reached on consideration of' all the factors. While the principles urged by the Government may, in nonabsolute form as ,crystallizations of experience, prove persuasive tb-the trier of facts in a particular case, they cainot be laid down as a matter of law. Pp. 287-289. 3. Determination in each individual case as to whether the transaction in question :was a "gift" must be based ultimately on the application of the fact-finding tribunal's experience with the mainspings of human conduct to the totality of the facts in the case; and appellate review of the conclusion reached by the fact-finding tribunal must be quite restricted. Pp. 289-291. 4. In No. 376, Duberstein, an individual taxpayer, gave to a business corporation, -upon request, the names of potential customers. The information proved valuable, and the corporation reciprocated by giving Duberstein a Cadillac automobile, charging the cost thereof as a business expense on its own corporate income tax return. The Tax Court concluded that the car was not a "gift" excludable from income under § 22 (b) (3) of the Inteinal Revenue Code of 1939. Held: On the record in this case, it cannot be said that the Tax Court's conclusion was "clearly erroneous," and the Court of Appeals erred in reversing its judgment. Pp. 279-281, 291-292. 5. In No. 546, Stanton, upon resigning as comptroller of a church corporation and as president of its wholly owned subsidiary created' to manage its extensive real estate holdings, was given "a gratuity" of $20,000 "in appreciation of" his past services. The Commissioner assessed an income-tax deficiency against him for failure to include this amount in his gross income. Stanton paid the defi. ciency and sued in a Federal District Court for a refund. The trial judge, sitting without a jury, made the simple finding that the payment was a "gift" and entered judgment for Stanton. The Court of Appeals reversed. Held: The finding of the District Court wad inadequate; the judgment of the Court of Appeals is vacated and the case is remanded to the District Court for further proceedings. Pp. 281-283, 292-293. 265 F. 2d 28, reversed. 268 F. 2d 727, judgment vacated and cause remanded.

These two cases concern the provision of the Internal Revenue Code which excludes from the gross income of an income taxpayer 'the value of property acquired by gift.'1 They pose the frequently recurrent question whether a specific transfer to a taxpayer in fact amounted to a 'gift' to him within the meaning of the statute. The importance to decision of the facts of the cases requires that we state them in some detail. No. 376, Commissioner v. Duberstein. The taxpayer, Duberstein,2 was president of the Duberstein Iron & Metal Company, a corporation with headquarters in Dayton, Ohio. For some years the taxpayer's company had done business with Mohawk Metal Corporation, whose headquarters were in New York City. The president of Mohawk was one Berman. The taxpayer and Berman had generally used the telephone to transact their companies' business with each other, which consisted of buying and selling metals. The taxpayer testified, without elaboration, that he knew Berman 'personally' and had known him for about seven years. From time to time in their telephone conversations, Berman would ask Duberstein whether the latter knew of potential customers for some of Mohawk's products in which Duberstein's company itself was not interested. Duberstein provided the names of potential customers for these items. One day in 1951 Berman telephoned Duberstein and said that the information Duberstein had given him had proved so helpful that he wanted to give the latter a present. Duberstein stated that Berman owed him nothing. Berman said that he had a Cadillac as a gift for Duberstein, and that the latter should send to New York for it; Berman insisted that Duberstein accept the car, and the latter finally did so, protesting however that he had not intended to be compensated for the information. At the time Duberstein already had a Cadillac and an Oldsmobile, and felt that he did not need another car. Duberstein testified that he did not think Berman would have sent him the Cadillac if he had not furnished him with information about the customers. It appeared that Mohawk later deducted the value of the Cadillac as a business expense on its corporate income tax return. Duberstein did not include the value of the Cadillac in gross income for 1951, deeming it a gift. The Commissioner asserted a deficiency for the car's value against him, and in proceedings to review the deficiency the Tax Court affirmed the Commissioner's determination. It said that 'The record is significantly barren of evidence revealing any intention on the part of the payor to make a gift. * * * The only justifiable inference is that the automobile was intended by the payor to be remuneration for services rendered to it by Duberstein.' The Court of Appeals for the Sixth Circuit reversed. 265 F.2d 28, 30. No. 546, Stanton v. United States. The taxpayer, Stanton, had been for approximately 10 years in the employ of Trinity Church in New York City. He was comptroller of the Church corporation, and president of a corporation, Trinity Operating Company, the church set up as a fully owned subsidiary to manage its real estate holdings, which were more extensive than simply the church property. His salary by the end of his employment there in 1942 amounted to $22,500 a year. Effective November 30, 1942, he resigned from both positions to go into business for himself. The Operating Company's directors, who seem to have included the rector and vestrymen of the church, passed the following resolution upon his resignation: 'Be it resolved that in appreciation of the services rendered by Mr. Stanton * * * a gratuity is hereby awarded to him of Twenty Thousand Dollars, payable to him in equal instalments of Two Thousand Dollars at the end of each and every month commencing with the month of December, 1942; provided that, with the discontinuance of his services, the Corporation of Trinity Church is released from all rights and claims to pension and retirement benefits not already accrued up to November 30, 1942.' The Operating Company's action was later explained by one of its directors as based on the fact that, 'Mr. Stanton was liked by all of the Vestry personally. He had a pleasing personality. He had come in when Trinity's affairs were in a difficult situation. He did a splendid piece of work, we felt. Besides that * * * he was liked by all of the members of the Vestry personally.' And by another: '(W)e were all unanimous in wishing to make Mr. Stanton a gift. Mr. Stanton had loyally and faithfully served Trinity in a very difficult time. We thought of him in the highest regard. We understood that he was going in business for himself. We felt that he was entitled to that evidence of good will.' On the other hand, there was a suggestion of some ill-feeling between Stanton and the directors, arising out of the recent termination of the services of one Watkins, the Operating Company's treasurer, whose departure was evidently attended by some acrimony. At a special board meeting on October 28, 1942, Stanton had intervened on Watkins' side and asked reconsideration of the matter. The minutes reflect that 'resentment was expressed as to the 'presumptuous' suggestion that the action of the Board, taken after long deliberation, should be changed.' The Board adhered to its determination that Watkins be separated from employment, giving him an opportunity to resign rather than be discharged. At another special meeting two days later it was revealed that Watkins had not resigned; the previous resolution terminating his services was then viewed as effective; and the Board voted the payment of six months' salary to Watkins in a resolution similar to that quoted in regard to Stanton, but which did not use the term 'gratuity.' At the meeting, Stanton announced that in order to avoid any such embarrassment or question at any time as to his willingness to resign if the Board desired, he was tendering his resignation. It was tabled, though not without dissent. The next week, on November 5, at another special meeting, Stanton again tendered his resignation which this time was accepted. The 'gratuity' was duly paid. So was a smaller one to Stanton's (and the Operating Company's) secretary, under a similar resolution, upon her resignation at the same time. The two corporations shared the expense of the payments. There was undisputed testimony that there were in fact no enforceable rights or claims to pension and retirement benefits which had not accrued at the time of the taxpayer's resignation, and that the last proviso of the resolution was inserted simply out of an abundance of caution. The taxpayer received in cash a refund of his contributions to the retirement plans, and there is no suggestion that he was entitled to more. He was required to perform no further services for Trinity after his resignation. The Commissioner asserted a deficiency against the taxpayer after the latter had failed to include the payments in question in gross income. After payment of the deficiency and administrative rejection of a refund claim, the taxpayer sued the United States for a refund in the District Court for the Eastern District of New York. 137 F.Supp. 803. The trial judge, sitting without a jury, made the simple finding that the payments were a 'gift,'3 and judgment was entered for the taxpayer. The Court of Appeals for the Second Circuit reversed. 268 F.2d 727. The Government, urging that clarification of the problem typified by these two cases was necessary, and that the approaches taken by the Courts of Appeals for the Second and the Sixth Circuits were in conflict, petitioned for certiorari in No. 376, and acquiesced in the taxpayer's petition in No. 546. On this basis, and because of the importance of the question in the administration of the income tax laws, we granted certiorari in both cases. 361 U.S. 923, 80 S.Ct. 291, 4 L.Ed.2d 239. The exclusion of property acquired by gift from gross income under the federal income tax laws was made in the first income tax statute4 passed under the authority of the Sixteenth Amendment, and has been a feature of the income tax statutes ever since. The meaning of the term 'gift' as applied to particular transfers has always been a matter of contention.5 Specific and illuminating legislative history on the point does not appear to exist. Analogies and inferences drawn from other revenue provisions, such as the estate and gift taxes, are dubious. See Lockard v. Commissioner, 1 Cir., 166 F.2d 4099 The meaning of the statutory term has been shaped largely by the decisional law. With this, we turn to the contentions made by the Government in these cases. First. The Government suggests that we promulgate a new 'test' in this area to serve as a standard to be applied by the lower courts and by the Tax Court in dealing with the numerous cases that arise.6 We reject this invitation. We are of opinion that the governing principles are necessarily general and have already been spelled out in the opinions of this Court, and that the problem is one which, under the present statutory framework, does not lend itself to any more definitive statement that would produce a talisman for the solution of concrete cases. The cases at bar are fair examples of the settings in which the problem usually arises. They present situations in which payments have been made in a context with business overtones—an employer making a payment to a retiring employee; a businessman giving something of value to another businessman who has been of advantage to him in his business. In this context, we review the law as established by the prior cases here. The course of decision here makes it plain that the statute does not use the term 'gift' in the common-law sense, but in a more colloquial sense. This Court has indicated that a voluntarily executed transfer of his property by one to another, without any consideration or compensation therefor, though a common-law gift, is not necessarily a 'gift' within the meaning of the statute. For the Court has shown that the mere absence of a legal or moral obligation to make such a payment does not establish that it is a gift. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730, 49 S.Ct. 499, 504, 73 L.Ed. 918. And, importantly, if the payment proceeds primarily from 'the constraining force of any moral or legal duty,' or from 'the incentive of anticipated benefit' of an economic nature, Bogardus v. Commissioner, 302 U.S. 34, 41, 58 S.Ct. 61, 65, 82 L.Ed. 32, it is not a gift. And, conversely, '(w) here the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.' Robertson v. United States, 343 U.S. 711, 714, 72 S.Ct. 994, 996, 96 L.Ed. 1237.7 A gift in the statutory sense, on the other hand, proceeds from a 'detached and disinterested generosity,' Commissioner of Internal Revenue v. LoBue, 351 U.S. 243, 246, 76 S.Ct. 800, 803, 100 L.Ed. 1142; 'out of affection, respect, admiration, charity or like impulses.' Robertson v. United States, supra, 343 U.S. at page 714, 72 S.Ct. at page 996. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor's 'intention.' Bogardus v. Commissioner, 302 U.S. 34, 43, 58 S.Ct. 61, 65, 82 L.Ed. 32. 'What controls is the intention with which payment, however voluntary, has been made.' Id., 302 U.S. at page 45, 58 S.Ct. at page 66 (dissenting opinion).8 The Government says that this 'intention' of the transferor cannot mean what the cases on the common-law concept of gift call 'donative intent.' With that we are in agreement, for our decisions fully support this. Moreover, the Bogardus case itself makes it plain that the donor's characterization of his action is not determinative—that there must be an objective inquiry as to whether what is called a gift amounts to it in reality. 302 U.S. at page 40, 58 S.Ct. at page 64. It scarcely needs adding that the parties' expectations or hopes as to the tax treatment of their conduct in themselves have nothing to do with the matter. It is suggested that the Bogardus criterion would be more apt if rephrased in terms of 'motive' rather than 'intention.' We must confess to some skepticism as to whether such a verbal mutation would be of any practical consequence. We take it that the proper criterion, established by decision here, is one that inquires what the basic reason for his conduct was in fact—the dominant reason that explains his action in making the transfer. Further than that we do not think it profitable to go. Second. The Government's proposed 'test,' while apparently simple and precise in its formulation, depends frankly on a set of 'principles' or 'presumptions' derived from the decided cases, and concededly subject to various exceptions; and it involves various corollaries, which add to its detail. Were we to promulgate this test as a matter of law, and accept with it its various presuppositions and stated consequences, we would be passing for beyond the requirements of the cases before us, and would be painting on a large canvas with indeed a broad brush. The Government derives it test from such propositions as the following: That payments by an employer to an employee, even though voluntary, ought, by and large, to be taxable; that the concept of a gift is inconsistent with a payment's being a deductible business expense; that a gift involves 'personal' elements; that a business corporation cannot properly make a gift of its assets. The Government admits that there are exceptions and qualifications to these propositions. We think, to the extent they are correct, that these propositions are not principles of law but rather maxims of experience that the tribunals which have tried the facts of cases in this area have enunciated in explaining their factual determinations. Some of them simply represent truisms: it doubtless is, statistically speaking, the exceptional payment by an employer to an employee that amounts to a gift. Others are overstatements of possible evidentiary inferences relevant to a factual determination on the totality of circumstances in the case: it is doubtless relevant to the over-all inference that the transferor treats a payment as a business deduction, or that the transferor is a corporate entity. But these inferences cannot be stated in absolute terms. Neither factor is a shibboleth. The taxing statute does not make nondeductibility by the transferor a condition on the 'gift' exclusion; nor does it draw and distinction, in terms, between transfers by corporations and individuals, as to the availability of the 'gift' exclusion to the transferee. The conclusion whether a transfer amounts to a 'gift' is one that must be reached on consideration of all the factors. Specifically, the trier of fact must be careful not to allow trial of the issue whether the receipt of a specific payment is a gift to turn into a trial of the tax liability, or of the propriety, as a matter of fiduciary or corporate law, attaching to the conduct of someone else. The major corollary to the Government's suggested 'test' is that, as an ordinary matter, a payment by a corporation cannot be a gift, and, more specifically, there can be no such thing as a 'gift' made by a corporation which would allow it to take a deduction for an ordinary and necessary business expense. As we have said, we find no basis for such a conclusion in the statute; and if it were applied as a determinative rule of 'law,' it would force the tribunals trying tax cases involving the donee's liability into elaborate inquiries into the local law of corporations or into the peripheral deductibility of payments as business expenses. The former issue might make the tax tribunals the most frequent investigators of an important and difficult issue of the laws of the several States, and the latter inquiry would summon one difficult and delicate problem of federal tax law as an aid to the solution of another.9 Or perhaps there would be required a trial of the vexed issue whether there was a 'constructive' distribution of corporate property, for income tax purposes, to the corporate agents who had sponsored the transfer.10 These considerations, also, reinforce us in our conclusion that while the principles urged by the Government may, in nonabsolute form as crystallizations of experience, prove persuasive to the trier of facts in a particular case, neither they, nor any more detailed statement than has been made, can be laid down as a matter of law. Third. Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal's experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the statutory standard, the close relationship of it to the date of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756; Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 475, 64 S.Ct. 249, 254, 88 L.Ed. 171; United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150; Bogardus v. Commissioner, supra, 302 U.S. at page 45, 58 S.Ct. at page 66 (dissenting opinion).11 This conclusion may not satisfy an academic desire for tidiness, symmetry and precision in this area, any more than a system based on the determinations of various fact-finders ordinarily does. But we see it as implicit in the present statutory treatment of the exclusion for gifts, and in the variety of forums in which federal income tax cases can be tried. If there is fear of undue uncertainty or overmuch litigation, Congress may make more precise its treatment of the matter by singling out certain factors and making them determinative of the matters, as it has done in one field of the 'gift' exclusion's former application, that of prizes and awards.12 Doubtless diversity of result will tend to be lessened somewhat since federal income tax decisions, even those in tribunals of first instance turning on issues of fact, tend to be reported, and since there may be a natural tendency of professional triers of fact to follow one another's determinations, even as to factual matters. But the question here remains basically one of fact, for determination on a case-by-case basis. One consequence of this is that appellate review of determinations in this field must be quite restricted. Where a jury has tried the matter upon correct instructions, the only inquiry is whether it cannot be said that reasonable men could reach differing conclusions on the issue. Baker v. Texas & Pacific R. Co., supra, 359 U.S. at page 228, 79 S.Ct. at page 665. Where the trial has been by a judge without a jury, the judge's findings must stand unless 'clearly erroneous.' Fed.Rules Civ.Proc. 52(a), 28 U.S.C.A. 'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. The rule itself applies also to factual inferences from undisputed basic facts, id., 333 U.S. at page 394, 68 S.Ct. at page 541, as will on many occasions be presented in this area. Cf. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609—610, 70 S.Ct. 854, 856, 857, 94 L.Ed. 1097. And Congress has in the most explicit terms attached the identical weight to the findings of the Tax Court. I.R.C. § 7482(a), 26 U.S.C.A. § 7482(a).13 Fourth. A majority of the Court is in accord with the principles just outlined. And, applying them to the Duberstein case, we are in agreement, on the evidence we have set forth, that it cannot be said that the conclusion of the Tax Court was 'clearly erroneous.' It seems to us plain that as trier of the facts it was warranted in concluding that despite the characterization of the transfer of the Cadillac by the parties and the absence of any obligation, even of a moral nature, to make it, it was at bottom a recompense for Duberstein's past services, or an inducement for him to be of further service in the future. We cannot say with the Court of Appeals that such a conclusion was 'mere suspicion' on the Tax Court's part. To us it appears based in the sort of informed experience with human affairs that fact-finding tribunals should bring to this task. As to Stanton, we are in disagreement. To four of us, it is critical here that the District Court as trier of fact made only the simple and unelaborated finding that the transfer in question was a 'gift.'14 To be sure, conciseness is to be strived for, and prolixity avoided, in findings; but, to the four of us, there comes a point where findings become so sparse and conclusory as to give to revelation of what the District Court's concept of the determining facts and legal standard may be. See Matton Oil Transfer Corp. v. The Dynamic, 2 Cir., 123 F.2d 999, 1000—1001. Such conclusory, general findings do not constitute compliance with Rule 52's direction to 'find the facts specially and state separately * * * conclusions of law thereon.' While the standard of law in this area is not a complex one, we four think the unelaborated finding of ultimate fact here cannot stand as a fulfillment of these requirements. It affords the reviewing court not the semblance of an indication of the legal standard with which the trier of fact has approached his task. For all that appears, the District Court may have viewed the form of the resolution or the simple absence of legal consideration as conclusive. While the judgment of the Court of Appeals cannot stand, the four of us think there must be further proceedings in the District Court looking toward new and adequate findings of fact. In this, we are joined by Mr. Justice WHITTAKER, who agrees that the findings were inadequate, although he does not concur generally in this opinion. Accordingly, in No. 376, the judgment of this Court is that the judgment of the Court of Appeals is reversed, and in No. 546, that the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion. It is so ordered. Judgment of Court of Appeals in No. 376 reversed, and judgment of Court of Appeals in No. 546 vacated, and case remanded to District Court for further proceedings. Mr. Justice HARLAN concurs in the result in No. 376. In No. 546, he would affirm the judgment of the Court of Appeals for the reasons stated by Mr. Justice FRANKFURTER. Mr. Justice WHITTAKER, agreeing with Bogardus that whether a particular transfer is or is not a 'gift' may involve 'a mixed question of law and fact,' 302 U.S., at page 39, 58 S.Ct. at page 64, concurs only in the result of this opinion. Mr. Justice DOUGLAS dissents, since he is of the view that in each of these two cases there was a gift under the test which the Court fashioned nearly a quarter of a century ago in Bogardus v. Commissioner, 302 U.S. 34, 58 S.Ct. 61.

362.US.384

In this suit by appellee for a declaratory judgment that he is a citizen of the United States, the underlying issue as to the constitutionality of § 401 (j) of the Nationality Act of 1940 being clouded by an issue as to whether collateral estoppel prevents the Government from challenging appellee's citizenship, the case is remanded to the District Court with permission to the parties to amend the pleadings, if they so desire, to put in issue the question of collateral estoppel and to obtain an adjudication upoi it. Pp. 384-387. Cause remanded.

This is a suit by appellee for a declaratory judgment that he is a citizen of the United States. The District Court sustained the contention of the United States that appellee had lost his citizenship by reason of § 401(j)1 of the Nationality Act of 1940, 54 Stat. 1137, as amended, 58 Stat. 746, 8 U.S.C. § 1481(a)(10), 8 U.S.C.A. § 1481(a)(10), and the Court of Appeals affirmed. 9 Cir., 238 F.2d 239. Meanwhile we had decided Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630, and when certiorari was sought here we granted the petition and remanded the cause to the District Court for reconsideration in light of that decision. 356 U.S. 258, 78 S.Ct. 713, 2 L.Ed.2d 757. On remand the District Court held that § 401(j) was unconstitutional. The case is here on direct appeal (28 U.S.C. § 1252, 28 U.S.C.A. § 1252) from the judgment of the District Court holding that appellee is therefore a citizen of the United States. We noted probable jurisdiction. 359 U.S. 933, 79 S.Ct. 648, 3 L.Ed.2d 635. After the case was argued the Court, sua sponte, put to the parties the following questions based on appellee's conviction for draft evasion:2 '(1) Was the judgment of conviction of appellee for draft evasion premised in any respect upon his citizenship status after the date of enactment of Section 401(j)? '(2) If so, does the judgment of conviction for any reason foreclose litigation of the appellee's citizenship in the present case? '(3) Are the foregoing questions appropriate for the Court's consideration?' The parties have filed supplemental briefs and from them it appears that the offense charged, and to which appellee pleaded guilty, was departing from the United States November 15, 1942, to evade service in the Armed Forces and remaining away until November 1, 1946. The statute under which he was convicted placed the duty of service on 'every male citizen of the United States, and of every other male person residing in the United States.' 54 Stat. 885, as amended, 55 Stat. 844, 50 U.S.C.App. 303(a) (1940 ed. Supp. I).3 Appellee contends that while that Act requires service of aliens residing here, it is inapplicable to nonresident aliens; and that therefore the charge in the indictment that appellee remained away could be applicable only if appellee were a citizen. Indeed the facts stipulated in the present case state that he was a citizen by birth. It follows, appellee argues, that the judgment of conviction for draft violation necessarily included an adjudication of citizenship, and that that judgment brings into play the doctrine of collateral estoppel (Washington, Alexandria & Georgetown Steam Packet Co. v. Sickles, 5 Wall. 580, 18 L.Ed. 550; Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534) since the conviction of draft evasion was subsequent to September 27, 1944, the date of the enactment of § 401(j). The Solicitor General argues, inter alia, that the issue of citizenship was not necessarily involved in the conviction for draft evasion since a charge of evasion by an alien would be made out even though he had left the country provided the duty to serve had attached when he resided here. The Solicitor General suggests, however, that the avoidance of a constitutional issue when not clearly necessary and the importance of citizenship to the appellee are important factors to be considered in disposing of the case. He is of the view that 'there is so little ground for saying that appellee's citizenship status has already been definitively decided, we believe that this issue should not and need not be canvassed by the Court.' Yet with his customary candor the Solicitor General says, 'But if the Court should be convinced on this record that appellee's citizenship was authoritatively determined in his favor in the 1947 criminal proceeding, we would not oppose a resolution of the case on that basis.' The issue of collateral estoppel is a question that clouds the underlying issue of constitutionality. Since the issue of collateral estoppel may be dispositive of the case, we remand the cause to the District Court with permission to the parties to amend the pleadings, if they so desire, to put in issue the question of collateral estoppel and to obtain an adjudication upon it. It is so ordered. Cause remanded to District Court. Separate memorandum of Mr. Justice FRANKFURTER. The Solicitor General's acquiescence in having this case disposed of by avoiding decision of the important constitutional question concerning the validity of § 401(j) of the Nationality Act of 1940, which is the only one presented by the record, probably reflects an understandable desire on the part of the Government to have this Court adjudicate that issue unembarrassed by an extraneous problem that did not come to the surface until this appeal had been submitted. I do not think that this new matter—a claim of collateral estoppel—should be considered here as though this were a court of first instance. No matter how sympathetic one may be towards liberalization of pleading and informality in judicial proceedings, the intrinsic demands of orderliness in the judicial process require that the issues on which this Court is to render judgment should be appropriately defined through pleadings and proceedings in the lower courts and not be initially shaped for adjudication in this Court. Apart from all else, since taking testimony before this Court has long since ceased to be feasible, we would necessarily have to act on the merits of a claim, based on the rather opaque law of collateral estoppel, resting on documentary submissions not subject to the test of testimonial examination. I am prepared, therefore, to accede to the Solicitor General's suggestion, but to do so by wiping the slate clean. This calls for an appropriate order vacating the proceedings in this Court and in the District Court for the Southern District of California as well as the deportation proceedings which derived from a finding that the appellee has lost his citizenship by reason of § 401(j) of the Nationality Act, a conclusion which is the very issue in controversy. I would do so without summarizing the positions of the parties on the claim of collateral estoppel which is not relevantly before us on this record, and, above all, without any intimation regarding the seriousness of such a claim.

362.US.29

In a civil suit under § 4 of the Sherman Act charging appellee with combining and conspiring to maintain resale prices of its products in areas which have no "fair trade" laws, the Government introduced evidence showing that appellee had (1) announced a policy of refusing to deal with retailers who failed to observe appellee's suggested minimum resale prices or who advertised discount prices on appellee's products, (2) discontinued direct sales to those retailers who failed to abide by the announced policy, (3) induced wholesale distributors to stop selling avtpellee's products to the offending retailers, (4) secured unanimous adherence by informing a number of the retailers that if each of them would adhere to the announced policy one of their principal competitors would also do so, and (5) permitted the retailers to resume purchasing its products after they had indicated willingness to observe the policy. The evidence further established that appellee had terminated these practices after becoming aware that the Department of Justice had begun an investigation of its price maintenance activities. The District Court dismissed the complaint on the ground that the Government had not shown a right to relief. Held: The judgment is reversed and the case remanded with directions to enter an appropriate judgment enjoining appellee from further violations of the Sherman Act, unless it elects to submit evidence in defense and refutes the Government's right to injunctive relief established by the present record. Pp. 30-49. (a) The District Court erred in holding that these practices constituted only unilateral action by appellee in selecting its customers, as permitted by United States v. Colgate & Co.. 250 U. S. 300. Appellee did not merely announce its policy and then decline to have further dealings with retailers who failed to abide by it, but, by utilizing wholesalers and other retailers, it actively induced unwilling retailers to comply with the policy. The resulting concerted action to maintain the resale prices constituted a conspiracy or combination in violation of the Sherman Act, although it was not based on any contract, express or implied. Pp. 36-47. (b) Rule 52 of the Federal Rules of Civil Procedure does not require affirmance of the District Court's ultimate finding that respondent did not violate the Sherman Act, because that conclusion was based on an erroneous interpretation of the law. Pp. 43-45. (c) The District Court's alternative holding that dismissal of the complaint was warranted because there was no reasonable probability that appellee would resume its attempts to maintain resale prices is erroneous, because it *is not supported by the evidence. Pp. 47-48. 164 F. Supp. 827, reversed.

The Government sought an injunction under § 4 of the Sherman Act against the appellee, Parke, Davis & Company, on a compliant alleging that Parke Davis conspired and combined, in violation of §§ 1 and 3 of the Act,1 with retail and wholesale druggists in Washington, D.C., and Richmond, Virginia, to maintain the wholesale and retail prices of Parke Davis pharmaceutical products. The violation was alleged to have occurred during the summer of 1956 when there was no Fair Trade Law in the District of Columbia or the State of Virginia.2 After the Government completed the presentation of its evidence at the trial, and without hearing Parke Davis in defense, the District Court for the District of Columbia dismissed the complaint under Fed.Rules Civ.Proc., Rule 41(b), 28 U.S.C.A. on the ground that upon the facts and the law the Government had not shown a right to relief. D.C., 164 F.Supp. 827. We noted probable jurisdiction of the Government's direct appeal under § 2 of the Expediting Act.3 359 U.S. 903, 79 S.Ct. 580, 3 L.Ed.2d 569. Parke Davis makes some 600 pharmaceutical products which it markets nationally through drug wholesalers and drug retailers. The retailers buy these products from the drug wholesalers or make large quantity purchases directly from Parke Davis. Sometime before 1956 Parke Davis announced a resale price maintenance policy in its wholesalers' and retailers' catalogues. The wholesalers' catalogue contained a Net Price Selling Schedule listing suggested minimum resale prices on Parke Davis products sold by wholesalers to retailers. The catalogue stated that it was Parke Davis' continuing policy to deal only with drug wholesalers who observed that schedule and who sold only to drug retailers authorized by law to fill prescriptions. Parke Davis, when selling directly to retailers, quoted the same prices listed in the wholesalers' Net Price Selling Schedule but granted retailers discounts for volume purchases. Wholesalers were not authorized to grant similar discounts. The retailers' catalogue contained a schedule of minimum retail prices applicalbe in States with Fair Trade Laws and stated that this schedule was suggested for use also in States not having such laws. These suggested minimum retail prices usually provided a 50% mark up over cost on Park Davis products purchased by retailers from wholesalers but, because of the volume discount, often in excess of 100% mark up over cost on products purchased in large quantities directly from Parke Davis. There are some 260 drugstores in Washington, D.C., and some 100 in Richmond, Virginia. Many of the stores are units of Peoples Drug Stores, a large retail drug chain. There are five drug wholesalers handling Parke Davis products in the locality who do business with the drug retailers. The wholesalers observed the resale prices suggested by Parke Davis. However, during the spring and early summer of 1956 drug retailers in the two cities advertised and sold several Parke Davis vitamin products at prices substantially below the suggested minimum retail prices; in some instances the prices apparently reflected the volume discounts on direct purchases from Parke Davis since the products were sold below the prices listed in the wholesalers' Net Price Selling Schedule. The Baltimore office manager of Parke Davis in charge of the sales district which included the two cities sought advice from his head office on how to handle this situation. The Parke Davis attorney advised that the company could legally 'enforce an adopted policy arrived at unilaterally' to sell only to customers who observed the suggested minimum resale prices. He further advised that this meant that 'we can lawfully say 'we will sell you only so long as you observe such minimum retail prices' but cannot say 'we will sell you only if you agree to observe such minimum retail prices,' since except as permitted by Fair Trade legislations (sic) agreements as to resale price maintenance are invalid.' Thereafter in July the branch manager put into effect a program for promoting observance of the suggested minimum retail prices by the retailers involved. The program contemplated the participation of the five drug wholesalers. In order to insure that retailers who did not comply would be cut off from sources of supply, representatives of Parke Davis visited the wholesalers and told them, in effect, that not only would Parke Davis refuse to sell to wholesalers who did not adhere to the policy announced in its catalogue, but also that it would refuse to sell to wholesalers who sold Parke Davis products to retailers who did not observe the suggested minimum retail prices. Each wholesaler was interviewed individually but each was informed that his competitors were also being apprised of this. The wholesalers without exception indicated a willingness to go along. Representatives called contemporaneously upon the retailers involved, individually, and told each that if he did not observe the suggested minimum retail prices, Parke Davis would refuse to deal with him, and that furthermore he would be unable to purchase any Parke Davis products from the wholesalers. Each of the retailers was also told that his competitors were being similarly informed. Several retailers refused to give any assurances of compliance and continued after these July interviews to advertise and sell Parke Davis products at prices below the suggested minimum retail prices. Their names were furnished by Parke Davis to the wholesalers. Thereafter Parke Davis refused to fill direct orders from such retailers and the wholesalers likewise refused to fill their orders.4 This ban was not limited to the Parke Davis products being sold below the suggested minimum prices but included all the company's products, even those necessary to fill prescriptions. The president of Dart Drug Company, one of the retailers cut off, protested to the assistant branch manager of Parke Davis that Parke Davis was discriminating against him because a drugstore across the street, one of the Peoples Drug chain, had a sign in its window advertising Parke Davis products at cut prices. The retailer was told that if this were so the branch manager 'would see Peoples and try to get them in line.' The branch manager testified at the trial that thereafter he talked to a vice-president of Peoples and that the following occurred: 'Q. Well, now, you told Mr. Downey (the vice-president of Peoples) at this meeting, did you not, Mr. Powers, (the assistant branch manager of Parke Davis) that you moticed that Peoples were cutting prices? A. Yes. 'Q. And you told him, did you not, that it had been the Parke, Davis policy for many years to do business only with individuals that maintained the scheduled prices? A. I told Mr. Downey that we had a policy in our catalog, and that anyone that did not go along with our policy, we were not interested in doing business with them. 'Q. * * * Now, Mr. Downey told you on the occasion of this visit, did he not, that Peoples would stop cutting prices and would abide by the Parke-Davis policy, is that right? A. That is correct. 'Q. When you went to call on Mr. Downey, you solicited his support of Parke, Davis policies, is not that right? A. That is right. 'Q. And he said, I will abide by your policy? A. That is right.' The District Court found, apparently on the basis of this testimony, that 'The Peoples' representative stated that Peoples would stop cutting prices on Parke, Davis' products and Parke, Davis continued to sell to Peoples.' (164 F.Supp. 833.) But five retailers continued selling Parke Davis products at less than the suggested minimum prices from stocks on hand. Within a few weeks Parke Davis modified its program. Its officials believed that the selling at discount prices would be deterred, and the effects minimized of any isolated instances of discount selling which might continue, if all advertising of such prices were discontinued. In August the Parke Davis representatives again called on the retailers individually. When interviewed, the president of Dart Drug Company indicated that he might be willing to stop advertising, although continuing to sell at discount prices, if shipments to him were resumed. Each of the other retailers was then told individually by Parke Davis representatives that Dart was ready to discontinue advertising. Each thereupon said that if Dart stopped advertising he would also. On August 28 Parke Davis reported this reaction to Dart. Thereafter all of the retailers discontinued advertising of Parke Davis vitamins at less than suggested minimum retail prices and Parke Davis and the wholesalers resumed sales of Parke Davis products to them. However, the suspension of advertising lasted only a month. One of the retailers again started newspaper advertising in September and, despite efforts of Parke Davis to prevent it, the others quickly followed suit. Parke Davis then stopped trying to promote the retailers' adherence to its suggested resale prices, and neither it nor the wholesalers have since declined further dealings with them.5 A reason for this was that the Department of Justice, on complaint of Dart Drug Company, had begun an investigation of possible violation of the antitrust laws. The District Court held that the Government's proofs did not establish a violation of the Sherman Act because 'the actions of (Parke Davis) were properly unilateral and sanctioned by law under the doctrine laid down in the case of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992. * * *' 164 F.Supp. at page 829. The Colgate case came to this Court on writ of error under the Criminal Appeals Act, 34 Stat. 1246, from a District Court judgment dismissing an indictment for violation of the Sherman Act. The indictment proceeded solely upon the theory of an unlawful combination between Colgate and its wholesale and retail dealers for the purpose and with the effect of procuring adherence on the part of the dealers to resale prices fixed by the company. However, the District Court construed the indictment as not charging a combination by agreement between Colgate and its customers to maintain prices. This Court held that it must disregard the allegations of the indictment since the District Court's interpretation of the indictment was binding and that without an allegation of unlawful agreement there was no Sherman Act violation charged. The Court said: 'The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce—in a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell.' 250 U.S. at page 307, 39 S.Ct. at page 468. The Government concedes for the purposes of this case that under the Colgate doctrine a manufacturer, having announced a price maintenance policy, may bring about adherence to it by refusing to deal with customers who do not observe that policy. The Government contends, however, that subsequent decisions of this Court compel the holding that what Parke Davis did here by entwining the wholesalers and retailers in a program to promote general compliance with its price maintenance policy went beyond mere customer selection and created combinations or conspiracies to enforce resale price maintenance in violation of §§ 1 and 3 of the Sherman Act. The history of the Colgate doctrine is best understood by reference to a case which preceded the Colgate decision, Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502. Dr Miles entered into written contracts with its customers obligating them to sell its medicine at prices fixed by it. The Court held that the contracts were void because they violated both the common law and the Sherman Act. The Colgate decision distinguished Dr. Miles on the ground that the Colgate indictment did not charge that company with selling its products to dealers under agreements which obligated the latter not to resell except at prices fixed by the seller. The Colgate decision created some confusion and doubt as to the continuing vitality of the principles announced in Dr. Miles. This brought United States v. Schrader's Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471, to the Court. The case involved the prosecution of a components manufacturer for entering into price-fixing agreements with retailers, jobbers and manufacturers who used his products. The District Court dismissed, saying: 'Granting the fundamental proposition stated in the Colgate case, that the manufacturer has an undoubted right to specify resale prices and refuse to deal with any one who fails to maintain the same, or, as further stated, the act does not restrict the long-recognized right of a trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to parties with whom he will deal, and that he of course may announce in advance the circumstances under which he will refuse to sell, it seems to me that it is a distinction without a difference to say that he may do so by the subterfuges and devices set forth in the (Colgate) opinion and not violate the Sherman Anti-Trust Act, yet if he had done the same thing in the form of a written agreement, adequate only to effectuate the same purpose, he would be guilty of a violation of the law. * * *' D.C., 264 F. 175, 184. 'The court below misapprehended the meaning and effect of the opinion and judgment in (Colgate). We had no intention to overrule or modify the doctrine of Dr. Miles Medical Co. v. John D. Park & Sons Co., where the effort was to destroy the dealers' independent discretion through restrictive agreements.' 252 U.S. at page 99, 40 S.Ct. at page 253. The Court went on to explain that the statement from Colgate quoted earlier in this opinion meant no more than that a manufacturer is not guilty of a combination or conspiracy if he merely 'indicates his wishes concerning prices and declines further dealings with all who fail to observe them * * *'; however there is unlawful combination where a manufacturer 'enters into agreements—whether express or implied from a course of dealing or other circumstances—with all customers * * * which undertake to bind them to observe fixed resale prices.' Ibid. The next decision was Frey & Son. Inc., v. Cudahy Packing Co., 256 U.S. 208, 41 S.Ct. 451, 65 L.Ed. 892. That was a treble damage suit alleging a conspiracy in violation of the Sherman Act between the manufacturer and jobbers to maintain resale prices. The plaintiff recovered a judgment. The Court of Appeals for the Fourth Circuit reversed on the authority of Colgate. The Court of Appeals concluded (261 F. 65, 67): 'There was no formal written or oral agreement with jobbers for the maintenance of prices' and in that circumstance held that under Colgate the trial court should have directed a verdict for the defendant. In holding that the Court of Appeals erred, this Court referred to the decision in Schrader as holding that the 'essential agreement, combination or conspiracy might be implied from a course of dealing or other circumstances,' so that in Cudahy, 'Having regard to the course of dealing and all the pertinent facts disclosed by the present record, we think whether there existed an unlawful combination or agreement between the manufacturer and jobbers was a question for the jury to decide, and that the Circuit Court of Appeals erred when it held otherwise.' 256 U.S. at page 210, 41 S.Ct. at page 451. But the Court also held improper an instruction which was given to the jury that a violation of the Sherman Act might be found if the jury should find as facts that the defendant 'indicated a sales plan to the wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and * * * (that) defendant called this particular feature of this plan to their attention on very many different occasions, and * * * (that) the great majority of them not only (expressed) no dissent from such plan, but actually (cooperated) in carrying it out by themselves selling at the prices named * * *.' 256 U.S. 210—211, 41 S.Ct. 452, 65 L.Ed. 892. However, the authority of this holding condemning the instruction has been seriously undermined by subsequent decisions which we are about to discuss. Therefore, Cudahy does not support the District Court's action in this case, and we cannot follow it here. Less than a year after Cudahy was handed down, the Court decided Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, which presented a situation bearing a marked resemblance to the Parke Davis program. In Beech-Nut the company had adopted a policy of refusing to sell its products to wholesalers or retailers who did not adhere to a schedule of resale prices. Beech-Nut later implemented this policy by refusing to sell to wholesalers who sold to retailers who would not adhere to the policy. To detect violations the company utilized code numbers on its products and instituted a system of reporting. When an offender was cut off, he would be reinstated upon the giving of assurances that he would maintain prices in the future. The Court construed the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq. to authorize the Commission to forbid practices which had a 'dangerous tendency unduly to hinder competition or create monopoly.' (257 U.S. at page 454, 42 S.Ct. at page 154.) The Sherman Act was held to be a guide to what constituted an unfair method of competition. The company had urged that its conduct was entirely legal under the Sherman Act as interpreted by Colgate. The Court rejected this contention, saying that 'the Beech-Nut system goes for beyond the simple refusal to sell goods to persons who will not sell at stated prices, which in the Colgate Case was held to be within the legal right of the producer.' Ibid. The Court held further that the nonexistence of contracts covering the practices was irrelevant since '(t)he specific facts found show suppression of the freedom of competition by methods in which the company secures the co-operation of its distributors and customers, which are quite as effectual as agreements express or implied intended to accomplish the same purpose.' Id., 257 U.S. at page 455, 42 S.Ct. at page 155. That the Court considered that the Sherman Act violation thus established was dispositive of the issue before it is shown by the ground taken by Mr. Justice McReynolds in dissent. The parties had stipulated that there were no contracts covering the policy. Relying on his view of Colgate, he asked: 'How can there be methods of co-operation * * * when the existence of the essential contracts is definitely excluded?' Id., 257 U.S. at page 459, 42 S.Ct. at page 156. The majority did not read Colgate as requiring such contracts; rather, the Court dispelled the confusion over whether a combination effected by contractual arrangements, express or implied, was necessary to a finding of Sherman Act violation by limiting Colgate to a holding that when the only act specified in the indictment amounted to saying that the trader had exercised his right to determine those with whom he would deal, and to announce the circumstances under which he would refuse to sell, no Sherman Act violation was made out. However, because Beech-Nut's methods were as effective as agreements in producing the result that 'all who would deal in the company's products are constrained to sell at the suggested prices,' 257 U.S. at page 455, 42 S.Ct. at page 155, the Court held that the securing of the customers' adherence by such methods constituted the creation of an unlawful combination to suppress price competition among the retailers. That Beech-Nut narrowly limited Colgate and announced principles which subject to Sherman Act liability the producer who secures his customers' adherence to his resale prices by methods which go beyond the simple refusal to sell to customers who will not resell at stated prices, was made clear in United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 722, 64 S.Ct. 805, 813, 88 L.Ed. 1024: 'The Beech-Nut case recognizes that a simple refusal to sell to others who do not maintain the first seller's fixed resale prices is lawful but adds as to the Sherman Act, 'He (the seller) may not, consistently with the act, go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade.' 257 U.S. at page 453, 42 S.Ct. at page 154. The Beech-Nut Company, without agreements, was found to suppress the freedom of competition by coercion of its customers through special agents of the company, by reports of competitors about customers who violated resale prices, and by boycotts of price cutters. * * *' Bausch & Lomb, like the instant case, was an action by the United States to restrain alleged violations of §§ 1 and 3 of the Sherman Act. The Court, relying on Beech-Nut, held that a distributor, Soft-Lite Lens Company, Inc., violated the Sherman Act when, as was the case with Parke Davis, the refusal to sell to wholesalers was not used simply to induce acquiescence of the wholesalers in the distributor's published resale price list; the wholesalers 'accepted Soft-Lite's proffer of a plan of distribution by cooperating in prices, limitation of sales to and approval of retail licensees. That is sufficient. * * * Whether this conspiracy and combination was achieved by agreement or by acquiescence of the wholesalers coupled with assistance in effectuating its purpose is immaterial.' 321 U.S. at page 723, 64 S.Ct. at page 813. Thus, whatever uncertainty previously existed as to the scope of the Colgate doctrine, Bausch & Lomb and Beech-Nut plainly fashioned its dimensions as meaning no more than that a simple refusal to sell to customers who will not resell at prices suggested by the seller is permissible under the Sherman Act. In other words, an unlawful combination is not just such as arises from a price maintenance agreement, express or implied; such a combination is also organized if the producer secures adherence to his suggested prices by means which go beyond his mere declination to sell to a customer who will not observe his announced policy. In the cases decided before Beech-Nut the Court's inquiry was directed to whether the manufacturer had entered into illicit contracts, express or implied. The District Court in this case apparently assumed that the Government could prevail only by establishing a contractual arrangement, albeit implied, between Parke Davis and its customers. Proceeding from the same premise Parke Davis strenuously urges that Rule 52 of the Rules of Civil Procedure compels an affirmance of the District Court since under that Rule the finding that there were no contractual arrangements should 'not be set aside unless clearly erroneous.' But Rule 52 has no application here. The District Court premised its ultimate finding that Parke Davis did not violate the Sherman Act on an erroneous interpretation of the standard to be applied. The Bausch & Lomb and Beech-Nut decisions cannot be read as merely limited to particular fact complexes justifying the inference of an agreement in violation of the Sherman Act. Both cases teach that judicial inquiry is not to stop with a search of the record for evidence of purely contractual arrangements. The Sherman Act forbids combinations of traders to suppress competition. True, there results the same economic effect as is accomplished by a prohibited combination to suppress price competition if each customer, although induced to do so solely by a manufacturer's announced policy, independently decides to observe specified resale prices. So long as Colgate is not overruled, this result is tolerated but only when it is the consequence of a mere refusal to sell in the exercise of the manufacturer's right 'freely to exercise his own independent discretion as to parties with whom he will deal.' (250 U.S. 300, 39 S.Ct. 468.) When the manufacturer's actions, as here, go beyond mere announcement of his policy and the simple refusal to deal, and he employs other means which effect adherence to his resale prices, this countervailing consideration is not present and therefore he has put together a combination in violation of the Sherman Act. Thus, whether an unlawful combination or conspiracy is proved is to be judged by what the parties actually did rather than by the words they used. See Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 612, 34 S.Ct. 951, 954, 58 L.Ed. 1490. Because of the nature of the District Court's error we are reviewing a question of law, namely, whether the District Court applied the proper standard to essentially undisputed facts. See Interstate Circuit v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610; United States v. Masonite Corporation, 316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461; United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057; and also United States v. John J. Felin & Co., 334 U.S. 624, 68 S.Ct. 1238, 92 L.Ed. 1614; Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. The program upon which Parke Davis embarked to promote general compliance with its suggested resale prices plainly exceeded the limitations of the Colgate doctrine and under Beech-Nut and Bausch & Lomb effected arrangements which violated the Sherman Act. Parke Davis did not content itself with announcing its policy regarding retail prices and following this with a simple refusal to have business relations with any retailers who disregarded that policy. Instead Parke Davis used the refusal to deal with the wholesalers in order to elicit their willingness to deny Parke Davis products to retailers and thereby help gain the retailers' adherence to its suggested minimum retail prices. The retailers who disregarded the price policy were promptly cut off when Parke Davis supplied the wholesalers with their names. The large retailer who said he would 'abide' by the price policy, the multi-unit Peoples Drug chain, was not cut off.6 In thus involving the wholesalers to stop the flow of Parke Davis products to the retailers, thereby inducing retailers' adherence to its suggested retail prices, Parke Davis created a combination with the retailers and the wholesalers to maintain retail prices and violated the Sherman Act. Although Parke Davis' originally announced wholesalers' policy would not under Colgate have violated the Sherman Act if its action thereunder was the simple refusal without more to deal with wholesalers who did not observe the wholesalers' Net Price Selling Schedule, that entire policy was tainted with the 'vice of * * * illegality,' cf. United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724, 64 S.Ct. 805, 814, 88 L.Ed. 1024, when Parke Davis used it as the vehicle to gain the wholesalers' participation in the program to effectuate the retailers' adherence to the suggested retail prices. Moreover, Parke Davis also exceeded the 'limited dispensation which (Colgate) confers,' Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277, in another way, which demonstrates how far Parke Davis went beyond the limits of the Colgate doctrine. With regard to the retailers' suspension of advertising, Parke Davis did not rest with the simple announcement to the trade of its policy in that regard followed by a refusal to sell to the retailers who would not observe it. First it discussed the subject with Dart Drug. When Dart indicated willingness to go along the other retailers were approached and Dart's apparent willingness to cooperate was used as the lever to gain their acquiescence in the program. Having secured those acquiescences Parke Davis returned to Dart Drug with the report of the accomplishment. Not until all this was done was the advertising suspended and sales to all the retailers resumed. In this manner Parke Davis sought assurances of compliance and got them, as well as the compliance itself. It was only by actively bringing about substantial unanimity among the competitors that Parke Davis was able to gain adherence to its policy. It must be admitted that a seller's announcement that he will not deal with customers who do not observe his policy may tend to engender confidence in each customer that if he complies his competitors will also. But if a manufacturer is unwilling to rely on individual self-interest to bring about general voluntary acquiescence which has the collateral effect of eliminating price competition, and takes affirmative action to achieve uniform adherence by inducing each customer to adhere to avoid such price competition, the customers' acquiescence is not then a matter of individual free choice prompted alone by the desirability of the product. The product then comes packaged in a competition-free wrapping—a valuable feature in itself—by virtue of concerted action induced by the manufacturer. The manufacturer is thus the organizer of a price-maintenance combination or conspiracy in violation of the Sherman Act. Under that Act 'competition, not combination, should be the law of trade,' National Cotton Oil Co. v. State of Texas, 197 U.S. 115, 129, 25 S.Ct. 379, 382, 49 L.Ed. 689, and 'a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce iis illegal per se.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129. And see United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219; Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490. The District Court also alternatively rested its judgment of dismissal on the holding that '* * * even if the unlawful conditions alleged in the Complaint had actually been proved, since 1956 they no longer existed, and * * * (there is) no reason to believe, or even surmise, the unlawful acts alleged can possibly be repeated * * *.' 167 F.Supp. 827, 829, 830. We are of the view that the evidence does not justify any such finding. The District Court stated that 'the compelling reason for defendant's so doing (ceasing its efforts) was forced upon it by business and economic conditions in its field.' There is no evidence in the record that this was the reason and any such conclusion must rest on speculation. It does not appear even that Parke Davis has announced to the trade that it will abandon the practices we have condemned. So far as the record indicates any reason, it is that Parke Davis stopped its efforts because the Department of Justice had instituted an investigation. The president of Dart Drug Company testified that he had told the Parke Davis representatives in August that he had just been talking to the Department of Justice investigators. He stated that the Parke Davis representatives had said that 'they (knew) that the Antitrust Division was investigating them all over town,' and that this was one of their reasons for visiting him. The witness testified that it was on this occasion, after the discussion of the investigation, that the Parke Davis representatives finally stated that if Dart would stop advertising, Parke Davis 'would resume shipment, in so far as there was an Antitrust investigation going on.' Moreover Parke Davis' own employees, who were called by the Government as witnesses at the trial, admitted that they were aware of the investigation at the time and that the investigation was a reason for the discontinuance of the program. It seems to us that if the investigation would prompt Parke Davis to discontinue its efforts, even more so would the litigation which ensued. On the record before us the Government is entitled to the relief it seeks. The courts have an obligation, once a violation of the antitrust laws has been established, to protect the public from a continuation of the harmful and unlawful activities. A trial court's wide discretion in fashioning remedies is not to be exercised to deny relief altogether by lightly inferring an abandonment of the unlawful activities from a cessation which seems timed to anticipate suit. See United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978. The judgment is reversed and the case remanded to the District Court with directions to enter an appropriate judgment enjoining Parke Davis from further violations of the Sherman Act unless the company elects to submit evidence in defense and refutes the Government's right to injunctive relief established by the present record. It is so ordered. Judgment reversed and case remanded with directions.

364.US.253

1. Evidence seized in an unreasonable search by state officers must be excluded from a federal criminal trial upon the timely objection of a defendant who has standing to complain. Elkins v. United States, ante, p. 206. P. 255. 2. Without probable cause for arrest and without a warrant for search or arrest, state police officers followed a taxicab in which petitioner was riding and approached it when it stopped at a traffic light. The record is unclear as to the sequence of the events which followed; but the cab door was opened, petitioner dropped a recognizable package of narcotics to the floor of the vehicle, and one officer grabbed the petitioner as he alighted from the cab and another officer retrieved the nackage. In a state prosecution for unlawful possession of narcotics, the evidence was suppressEd on the ground that it had been unlawfully seized, and petitioner -was acquitted. Later, in a federal prosecution under 21 U. S. C. § 174 for unlawful receipt and concealment of narcotics, the Federal District Court denied a timely motion to suppress and admitted the package of narcotics in evidence, and petitioner was convicted. The Court of Appeals affirmed. Held: The case is remanded to the District Court for determination as to- the lawfulness of the state officers' conduct, in accordance with the basic principles governing the validity of searches and seizures by federal officers under the Fourth Amendment, and for other procedings consistent with this opinion. Pp. 255-262. (a) On the record, it cannot be said that there existed probable cause for an arrest when the officers decided to alight from their car and approach the taxicab in which. petitioner was riding. P. 261. (b) Therefore, if the arrest occurred when the officers took their positions at the doors of the taxicab, nothing that happened thereafter could make the arrest lawful or justify a search as its incident. Pp. 261-262. (c) If the petitioner voluntarily.revealed the package of narcotics to the officers' view, a lawful arrest could then have been supported by- reasonable cause to believe that a felony was being committed in their presence. P. 262. (d) The validity of the search turns upon the narrow question of when the arrest occurred, and the answer to that question depends upon. an evaluation of the conflicting testimony of those who'were present at the time. P. 262. 256 F. 2d.173, judgment vacated and cause remanded.

An indictment filed in the United States District Court for the Southern District of California charged the petitioner with unlawful receipt and concealment of narcotics in violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174. Before trial the petitioner made a motion to suppress for use as evidence a package of heroin which, so a California court had found, Los Angeles police officers had obtained from the petitioner in an unconstitutional search and seizure. After a hearing the District Court denied the motion to suppress, finding that federal agents had not participated in the search, and finding also that the California officers had obtained the evidence in a lawful manner. The package of narcotics was admitted in evidence over the petitioner's renewed objection at his subsequent trial. He was convicted and sentenced to twenty years in prison. The Court of Appeals affirmed the conviction, accepting the District Court's finding that the seizure had been lawful, and holding that in any event illegally seized evidence 'may nevertheless be received in a federal prosecution, if the seizure was made without the participation of federal officials.' 256 F.2d 173, at page 176. Certiorari was granted in an order which limited the questions for consideration to two, 359 U.S. 965, 79 S.Ct. 881, 3 L.Ed.2d 833: '1. Independently of the state court's determination, was the evidence used against petitioner in the federal prosecution obtained in violation of his rights under the Constitution of the United States? '2. If the evidence was unlawfully obtained, was such evidence admissible in the federal prosecution of petitioner because it was obtained by state officers without federal participation?' In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, the Court has answered the second question by holding that evidence seized in an unreasonable search by state officers is to be excluded from a federal criminal trial upon the timely objection of a defendant who has standing to complain. The only question that remains in this case, therefore, is whether the Los Angeles officers obtained the package of heroin 'during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment.' 364 U.S. at page 223, 80 S.Ct. at page 1447. As in most cases involving a claimed unconstitutional search and seizure, resolution of the question requires a particularized evaluation of the conduct of the officers involved. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374. At about ten o'clock on the night of February 18, 1957, two Los Angeles police officers, dressed in plain clothes and riding in an unmarked car, observed a taxicab standing in a parking lot next to an apartment house at the corner of First and Flower Streets in Los Angeles. The neighborhood had a reputation for 'narcotics activity.' The officers saw the petitioner look up and down the street, walk across the lot, and get into the cab. Neither officer had ever before seen the petitioner, and neither of them had any idea of his identity. Except for the reputation of the neighborhood, neither officer had received information of any kind to suggest that someone might be engaged in criminal activity at that time and place. They were not searching for a participant in any previous crime. They were in possession of no arrest or search warrants. The taxicab drove away, and the officers followed it in their car for a distance of about two miles through the city. At the intersection of First and State Streets the cab stopped for a traffic light. The two officers alighted from their car and approached on foot to opposite sides of the cab. One of the officers identified himself as a policeman. In the next minute there occurred a rapid succession of events. The cab door was opened; the petitioner dropped a recognizable package of narcotics to the floor of the vehicle; one of the officers grabbed the petitioner as he alighted from the cab; the other officer retrieved the package; and the first officer drew his revolver.1 The precise chronology of all that happened is not clear in the record. In their original arrest report the police stated that the petitioner dropped the package only after one of the officers had opened the cab door. In testifying later, this officer said that he saw the defendant drop the package before the door of the cab was opened. The taxi driver gave a substantially different version of what occurred. He stated that one of the officers drew his revolver and 'took hold of the defendant's arm while he was still in the cab.'2 A state criminal prosecution was instituted against the petitioner, charging him with possession of narcotics, a felony under California law. Cal. Health and Safety Code, § 11500. At a preliminary hearing the two Los Angeles officers testified as to the circumstances surrounding the arrest and seizure. When the case came on for trial in the Superior Court of Los Angeles County, the petitioner moved to suppress as evidence the package of heroin which the police had seized. On the basis of the transcript of the preliminary hearing, and after brief argument by counsel, the court granted the motion and entered a judgment of acquittal.3 Thereafter, one of the Los Angeles officers who had arrested the petitioner discussed the case with his superiors and suggested giving the evidence to United States authorities. He then got in touch with federal narcotics agents and told them about the petitioner's case. This led to the federal prosecution we now review.4 In holding that the package of heroin which had been seized by the state officers was admissible as evidence in the federal trial, the District Court placed prime reliance upon the silver platter doctrine, there having been no participation by federal agents in the search and seizure. But the court also expressed the opinion, based upon the transcript of the state court proceedings and additional testimony of the two Los Angeles police officers at the hearing on the motion to suppress, that the officers had obtained the evidence lawfully. The court was of the view that the seizure was permissible as an incident to a legal arrest, or, alternatively, that the petitioner had abandoned the narcotics when he dropped them to the floor of the taxicab. At the time this opinion was expressed, however, the district judge had not yet heard the taxicab driver's version of the circumstances surrounding the arrest and seizure. The driver did not testify until the trial itself. After he had testified, the package of heroin was offered in evidence. The petitioner's counsel objected, and the court overruled the objection without comment. See Gouled v. United States, 255 U.S. 298, 312—313, 41 S.Ct. 261, 266, 65 L.Ed. 647; Amos v. United States, 255 U.S. 313, 316—317, 41 S.Ct. 266, 267—268, 65 L.Ed. 654; Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697. For all that appears, this ruling may then have been based solely upon the silver platter doctrine. Moreover, the Court of Appeals gave no consideration to the question of the legality of the state search and seizure, relying as it did upon the silver platter doctrine and rejecting the petitioner's contention that the state court's determination of illegality precluded the federal trial court from making an independent inquiry into the matter. With the case in such a posture, we have concluded that the interests of justice will best be served by remanding the case to the District Court. There, free from the entanglement of other issues that have now become irrelevant, the lawfulness of the policemen's conduct can be determined in accord with the basic principles governing the validity of searches and seizures by federal officers under the Fourth Amendment. Under these principles the inquiry in the present case will be narrowly oriented. The seizure can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59. Here justification is primarily sought upon the claim that the search was an incident to a lawful arrest. Yet upon no possible view of the circumstances revealed in the testimony of the Los Angeles officers could it be said that there existed probable cause for an arrest at the time the officers decided to alight from their car and approach the taxi in which the petitioner was riding. Compare Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. This the Government concedes.5 If, therefore, the arrest occurred when the officers took their positions at the doors of the taxicab, then nothing that happened thereafter could make that arrest lawful, or justify a search as its incident. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. But the Government argues that the policemen approached the standing taxi only for the purpose of routine interrogation, and that they had no intent to detain the petitioner beyond the momentary requirements of such a mission. If the petitioner thereafter voluntarily revealed the package of narcotics to the officers' view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence.6 The validity of the search thus turns upon the narrow question of when the arrest occurred, and the answer to that question depends upon an evaluation of the conflicting testimony of those who were there that night. The judgment is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion. Vacated and remanded.

362.US.402

Since the record in this case does not sufficientlysupport the findings of petitioner's competency to stand trial, the judgment affirming his conviction is reversed and the case is remanded to the District Court for a hearing to determine his present competency to stand trial, and for a new trial if he is found competent. Pp. 402-403. 271 F. 2d 385, reversed.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Upon consideration of the entire record we agree with the Solicitor General that 'the record in this case does not sufficiently support the findings of competency to stand trial,' for to support those findings under 18 U.S.C. § 4244, 18 U.S.C.A. § 4244 the district judge 'would need more information than this record presents.' We also agree with the suggestion of the Solicitor General that it is not enough for the district judge to find that 'the defendant (is) oriented to time and place and (has) some recollection of events,' but that the 'test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.' In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner's competency as of more than a year ago, we reverse the judgment of the Court of Appeals affirming the judgment of conviction, and remand the case to the District Court for a new hearing to ascertain petitioner's present competency to stand trial, and for a new trial if petitioner is found competent. It is so ordered. Reversed and remanded with directions.

363.US.370

Petitioners were indicted on 20 counts in a Federal District Court for using the mails to defraud, in violation of 18 U. S. C. § 1341, and conspiring to do so, in violation of 18 U. S. C. § 371. The indictment charged that together they controlled a School District and its depository bank, the assessment and collection of school taxes and the expenditure of school funds, and that they entered into and carried out a scheme to defraud the School District, the ,State and the taxpayers of each by misappropriating and embezzling funds and property of the School District. The specific offense charged in each of the first 19 counts was that, for the purpose of executing the scheme, petitioners caused a particular letter, check, tax statement, tax receipt or invoice to be placed in, or received from, an authorized depository for United States mail. Count 20 charged that petitioners conspired to commit the offense set out inthe first count and committed specific overt acts to that end. They were convicted, and the convictions were sustained by the Court of Appeals. Held: Although the indictment charged, and the evidence tended to show, that petitioners devised and practiced a scheme to defraud the School District by misappropriating and embezzling its money and property, neither the indictment nor the evidence supports the judgments, because the indictment did not charge, and the evidence did not show, any use of the mails "for the purpose of executing such scheme," within the meaning of 18 U. S. C. § 1341. Pp. 371-394. (a) The indictment did not expressly or impliedly charge, and there was no evidence tending to show, that the taxes assessed were excessive; "padded" or in any way illegal; nor did the Court submit any such issue to the jury. Pp. 385-388. (b) In the light of the particular circumstances of this case, and especially of the facts that (1) the School Board was legally required to collect and assess taxes, (2) the indictment did not -charge nor the proofs show that the taxes assessed and collected were excessive, "padded" or in any way unlawful, (3) no such issue was submitted to, or determined by, the jury, (4) the Board was compelled by state law to collect and receipt for the taxes, and (5) it was legally compelled to use the mails in doing so, it must be concluded that the legally compelled mailings complained of in the first 16 counts of the indictment were not shown to have been made "for the purpose of executing such scheme," within the meaning of § 1341. Pp. 388-391. (c) On the record in this case, it cannot be said that the mailings complained of in the first 16 counts of the indictment consti-" tuted false pretenses and misrepresentations to obtain money. Pp. 391-392. (d) As to the charges in Counts 17, 18 and 19 that two of the petitioners fraudulently obtained gasoline and other filling -station products and services for themselves upon the credit card and at the expense of the School District, knowing that the oil company would use the mails in billing ihe School District for these things, it cannot be said that the mailings in question were "for the purpose of executing" the scheme to defraud, since the scheme had reached fruition when these two petitioners received the goods and services complained of and before the mailings occurred. Pp. 392-393.. (e) Inasmuch as Coilnt 20 charged petitioners with conspiring to commit the offense complained of in Count 1, and inasmuch as, on this record, that count cannot be sustained, it follows that petitioners' convictions upon Count 20 cannot stand. P. 393. 265 F. 2d 894, reversed.

Petitioners, nine individuals and two state banking corporations,1 were indicted in 20 counts in the United States District Court for the Southern District of Texas, Houston Division, for mail fraud and conspiracy to commit mail fraud. The first 19 counts charged that petitioners devised, prior to September 1, 1949, and continued to February 20, 1954, a scheme to defraud the Benavides Independent School District ('District') of Duval County, Texas, the State of Texas, and the taxpayers of each, and that they used the mails for the purpose of executing the scheme, in violation of 18 U.S.C. § 1341, 18 U.S.C.A. § 1341.2 The twentieth count charged that petitioners conspired to commit the substantive offense charged in the first count, in violation of 18 U.S.C. § 371, 18 U.S.C.A. § 371.3 After their various motions, including one challenging venue and asking transfer of the action to the Corpus Christi Division of the court, and one for a bill of particulars, were denied, petitioners entered pleas of 'not guilty' and in due course the case was put to trial before a jury. The jury returned verdicts finding petitioners guilty as charged—some of them on all counts and others on only some of the counts. After denying timely motions in arrest of judgment and for a new trial, the court entered judgments upon the verdicts, convicting petitioners and sentencing them to imprisonment.4 On appeal, the judgments were affirmed, 265 F.2d 894, and, to determine questions of importance relative to the scope and proper application of § 1341, we granted certiorari. 361 U.S. 912, 80 S.Ct. 254, 4 L.Ed.2d 182. Petitioners' principal contentions here are: (1) that, although the indictment charged and the evidence tended to show that petitioners devised and practiced a scheme to defraud the District by the local or state crimes of misappropriating and embezzling its money and property, neither the indictment nor the proofs support the judgments, because the indictment did not charge, and the proofs did not show, any use of the mails 'for the purpose of executing such scheme' within the meaning of that phrase as used in § 1341, and (2) that the court's charge did not submit to the jury any theory or issue of fact that could constitute use of the mails 'for the purpose of executing such scheme.' The nature of these contentions requires a detailed examination of the indictment, the evidence adduced, and of the issues of fact actually tried and submitted to the jury, for its resolution, by the court in its charge. We turn first to the indictment. Summarized as briefly as fair statement permits, the first count alleged that the District is a public corporation organized under the laws of Texas to acquire and hold the facilities necessary for, and to operate, the public schools within the District,5 and, for those purposes, to assess and collect taxes; that the laws of Texas vest exclusive control of the property and management of the affairs of the District in its Board of Trustees, consisting of seven members; that prior to September 1, 1949, petitioners devised, and continued to February 20, 1954, a scheme to defraud the District, the State of Texas, and the taxpayers of each, and to obtain their money and property for themselves and their relatives. It then alleged that, as part of the scheme, petitioners would falsely represent that district checks were issued, and its funds disbursed, only to persons and concerns for services rendered and materials furnished to the District, and that its Annual Reports to the State Commissioner of Education were correct. It next alleged that, as a further part of the scheme, seven of the petitioners would establish and maintain domination and control of the District;6 that three of them would acquire and maintain control of petitioner, the Texas State Bank of Alice, which was the authorized depository of the District's funds,7 and that one of them would acquire and maintain control of petitioner, the San Diego State Bank.8 It then alleged that it was a further part of the scheme that petitioners would sent or cause to be sent letters, tax statements, checks in payment of taxes, and receipted tax statements, through the United States mails; that the checks and moneys received by the District from taxpayers and others would be deposited to the credit of the District in the authorized depository bank, against which petitioners would issue district checks payable to fictitious persons, and to existing persons, without consideration (falsifying the District's records to show that such checks were issued in payment for services or materials), and would cash such checks, upon forged endorsements or without endorsements of the payees, at the depository bank and convert the proceeds; that they would open accounts and deposit checks received in payment of taxes in unauthorized banks, and that petitioner Chapa would withdraw and convert the funds; that they would convert and cash checks received by the District in payment of taxes and keep the proceeds; that they would obtain merchanedise for themselves on the credit and at the expense of the District; that they would prepare, and the Board of Trustees would approve, false Annual Reports of the District and mail them to the State Commissioner of Education at Austin, Texas; that they would conceal their fraudulent misuse of district funds by destroying canceled checks, bank statements and other records of the District and the microfilmed records of the petitioner banks showing the fraudulent checks drawn against and paid out of the District's accounts. The last paragraph of the count—the only paragraph purporting to charge an offense—charged that petitioners on September 29, 1952, for the purpose of executing the scheme, caused to be taken from the post office, in the Houston Division of the court, a letter addressed to Humble Oil & Refining Company, Houston, Texas.9 Each of Counts 2 through 19 adopted by reference all allegations of the first count, except those contained in the last paragraph of that count which charged a specific offense against petitioners, and then proceeded to allege that on a stated date the petitioners, for the purpose of executing the scheme, 'caused' a particular letter, tax statement, check, tax receipt or invoice to be placed in or taken from an authorized depository for United States mail in the Houston Division of the court.10 Doubtless the charge in each of these counts was so limited, in the light of Rule 18 of Federal Rules of Criminal Procedure, 18 U.S.C.A., fixing venue over crimes in the District and division where committed,11 in order to give the Houston Division venue over this action, and consequently the indictment does not count upon petitioners' full uses of the mails, for they were principally made in Duval County in the Corpus Christi Division of the court. The twentieth count charged that throughout the relevant period petitioners feloniously conspired and agreed among themselves and with others to commit 'the offenses * * * which are fully described and set out in the first count of this indictment,' and that, to effect the object of the conspiracy, petitioners committed specified overt acts.12 We now look to the evidence. Condensed to pith, the 6,000 pages of evidence disclose that the District, acting through its Board of Trustees of seven members, operated the public schools in the towns of Benavides and Freer, each having slightly more than 1,000 pupils. From time to time the Board met to appoint (a) an assessor-collector, (b) an independent firm of engineers and accountants to assist the assessor-collector in determining the ownership and valuation of property—particularly mineral lands and complex fractional interests therein—in the District, (c) a Board of Equalization, and (d) a depository of the District's funds, and also met (e) to consider and propose to the electorate the authorization and sale of bonds in 1949 ($265,000) and in 1950 ($362,500) to finance the construction of new school facilities. In actual operations the engineering-accounting firm would annually prepare and submit to the assessor-collector a list showing the ownership and its appraisal of the value of the various properties and mineral interests in the District, from which, after the Board of Equalization and completed its work thereon (in June and July), the assessor-collector would prepare the tax rolls for the current year and therefrom prepare and sent out the tax statements by mail, and on receipt of checks in payment of taxes (the great majority of which were received in the mails) would—with exceptions later noted—deposit them to the credit of the District in the depository bank, and then mail receipts to the taxpayers. Three members of the Board resided in Freer, and the other four resided in Benavides. Aside from the meetings for the purposes above stated, the Trustees rarely met as a board. Each group, rather independently, operated the schools in its town, and the actual costs of operation were about the same in each town.13 But the Benavides members handled generally the day-to-day business of the District, including the staffing and operation of its office, the keeping of its books and records, the making of its contracts, its relations with the assessor-collector, the Annual Report to the State Commissioner of Education (to obtain from the State the amount per pupil prescribed to be paid to such school districts by the Texas law) and the routine disbursement of its funds. Petitioners Saenz, Garza and Garcia were three of the four Benavides members of the Board. Petitioners Oscar Carrillo, Sr., and O. P. Carrillo were, respectively, the secretary of and the attorney for the Board. Petitioner Chapa was the assessor-collector. Petitioner Parr was the president and principal stockholder of petitioner Taxes State Bank—the authorized depository of the District's funds—and of petitioner San Diego State Bank, and there was evidence that, although having no official connection with the District, he practically dominated and controlled its affairs, kept its books and records in his office, outside the District, until July 1951, and countersigned all its checks after June 1950. Petitioner Donald was the cashier and administrative manager of the Texas State Bank, and petitioner Oliveira was a director of that bank. There was evidence that throughout the relevant period the District's funds, in large amounts, were misappropriated, converted, embezzled and stolen by petitioners. It tended to show that four devices were used for such purposes: (1) At least once each month numerous district checks were issued against both its building and maintenance accounts in the depository bank payable to fictitious persons and were presented in bundles, totaling from $3,000 to $12,000, to the depository bank and, under the supervision of petitioner Donald, were cashed by it, without endorsements, and the currency was placed and sealed in an envelope and handed to the presenting person for delivery to petitioner Parr. The evidence tended to show that no less than $120,000 of the District's funds were misappropriated in this way. However, no one of these acts is charged as an offense by the indictment. (2) At least once each month large numbers of district checks were issued to petitioners, other than Donald and the two banks, often in assumed names or in the names of members of their families, purporting to be in payment for services rendered or materials furnished to the District but which were not rendered or furnished, which checks were presented to the depository bank and, under the supervision of petitioner Donald, were cashed by it, often without or upon forged enforsements.14 The evidence tended to show that no less than $65,000 of the District's funds were misappropriated in this way. But again no one of these acts is charged as an ffense by the indictment. (3) Petitioner Chapa converted district checks received by mail in payment of taxes, cashed the same—some at a local bank and some at the depository bank—upon unauthorized endorsements, and misappropriated the proceeds.15 (4) Petitioners Oscar Carrillo, Sr., and Garza obtained gasoline and oil for themselves upon the credit card and at the expense of the District.16 Use of the mails by 'causing' the oil company to place its invoices for these goods in the mails and to take the District's check in payment from the mails in Houston, constitutes the basis of Counts 17, 18 and 19 of the indictment.17 The letters, checks and invoices which Counts 1 through 19 of the indictment charge were 'caused' by petitioners to be placed in or taken from the mails in Houston, were all offered and received in evidence. Having fully stated the substance of them in notes 9 and 10, we do not repeat it here. The evidence also tended to prove the overt acts alleged in the twentieth count of the indictment.18 We now proceed to examine the court's charge to determine what theories and issues of fact were predicated by the court and submitted for resolution by the jury. Relative to Counts 1 through 19 of the indictment, the court, after reminding the jury that the indictment had been read to them at the beginning of the trial and that they would have it with them for study during their deliberations in the jury room, read aloud § 1341, defined numerous words and phrases, cautioned on many scores, including the weight to be given to the testimony of 'accomplices,' stressed the Government's burden of proof, and then proceeded to give the one verdict-directing charge covering those counts which, in pertinent part, was as follows: 'Applying the law to the first 19 counts of the indictment, if you believe beyond a reasonable doubt that the defendant George B. Parr and the other defendants charged and triable in Count One of the indictment considering each separately, did the things that it is alleged that he did do in the first count of the indictment, and at the time that it occurred there existed a scheme to defraud, and that, as a result of such scheme, the mails were used necessarily or incidentally to the carrying out of that scheme, and, as a result thereof, * * * he did cause the defrauding or obtaining of property by false pretenses and representations in any of the particulars set forth therein * * * and that he used the United States Mails as set forth in Count One, * * * then it becomes your duty * * * to find such defendant or defendants guilty as charged in the first count of the indictment and so find by your verdict. * * * The same reasoning and instructions apply to each of the first nineteen counts of the indictment and as to each of the defendants charged and triable in each of the first nineteen counts of the indictment.' Relative to the twentieth count, the court, after reading to the jury § 371, telling them that the essence of the charge 'is an agreement to use the mails to defraud,' defining 'conspiracy,' commenting on 'circumstantial evidence,' and stressing the Government's burden of proof, proceeded to give the one verdict-directing charge covering that count which, in pertinent part, was as follows: 'Therefore, with reference to the 20th count, if you believe as to any of the alleged conspirators that that person, together with at least one other, did the things charged against him in such count * * * to effect the objects of the alleged conspiracy, and thereafter there was done one or more of the overt acts set forth in such count * * * then it becomes your duty under the law as to such defendant or defendants that you so believe as to such 20th count were guilty, to so say by your verdict * * *.'19 In the light of this review of the indictment, the evidence adduced and the court's charge to the jury, we return to the questions presented by petitioners. There can be no doubt that the indictment charged and the evidence tended strongly to show that petitioners devised and practiced a brazen scheme to defraud by misappropriating, converting and embezzling the District's moneys and property. Counsel for petitioners concede that this is so. But, as they correctly say, these were essentially state crimes and could become federal ones, under the mail fraud statute, only if the mails were used 'for the purpose of executing such scheme.'20 Hence, the question is whether the uses of the mails that were charged in the indictment and shown by the evidence properly may be said to have been 'for the purpose of executing such scheme,' in violation of § 1341. Petitioners say 'no.' The Government says 'yes.' Specifically, petitioners' position is that the School Board was required by law to assess and collect taxes for the acquisition of facilities for, and to maintain and operate, the District's schools; that the taxes, assessed in obedience to that duty and for those purposes, were not charged in the indictment or shown by the evidence to have been in any way illegal, and must therefore be assumed to have been entirely lawful; that to perform its duty to assess and collect such taxes the Board was both legally authorized and compelled to cause the mailing of the letters and their enclosures (tax statements, checks and receipts) complained of in the indictment, and hence those mailings may not be said to have been 'for the purpose of executing such scheme,' in violation of § 1341. The Government, on the other hand, contends, first, that it was not necessary to charge or prove that the taxes were unlawful, for it is its view that once the scheme to defraud was shown to exist, the subsequent mailings of the letters and their enclosures, even though legally compelled to be made, constituted essential steps in the scheme and, in contemplation of § 1341, were made 'for the purpose of executing such scheme'; but it asserts that, in fact, it was impliedly charged in the indictment and shown by the evidence that the taxes were illegal in that they were assessed, collected and accumulated in excess of the District's needs in order to provide a fund for misappropriation, and, second, that the indictment charged and the evidence showed that the mailings impliedly pretended and falsely represented that the tax moneys would be used only for lawful purposes, and, hence, those mailings were caused for the purpose of obtaining money by false pretenses and misrepresentations, in violation of § 1341. After asserting complete novelty of the Government's position and that no reported case supports it, counsel for petitioners point to what they think would be the 'explosively expanded' and incongruous results from adoption of the Government's theory, e.g., making federal mail fraud cases out of the conduct of a doctor's secretary or a business concern's billing clerk or cashier in mailing out, in the course of duty, the employer's lawful statements with the design, eventually executed, of misappropriating part of the receipts—the aptness of which supposed analogies, happily, we are not called on to determine. But petitioners' counsel concede that if such secretary, clerk or cashier—and similarly a member of a School Board—improperly 'pads' or increases the amounts of the statements and causes them to be mailed to bring in a fund to be looted, such mailings, not being those of the employer (or School Board), would not be duty bound or legally compelled and would constitute an essential step 'for the purpose of executing (a) scheme' to defraud, in violation of § 1341. They then repeat and stress their claim that here the indictment did not allege, and there was no evidence tending to show, that the taxes assessed and collected were excessive, 'padded' or in any way illegal, that the court did not submit any such issue to the jury and that such was not the Government's theory. It is clear and undisputed that the School Board was under an express constitutional mandate to levy and collect taxes for the acquisition of facilities for, and to maintain and operate the schools of the District, Constitution of Texas, Art. 7, § 3, Vernon's Ann.St.Const.,21 and was required by statute to issue statements for such taxes and to deliver receipts upon payment.22 The Texas laws leave to the discretion of such school boards the valuation of properties and the fixing of the tax rate, within a prescribed limit, in the making of their assessments,23 and their determinations, made within the prescribed limit as here, are not judicially reviewable, Madeley v. Trustees of Conroe Ind. School Dist., Tex.Civ.App., 130 S.W.2d 929, 34, except enforcement may be enjoined for fraud.24 But the question whether the amount of such an assessment might be collaterally attacked, even for fraud, in a federal mail fraud case is not presented here, for after a most careful examination we are compelled to say that the indictment did not expressly or impliedly charge, and there was no evidence tending to show, that the taxes assessed were excessive, 'padded' or in any way illegal. Nor did the court submit any such issue to the jury. Indeed, the court refused a charge proffered by counsel for petitioners that would have submitted that issue to the jury.25 Such was not the Government's theory. In fact, the Government took the position at the trial, and argued to the jury, that the taxes assessed and collected were needed by the District for a new 'science hall,' 'office building,' 'plumbing facilities (and) all sorts of things,' and that petitioners' misappropriations not only deprived the District of those needed things but lft it 'two and one-half years in debt'—a sum several times greater than that said to have been misappropriated by petitioners. The theory that it was impliedly charged and shown that the taxes were illegal in that they were assessed, collected and accumulated in excess of the District's needs in order to provide a fund for misappropriation, was first injected into the case by the Court of Appeals. That court rested its judgment largely upon its conclusion that the assessments were designed to bring in not only 'enough money * * * to provide for the legitimate operation of the schools (but also) enough additional * * * to provide the funds to be looted.' 265 F.2d at page 897. We think that theory and conclusion is not supported by the record. As stated, no such fact or theory was charged in the indictment, shown by the evidence or submitted to the jury, and moreover the Government negatived any such possible implication by taking the position at the trial that the assessed taxes were needed for new school facilities and improvements and that the misappropriations deprived the District of those needed things and left it 'two and one-half years in debt.' Nor does the Government question that the Board, to collect the District's taxes (largely from nonresident property owners), was required by the state law to use the mails. Indeed, it took the position at the trial, and argued to the jury, that the Board could not 'collect these taxes from Houston, from the Humble, from The Texas Oil Company, and from the taxpayers all over the State of Texas without the use of the United States mails.' The Court of Appeals thought that such legal compulsion placed petitioners 'on the horns of a dilemma' because they could not at once contend that the law compelled them to cause the mailings and deny that they did cause them. 265 F.2d at page 898. The crucial question, respecting Counts 1 through 16 of the indictment, then comes down to whether the legally compelled mailings of the lawful—or, more properly, what are not charged or shown to have been unlawful—letters, tax statements, checks and receipts, complained of in those counts, properly may be said to have been for the purpose of executing a scheme to defraud because those legally compelled to cause and causing those mailings planned to steal an indefinite part of the receipts. The fact that a scheme may violate state laws does not exclude it from the proscriptions of the federal mail fraud statute, for Congress 'may forbid any * * * (mailings) in furtherance of a scheme that it regards as contrary to public policy whether it can forbid the scheme or not.' Badders v. United States, 240 U.S. 391, 393, 36 S.Ct. 367, 368, 60 L.Ed. 706. In exercise of that power, Congress enacted § 1341 forbidding and making criminal any use of the mails 'for the purpose of executing (a) scheme' to defraud or to obtain money by false representations leaving generally the matter of what conduct may constitute such a scheme for determination under other laws. Its purpose was 'to prevent the post office from being used to carry (such schemes) into effect * * *.' Durland v. United States, 161 U.S. 306, 314, 16 S.Ct. 508, 511, 40 L.Ed. 709. Thus, as its terms and purpose make clear, '(t)he federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law.' Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 151, 89 L.Ed. 88. Therefore, only if the mailings were 'a part of the execution of the fraud,' or, as we said in Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 363, 98 L.Ed. 435, were 'incident to an essential part of the scheme,' do they fall within the ban of the federal mail fraud statute. The Government, with the support of the cases, soundly argues that immunization from the ban of the statute is not effected by the fact that those causing the mailings were public officials26 or by the fact that the things they caused to be mailed were 'innocent in themselves,' if their mailing was 'a step in a plot.' Badders v. United States, supra, 240 U.S. at page 394,27 36 S.Ct. at page 368. It then argues that the jury properly could find that the mailings, complained of in the first 16 counts—namely, the letter notice of a modification in assessed valuation, two letters giving notice of hearings before the Board of Equalization to determine taxable value of property, one letter complying with a property owner's request for an 'auxiliary tax notice,' and 12 checks of taxpayers and their letters of transmittal28—were, even if innocent in themselves, each 'a step in a plot' or scheme to defraud, and that they were caused to be made 'for the purpose of executing such scheme' in violation of § 1341. But it cites no case holding that the mailing of a thing which the law required to be mailed may be regarded as mailed for the purpose of executing a plot or scheme to defraud. Instead, it frankly concedes that there is no such case. It says that 'there is no reported case exactly like this,' but expresses its view that this case rests on a factually 'unique situation.' We agree that the factual situation is uniquie, and, of course, agree, too, that the fact there is no reported decision involving similar factual circumstances or legal theories is not determinative. But in the light of the particular circumstances of this case, and especially of the facts (1) that the School Board was legally required to assess and collect taxes, (2) that the indictment did not charge nor the proofs show that the taxes assessed and collected were in excess of the District's needs or that they were 'padded' or in any way unlawful, (3) that no such issue was submitted to, nor, hence, determined by, the jury, (4) that the Board was compelled to collect and receipt for the taxes by state law, which, in the circumstances here, compelled it to use and cause (here, principally by permitting) the use of the mails for those purposes, we must conclude that the legally compelled mailings, complained of in the first 16 counts of the indictment, were not shown to have been unlawful 'step(s) in a plot,' Badders v. United States, supra, 240 U.S. at page 394, 36 S.Ct. at page 368, 'part(s) of the execution of the fraud,' Kann v. United States, supra, 323 U.S. at page 95, 65 S.Ct. at page 151, 'incident to an essential part of the scheme,' Pereira v. United States, supra, 347 U.S. at page 8, 74 S.Ct. at page 363, or to have been made 'for the purpose of executing such scheme,' within the meaning of § 1341, for we think it cannot be said that mailings made or caused to be made under the imperative command of duty imposed by state law are criminal under the federal mail fraud statute, even though some of those who are so required to do the mailing for the District plan to steal, when or after received, some indefinite part of its moneys. Nor, in the light of the facts in this record, can it be said that the mailings complained of in the first 16 counts of the indictment constituted false pretenses and misrepresentations to obtain money. Surely the letters giving notice of the modification of an assessed valuation and of valuation hearings to be conducted by the Board of Equalization, constituting the basis of Counts 1, 2 and 5, contained no false pretense or misrepresentation. We fail to see how the letter complying with a property owner's request for an 'auxiliary tax notice,' constituting the basis of Count 7, could be said to be a misrepresentation. And the mailings complained of in the remaining counts, even though 'caused' by petitioners, certainly carried no misrepresentations by petitioners for they were checks (and covering letters) of taxpayers in payment of taxes which, so far as this record shows, were in all respects lawful obligations. On this phase of the case the Government has principally relied on the fact that the Annual Reports of the Board and the depository bank to the State Commissioner of Education, apparently necessary to obtain the amount per pupil allowed by the State to such districts, contained false entries. But the fact is those mailings were not charged as offenses in the indictment, doubtless because they were, as shown, between Benavides and Austin, Texas, and therefore not within the Division, nor hence the venue, of the court.29 Counts 17, 18 and 19 of the indictment relate to a different subject. They charged, and there was evidence tending to show, that petitioners Oscar Carrillo, Sr., and Garza fraudulently obtained gasoline and other filling station products and services for themselves upon the credit card and at the expense of the District knowing, or charged with knowledge, that the oil company would use the mails in billing the District for those things. The mailings complained of in those counts were two invoices, said to contain amounts for items so procured by Carrillo and Garza, mailed by the oil company, at Houston, to the District, at Benavides, and the District's check mailed to the oil company, at Houston, in payment of the latter invoice. We think these counts are ruled by Kann v. United States, supra. Here, as in Kann, '(t)he scheme in each case had reached fruition' when Carrillo and Garza received the goods and services complained of. 'The persons intended to receive the (goods and services) had received (them) irrevocably. It was immaterial to them, or to any consummation of the scheme, how the (oil company) * * * would collect from the (District). It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires.' 323 U.S. at page 94, 65 S.Ct. at page 151. Inasmuch as the twentieth count charged petitioners with conspiring to commit the offense complained of in Count 1, and inasmuch as, on the facts of this record, that count cannot be sustained, it follows that petitioners' convictions upon the twentieth count cannot stand. In view of our stated conclusions, it is unnecessary to discuss other contentions made by petitioners. The strongest element in the Government's case is that petitioners' behavior was shown to have been so bad and brazen, which, coupled with the inability or at least the failure of the state authorities to bring them to justice,30 doubtless persuaded the Government to undertake this prosecution. But the showing, however convincing, that state crimes of misappropriation, conversion, embezzlement and theft were committed does not establish the federal crime of using the mails to defraud, and, under our vaunted legal system, no man, however bad his behavior, may be convicted of a crime of which he was not charged, proven and found guilty in accordance with due process. Reversed.

364.US.122

The Internal. Revenue Code of 1954, § 167 (b.) (2), provides an. accelerated method of depreciation, known as the "declining balance method" of computing depreciation deductions for income tax purposes; but § 167 (c). limits the use of this method to property "with a useful life of 3 years or more." The applicable'Treasury Regulation, § 1.167 (b), issued in 1956, defines "useful life" as the 'period over which the asset may reasonably be expected to be useful to the taxpayer in his- trade or business;" and § 1.167 (b)-2 provides that "in no.event shall an asset . . . be depreciated below a reasonable salvage value." Held: 1. This regulation is valid, Massey Motors, Inc., v. United States, ante, p. 92, and the declining balance method may not be used in computing the depreciation on the passenger cars used by petitioner in its automobile rental business during the years 19541956, inclusive, since they were so used for less than three years. Pp. 123-124. 2. Since the trucks used in petitioner's truck-rental business were so used for more than three years, they were subject to depreciation under the "declining balance method"; but their salvage value at the time of disposition must be accounted for in the depreciation equation. Pp. 124-129. (a) Having elected to compute depreciation on the "declining balance -method" in connection with his returns for the years 19541956, inclusive, petitioner cannot abandon that method on the ground that it results in a retroactive application of a Treasury Regulation issued in 1956. Pp. 125-126. (b) The provision of Treasury Regulation § 1.167 (b)-2 that, "in no event shall an asset . . . be depreciated below a reasonable salvage value," is valid. Pp. 126-129. 268 F. 2d 604, affirmed.

This case, like No. 141, Massey Motors, Inc., v. United States, and No. 143, Commissioner of Internal Revenue v. Evans, 364 U.S. 92, 80 S.Ct. 1411, involves the depreciation allowable on cars and trucks used by petitioner's predecessor in its automobile rental business during the years 1954—1956, inclusive. The taxpayer elected to avail itself of the accelerated method of depreciation provided in § 167(b)(2)1 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 167(b)(2)—known as 'the declining balance method.' Section 167(c) of the Code limits the use of this method to property 'with a useful life of 3 years or more.' The applicable Treasury Regulations on Depreciation, § 1.167(a)—1(b), T.D. 6182, 1956—1 Cum.Bull. 98, issued in 1956, define useful life as the 'period over which the asset may reasonably be expected to be useful to the taxpayer in his trade or business * * *.' Admittedly, if this regulation is valid, taxpayer's passenger cars covered by it would not meet the three-year requirement of § 167(c). The Commissioner denied the petitioner the right to use the declining balance method as to those cars. What we have said in Massey and Evans, supra, disposes of the contention as to the meaning of 'useful life' here. We therefore hold, as did the Court of Appeals, 268 F.2d 604, that the regulation as to 'useful life' involved here is valid and applicable to petitioner. The remaining issues pose questions that relate to the depreciation on the trucks of the taxpayer which concededly had a useful life in excess of three years and were therefore subject to depreciation under the declining balance method authorized under § 167(b)(2). Section 1.167(a)—1(b), issued in 1956 and subsequent to some of the tax years involved in petitioner's claim, was applied by the Commissioner. He ruled that the salvage value of the trucks at the time of disposition must be accounted for in the depreciation equation. Petitioner contended that this resulted in a retroactive application of the regulation and, in any event, it was invalid because it was not authorized under the 1954 Code. After petitioner paid the assessed tax and was denied a refund, this case was filed. The trial court held in favor of petitioner, but the Court of Appeals reversed. It held that the regulation applied and was not retroactive because it was only declaratory of existing law and that salvage value must be computed in the depreciation equation. We granted certiorari, 361 U.S. 811, 80 S.Ct. 88, 4 L.Ed.2d 60, and heard the case as a companion to Massey and Evans, supra. We agree with the result reached by the Court of Appeals. Petitioner succeeded J. Frank Connor, Inc., by merger in July 1956; the taxes accrued against Connor during the fiscal years 1954, 1955, and 1956. Connor was engaged in the business of renting and leasing automobiles and trucks, without drivers, during the pertinent years. In the preparation of its returns for the years ending March 31, 1954, 1955, and 1956, Connor claimed depreciation on its automobiles on the basis of a four-year useful life. The taxes so computed were paid. Subsequently, and after merger, petitioner filed claims for refund on all three years. This claim was based on an election in accordance with § 1.167(c) 1(c) of the Treasury Regulations issued under the 1954 Code, relating to the declining balance method of depreciation.2 We see nothing to the contention of retroactive application. The petitioner chose its own weapon, began the struggle under it and, at this late date, dannot be allowed to abandon it. As to the salvage issue, the petitioner claims that, under the method it chose, the Congress built in an artificial salvage value, i.e., the amount remaining after the application of the depreciation equation. The regulation, however, says that 'in no event shall an asset * * * be depreciated below a reasonable salvage value.' The issue is the narrow one of whether this regulation is valid under the congressional authorization providing that, as to depreciation, the term 'reasonable allowance' shall include an allowance 'computed in accordance with regulations prescribed by the Secretary or his delegate.' Internal Revenue Code of 1954, § 167(b). We think that it is. As we pointed out in the companion cases, the purpose of depreciation accounting is to allocate the expense of using an asset to the various periods which are benefited by that asset. The declining balance method permits a rapid rate of depreciation in the early years of an asset's life. The Congress has permitted under this method an allowance not to exceed twice the 'straight line' rate, which rate was approved in Massey and Evans, supra. In application, the taxpayer computes his straight-line percentage rate and then doubles it for the first year. This doubled rate is then applied each subsequent year to the declining balance. Because of a belief that most assets do lose more value in the earlier years, this method is justified as an attempt to level off the total costs, including maintenance expense, which will generally be greater in the later years. This means, even under the Commissioner's theory, that if an asset is disposed of early in what was expected to be its useful life in the business, the depreciation taken may greatly exceed the difference between the purchase price of the asset and its retirement price; this is a result of the conscious choice to permit rapid depreciation. But this, by hypothesis, is an unusual situation. There is nothing inherent in the declining balance system which requires us to assume that depreciation should be allowed beyond what reasonably appears to be the price that will be received when the asset is retired. This would permit a knowing distortion of the expense of employing the asset in the years after that point is reached. It therefore appears that the interpretation contended for by the taxpayer does not comport with the overriding statutory requirement that the depreciation deduction be a reasonable allowance. § 167(a). In challenging the regulation, the taxpayer relies upon the following excerpt from S.Rep. No. 1622, 83d Cong., 2d Sess. 201: 'The salvage value is not deducted from the basis prior to applying the rate, since under this method at the expiration of useful life there remains an undepreciated balance which represents salvage value.' The regulation is consistent with the first part of the sentence, for salvage value is not deducted from the basis prior to the application of the rate. But petitioner contends that the regulation is contrary to the second part of the sentence which appears to equate salvage value under the declining balance method with the mathematical residue which must always exist under the system. This, it appears to us, is but recognition that under this method there is some theoretical salvage value always left. But it only 'represents salvage value' and when true salvage value exceeds this amount, the latter controls. Moreover, the regulation can only carry out the fundamental concept of depreciation—that it is allowable only in such amount, together with salvage value, as will effectuate the recovery of cost over the period of useful life. Furthermore, the House Report said that, 'The changes made by your committee's bill merely affect the timing and not the ultimate amount of depreciation deductions with respect to a property.'3 Senator Humphrey stated that under the declining balance method '(t)he total deduction over the life of the property will not be increased and only the same total sum will be given as a tax deduction * * *.' Hearings before the Senate Committee on Finance, 83d Cong., 2d Sess., Pt. 1, 95. Both of these statements clearly support the regulation, since, if the taxpayer prevailed, it would be able to take a greater total amount of depreciation under the declining balance method than under the straight-line method, even if salvage value under the latter method were limited to scrap value. Petitioner also seems to rely on administrative interpretation. It cites a footnote to what is known as Form 2106, issued by the Commissioner. This footnote to Item No. 41 reads, 'Salvage value is the estimated resale or trade-in value of the vehicle, determined at the time of purchase. If declining balance method of depreciation is used, disregard salvage value in computing depreciation.' Petitioner says this is a direct instruction to 'disregard salvage value' entirely since it is built into the equation. However, we are not inclined to give the footnote such weighty consideration. The form is but a worksheet and the footnote appears to refer to the fact that salvage value is disregarded at the outset of the application of the depreciation equation, as provided by the Code. We likewise place no weight in the remaining peripheral arguments of the petitioner that salvage must be ignored altogether in the application of the declining balance method. The judgment is affirmed. Affirmed. (For opinion of Mr. Justice HARLAN, joined by Mr. Justice WHITTAKER and Mr. Justice STEWART, see 364 U.S. page 107, 80 S.Ct. 1424.) (For views of Mr. Justice DOUGLAS, see 364 U.S. 121, 80 S.Ct. 1431.)

364.US.479

An Arkansas statute requires every. teacher, as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularl. contributed within the preceding five years. Teachers in state-supported schools and colleges are not covered by a civil service system, they are hired on a year-to-year basis, and they have no job security beyond the end of each school year. The contracts of the teachers here involved were not renewed, because they refused to file the required affidavits. Held: The statute is invalid, because it deprives teachers of their right of associational freedom protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. Pp. 480490. (a) There can be no doubt of the right of a State to investigate the competence and fitness of those whom it hires to teach in its schools. P. 485. (b) To compel a teacher to disclose his every associational, tie is to impair his right of free association, a right closely allied tofreedom of speech and a right which, like free speech, lies at the foundation of a free society. Pp. 485-487. (c) The unlimited and indiscriminate sweep of the statute here involved and its comprehensive interference with associational freedom go far beyond what might be justified in tie exercise of the State's legitimate inquiry into the fitness and competence of its teachers. Pp.. 487-490. 174 F. Supp. 351 and -231 Ark. 641, 331 S. W. 2d 701, reversed.*

An Arkansas statute compels every teacher, as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularly contributed within the preceding five years. At issue in these two cases is the validity of that statute under the Fourteenth Amendment to the Constitution. No. 14 is an appeal from the judgment of a three-judge Federal District Court upholding the statute's validity, 174 F.Supp. 351. No. 83 is here on writ of certiorari to the Supreme Court of Arkansas, which also held the statute constitutionally valid. 231 Ark. 641, 331 S.W.2d 701. The statute in question is Act 10 of the Second Extraordinary Session of the Arkansas General Assembly of 1958. The provisions of the Act are summarized in the opinion of the District Court as follows (174 F.Supp. 353): 'Act 10 provides in substance that no person shall be employed or elected to employment as a superintendent, principal or teacher in any public school in Arkansas, or as an instructor, professor or teacher in any public institution of higher learning in that State until such person shall have submitted to the appropriate hiring authority an affidavit listing all organizations to which he at the time belongs and to which he has belonged during the past five years, and also listing all organizations to which he at the time is paying regular dues or is making regular contributions, or to which within the past five years he has paid such dues or made such contributions. The Act further provides, among other things, that any contract entered into with any person who has not filed the prescribed affidavit shall be void; that no public moneys shall be paid to such person as compensation for his services; and that any such funds so paid may be recovered back either from the person receiving such funds or from the board of trustees or other governing body making the payment. The filing of a false affidavit is denounced as perjury, punishable by a fine of not less than five hundred nor more than one thousand dollars, and, in addition, the person filing the false affidavit is to lose his teaching license.' 174 F.Supp. 353—354.1 These provisions must be considered against the existing system of teacher employment required by Arkansas law. Teachers there are hired on a year-to-year basis. They are not covered by a civil service system, and they have no job security beyond the end of each school year. The closest approach to tenure is a statutory provision for the automatic renewal of a teacher's contract if he is not notified within ten days after the end of a school year that the contract has not been renewed. Ark.1947 Stat.Ann. § 80 1304(b) (1960); Wabbaseka School District No. 7 of Jefferson County v. Johnson, 225 Ark. 982, 286 S.W.2d 841. The plaintiffs in the Federal District Court (appellants here) were B. T. Shelton, a teacher employed in the Little Rock Public School System, suing for himself and others similarly situated, together with the Arkansas Teachers Association and its Executive Secretary, suing for the benefit of members of the Association. Shelton had been employed in the Little Rock Special School District for twenty-five years. In the spring of 1959 he was notified that, before he could be employed for the 1959—1960 school year, he must file the affidavit required by Act 10, listing all his organizational connections over the previous five years. He declined to file the affidavit, and his contract for the ensuing school year was not renewed. At the trial the evidence showed that he was not a member of the Communist Party or of any organization advocating the overthrow of the Government by force, and that he was a member of the National Association for the Advancement of Colored People. The court upheld Act 10, finding the information it required was 'relevant,' and relying on several decisions of this Court, particularly Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Beilan v. Board of Higher Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; and Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423.2 The plaintiffs in the state court proceedings (petitioners here) were Max Carr, an associate professor at the University of Arkansas, and Ernest T. Gephardt, a teacher at Central High School in Little Rock, each suing for himself and others similarly situated. Each refused to execute and file the affidavit required by Act 10. Carr executed an affirmation3 in which he listed his membership in professional organizations, denied ever having been a member of any subversive organization, and offered to answer any questions which the University authorities might constitutionally ask touching upon his qualifications as a teacher. Gephardt filed an affidavit stating that he had never belonged to a subversive organization, disclosing his membership in the Arkansas Education Association and the American Legion, and also offering to answer any questions which the school authorities might constitutionally ask touching upon his qualifications as a teacher. Both were advised that their failure to comply with the requirements of Act 10 would make impossible their re-employment as teachers for the following school year. The Supreme Court of Arkansas upheld the constitutionality of Act 10, on its face and as applied to the petitioners. 231 Ark. 641, 331 S.W.2d 701. It is urged here, as it was unsuccessfully urged throughout the proceedings in both the federal and state courts, that Act 10 deprives teachers in Arkansas of their rights to personal, associational, and academic liberty, protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. In considering this contention, we deal with two basic postulates. First. There can be no doubt of the right of a State to investigate the competence and fitness of those whom it hires to teach in its schools, as this Court before now has had occasion to recognize. 'A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern.' Adler v. Board of Education, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517. There is 'no requirement in the Federal Constitution that a teacher's classroom conduct be the sole basis for determining his fitness. Fitness for teaching depends on a broad range of factors.' Beilan v. Board of Education, 357 U.S. 399, 406, 78 S.Ct. 1317, 1322, 2 L.Ed.2d 1414.4 This controversy is thus not of a pattern with such cases as N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, and Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480. In those cases the Court held that there was no substantially relevant correlation between the governmental interest asserted and the State's effort to compel disclosure of the membership lists involved. Here, by contrast, there can be no question of the relevance of a State's inquiry into the fitness and competence of its teachers.5 Second. It is not disputed that to compel a teacher to disclose his every associational tie is to impair that teacher's right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278; Bates v. Little Rock, supra, 361 U.S. at pages 522—523, 80 S.Ct. at pages 416—417. Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made—those who any year can terminate the teacher's employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain. The statute does not provide that the information it requires be kept confidential. Each school board is left free to deal with the information as it wishes.6 The record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless.7 Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy. Public exposure, bringing with it the possibility of public pressures upon school boards to discharge teachers who belong to unpopular or minority organizations, would simply operate to widen and aggravate the impairment of constitutional liberty. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. 'By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers * * * has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.' Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 221, 97 L.Ed. 216 (concurring opinion). 'Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate * * *.' Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311. The question to be decided here is not whether the State of Arkansas can ask certain of its teachers about all their organizational relationships. It is not whether the State can ask all of its teachers about certain of their associational ties. It is not whether teachers can be asked how many organizations they belong to, or how much time they spend in organizational activity. The question is whether the State can ask every one of its teachers to disclose every single organization with which he has been associated over a five-year period. The scope of the inquiry required by Act 10 is completely unlimited. The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher's occupational competence or fitness. In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.8 The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.9 In Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 150, 84 L.Ed. 155, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the Court noted that where legislative abridgment of 'fundamental personal rights and liberties' is asserted, 'the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.' 308 U.S. at page 161, 60 S.Ct. at page 151. In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, the Court said that '(c)onduct remains subject to regulation for the protection of society,' but pointed out that in each case 'the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' 310 U.S. at page 304, 60 S.Ct. at page 903. Illustrations of the same constitutional principle are to be found in many other decisions of the Court, among them, Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; and Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280. As recently as last Term we held invalid an ordinance prohibiting the distribution of handbills because the breadth of its application went far beyond what was necessary to achieve a legitimate governmental purpose. Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559. In that case the Court noted that it had been 'urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited * * *. Therefore we do not pass on the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.' 362 U.S. at page 64, 80 S.Ct. at page 538. The unlimited and indiscriminate sweep of the statute now before us brings it within the ban of our prior cases. The statute's comprehensive interference with associational freedom goes far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competency of its teachers. The judgments in both cases must be reversed. It is so ordered. Judgments reversed.

362.US.602

Alleging a course of racially discriminatory practices calculated to deprive Negro citizens of their voting rights, the United States brought an action for declaratory and injunctive relief under the Civil Rights Act of 1957 against the Board of Registrars of an Alabama county, the individual members thereof and the State of Alabama. The District Court dismissed the complaint, holding, inter alia, that the Civil Rights Act of 1957 did not authorize the action against the State. The Court of Appeals affirmed, and this Court granted certiorari. Before the case was heard in this Court, the Civil Rights Act of 1957 was amended so as expressly to authorize such actions to be brought against a State. Held: By virtue of that amendment, which is to be applied to this case, the District Court now has jurisdiction to entertain this action against the State. Accordingly, both of the judgments below are vacated and the case is remanded to the District Court with instructions to reinstate the action as to the State. Pp. 602-604. 267 F. 2d 808, judgments vacated and case remanded.

Alleging a course of racially discriminatory practices calculated to deprive Negro citizens of their voting rights in violation of the Fifteenth Amendment to the Constitution of the United States and Part IV of the Civil Rights Act of 1957, 71 Stat. 637, 42 U.S.C. § 1971(a), 42 U.S.C.A. § 1971(a),1 the United States, proceeding under 42 U.S.C. § 1971(c), 42 U.S.C.A. § 1971(c),2 brought this action against the Board of Registrars of Macon County, Alabama, and the two individual respondents as members thereof, for declaratory and injunctive relief. Thereafter the Government amended its complaint so as to join the State of Alabama as a party defendant. The District Court dismissed the complaint as to all defendants. It held (1) that the individual respondents had been sued only as Registrars, and that having under Alabama law effectively resigned their offices they were not suable in their official capacities; (2) that the Board of Registrars was not a suable legal entity; and (3) that the Civil Rights Act of 1957 did not authorize this action against the State. 171 F.Supp. 720. The Court of Appeals, sustaining each of these holdings, affirmed. 267 F.2d 808. Because of the importance of the issues involved we brought the case here. 361 U.S. 893, 80 S.Ct. 196, 4 L.Ed.2d 150. Shortly before the case was heard in this Court on May 2, 1960, Congress passed the Civil Rights Act of 1960. The bill was signed by the President on May 6, 1960, and has now become law. Act of May 6, 1960, 74 Stat. 86. Among other things § 601(b) of that Act amends 42 U.S.C. § 1971(c), 42 U.S.C.A. § 1971(c) by expressly authorizing actions such as this to be brought against a State.3 Under familiar principles, the case must be decided on the basis of law now controlling, and the provisions of § 601(b) are applicable to this litigation. American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 201, 42 S.Ct. 72, 75, 66 L.Ed. 189; Hines v. Davidowitz, 312 U.S. 52, 60, 61 S.Ct. 399, 400, 85 L.Ed. 581; see also Reynolds v. United States, 292 U.S. 443, 449, 54 S.Ct. 800, 803, 78 L.Ed. 1353. We hold that by virtue of the provisions of that section the District Court has jurisdiction to entertain this action against the State. In so holding we do not reach, or intimate any view upon, any of the issues decided below, the merits of the controversy, or any defenses, constitutional or otherwise, that may be asserted by the State. Accordingly, the judgments of the Court of Appeals and the District Court will be vacated, and the case remanded to the District Court for the Middle District of Alabama with instructions to reinstate the action as to the State of Alabama, and for further proceedings consistent with this opinion. It is so ordered. Judgments vacated and case remanded to District Court with instructions.

362.US.309

Certiorari granted; judgment vacated; and case remanded.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. Upon the suggestion of the Solicitor General that inasmuch as the petitioner had been granted leave to proceed in forma pauperis by the District Court, the application to the Court of Appeals was unnecessary, the judgment of the Court of Appeals is vacated and the case is remanded to that Court for further proceedings.

361.US.340

Basing her claim alternatively on unseaworthiness and on negligence, petitioner brought this libel in admiralty to recover under the West Virginia Wrongful Death Act from the owner of a river barge for the death of an employee of an independent contractor engaged in repairing the barge, who fell off the barge and drowvied in navigable waters in West Virginia. The District Court found that the vessel was unseaworthy and that the barge owner was negligent. Basing liability on negligence, it awarded petitioner the maximum amount of damages allowable under the West Virginia Wrongful Death Act. The Court of Appeals reversed the District Court's finding of negligence and held that the vessel was not unseaworthy and that the decedent was not a person to whom the warranty of seaworthiness was owed; but it did not pass on the question whether unseaworthiness would in any event be available as a ground for recovery in a West Virginia wrongful death action involving a maritime tort. Held: The judgment is vacated and the cause is remanded to the Court of Appeals to determine: (a) whether the West Virginia Wrongful Death Act, as to this maritime tort, employs the West Virginia or the general maritime law concept of negligence; (b) whether, in the light of that determination, the District Court's finding as to negligence is correct under the proper substantive law; and (c) whether the West Virginia Wrongful Death Act incorporates the doctrine of unseaworthiness in death actions involving maritime torts. Pp. 341-344. 256 F. 2d 449, judgment vacated and cause remanded.

This was a libel in admiralty brought against respondent Union Carbide Corporation by petitioner, the administratrix of Marvin Paul Goett. Goett had been an employee of respondent Amherst Barge Company, which was engaged in repairing a river barge owned by Union. The decedent was working on the barge when he fell off into the waters of the Kanawha River, and, after fruitless efforts at rescue, was drowned. The theory of the libel was that, alternatively, Union was negligent in turning over the barge to Amherst without its being equipped with rescue equipment, or that the vessel was unseaworthy without such equipment; and that the lack of rescue equipment caused the decedent's death. The accident had taken place in West Virginia waters and that State's Wrongful Death Act, Code W.Va. 55—7—5 et seq., was relied upon. The District Court found that the vessel was in fact unseaworthy and that Union was negligent in the respect charged, causing the death of decedent, and that the decedent was not shown to have been guilty of contributory negligence or to have assumed the risk. The District Court bottomed Union's liability on negligence, and awarded petitioner $20,000 in damages, the maximum allowable under the West Virginia Act, though finding that the actual damages were substantially higher. On Union's appeal to the Court of Appeals, the judgment was reversed. 4 Cir., 256 F.2d 449. The Court of Appeals held that, as a matter of law, Union owed no duty to the employees of Amherst once the vessel had been turned over to the latter. It accordingly reversed the District Court's finding of negligence. It further held, contrary to the District Court, that the vessel was not unseaworthy at the time of the accident, and that in any event the decedent was not a person to whom the warranty of seaworthiness was owed. In the light of this determination, it did not pass on the question whether unseaworthiness would be in any event available as a ground for recovery in a West Virginia wrongful death action involving a maritime tort. We granted certiorari. 359 U.S. 923, 79 S.Ct. 604, 3 L.Ed.2d 627. This case was decided in the lower courts before the decision of this Court in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, where it was held that it was a question of state law as to what is the proper substantive law to be applied to maritime torts within the territorial jurisdictions of the States in wrongful death cases. See Hess v. United States, 361 U.S. 314, 80 S.Ct. 341. Under this holding, in a maritime tort death case, the State might apply the substantive law generally applicable to wrongful death cases within its territory, or it might choose to incorporate the general maritime law's concepts of unseaworthiness or negligence.1 Here the Court of Appeals did not decide which standard the West Virginia Act adopted. It did not articulate on what basis it was applying federal law if in fact it was; there is no intimation that it believed the West Virginia Act incorporated the maritime law's negligence standard, and in fact it expressly left open the question whether that Act incorporated the maritime standard of seaworthiness. It seems more likely to us to have passed on the negligence issue as a matter of federal maritime law; it cited only cases applying the general maritime law's and the Jones Act's concepts of negligence, and general treatises, 46 U.S.C.A. § 688; no West Virginia authority was relied upon.2 The least that can be said is that it is highly doubtful3 which law the Court of Appeals applied;4 and so in the absence of any expression by it of which standard the West Virginia Act adopted, we do not believe we can permit its judgment to stand after our intervening decision in The Tungus. Accordingly, so that the Court of Appeals, which is closer than we to matters of local law, may pass upon the questions of West Virginia law involved in the light of this Court's holding in The Tungus, we vacate its judgment and remand the cause to it to determine: (a) Whether the West Virginia Wrongful Death Act, as to this maritime tort, employs the West Virginia or the general maritime law concept of negligence; and, in the light of its determination, (b) whether the district judge's finding as to negligence is correct under the proper substantive law. To facilitate our discretionary review of the Court of Appeals' findings as to unseaworthiness, it should also determine whether the West Virginia Act incorporates this standard of the general maritime law in death actions involving maritime torts. Cf. Barr v. Matteo, 355 U.S. 171, 78 S.Ct. 204, 2 L.Ed.2d 179.5 Vacated and remanded.

363.US.229

Respondent is an agency of the State of Oklahoma created to develop hydroelectric power on the Grand River, a nonnavigable tributary of the navigable Arkansas River. It proposed a river development plan at Pensacola, Markham Ferry and Ft. Gibson, all sites on the Grand River, and, under license from the Federal Power Commission, completed, a project at Pensacola in 1940. Subsequently, by the Flood Control Act of 1941, Congress incorporated the Grand River plan into a comprehensive plan for regulation of navigation, control of floods and production of power on the Arkansas River and its tributaries; and the United States constructed a project at Ft. Gibson, in connection with which it compensated respondent for a condemned tract of land, flowage rights over its lands and relocation of its transmission lines. Respondent sued in the Court of Claims for additional compensation for the "taking" of its water power rights at Ft. Gibson and its franchise to develop electric power and energy at that site. Held: Respondent is not entitled to recover. It failed to show that it had any rights in the flow of the river. The United States had the superior right under the Commerce Clause to build the Ft. Gibson project itself to protect the navigable capacity of the Arkansas River, and the frustration of respondent's plans and expectations which resulted when the United States chose to do so did not take property from respondent in the sense of the.Fifth Amendment. Pp. 230-236. - Ct. Cl. -, 175 F. Supp. 153, reversed.

Grand River is a nonnavigable tributary of the navigable Arkansas River and flows through Oklahoma. Respondent was created by the Oklahoma Legislature to develop hydroelectric power on the Grand River. It is, to use the statutory language of the law creating it, 'a governmental agency and body politic and corporate.' Session Laws of Oklahoma, 1935, c. 70, Art. 4, § 1, 82 O.S.1951 § 861. A report of the Army Corps of Engineers, made in 1930, indicated that federal development at Pensacola, Markham Ferry, and Ft. Gibson—all sites on the Grand River—was not then economically justified.1 Respondent, following its creation in 1935, proposed a river development plan at these three sites. In 1939 the Army Engineers recommended a three-dam coordinated project as a federal undertaking.2 Congress by the Flood Control Act of August 18, 1941,3 incorporated that Grand River plan into a comprehensive plan for the Arkansas River basin. Meanwhile respondent obtained a license under § 23(b) of the Federal Power Act4 to build and operate a project at Pensacola and completed it in 1940. The United States took over the operation of this project during World War II, after which it was returned to respondent. In 1946 the United States started the construction of a project at Ft. Gibson. It has been completed as an integral part of a comprehensive plan for the regulation of navigation, the control of floods, and the production of power on the Arkansas River and its tributaries. Congress, by modifying its plan for the Arkansas River basin,5 cleared the way for respondent to obtain from the Federal Power Commission a license for a project at Markham Ferry. Thus the United States operates the Ft. Gibson project which is the farthest downstream, while the respondent has the two upstream projects. A 70-acre tract owned by the respondent was condemned when the Ft. Gibson project was built; flowage rights over its lands were acquired; and payment was made for relocation of its transmission lines. Respondent claimed more. It demanded of the United States $10,000,000 for the 'taking' of its water power rights at Ft. Gibson and its franchise to develop electric power and energy at that site.6 The Court of Claims, while reserving the question as to the amount of compensation due, held by a divided vote that the United States was liable. Ct.Cl., 175 F.Supp. 153. The case is here on a writ of certiorari. 361 U.S. 922, 80 S.Ct. 292, 4 L.Ed.2d 239. The Court of Claims recognized that if the Grand River were a navigable stream the United States would not be liable for depriving another entrepreneur of the opportunity to utilize the flow of the water to produce power. Our cases hold that such an interest is not compensable because when the United States asserts its superior authority under the Commerce Clause, Const. art. 1, § 8, cl. 3, to utilize or regulate the flow of the water of a navigable stream there is no 'taking' of 'property' in the sense of the Fifth Amendment because the United States has a superior navigation easement which precludes private ownership of the water or its flow. See United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 69, 33 S.Ct. 667, 674, 57 L.Ed. 1063; United States v. Twin City Power Co., 350 U.S. 222, 224—225, 76 S.Ct. 259, 260 261, 100 L.Ed. 240. The Government contends that the navigational servitude of the United States extends also to nonnavigable waters, pre-empting state-created property rights in such waters, at least when asserted against the Government. In the view we take in this case, however, it is not necessary that we reach that contention. Congress by the 1941 Act, already mentioned,7 adopted as one work of improvement 'for the benefit of navigation and the control of destructive floodwaters' the reservoirs in the Grand River. That action to protect the 'navigable capacity' of the Arkansas River (United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708, 19 S.Ct. 770, 777, 43 L.Ed. 1136) was within the constitutional power of Congress. We held in State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487, that the United States over the objection of Oklahoma could build the Denison Dam on the Red River, also nonnavigable, but a tributary of the Mississippi. We there stated, 'There is no constitutional reason why Congress cannot, under the commerce power treat the watersheds as a key to flood control on navigable streams and their tributaries.' Id., 313 U.S. at page 525, 61 S.Ct. at page 1059. And see United States v. Appalachian Electric Power Co., 311 U.S. 377, 426, 61 S.Ct. 291, 308, 85 L.Ed. 243; Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359, 373, 69 S.Ct. 114, 121, 93 L.Ed. 64. We also said in State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., supra, that '* * * the power of flood control extends to the tributaries of navigable streams.' Id., 313 U.S. at page 525, 61 S.Ct. at pages 1059, 1060. We added, 'It is for Congress alone to decide whether a particularproject, by itself or as part of a more comprehensive scheme, will have such a beneficial effect on the arteries of interstate commerce as to warrant it. That determination is legislative in character.' Id., 313 U.S. at page 527, 61 S.Ct. at page 1060. We held that the fact that the project had a multiple purpose was irrelevant to the constitutional issue, id., 313 U.S. at pages 528—534, 61 S.Ct. at pages 1060—1063, as was the fact that power was expected to pay the way. Id., 313 U.S. at page 533, 61 S.Ct. at page 1063. '(T)he fact that ends other than flood control will also be served, or that flood control may be relatively of lesser importance does not invalidate the exercise of the authority conferred on Congress.' Id., 313 U.S. at pages 533—534, 61 S.Ct. at page 1063. We cannot say on this record that the Ft. Gibson dam is any less essential or useful or desirable from the viewpoint of flood control and navigation than was Denison Dam.8 When the United States appropriates the flow either of a navigable or a nonnavigable stream pursuant to its superior power under the Commerce Clause, it is exercising established prerogatives and is beholden to no one. Plainly under our decisions it could license another to build the project and operate it. If respondent sued for damages for failure of the Federal Government to grant it a license to build the Ft. Gibson project, it could not claim that something of right had been withheld from it. So it is when the United States exercises its prerogative by building the project itself.9 Respondent, however, argues that it had a vested interest in the waters of the Grand River and points to the grant made by Oklahoma to it for the development of hydroelectric power on the Grand River. It seeks to trace the title of Oklahoma through the Cherokees who, in consideration of their agreement to remove to the territory which included the Grand River, received on December 31, 1838, a deed from the United States to the territory.10 By § 15 of the Act of March 3, 1893, 27 Stat. 612, 645, Congress agreed that this Cherokee land could be allotted to the members of the nation in severalty. The argument is that the United States had divested itself entirely of any rights in the water of the Grand River prior to Oklahoma's admission as a State in 1907. Assuming, arguendo, that that is true, respondent's claim is not advanced. It dealing with a grant by the United States to the Osage Indians over a nonnavigable stretch of the Arkansas River the Court in Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 87—88, 43 S.Ct. 60, 64, 67 L.Ed. 140, said: 'The title of the Indians grows out of a federal grant when the Federal government had complete sovereignty over the territory in question. Oklahoma when she came into the Union took sovereignty over the public lands in the condition of ownership as they were then, and if the bed of a nonnavigable stream had then become the property of the Osages, there was nothing in the admission of Oklahoma into a constitutional equality of power with other states which required or permitted a divesting of the title.' Respondent argues that if any rights in the waters of the Grand River remained in the United States after the grant to the Indians in 1838, rights over them were later given to Oklahoma. The reference is to § 25 of the Act of April 26, 1906, 34 Stat. 137, 146, which granted light and power companies the right to construct dams across nonnavigable streams in Cherokee territory for power and other purposes. The right to acquire or condemn property was granted the companies in prescribed situations 'subject to approval by the Secretary of the Interior.' And § 25 contained at the end a proviso critical to respondent's case and reading as follows: 'Provided, That all rights granted hereunder shall be subject to the control of the future Territory or State within which the Indian Territory may be situated.' But this Act was no more than a regulatory measure. It did not purport to grant title to waters and appurtenant lands. The 1906 Act was an assertion of power possessed by the Federal Government to regulate Indian territory. Moreover, no water rights condemned under this Act are shown to have passed to Oklahoma and from Oklahoma to respondent. Yet the Federal Government was the initial proprietor in these western lands and any claim by a State or by others must derive from this federal title. See United States v. Gerlach Live Stock Co., 339 U.S. 725, 747, 70 S.Ct. 955, 966, 94 L.Ed. 1231; Federal Power Commission v. State of Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215. Congress has made various grants or conveyances or by statute recognized certain appropriations of lands or waters in the public domain made through machinery of the States. United States v. Gerlach Live Stock Co., supra, 339 U.S. at pages 747—748, 70 S.Ct. at pages 966 967; Federal Power Commission v. State of Oregon, supra, 349 U.S. at pages 446—448, 75 S.Ct. at pages 838—840. Yet the only Federal Act on which reliance is based by respondent for the grant of these water rights to Oklahoma is § 25 of the Act of April 26, 1906. As we have seen, that was a regulatory measure through which title might be obtained; but no water rights under it were acquired by a light or power company which is now asserted to be in respondent's chain of title. If the 1906 Act be less clear than we believe, nevertheless the construction urged by respondent would be precluded by the principle that all federal grants are construed in favor of the Government lest they be enlarged to include more than what was expressly included. See United States v. Union Pacific R. Co., 353 U.S. 112, 116, 77 S.Ct. 685, 687, 1 L.Ed.2d 693. Respondent argues that since Oklahoma gave it rights to the waters of the Grand River, it has a compensable interest in them under the decision in Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686. That decision merely held that the Federal Power Act treats 'usufructuary water rights like other property rights,' id., 347 U.S., at page 251, 74 S.Ct. at page 494, making it necessary for a licensee to compensate the claimant for them. Here no licensee claims under the Federal Act; the United States builds the project on its own account. The Court of Claims erred in failing to distinguish between an appropriation of property and the frustration of an enterprise by reason of the exercise of a superior governmental power. Here respondent has done no more than prove that a prospective business opportunity was lost. More than that is necessary as Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773, holds. In that case the claimant stood to make large profits from a contract it had with a steel company. But the United States, pursuant to the War Power, requisitioned the company's entire steel production. Suit was brought in the Court of Claims for just compensation. The Court, after pointing out that many laws and rulings of Government reduce the value of property held by individuals, noted that there the Government did not appropriate what the claimant owned but only ended his opportunity to exploit a contract. 'Frustration and appropriation are essentially different things.' Id., 261 U.S. at page 513, 43 S.Ct. at page 439. And see Mitchell v. United States, 267 U.S. 341, 345, 45 S.Ct. 293, 294, 69 L.Ed. 644; United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 281—283, 63 S.Ct. 1047, 1055—1056, 87 L.Ed. 1390. No more need be said here. In conclusion, the United States did not appropriate any business, contract, land, or property of respondent. It had the superior right by reason of the Commerce Clause to build the Ft. Gibson project itself or to license another to do it. The frustration of respondent's plans and expectations which resulted when the United States chose to undertake the project on its own account did not take property from respondent in the sense of the Fifth Amendment. Reversed.

364.US.500

A three-judge Federal District Court declared unconstitutional, and temporarily enjoined enforcement of, a series of enactments of the Louisiana Legislature designed to prevent partial desegregation of the races in certain public schools in New Orleans pursuant to an earlier federal court order. It was contended, inter alia, that the State of Louisiana had "interposed itself in the field of public education over which it has exclusive control," and motions were made for a stay of the injunction pending direct appeal to this Court. Held: This contention and others made ,in the motions are without substance, and the motions for stay are denied.

Jack P. F. Gremillion, Atty. Gen. of La., for State of Louisiana and others. W. Scott Wilkinson and Thompson Clarke, for Legislature of Louisiana and others. Solicitor General Rankin, for the United States. Robert G. Polack, Peter H. Beer, William M. Campbell, Jr. and Ralph N. Jackson, for Orleans Parish School Board and others, in opposition. Thurgood Marshall, Constance Baker Motley and A. P. Tureaud, for Bush and others, in opposition. PER CURIAM. These are motions for stay of an injunction by a three-judge District Court which nullified a series of enactments of the State of Louisiana. The scope of these enactments and the basis on which they were found in conflict withthe Constitution of the United States are not matters of doubt. The nub of the decision of the three-judge court is this: 'The conclusion is clear that interposition is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority.' Bush v. Orleans Parish School Board (United States v. State of Louisiana), D.C., 188 F.Supp. 916, 926. The main basis for challenging this ruling is that the State of Louisiana 'has interposed itself in the field of public education over which it has exclusive control.' This objection is without substance, as we held, upon full consideration, in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. The others are likewise without merit. Accordingly, the motions for stay are denied. U.S. v. States of La., Tex., Miss., Ala., and Fla. [81SCt258,364US502,5LEd2d247] 81 S.Ct. 258 364 U.S. 502 5 L.Ed.2d 247 UNITED STATES of America, Plaintiff, v. STATES OF LOUISIANA, TEXAS, MISSISSIPPI, ALABAMA and FLORIDA. No. 10, Original. Decided Dec. 12, 1960. Final Decree. This cause having come on to be heard on the motion of the plaintiff for judgment and to dismiss the cross-bill of the State of Alabama, and having been argued by counsel, and this Court having stated its conclusions in its opinions announced on May 31, 1960, 363 U.S. 1, 121, 80 S.Ct. 961, 4 L.Ed.2d 1025, 1096, and having considered the positions of the respective parties as to the terms of this decree, it is ordered, adjudged and decreed as follows: 1. As against the respective defendant States, the United States is entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico more than three geographic miles seaward from the coast lines of Louisiana, Mississippi and Alabama, and more than three leagues seaward from the coast lines of Texas and Florida, and extending seaward to the edge of the Continental Shelf. None of the States of Louisiana, Texas, Mississippi, Alabama or Florida is entitled to any interest in such lands, minerals or resources, and each of said States, their privies, assigns, lessees and other persons claiming under any of them are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources. As used in this decree, the term 'coast line' means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. 2. As against the United States, the defendant States are respectively entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico, extending seaward from their coast lines for a distance of three leagues in the case of Texas and Florida and three geographic miles in the case of Louisiana, Mississippi and Alabama, and the United States is not entitled, as against any of such States, to any interest in such lands, minerals or resources, with the exceptions provided by § 5 of the Submerged Lands Act, 43 U.S.C. § 1313, 43 U.S.C.A. § 1313. 3. Whenever the location of the coast line of any of the defendant States shall be agreed upon or determined, such State shall thereupon promptly render to the United States a true, full, accurate and appropriate account of any and all sums of money derived by such State since June 5, 1950, either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands or resources described in paragraph 1 hereof which lie opposite to such coast line so agreed upon or determined, and, after said account has been rendered and filed with and approved by the Court, shall promptly pay to the United States a sum equal to such amounts shown by said account as so derived by said State; provided, however, that as to the State of Louisiana the allocation, withdrawal and payment of any funds now impounded under the Interim Agreement between the United States and the State of Louisiana, dated October 12, 1956, shall, subject to the terms hereof, be made in accordance with the appropriate provisions of said Agreement. 4. The cross-bill of the State of Alabama is dismissed. 5. All motions to take depositions and present evidence are denied without prejudice to their renewal in such further proceedings as may be had in connection with matters left open by this decree. 6. The motion of the State of Texas for severance is dismissed. 7. The motion of the State of Louisiana to transfer the case to a district court is denied. 8. Jurisdiction is reserved by this Court to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree. The Chief Justice and Mr. Justice CLARK took no part in the formulation of this decree.

362.US.274

Peaceful picketing by a labor union, which. does not represent a majority of the employees, to compel the employer to recognize the union as the exclusive bargaining agent of its employees, is not conduct of the union "to restrain or coerce" the employees in the exercise of rights guaranteed in g 7 of the National Labor Relations Act, as amended, and therefore such picketing is not an unfair labor practice under § 8 (b) (1) (A) of the Act, as added by the TaftHartley Act. Pp. 275-292. (a) Section 13 of the Act, as amended by the Taft-Hartley Act, is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation of § 8 (b) (1) (A) which safeguards the right to strike as understood prior to passage of the Taft-Hartley Act. Pp. 281-282. (b) Section 8 (b)(1)(A) does not vest broad power in the National Labor Relations Board to sit in judgment upon, and to condemn, a minority union's resort to a specific economic weapon such as peaceful picketing. It is a limited grant of power to proceed against union tactics involving violence, intimidation and reprisal, or threats thereof-conduct involving more than the general pressures implicit in economic strikes. Pp. 282-290. (c) In the Taft-Hartley Act Congress authorized the Board to regulate peaceful "recognitional" picketing only when it is employed to accomplish objectives specified in § 8 (b) (4). P. 290. 107 U. S. App. D. C. 42, 274 F. 2d 551, affirmed.

The question in this case is whether peaceful picketing by a union, which does not represent a majority of the employees, to compel immediate recognition as the employees' exclusive bargaining agent, is conduct of the union 'to restrain or coerce' the employees in the exercise of rights guaranteed in § 7,1 and thus an unfair labor practice under § 8(b)(1)(A) of the National Labor Relations Act, as amended by the Taft-Hartley Act.2 Curtis Bros., Inc., has a retail store and a warehouse in Washington, D.C., in which it carries on a moving, warehousing and retail furniture business. In 1953 respondent Teamsters Local 639 was certified by the National Labor Relations Board, following a Board-conducted election, to be the exclusive representative of the Company's drivers, helpers, warehousemen and furniture finishers. However, when the Local called a strike over contract terms in February 1954 only nine of 21 employees in the unit left their jobs and Curtis Bros. replaced the nine with new employees. The strike continued but the Local gradually lost membership, and when after a year Curtis Bros. petitioned the Board to conduct another election, the Local wrote the Board that it did not claim to represent a majority of the employees. The Board nevertheless ordered another election, 114 N.L.R.B. 116, which was held in October 1955, and the then employees of the unit voted 28 to one in favor of 'no union.'3 A month after the election, in November 1955, the Local withdrew a picket line which had been maintained before the employees' entrance to the warehouse during the period from February 1954. However, picketing at the customers' entrance to the retail store was continued, but limited to not more than two pickets at any time. The pickets were orderly at all times and made no attempt to prevent anyone from entering the store. They simply patrolled before the entrance carrying signs reading on one side, 'Curtis Bros. employs nonunion drivers, helpers, warehousemen and etc. Unfair to Teamsters Union No. 639 AFL,' and on the other side, 'Teamsters Union No. 639 AFL wants employes of Curtis Bros. to join them to gain union wages, hours, and working conditions.' After this picketing continued for about six months, Curtis Bros. made it the subject of an unfair labor practice charge against the Local for alleged violation of § 8(b)(1)(A). A complaint issued which alleged, in substance, that the picketing was activity to 'restrain or coerce' the employees in the exercise of § 7 rights, and thus an unfair labor practice under § 8(b)(1)(A), because it was 'recognitional' picketing, that is, picketing designed to induce Curtis Bros. to recognize the Local as the exclusive bargaining agent for the employees, although the union did not represent a majority of the employees. The Trial Examiner recommended that the complaint be dismissed on the ground that the Local's peaceful picketing, even if 'recognitional,' was not conduct to 'restrain or coerce.' The Board, one member dissenting, disagreed and entered a cease-and-desist order, 119 N.L.R.B. 232. On review at the instance of the Local, the United States Court of Appeals for the District of Columbia Circuit, by a divided court, set aside the Board's order, holding that § 8(b) (1)(A) 'is inapplicable to peaceful picketing, whether 'organizational' or 'recognitional' in nature * * *.' 107 U.S.App.D.C. 42, 43, 274 F.2d 551, 552.4 Because of the importance of the question in the administration of the Act, we granted certiorari. 359 U.S. 965, 79 S.Ct. 876, 3 L.Ed.2d 833. After we granted certiorari, the Congress enacted the Labor-Management Reporting and Disclosure Act of 1959, which, among other things, adds a new § 8(b)(7) to the National Labor Relations Act.5 It was stated by the Board on oral argument that if this case arose under the 1959 Act, the Board might have proceeded against the Local under § 8(b)(7). This does not, however, relegate this litigation to the status of an unimportant controversy over the meaning of a statute which has been significantly changed. For the Board contends that new § 8(b)(7) does not displace § 8(b)(1)(A) but merely 'supplements the power already conferred by Section 8(b)(1)(A).'6 It argues that the Board may proceed against peaceful 'recognitional' picketing conducted by a minority union in more situations than are specified in § 8(b)(7) and without regard to the limitations of § 8(b)(7)(C).7 Basic to the right guaranteed to employees in § 7 to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection. Indeed, even before the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. § 101 et seq., and the Wagner Act, 49 Stat. 449, this Court recognized a right in unions to 'use all lawful propaganda to enlarge their membership.' American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189. However, the Taft-Hartley Act added another right of employees also guaranteed protection, namely, the right to refrain from joining a union, except as that right might be affected by an agreement authorized in § 8(a) (3). Thus tension exists between the two rights of employees protected by § 7—their right to form, join or assist labor organizations, and their right to refrain from doing so. This tension is necessarily quite real when a union employs economic weapons to organize employees who do not want to join the union. The Board held here that peaceful picketing is not lawfully employed as an economic weapon to further self-organization if its objective is 'recognitional.' The Board stated: 'Because the object of the Union's picketing in this case was to force the Company to commit an act prohibited by the statute itself (that is, to recognize and contract with the Local although it was not the chosen representative of a majority of the Curtis Bros. employees) and directly to deprive the employees of a right expressly guaranteed to them by the same Act, there is no occasion here to balance conflicting interests or rights.' 119 N.L.R.B. 232, 238.8 It therefore found no justification for the threat to the employees' job security which was thought to be inherent in the economic pressure directed against the employer by the picketing. It was this threat which was said to taint peaceful picketing as unlawful conduct to 'restrain or coerce' which the Board might forbid. We first consider § 8(b)(1)(A) in the light of § 13, as amended, which provides, in substance, that the Taft-Hartley Act shall not be taken as restricting or expanding either the right to strike or the limitations or qualifications on that right, as these were understood prior to 1947, unless 'specifically provided for' in the Act itself.9 The Wagner Act conferred upon the Board wide authority to protect strikers from employer retaliation. However, the Court and the Board fashioned the doctrine that the Board should deny reinstatement to strikers who engaged in strikes which were conducted in an unlawful manner or for an unlawful objective. See for example Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246; National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627; National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; and American News Co., 55 N.L.R.B. 1302. These are the 'limitations or qualifications' on the right to strike referred to in § 13. See S.Rep. No. 105, 80th Cong., 1st Sess. 28. The Board makes no claim that prior to 1947 it was authorized, because of any 'limitation' or 'qualification,' to issue a cease-and-desist order against peaceful 'recognitional' picketing; indeed the full protections of the Norris-LaGuardia Act extended to peaceful picketing by minority unions for recognition. See Fur Workers Union No. 21238 v. Fur Workers Union, Local No. 72, 308 U.S. 522, 60 S.Ct. 292, 84 L.Ed. 443, per curiam affirming 70 App.D.C. 122, 105 F.2d 1; Lauf v. E. G. Shinner & Co., 303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872. Therefore, since the Board's order in this case against peaceful picketing would obviously 'impede' the right to strike, it can only be sustained if such power is 'specifically provided for' in § 8(b)(1)(A), as added by the Taft-Hartley Act. To be sure, § 13 does not require that the authority for the Board action be spelled out in so many words. Rather, since the Board does not contend that § 8(b)(1)(A) embodies one of the 'limitations or qualifications' on the right to strike, § 13 declares a rule of construction which cautions against an expansive reading of that section which would adversely affect the right to strike, unless the congressional purpose to give it that meaning persuasively appears either from the structure or history of the statute. Therefore, § 13 is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation of § 8(b)(1)(A) which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act. The Board asserts that the very general standard in § 8(b)(1)(A) vests power in the Board to sit in judgment upon, and to condemn, a minority union's resort to a specific economic weapon, here peaceful picketing. The structure of § 8(b), which defines unfair labor practices, hardly supports the Board's claims. Earlier this Term we pointed out that 'Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions.' National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477, 498, 80 S.Ct. 419, 432. We referred to § 8(b)(4) as illustrative of the congressional practice.10 In the context of a union's striking to promote enlarged membership, Congress there explicitly prohibited a union's resort to the secondary boycott, to the strike to force employers or self-employed persons to join unions, and, very pertinent here, to the 'recognitional' strike where another union is certified. Plainly if the Board's interpretation is sustained, § 8(b)(1)(A) largely overlaps at least this last-mentioned prohibition, namely § 8(b)(4)(C), to the extent of making it almost redundant.11 But the Court has rejected an argument that a provision of § 8(b)(4) is a repetition of the prohibitions of § 8(b)(1)(A). In International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299, the Court, in holding that a peaceful strike to promote self-organization was proscribed by § 8(b)(4)(A) if its objective was to 'induce or encourage' a secondary boycott, contrasted the language of the two subsections and labeled the words 'restrain or coerce' in § 8(b)(1)(A) a 'restricted phrase' to be equated with 'threat of reprisal or force or promise of benefit.' Id., 341 U.S. at pages 701—703, 71 S.Ct. at pages 958—959. In the sensitive area of peaceful picketing Congress has dealt explicitly with isolated evils which experience has established flow from such picketing. Therefore, unless there is the clearest indication in the legislative history of § 8(b)(1)(A) supporting the Board's claim of power under that section, we cannot sustain the Board's order here. We now turn to an examination of the legislative history. In the comprehensive review of union practices, leading up to the enactment of the Taft-Hartley Act, picketing practices were subjected to intensive inquiry by both House and Senate Labor Committees. The Senate bill, as brought to the floor by the Senate Labor Committee regulated organizational activity in specified situations. Proposed § 8(b)(4)(3), now § 8(b)(4)(C) of the law, made 'recognitional' picketing of a primary employer unlawful only where 'another labor organization has been certified as the representative' of his employees. Section 8(b)(4)(2), now § 8(b)(4)(B), prohibited attempts to force recognition through secondary pressure. However, five members of the Senate Labor Committee, including Senators Taft and Ball, believed that the Senate bill did not go far enough in the regulation of practices employed by unions for organizational purposes. These Senators introduced on the floor a proposed amendment to the Committee bill. The amendment as originally phrased was the counterpart of § 8(a)(1) applicable to employers; it would have made it an unfair labor practice for a labor organization 'to interfere with' as well as 'to restrain or coerce * * * employees in the exercise of the rights guaranteed in section 7 * * *.' The words 'interfere with' were dropped during the debate, but except for this change, the amendment became § 8(b)(1)(A). The report of supplemental views which announced the five Senators' intention to propose the amendment identifies the abuses which the section was designed to reach. That report states: 'The committee heard many instances of union coercion of employees such as that brought about by threats of reprisal against employees and their families in the course of organizing campaigns; also direct interference by mass picketing and other violence. Some of these acts are illegal under State law, but we see no reason why they should not also constitute unfair labor practices to be investigated by the National Labor Relations Board, and at least deprive the violators of any protection furnished by the Wagner Act.' S.Rep. No. 105, 80th Cong., 1st Sess. 50. Similar expressions pervaded the Senate debates on the amendment. The note repeatedly sounded is as to the necessity for protecting individual workers from union organizational tactics tinged with violence, duress or reprisal. Senator Ball cited numerous examples of organizing drives characterized by threats against unorganized workers of violence, job reprisals and such repressive assertions as that double initiation fees would be charged those who delayed joining the union. 93 Cong.Rec. 4016—4017. When Senator Ives objected to the words 'interfere with' as too broad, Senator Taft insisted that even those words would have a limited application and would reach 'reprehensible' practices but not methods of peaceful persuasion. He continued: 'Why should a union be able to go to an employee and threaten violence if he does not join the union? Why should a union be able to say to an employee, 'If you do not join this union we will see that you cannot work in the plant'? * * * We know that such things have actually occurred. We know that men have been threatened. There have been many cases in which unions have threatened men or their wives. They have called on them on the telephone and insisted that they sign bargaining cards. They have said to them, 'Sooner or later we are going to organize this plant with a closed shop, and you will be out.' * * *.' 93 Cong.Rec. 4021. It is true that here and there in the record of the debates there are isolated references to instances of conduct which might suggest a broader reach of the amendment. See for example 93 Cong.Rec. 4023—4024.12 But they appear more as asides in a debate, the central theme of which was not the curtailment of the right peacefully to strike, except as provided in § 8(b)(4), but the elimination of the use of repressive tactics bordering on violence or involving particularized threats of economic reprisal. The plainest indication negating an intention to restrict the use by unions of methods of peaceful persuasion, including peaceful picketing, is seen in the comments of Senator Taft near the close of the debate. He said: 'It seems to me very clear that so long as a union-organizing drive is conducted by persuasion, by propaganda, so long as it has every legitimate purpose, the Board cannot in any way interfere with it. * * *' 93 Cong.Rec. 4434. 'The effect of the pending amendment is that the Board may call the union before them, exactly as it has called the employer, and say, 'Here are the rules of the game. You must cease and desist from coercing and restraining the employees who want to work from going to work and earning the money which they are entitled to earn.' The Board may say. 'You can persuade them; you can put up signs; you can conduct any form of propaganda you want to in order to persuade them, but you cannot, by threat of force or threat of economic reprisal, prevent them from exercising their right to work.' As I see it, that is the effect of the amendment.' 93 Cong.Rec. 4436. 'The Senator says it will slow up organizational drives. It will slow up organizational drives only if they are accompanied by threats and coercion. The cease-and-desist order will be directed against the use of threats and coercion. It will not be directed against the use of propaganda or the use of persuasion, or against the use of any of the other peaceful methods of organizing employees. 'Mr. President, I can see nothing in the pending measure which, as suggested by the Senator from Oregon, would in some way outlaw strikes. It would outlaw threats against employees. It would not outlaw anybody striking who wanted to strike. It would not prevent anyone using the strike in a legitimate way, conducting peaceful picketing, or employing persuasion. All it would do would be to outlaw such restraint and coercion as would prevent people from going to work if they wished to go to work.' Ibid. This approach in the Senate is in sharp contrast to the House view, which was that picketing should be strictly circumscribed. The House passed a bill imposing drastic limitations upon the right to picket. Section 12(a)(1) of that bill dealt specifically with the use of force and threats of force, but especially pertinent here are §§ 12(a)(2) and 12(a)(3)(C) which went far beyond this. The former would have outlawed all picketing of 'an employer's premises for the purpose of leading persons to believe that there exists a labor dispute involving such employer, in any case in which the employees are not involved in a labor dispute with their employer.' And the latter would have banned picketing 'an object of which (was) (i) to compel an employer to recognize for collective bargaining a representative not certified under section 9 * * * or (iii) to compel an employer to violate any law * * *.' H.R. 3020, 80th Cong., 1st Sess. 47—49. Plainly the Local' conduct in the instant case would have been prohibited if the House bill had become law. But the House conferees abandoned the House bill in conference and accepted the Senate proposal. H.R.Conf.Rep. No. 510 on H.R. 3020, 80th Cong., 1st Sess. 42.13 They joined in a Conference Report which stated that 'the primary strike for recognition (without a Board certification) was not prohibited.' Id., at 43. This history makes pertinent what the Court said in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board, 357 U.S. 93, 99—100, 78 S.Ct. 1011, 1016, 2 L.Ed.2d 1186: 'It is relevant to recall that the Taft-Hartley Act was, to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the National and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests. This is relevant in that it counsels wariness in finding by construction a broad policy * * * as such when, from the words of the statute itself, it is clear that those interested in just such a condemnation were unable to secure its embodiment in enacted law.' Certainly due regard for this admonition quite apart from the caveat in § 13 requires caution against finding in the nonspecific, indeed vague, words, 'restrain or coerce' that Congress intended the broad sweep for which the Board contends. We conclude that the Board's interpretation of § 8(b)(1)(A) finds support neither in the way Congress structured § 8(b) nor in the legislative history of § 8(b)(1)(A). Rather it seems clear, and we hold, that Congress in the Taft-Hartley Act authorized the Board to regulate peaceful 'recognitional' picketing only when it is employed to accomplish objectives specified in § 8(b) (4); and that § 8(b)(1)(A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof—conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes. The Board's own interpretation for nearly a decade after the passage of the Taft-Hartley Act gave § 8(b)(1)(A) this limited application. See, e.g., National Maritime Union, 78 N.L.R.B. 971, enforcement granted 2 Cir., 175 F.2d 686; Local 74, United Brotherhood of Carpenters (Watson's Specialty Store), 80 N.L.R.B. 533, enforcement granted 6 Cir., 181 F.2d 126, affirmed 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309; Perry Norvell Co., 80 N.L.R.B. 225; Miami Copper Co., 92 N.L.R.B. 322; Medford Building & Construction Trades Council (Kogap Lumber Industries), 96 N.L.R.B. 165; District 50, United Mine Workers (Tungsten Mining Corp.), 106 N.L.R.B. 903. In Perry Norvell, supra, at 239, the Board declared: 'By Section 8(b)(1)(A), Congress sought to fix the rules of game, to insure that strikes and other organizational activities of the employees were conducted peaceably by persuasion and propaganda and not by physical force, or threats of force, or of economic reprisal. In that Section, Congress was aiming at means, not at ends.' The Board dismisses these cases as 'dubious precedent.' 119 N.L.R.B., at 246. We think they gave a sounder construction to § 8(b)(1)(A) than the Board's construction in the present case. We are confirmed in our view by the action of Congress in passing the Labor-Management Reporting and Disclosure Act of 1959. That Act goes beyond the Taft-Hartley Act to legislate a comprehensive code governing organizational strikes and picketing and draws no distinction between 'organizational' and 'recognitional' picketing. While proscribing peaceful organizational strikes in many situations, it also establishes safeguards against the Board's interference with legitimate picketing activity. See § 8(b)(7)(C).14 Were § 8(b)(1)(A) to have the sweep contended for by the Board, the Board might proceed against peaceful picketing in disregard of these safeguards. To be sure, what Congress did in 1959 does not establish what it meant in 1947. However, as another major step in an evolving pattern of regulation of union conduct, the 1959 Act is a relevant consideration. Courts may properly take into account the later Act when asked to extend the reach of the earlier Act's vague language to the limits which, read literally, the words might permit. We avoid the incongruous result implicit in the Board's construction by reading § 8(b)(1)(A), which is only one of many interwoven sections in complex Act, mindful of the manifest purpose of the Congress to fashion a coherent national labor policy. Affirmed. Memorandum of Mr. Justice STEWART, with whom Mr. Justice FRANKRURTER and Mr. Justice WHITTAKER join. At the time the writ of certiorari was granted in this case it clearly appeared that there was involved an 'important question of federal law which has not been, but should be, settled by this court.' See Rule 19, of the Revised Rules of the Supreme Court of the United States, 28 U.S.C.A. Subsequently, however, Congress enacted the Labor-Management Reporting and Disclosure Act of 1959. Section 704(c) of that statute added to the National Labor Relations Act a new provision, § 8(b)(7), which bans picketing for recognition or organizational purposes where: (A) the employer is lawfully recognizing another labor organization and a question concerning representation may not appropriately be raised under § 9; (B) within the preceding 12 months a valid election has been conducted; or (C) the picketing has been going on for an unreasonable period of time without a representation petition having been filed. See, 362 U.S. 277, 80 S.Ct. 708, note 5. This new statutory provision seems squarely to cover the type of conduct involved here, and I would remand this case to the Board for reconsideration in the light of the 1959 legislation, as suggested by the Solicitor General.1

362.US.217

Immigration and Naturalization Service officers arrested petitioner on an administrative warrant for deportation, searched the hotel room where he was arrested, his person and his luggage, and seized certain articles. After petitioner had checked out of his hotel room, an agent of the Federal Bureau of Investigation made a further search of the room, without a warrant but with the consent of the hotel management, and seized certain articles which petitioner had left there. The articles so seized were admitted in evidence over petitioner's objection at his trial for conspiracy to commit espionage, and he was convicted. Held: These searches and seizures did not violate the Fourth or Fifth Amendment, and the use in evidence of the articles so seized did not invalidate petitioner's conviction. Pp. 218-241. 1. On the record in this case, the Government did not use the administrative warrant of the Immigration and Naturalization Service as an improper instrument of the Federal Bureau of Investigation in obtaining evidence for a criminal prosecution. Pp. 225-230. 2. Petitioner's claim that the administrative warrant under which he was first arrested was invalid under the Fourth Amendment is not properly before this Court, since it was not made below and was expressly disavowed there. Pp. 230-234. 3. The articles seized by the immigration officers during the searches here involved were properly admitted in evidence. Pp. 234-240. 4. Immigration officers who effect an arrest for deportation on an administrative warrant have a Tight of incidental search analogous to the search permitted criminal law-enforcement officers incidental to a lawful arrest. Pp. 235-237. 5. The search of the hotel room by an F. B. I. agent without a warrant but with the consent of the hotel management, after petitioner had relinquished the room, and the seizure of articles which petitioner had abandoned there were lawful, and such articles were properly admitted in evidence. Pp. 240-241. 258 F. 2d 485, affirmed.

The question in this case is whether seven items were properly admitted into evidence at the petitioner's trial for conspiracy to commit espionage. All seven items were seized by officers of the Government without a search warrant. The seizures did not occur in connection with the exertion of the criminal process against petitioner. They arose out of his administrative arrest by the United States Immigration and Naturalization Service as a preliminary to his deportation. A motion to suppress these items as evidence, duly made in the District Court, was denied after a full hearing. 155 F.Supp. 8. Petitioner was tried, convicted and sentenced to thirty years' imprisonment and to the payment of a fine of $3,000. The Court of Appeals affirmed, 2 Cir., 258 F.2d 485. We granted certiorari, 358 U.S. 813, 79 S.Ct. 59, 3 L.Ed.2d 56, limiting the grant to the following two questions: '1. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated by a search and the seizure of evidence without a search warrant, after an alien suspected and officially accused of espionage has been taken into custody for deportation, pursuant to an administrative Immigration Service warrant, but has not been arrested for the commission of a crime? '2. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated when articles so seized are unrelated to the Immigration Service warrant and, together with other articles obtained from such leads, are introduced as evidence in a prosecution for espionage?' Argument was first heard at October Term, 1958. The case having been set down for reargument at this Term, 359 U.S. 940, 79 S.Ct. 720, 3 L.Ed.2d 674, counsel were asked to discuss a series of additional questions, set out in the margin.* We have considered the case on the assumption that the conviction must be reversed should we find challenged items of evidence to have been seized in violation of the Constitution and therefore improperly admitted into evidence. We find, however, that the admission of these items was free from any infirmity and we affirm the judgment. (Of course the nature of the case, the fact that it was a prosecution for espionage, has no bearing whatever upon the legal considerations relevant to the admissibility of evidence.) The seven items, all in petitioner's possession at the time of his administrative arrest, the admissibility of which is in question were the following: (1) a piece of graph paper, carrying groups of numbers arranged in rows, allegedly a coded message; (2) a forged birth certificate, certifying the birth of 'Martin Collins' In New York County in 1897; (3) a birth certificate, certifying the birth of 'Emil Goldfus' in New York in 1902 (Emil Goldfus died in 1903); (4) an international certificate of vaccination, issued in New York to 'Martin Collins' in 1957; (5) a bank book of the East River Savings Bank containing the account of 'Emil Goldfus'; (6) a hollowed-out pencil containing 18 microfilms; and (7) a block of wood, wrapped in sandpaper, and containing within it a small booklet with a series of numbers on each page, a so-called 'cipher pad.' Items (2), (3), (4) and (5) were relevant to the issues of the indictment for which petitioner was on trial in that they corroborated petitioner's use of false identities. Items (1), (6) and (7) were incriminatory as useful means for one engaged in espionage. The main claims which petitioner pressed upon the Court may be thus summarized: (1) the administrative arrest was used by the Government in bad faith; (2) administrative arrests as preliminaries to deportation are unconstitutional; and (3) regardless of the validity of the administrative arrest here, the searches and seizures through which the challenged items came into the Government's possession were not lawful ancillaries to such an arrest. These claims cannot be judged apart from the circumstances leading up to the arrest and the nature of the searches and seizures. It becomes necessary to relate these matters in considerable detail. Petitioner was arrested by officers of the Immigration and Naturalization Service (hereafter abbreviated as I.N.S.) on June 21, 1957, in a single room in the Hotel Latham in New York City, his then abode. The attention of the I.N.S. had first been drawn to petitioner several days earlier when Noto, a Deputy Assistant Commissioner of the I.N.S., was told by a liaison officer of the Federal Bureau of Investigation (hereafter abbreviated as F.B.I.) that petitioner was believed by the F.B.I. to be an alien residing illegally in the United States. Noto was told of the F.B.I.'s interest in petitioner in connection with espionage. An uncontested affidavit before the District Court asserted the following with regard to the events leading up to the F.B.I.'s communication with Noto about petitioner. About one month before the F.B.I. communicated with Noto, petitioner had been mentioned by Hayhanen, a recently defected Russian spy, as one with whom Hayhanen had for several years cooperated in attempting to commit espionage. The F.B.I. had thereupon placed petitioner under investigation. At the time the F.B.I. communicated with the I.N.S. regarding petitioner, the case against him rested chiefly upon Hayhanen's story, and Hayhanen, although he was later to be the Government's principal witness at the trial, at that time insisted that he would refuse to testify should petitioner be brought to trial, although he would fully cooperate with the Government in secret. The Department of Justice concluded that without Hayhanen's testimony the evidence was insufficient to justify petitioner's arrest and indictment on espionage charges. The decision was thereupon made to bring petitioner to the attention of the I.N.S., with a view to commencing deportation proceedings against him. Upon being notified of the F.B.I.'s belief that petitioner was residing illegally in this country, Noto asked the F.B.I. to supply the I.N.S. with further information regarding petitioner's status as an alien. The F.B.I. did this within a week. The I.N.S. concluded that if petitioner were, as suspected, an alien, he would be subject to deportation in that he had failed to comply with the legal duty of aliens to notify the Attorney General every January of their address in the United States. 8 U.S.C. § 1305, 8 U.S.C.A. § 1305. Noto then determined on petitioner's administrative arrest as a preliminary to his deportation. The F.B.I. was so informed. On June 20, two I.N.S. officers, Schoenenberger and Kanzler, were dispatched by Noto to New York to supervise the arrest. These officers carried with them a warrant for petitioner's arrest and an order addressed to petitioner directing him to show cause why he should not be deported. They met in New York with the District Director of the I.N.S. who, after the information in the possession of the I.N.S. regarding petitioner was put before him, signed the warrant and the order. Following this, Schoenenberger and Kanzler went to F.B.I. headquarters in New York where, by prearrangement with the F.B.I. in Washington, they were met by several F.B.I. officers. These agreed to conduct agents of the I.N.S. to petitioner's hotel so that the I.N.S. might accomplish his arrest. The F.B.I. officer in charge asked whether, before the petitioner was arrested, the F.B.I. might 'interview' him in an attempt to persuade him to 'cooperate' with regard to his espionage. To this Schoenenberger agreed. At 7 o'clock the next morning, June 21, two officers of the I.N.S. and several F.B.I. men gathered in the corridor outside petitioner's room at the Hotel Latham. All but two F.B.I. agents, Gamber and Blasco, went into the room next to petitioner's, which the F.B.I. had occupied in the course of its investigation of petitioner. Gamber and Blasco were charged with confronting petitioner and soliciting his cooperation with the F.B.I. They had no warrant either to arrest or to search. If petitioner proved cooperative their instructions were to telephone to their superior for further instructions. If petitioner failed to cooperate they were to summon the waiting I.N.S. agents to execute their warrant for his arrest. Gamber rapped on petitioner's door. When petitioner released the catch, Gamber pushed open the door and walked into the room, followed by Blasco. The door was left ajar and a third F.B.I. agent came into the room a few minutes later. Petitioner, who was nude, was told to put on a pair of undershorts and to sit on the bed, which he did. The F.B.I. agents remained in the room questioning petitioner for about twenty minutes. Although petitioner answered some of their questions, he did not 'cooperate' regarding his alleged espionage. A signal was thereupon given to the two agents of the I.N.S. waiting in the next room. These came into petitioner's room and served petitioner with the warrant for his arrest and with the order to show cause. Shortly thereafter Schoenenberger and Kanzler, who had been waiting outside the hotel, also entered petitioner's room. These four agents of the I.N.S. remained with petitioner in his room for about an hour. For part of this time an F.B.I. agent was also in the room and during all of it another F.B.I. agent stood outside the open door of the room, where he could observe the interior. After placing petitioner under arrest, the four I.N.S. agents undertook a search of his person and of all of his belongings in the room, and the adjoining bathroom, which lasted for from fifteen to twenty minutes. Petitioner did not give consent to this search; his consent was not sought. The F.B.I. agents observed this search but took no part in it. It was Schoenenberger's testimony to the District Court that the purpose of this search was to discover weapons and documentary evidence of petitioner's 'alienage'—that is, documents to substantiate the information regarding petitioner's status as an alien which the I.N.S. had received from the F.B.I. During this search one of the challenged items of evidence, the one we have designated (2), a birth certificate for 'Martin Collins,' was seized. Weapons were not found, nor was any other evidence regarding petitioner's 'alienage.' When the search was completed, petitioner was told to dress himself, to assemble his things and to choose what he wished to take with him. With the help of the I.N.S. agents almost everything in the room was packed into petitioner's baggage. A few things petitioner deliberately left on a window sill, indicating that he did not want to take them, and several other things which he chose not to pack up into his luggage he put into the room's wastepaper basket. When everything had been assembled, petitioner asked and received permission to repack one of his suitcases. While petitioner was doing so, Schoenenberger noticed him slipping some papers into the sleeve of his coat. Schoenenberger seized these. One of them was the challenged item of evidence which we have designated (1), a piece of graph paper containing a coded message. When petitioner's belongings had been completely packed, petitioner agreed to check out of the hotel. One of the F.B.I. agents obtained his bill from the hotel and petitioner paid it. Petitioner was then handcuffed and taken, along with his baggage, to a waiting automobile and thence to the headquarters of the I.N.S. in New York. At I.N.S. headquarters, the property petitioner had taken with him was searched more thoroughly than it had been in his hotel room, and three more of the challenged items were discovered and seized. These were the ones we have designated (3), (4) and (5), the 'Emil Goldfus' birth certificate, the international vaccination certificate, and the bank book. As soon as petitioner had been taken from the hotel an F.B.I. agent, Kehoe, who had been in the room adjoining petitioner's during the arrest and search and who, like the I.N.S. agents, had no search warrant, received permission from the hotel management to search the room just vacated by petitioner. Although the bill which petitioner had paid entitled him to occupy the room until 3 p.m. of that day, the hotel's practice was to consider a room vacated whenever a guest removed his baggage and turned in his key. Kehoe conducted a search of petitioner's room which lasted for about three hours. Among other things, he seized the contents of the wastepaper basket into which petitioner had put some things while packing his belongings. Two of the items thus seized were the challenged items of evidence we have designated (6) and (7): a hollow pencil containing microfilm and a block of wood containing a 'cipher pad.' Later in the day of his arrest, petitioner was taken by airplane to a detention center for aliens in Texas. He remained there for several weeks until arrested upon the charge of conspiracy to commit espionage for which he was brought to trial and convicted in the Eastern District of New York. The underlying basis of petitioner's attack upon the admissibility of the challenged items of evidence concerns the motive of the Government in its use of the administrative arrest. We are asked to find that the Government resorted to a subterfuge, that the Immigration and Naturalization Service warrant here was a pretense and sham, was not what it purported to be. According to petitioner, it was not the Government's true purpose in arresting him under this warrant to take him into custody pending a determination of his deportability. The Government's real aims, the argument runs, were (1) to place petitioner in custody so that pressure might be brought to bear upon him to confess his espionage and cooperate with the F.B.I., and (2) to permit the Government to search through his belongings for evidence of his espionage to be used in a designed criminal prosecution against him. The claim is, in short, that the Government used this administrative warrant for entirely illegitimate purposes and that articles seized as a consequence of its use ought to have been suppressed. Were this claim justified by the record, it would indeed reveal a serious misconduct by law-enforcing officers. The deliberate use by the Government of an administrative warrant for the purpose of gathering evidence in a criminal case must meet stern resistance by the courts. The preliminary stages of a criminal prosecution must be pursued in strict obedience to the safeguards and restrictions of the Constitution and laws of the United States. A finding of bad faith is, however, not open to us on this record. What the motive was of the I.N.S. officials who determined to arrest petitioner, and whether the I.N.S. in doing so was not exercising its powers in the lawful discharge of its own responsibilities but was serving as a tool for the F.B.I. in building a criminal prosecution against petitioner, were issues fully canvassed in both courts below. The crucial facts were found against the petitioner. On this phase of the case the district judge, having permitted full scope to the elucidation of petitioner's claim, having seen and heard witnesses, in addition to testimony by way of affidavits, and after extensive argument, made these findings: '(T)he evidence is persuasive that the action taken by the officials of the Immigration and Naturalization Service is found to have been in entire good faith. The testimony of Schoenenberger and Noto leaves no doubt that while the first information that came to them concerning the (petitioner) * * * was furnished by the F.B.I.—which cannot be an unusual happening—the proceedings taken by the Department differed in no respect from what would have been done in the case of an individual concerning whom no such information was known to exist. 'The defendant argues that the testimony establishes that the arrest was made under the direction and supervision of the F.B.I., but the evidence is to the contrary, and it is so found. 'No good reason has been suggested why these two branches of the Department of Justice should not cooperate, and that is the extent of the showing made on the part of the defendant.' D.C., 155 F.Supp. 8, 11. The opinion of the Court of Appeals, after careful consideration of the matter, held that the answer 'must clearly be in the affirmative' to the question 'whether the evidence in the record supports the finding of good faith made by the court below.' 2 Cir., 258 F.2d 485, 494. Among the statements in evidence relied upon by the lower courts in making these findings was testimony by Noto that the interest of the I.N.S. in petitioner was confined to petitioner's illegal status in the United States; that in informing the I.N.S. about petitioner's presence in the United States the F.B.I. did not indicate what action it wanted the I.N.S. to take; that Noto himself made the decision to arrest petitioner and to commence deportation proceedings against him; that the F.B.I. made no request of him to search for evidence of espionage at the time of the arrest; and that it was 'usual and mandatory' for the F.B.I. and I.N.S. to work together in the manner they did. There was also the testimony of Schoenenberger, regarding the purpose of the search he made of petitioner's belongings, that the motive was to look for weapons and documentary evidence of alienage. To be sure, the record is not barren of evidence supporting an inference opposed to the conclusion to which the two lower courts were led by the record as a whole: for example, the facts that the I.N.S. held off its arrest of petitioner while the F.B.I. solicited his cooperation, and that the F.B.I. held itself ready to search petitioner's room as soon as it was vacated. These elements, however, did not, and were not required to, persuade the two courts below in the face of ample evidence of good faith to the contrary, especially the human evidence of those involved in the episode. We are not free to overturn the conclusion of the courts below when justified by such solid proof. Petitioner's basic contention comes down to this: even without a showing of bad faith, the F.B.I. and I.N.S. must be held to have cooperated to an impermissible extent in this case, the case being one where the alien arrested by the I.N.S. for deportation was also suspected by the F.B.I. of crime. At the worst, it may be said that the circumstances of this case reveal an opportunity for abuse of the administrative arrest. But to hold illegitimate, in the absence of bad faith, the cooperation between I.N.S. and F.B.I. would be to ignore the scope of rightful cooperation between two branches of a single Department of Justice concerned with enforcement of different arges of law under the common authority of the Attorney General. The facts are that the F.B.I. suspected petitioner both of espionage and illegal residence in the United States as an alien. That agency surely acted not only with propriety but in discharge of its duty in bringing petitioner's illegal status to the attention of the I.N.S., particularly after it found itself unable to proceed with petitioner's prosecution for espionage. Only the I.N.S. is authorized to initiate deportation proceedings, and certainly the F.B.I. is not to be required to remain mute regarding one they have reason to believe to be a deportable alien, merely because he is also suspected of one of the gravest of crimes and the F.B.I. entertains the hope that criminal proceedings may eventually be brought against him. The I.N.S., just as certainly, would not have performed its responsibilities had it been deterred from instituting deportation proceedings solely because it became aware of petitioner through the F.B.I., and had knowledge that the F.B.I. suspected petitioner of espionage. The Government has available two ways of dealing with a criminally suspect deportable alien. It would make no sense to say that branches of the Department of Justice may not cooperate in pursuing one course of action or the other, once it is honestly decided what course is to be preferred. For the same reasons this cooperation may properly extend to the extent and in the manner in which the F.B.I. and I.N.S. cooperated in effecting petitioner's administrative arrest. Nor does it taint the administrative arrest that the F.B.I. solicited petitioner's cooperation before it took place, stood by while it did, and searched the vacated room after the arrest. The F.B.I. was not barred from continuing its investigation in the hope that it might result in a prosecution for espionage because the I.N.S., in the discharge of its duties, had embarked upon an independent decision to initiate proceedings for deportation. The Constitution does not require that honest law enforcement should be put to such an irrevocable choice between two recourses of the Government. For a contrast to the proper cooperation between two branches of a single Department of Justice as revealed in this case, see the story told in Colyer v. Skeffington, D.C., 265 F. 17. That case sets forth in detail the improper use of immigration authorities by the Bureau of Investigation of the Department of Justice when the immigration service was a branch of the Department of Labor and was acting not within its lawful authority but as the cat's pay of another, unrelated branch of the Government. We emphasize again that our view of the matter would be totally different had the evidence established, or were the courts below not justified in not finding, that the administrative warrant was here employed as an instrument of criminal law enforcement to circumvent the latter's legal restrictions, rather than as a bona fide preliminary step in a deportation proceeding. The test is whether the decision to proceed administratively toward deportation was influenced by, and was carried out for, a purpose of amassing evidence in the prosecution for crime. The record precludes such a finding by this Court. The claim that the administrative warrant by which petitioner was arrested was invalid, because it did not satisfy the requirements for 'warrants' under the Fourth Amendment, is not entitled to our consideration in the circumstances before us. It was not made below; indeed, it was expressly disavowed. Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity. The grounds relied on in the trial court and the Court of Appeals by petitioner were solely (in addition to the insufficiency of the evidence, a contention not here for review) (1) the bad faith of the Government's use of the administrative arrest warrant and (2) the lack of a power incidental to the execution of an administrative warrant to search and seize articles for use as evidence in a later criminal prosecution. At no time did petitioner question the legality of the administrative arrest procedure either as unauthorized or as unconstitutional. Such challenges were, to repeat, disclaimed. At the hearing on the motion to suppress, petitioner's counsel was questioned by the court regarding the theory of relief relied upon: 'The Court: They (the Government) were not at liberty to arrest him (petitioner)? 'Mr. Fraiman: No, your Honor. 'They were perfectly proper in arresting him. 'We don't contend that at all. 'As a matter of fact, we contend it was their duty to arrest this man as they did. 'I think it should show or rather, it showed admirable thinking on the part of the F.B.I. and the Immigration Service. 'We don't find any fault with that. 'Our contention is that although they were permitted to arrest this man, and in fact, had a duty to arrest this man in a manner in which they did, they did not have a right to search his premises for the material which related to espionage. '* * * He was charged with no criminal offense in this warrant. 'The Court: He was suspected of being illegally in the country, wasn't he? 'Mr. Fraiman: Yes, your Honor. 'The Court: He was properly arrested. 'Mr. Fraiman: He was properly arrested, we concede that, your Honor.' Counsel further made it plain that the arrest warrant whose validity he was conceding was 'one of these Immigration warrants which is obtained without any background material at all.' Affirmative acceptance of what is now sought to be questioned could not be plainer. The present form of the legislation giving authority to the Attorney General or his delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial warrant within the scope of the Fourth Amendment, is § 242(a) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1252(a), 8 U.S.C.A. § 1252(a). The regulations under this Act delegate the authority to issue these administrative warrants to the District Directors of the I.N.S. '(a)t the commencement of any proceeding (to deport) * * * or at any time thereafter * * * whenever, in (their) * * * discretion, it appears that the arrest of the respondent is necessary or desirable.' 8 CFR § 242.2(a). Also, according to these regulations, proceedings to deport are commenced by orders to show cause issued by the District Directors or others; and the 'Operating Instructions' of the I.N.S. direct that the application for an order to show cause should be based upon a showing of a prima facie case of deportability. The warrant of arrest for petitioner was issued by the New York District Director of the I.N.S. at the same time as he signed an order to show cause. Schoenenberger testified that, before the warrant and order were issued, he and Kanzler related to the District Director what they had learned from the F.B.I. regarding petitioner's status as an alien, and the order to show cause recited that petitioner had failed to register, as aliens must. Since petitioner was a suspected spy, who had never acknowledged his residence in the United States to the Government or openly admitted his presence here, there was ample reason to believe that his arrest pending deportation was 'necessary or desirable.' The arrest procedure followed in the present case fully complied with the statute and regulations. Statutes providing for deportation have ordinarily authorized the arrest of deportable aliens by order of an executive official. The first of these was in 1798. Act of June 25, 1798, c. 58, § 2, 1 Stat. 571. And see, since that time, and before the present Act, Act of Oct. 19, 1888, c. 1210, 25 Stat. 566; Act of Mar. 3, 1903, c. 1012, § 21, 32 Stat. 1218; Act of Feb. 20, 1907, c. 1134, § 20, 34 Stat. 904; Act of Feb. 5, 1917, c. 29, § 19, 39 Stat. 889; Act of Oct. 16, 1918, c. 186, § 2, 40 Stat. 1012; Act of May 10, 1920, c. 174, 41 Stat. 593; Internal Security Act of 1950, c. 1024, Title I, § 22, 64 Stat. 1008, 8 U.S.C.A. § 1182(a)(28). To be sure, some of these statutes, namely the Acts of 1888, 1903 and 1907, dealt only with aliens who had landed illegally in the United States, and not with aliens sought to be deported by reason of some act or failure to act since entering. Even apart from these, there remains overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens such as petitioner. The constitutional validity of this long-standing administrative arrest procedure in deportation cases has never been directly challenged in reported litigation. Two lower court cases involved oblique challenges, which were summarily rejected. Podolski v. Baird, D.C., 94 F.Supp. 294; Ex parte Avakian, D.C., 188 F. 688, 692. See also the discussion in Colyer v. Skeffington, D.C., 265 F. 17, reversed on other grounds sub nom. Skeffington v. Katzeff, 1 Cir., 277 F. 129, where the District Court made an exhaustive examination of the fairness of a group of deportation proceedings initiated by administrative arrests, but nowhere brought into question the validity of the administrative arrest procedure as such. This Court seems never expressly to have directed its attention to the particular question of the constitutional validity of administrative deportation warrants. It has frequently, however, upheld administrative deportation proceedings shown by the Court's opinion to have been begun by arrests pursuant to such warrants. See Kaoru Yamataya v. Fisher, The Japanese Immigrant Case, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; Zakonaite v. Wolf, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547. In Carlson v. Landon, the validity of the arrest was necessarily implicated, for the Court there sustained discretion in the Attorney General to deny bail to alien Communists held pending deportation on administrative arrest warrants. In the presence of this impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation, petitioner's disavowal of the issue below calls for no further consideration. Since petitioner's arrest was valid, we reach the question whether the seven challenged items, all seized during searches which were a direct consequence of that arrest, were properly admitted into evidence. This issue raises three questions: (1) Were the searches which produced these items proper searches for the Government to have made? If they were not, then whatever the nature of the seized articles, and however proper it would have been to seize them during a valid search, they should have been suppressed as the fruits of activity in violation of the Fourth Amendment. E.g., Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652. (2) Were the articles seized properly subject to seizure, even during a lawful search? We have held in this regard that not every item may be seized which is properly inspectible by the Government in the course of a legal search; for example, private papers desired by the Government merely for use as evidence may not be seized, no matter how lawful the search which discovers them, Gouled v. United States, 255 U.S. 298, 310, 41 S.Ct. 261, 265, 65 L.Ed. 647, nor may the Government seize, wholesale, the contents of a house it might have searched, Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876. (3) Was the Government free to use the articles, even if properly seized, as evidence in a criminal case, the seizures having been made in the course of a separate administrative proceeding? The most fundamental of the issues involved and seizures made in petitioner's room and seizures made in petitioner's room in the Hotel Latham. The ground of objection is that a search may not be conducted as an incident to a lawful administrative arrest. We take as a starting point the cases in this Court dealing with the extent of the search which may properly be made without a warrant following a lawful arrest for crime. The several cases on this subject in this Court cannot be satisfactorily reconciled. This problem has, as is well-known, provoked strong and fluctuating differences of view on the Court. This is not the occasion to attempt to reconcile all the decisions, or to re-examine them. Compare Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, with Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, compare Go-Bart, supra, and Lefkowitz, supra, with Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; compare also Harris, supra, with Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, and Trupiano with Rabinowitz, supra (overruling Trupiano). Of these cases, Harris and Rabinowitz set by far the most permissive limits upon searches incidental to lawful arrests. In view of their judicial context, the trial judge and the Government justifiably relied upon these cases for guidance at the trial; and the petitioner himself accepted the Harris case on the motion to suppress, nor does he ask this Court to reconsider Harris and Rabinowitz. It would, under these circumstances, be unjustifiable retrospective lawmaking for the Court in this case to reject the authority of these decisions. Are there to be permitted incidental to valid administrative arrests, searches as broad in physical area as, and analogous in purpose to, those permitted by the applicable precedents as incidents to lawful arrests for crime? Specifically, were the officers of the I.N.S. acting lawfully in this case when, after his arrest, they searched through petitioner's belongings in his hotel room looking for weapons and documents to evidence his 'alienage'? There can be no doubt that a search for weapons has as much justification here as it has in the case of an arrest for crime, where it has been recognized as proper. E.g., Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145. It § no less important for government officers, acting under established procedure to effect a deportation arrest rather than one for crime, to protect themselves and to insure that their prisoner retains no means by which to accomplish an escape. Nor is there any constitutional reason to limit the search for materials proving the deportability of an alien, when validly arrested, more severely than we limit the search for materials probative of crime when a valid criminal arrest is made. The need for the proof is as great in one case as in the other, for deportation can be accomplished only after a hearing at which deportability is established. Since a deportation arrest warrant is not a judicial warrant, a search incidental to a deportation arrest is without the authority of a judge or commissioner. But so is a search incidental to a criminal arrest made upon probable cause without a warrant, and under Rabinowitz, 339 U.S. at page 60, 70 S.Ct. at page 432, such a search does not require a judicial warrant for its validity. It is to be remembered that an I.N.S. officer may not arrest and search on his own. Application for a warrant must be made to an independent responsible officer, the District Director of the I.N.S., to whom a prima facie case of deportability must be shown. The differences between the procedural protections governing criminal and deportation arrests are not of a quality or magnitude to warrant the deduction of a constitutional difference regarding the right of incidental search. If anything, we ought to be more vigilant, not less, to protect individuals and their property from warrantless searches made for the purpose of turning up proof to convict than we are to protect them from searches for matter bearing on deportability. According to the uniform decisions of this Court deportation proceedings are not subject to the constitutional safeguards for criminal prosecutions. Searches for evidence of crime present situations demanding the greatest, not the least, restraint upon the Government's intrusion into privacy; although its protection is not limited to them, it was at these searches which the Fourth Amendment was primarily directed. We conclude, therefore, that government officers who effect a deportation arrest have a right of incidental search analogous to the search permitted criminal law-enforcement officers. Judged by the prevailing doctrine, the search of petitioner's hotel room was justified. Its physical scope, being confined to the petitioner's room and the adjoining bathroom, was far less extensive than the search in Harris. The search here was less intensive than were the deliberately exhaustive quests in Harris and Rabinowitz, and its purpose not less justifiable. The only things sought here, in addition to weapons, were documents connected with petitioner's status as an alien. These may well be considered as instruments or means for accomplishing his illegal status, and thus proper objects of search under Harris, supra, 331 U.S. at page 154, 67 S.Ct. at page 1103. Two of the challenged items were seized during this search of petitioner's property at his hotel room. The first was item (2), a forged New York birth certificate for 'Martin Collins,' one of the false identities which petitioner assumed in this country in order to keep his presence here undetected. This item was seizable when found during a proper search, not only as a forged official document by which petitioner sought to evade his obligation to register as an alien, but also as a document which petitioner was using as an aid in the commission of espionage for his undetected presence in this country was vital to his work as a spy. Documents used as a means to commit crime are the proper subjects of search warrants, Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, and are seizable when discovered in the course of a lawful search, Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231. The other item seized in the course of the search of petitioner's hotel room was item (1), a piece of graph paper containing a coded message. This was seized by Schoenenberger as petitioner, while packing his suitcase, was seeking to hide it in his sleeve. An arresting officer is free to take hold of articles which he sees the accused deliberately trying to hide. This power derives from the dangers that a weapon will be concealed, or that relevant evidence will be destroyed. Once this piece of graph paper came into Schoenenberger's hands, it was not necessary for him to return it, as it was an instrumentality for the commission of espionage. This is so even though Schoenenberger was not only not looking for items connected with espionage but could not properly have been searching for the purpose of finding such items. When an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for. See Harris, supra, 331 U.S. at pages 154—155, 67 S.Ct. at page 1103. Items (3), (4), and (5), a birth certificate for 'Emil Goldfus' who died in 1903, a certificate of vaccination for 'Martin Collins,' and a bank book for 'Emil Goldfus' were seized, not in petitioner's hotel room, but in a more careful search at I.N.S. headquarters of the belongings petitioner chose to take with him when arrested. This search was a proper one. The property taken by petitioner to I.N.S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested. It is to be noted that this is not a case, like Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, where the entire contents of the place where the arrest was made were seized. Such a mass seizure is illegal. The Government here did not seize the contents of petitioner's hotel room. Petitioner took with him only what he wished. He chose to leave some things behind in his room, which he voluntarily relinquished. And items (3), (4), and (5) were articles subject to seizure when found during a lawful search. They were all capable of being used to establish and maintain a false identity for petitioner, just as the forged 'Martin Collins' birth certificate, and were seizable for the same reasons. Items (1)—(5) having come into the Government's possession through lawful searches and seizures connected with an arrest pending deportation, was the Government free to use them as evidence in a criminal prosecution to which they related? We hold that it was. Good reason must be shown for prohibiting the Government from using relevant, otherwise admissible, evidence. There is excellent reason for disallowing its use in the case of evidence, though relevant, which is seized by the Government in violation of the Fourth Amendment to the Constitution. 'If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.' Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652. These considerations are here absent, since items (1)—(5) were seized as a consequence of wholly lawful conduct. That being so, we can see no rational basis for excluding these relevant items from trial: no wrongdoing police officer would thereby be indirectly condemned, for there were no such wrongdoers; the Fourth Amendment would not thereby be enforced, for no illegal search or seizure was made; the Court would be lending its aid to no lawless government action, for none occurred. Of course cooperation between the branch of the Department of Justice dealing with criminal law enforcement and the branch dealing with the immigration laws would be less effective if evidence lawfully seized by the one could not be used by the other. Only to the extent that it would be to the public interest to deter and prevent such cooperation, would an exclusionary rule in a case like the present be desirable. Surely no consideration of civil liberties commends discouragement of such cooperation between these two branches when undertaken in good faith. When undertaken in bad faith to avoid constitutional restraints upon criminal law enforcement the evidence must be suppressed. That is not, as we have seen, this case. Individual cases of bad faith cooperation should be dealt with by findings to that effect in the cases as they arise, not by an exclusionary rule preventing effective cooperation when undertaken in entirely good faith. We have left to the last the admissibility of items (6) and (7), the hollowed-out pencil and the block of wood containing a 'cipher pad,' because their admissibility is founded upon an entirely different set of considerations. These two items were found by an agent of the F.B.I. in the course of a search he undertook of petitioner's hotel room, immediately after petitioner had paid his bill and vacated the room. They were found in the room's wastepaper basket, where petitioner had put them while packing his belongings and preparing to leave. No pretense is made that this search by the F.B.I. was for any purpose other than to gather evidence of crime, that is, evidence of petitioner's espionage. As such, however, it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. Nor was it unlawful to seize the entire contents of the wastepaper basket, even though some of its contents had no connection with crime. So far as the record shows, petitioner had abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia. There can be nothing unlawful in the Government's appropriation of such abandoned property. See Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898. The two items which were eventually introduced in evidence were assertedly means for the commission of espionage and were themselves seizable as such. These two items having been lawfully seized by the Government in connection with an investigation of crime, we encounter no basis for discussing further their admissibility as evidence. Affirmed.

364.US.478

Appeal dismissed for want of a substantial federal question. Reported below: 8 N. Y. 2d 903, 168 N. E. 2d 823.

The appeal is dismissed for want of a substantial federal question. Mr. Justice FRANKFURTER would note probable jurisdiction and hear the case, the more so inasmuch as the transactions which New York has taxed concerned foreign commerce, unlike those which were involved in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421. Mr. Justice DOUGLAS is also of the opinion that probable jurisdiction should be noted.

131.US.31

The "fifty per centum on the contract as originally let," to which the power of the Postmaster General to expedite service under a contract for carrying the mails is restricted by the proviso in § 2 of the act of April 7, 1880, c. 48, 21 Stat. 72, is fifty per cent on the compensation for all the service, both as originally stipulated and as increased by additional service, which is to be determined by the rates fixed in the original contract. Decisions of the Postmaster General, imposing forfeitures on contractors for failure to carry the mails according to their contracts, are not subject to review by this court.

The contracts in question were made in conformity with the provisions of sections 3960 and 3961 of the Revised Statutes. Section 3960 is as follows: 'Compensation for additional service, in carrying the mail, shall not be in excess of the exact proportion which the original compensation bears to the original service, and when any such additional service is ordered, the sum to be allowed therefor shall be expressed in the order, and entered upon the books of the department; and no compensation shall be paid for any additional regular service rendered before the issuing of such order.' Section 3961 provides: 'No extra allowance shall be made for any increase of expedition in carrying the mail, unless thereby the employment of additional stock and carriers is made necessary, and in such case the additional compensation shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution.' All the orders made by the postmaster general, subsequent to the execution of these contracts, and while the service was in course of performance, were made after the act of congress of April 7, 1880, which contained this proviso: 'Provided, that the postmaster general shall not hereafter have the power to expedite the service under any contract either now existing or hereafter given to a rate of pay exceeding fifty per centum upon the contract as originally let.' 21 St. 72. The attorney general, construing the provision last quoted, in a letter to the postmaster general, dated July 20, 1881, held that 'the original letting, and not any subsequent increase of service and pay,' was made 'the standard of limitation.' It was in conformity with this opinion that the postmaster general withheld from the appellant the 50 per cent. on the expedited service under his contract. We think it is clear that the language of the proviso may be interpreted in accordance with the original orders of the post-office department, and pursuant to the terms of the contracts sued on. Those orders allowed the contractor, for expedition, 50 per cent. additional upon the sum paid, for the service actually performed. These allowances did not exceed 50 per cent. of the rate of compensation fixed by the contracts as originally let, though they did exceed 50 per cent. of the sum named in those contracts. The proviso, in express terms, refers to the 'rate of pay' established in the contracts as originally let, and it is the rate of pay, not the amount expressed in the first contract, which is manifestly intended to be the unit of computation. Our construction of this legislation, considered in pari materia with the provisions of sections 3960 and 3961, is this: Section 3960 treats the rate of pay for additional service as definitely fixed by the original contract, and under its provisions the compensation which the contractor is to receive for each extra trip placed upon his route is to bear an exact proportion to the additional service performed; that is, it is to be based upon the rate established by the original contract. Section 3961 has direct reference to the compensation to be paid for the expedited service, and expressly provides that, in computing such compensation, the rate of pay fixed in the original contract is to be taken as the standard of limitation, which shall not be exceeded. These two sections left it within the discretion of the postmaster general to expedite the service to an indefinite extent, and to allow a pro rata compensation therefor. The proviso added in 1880 was clearly intended to limit that discretion by providing that thereafter he should not have authority to expedite the service, under any contract, beyond 50 per cent. of the rate fixed in the original contract. The circumstances under which contracts for the transportation of the mails are awarded, we think, sustain this construction. Such awards are made after public advertisement, and upon competitive bids, and it is presumed that the contract price is at as low a rate as can be made consistently with a proper performance of service. In the present case, it appears from the record that the actual cost of the expedition ordered upon the single one of the seven weekly trips upon the second route was more than 50 per cent. of the aggregate sum named in the original contract. The interpretation on which the last order is based assumes that congress intended to leave with the postmaster general the power to exact from a contractor seven times the service stipulated in the contract as originally let, and to allow but 50 per cent. compensation on the amount named in that contract. The construction contended for by the appellant is in harmony with the previous legislation on the subject, and the established policy of the mail service, and is entirely equitable. As to so much of the demand as is claimed in the petition to be due to the petitioner under the contracts, and as to the 50 per cent. of one month's extra pay, we hold and decide that the court of claims erred in sustaining the demurrer. But with regard to the claim for the amount deducted as forfeitures imposed by the postmaster general, because the contractor failed to cause the mail to be carried between the termini within the time prescribed, it is considered that these forfeitures were made by virtue of the power conferred upon the postmaster general by the statutes, and also recognized by the terms of the contracts to be within his discretion, and are not subject to review by this court. Railway Co. v. U. S., 127 U. S. 406, 407, 8 Sup. Ct. Rep. 1194; Railroad Co. v. U. S., 129 U. S. 391, 396, ante, 320. As far as the claim for the deduction of the amount of these forfeitures is concerned, the demurrer was properly sustained. The judgment is reversed, and the case remanded for action in accordance with the principles of this decision.

130.US.284

The notice of dissatisfaction with the decision of the collector of customs as to the rate and amount of duties on imported goods, required by the act of June 30, 1864, c. 171, § 14 (Rev. Stat. § 2931), to be given "within ten days after the ascertainmept and liquidation of the duties by the proper officers of the customs," may- be given at any time after the entry of the goods and the collector's original estimate of the amount of duties, and before the final ascertainment and liquidation of the duties as stamped upon the entry.

This was an action against the executors of a late collector of the port of New York, to recover back duties exacted on goods imported by the plaintiffs in July, August, and September, 1873. At the trial the plaintiffs introduced evidence tending to show that the duties exacted and paid were excessive; that appeals to the secretary of the treasury were taken, and this action brought in due time; and that the protest as to each entry was filed after the collector's decision on the rate and amount of duties, but before the date of the final ascertainment and liquidation of the duties, as stamped upon the entry. The court directed a verdict for the defendants, on the ground that the protest was filed 'before the liquidation of the entry to which it referred, and not within ten days thereafter, as required by law.' The plaintiffs duly excepted to the ruling, and, after judgment for the defendants, sued out this writ of error. The customs acts in force at the time of the importation of these goods contained the following provisions: The collector and the naval officer are required to make and to indorse upon the importer's entry a gross estimate of the amount of the duties on the merchandise to which the entry relates, and the merchandise cannot be lawfully landed until the amount of the estimated duties has been first paid, or secured to be paid, and a permit granted. Act March 2, 1799, c. 22, § 49, (1 St. 664;) Rev. St. § 2869. The merchandise must be appraised, or bonds given by the importer in double its estimated value, before it is delivered from the custody of the officers of the customs. If the collector deems any appraisement too low, he may order a new appraisement, and may cause the duties to be charged accordingly. If the importer is dissatisfied with the appraisement, the collector must order another appraisement by two appraisers of a specified class, and, if they disagree, decide between them, and the appraisement thus determined shall be final, and duties levied accordingly. Acts May 28, 1830, c. 147, §§ 2, 4, (4 St. 409, 410;) Aug. 30, 1842, c. 270, § 17, (5 St. 564;) March 3, 1851, c. 38, § 3, (9 St. 630;) Rev. St. §§ 2899, 2929, 2930. On the entry of any merchandise, the decision of the collector of customs at the port of importation and entry as to the rate and amount of duties to be paid on such merchandise shall be final and conclusive against all persons interested therein, unless the owner, importer, agent, or consignee of the merchandise 'shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth thirty days after the date of such ascertainment of his objection thereto, and shall, within thrity days after the date of such ascertainment and liquidation, appeal thereform to the secretary of the treasury.' Act June 30, 1864, c. 171, § 14, (13 St. 214;) Rev. St. § 2931. The question is whether the period allowed for filing the protest or notice of dissatisfaction with the decision made by the collector at the time of the entry upon the rate and amount of duties extends from the time of that decision, or only from the date of the final ascertainment and liquidation of the duties as stamped upon the entry, until 10 days after that date; or, in other words, whether this period, which is admitted to expire 10 days after the ascertainment and liquidation of the duties as so stamped, begins at the date of the stamp, or at the earlier date of the collector's original decision upon the estimated rate and amount of duties. The determination of this question will be aided by a brief consideration of the history of the law before the passage of the act of 1864. Under the earlier acts of congress, which contained no provision on this subject, an importer who had paid unauthorized duties, under protest, and in order to obtain possession of his goods, might recover them back from the collector in an action of assumpsit for money had and received. Elliott v. Swartwout, 10 Pet. 137. The act of March 3, 1839, c. 82, § 2, requiring the collector to pay the money into the treasury, notwithstanding the protest of the importer, and giving the importer a right of appeal to the secretary of the treasury, was held by this court, at January term, 1845, to take away the importer's right to bring an action of assumpsit. 5 St. 348; Cary v. Curtis, 3 How. 236. Then came the act of February 26, 1845, c. 22, providing that nothing in the act of 1839 should have that effect; 'nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.' 5 St. 727. Under that act, Chief Justice TANEY, sitting in the circuit court, held that a protest might be made prospectively, so as to cover subsequent similar importations, because, said the chief justice: 'The protest is legally made when the duties are finally determined, and the amount assessed by the collector; and a protest before or at that time is sufficient notice, as it warns the collector, before he renders his account to the treasury department, that he will be held personally responsible if the portion disputed is not legally due; and that the claimant means to assert his rights in a court of justice.' Brune v. Marriott, Taney, 132, 144. And his decision was affirmed by the judgment of this court. Marriott v. Brune, 9 How. 619. That judgment, though criticised in Warren v. Peaslee, 2 Curt. 231, was generally regarded and acted on as laying down a general rule establishing the validity of prospective protests. Steegman v. Maxwell, 3 Blatchf. 365; Hutton v. Schell, 6 Blatchf. 48, 55, and Fowler v. Redfield, there cited; Wetter v. Schell, 11 Blatchf. 193, 196, and Chouteau v. Redfield, there cited. None of these cases were brought up to this court; and in some of them the rule was applied under the act of March 3, 1857, c. 98, § 5, which provided that on the entry of any merchandise the decision of the collector of customs at the port of importation as to its liability to duty or exemption therefrom should be final and conclusive against the owner, importer, consignee, or agent of such merchandise, unless he should, 'within ten days after such entry, give notice to the collector in writing of his dissatisfaction with such decision, setting forth therein distinctly and specifically his grounds of objection thereto,' and should, 'within thirty days after the date of such decision, appeal therefrom to the secretary of the treasury.' 11 St. 195. The phrase 'within ten days after such entry' was thus treated as fixing a terminus ad quem, and not a terminus a quo; or, in other words, as limiting the time after which a protest should not be made, but permitting it to be made as early as it could have been made under the previous law. The act of 1857 applied only to cases where the question was whether the goods imported were or were not subject to duty at all, and left the case of goods admitted to be dutiable, the rate and amount of duties being alone in question, to be governed by the act of 1845, requiring the protest to be filed at or before the time of paying the duties. Barney v. Watson, 92 U. S. 449. We are then brought to the act of 1864, which, as already stated, provides that on the entry of any merchandise the decision of the collector as to the rate and amount of duties shall be final and conclusive, unless the importer shall, 'within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, give notice in writing to the collector on each entry, if dissatisfied with his decision.' This act requires the notice of dissatisfaction with the collector's decision to be filed 'within ten days after the ascertainment and liquidation of the duties,' (instead of within ten days after the entry of the goods, as in the act of 1857,) evidently for the reason stated by Mr. Justice BRADLEY in Barney v. Watson, above cited: 'In most cases the amount, and in many cases the rate, could not be ascertained until after examination and appraisement; and hence a limitation to ten days from the time of entry would often, perhaps generally, deprive the party of any remedy at all.' 92 U. S. 453. The act of 1864, by requiring the notice of dissatisfaction to be given on each entry, necessarily prevents such a notice as to any goods from being given before the entry thereof, and precludes a prospective protest, covering future entries or importations. Ullman v. Murphy, 11 Blatchf. 354. But the matter to which the notice of dissatisfaction applies is the decision of the collector on the rate and amount of the duties. The whole purpose of the notice is to give the collector opportunity to revise that decision; and that purpose is as well accomplished by giving the notice as soon as the goods have been entered, and the duties estimated by the collector, as by postponing the giving of the notice until after the final ascertainment and liquidation of the duties have been made and stamped upon the entry. The clause requiring the importer to give such notice 'within ten days after the ascertainment and liquidation of the duties' must therefore, according to the fair and reasonable interpretation of the words as applied to the subject-matter, be held to fix only the terminus ad quem, the limit beyond which the notice shall not be given, and not to fix the final ascertainment and liquidation of the duties as the terminus a quo, or the first point of time at which the notice may be given. In the case at bar, the result is that the notice on each entry, having been given after the collector's decision, and before the expiration of 10 days from the date of finally stamping upon the entry the ascertainment and liquidation of the duties, was seasonable. This conclusion is in accordance with a decision of Judge SHIPMAN in the circuit court for the Southern district of New York, in October, 1878, in the case of Keyser v. Arthur, not reported, but mentioned in a circular of the treasury department of July 8, 1879, and shown by minutes produced at the argument of the present case to have been as follows: Two distinct entries of goods for immediate consumption were made,—the one September 15, and the other October 10, 1873,—and the duties were estimated by the collector, and paid forthwith. The notice of dissatisfaction with the collector's decision was given as to the first entry October 1, and as to the second entry October 24, 1873, and each entry was stamped as finally liquidated November 6, 1873. Judge SHIPMAN held the protests or notices of dissatisfaction with the collector's decisions to be seasonable, saying: 'When the collector had officially and in writing upon the entry ascertained and liquidated the duties upon the goods named in such entry at a certain rate of duty, a protest within ten days after such ascertainment and liquidation, and an appeal within thirty days thereafter, are good and valid as to time, although subsequently to the date of such ascertainment, liquidation, appeal, and protest the collector revises the amount of such liquidation and makes a final ascertainment and liquidation at the same rate of duty. The first ascertainment and liquidation is in fact a final one as to rate. A protest and appeal within the statutory time after the final liquidation are also good and valid. The uniform practice in this port for many years, as to time of protest and appeal, in conformity with this rule, which practice has been sanctioned by all the officers of the government, is of much importance in the decision of this question.' Our conclusion also accords with decisions of state courts, expounding similar words in other statutes. Young v. The Orpheus, 119 Mass. 179; Atherton v. Corliss, 101 Mass. 40; Levert v. Read, 54 Ala. 529. Some expressions of judges of this court, not having this point before them, might seem to support the opposite conclusion, especially the language of Chief Justice WAITE in Watt v. U. S., 15 Blatchf. 29, decided July 1, 1878, and that of Mr. Justice STRONG in Westray v. U. S., 18 Wall. 322. But in Watt's Case the only question of time presented or considered related not to giving the collector notice of dissatisfaction with his decision, but to taking an appeal to the secretary of the treasury; and the adjudication of the chief justice that the collector's decision upon the rate and amount of duties, if not duly appealed from, was final and conclusive in a case where the duties had not been paid to obtain possession of the goods, but were sued for by the United States, was overruled, with his concurrence, in U. S. v. Schlesinger, 120 U. S. 109, 7 Sup. Ct. Rep. 442. And in Westray's Case the importer never gave any notice of dissatisfaction with the collector's decision, or took any appeal to the secretary of the treasury; and the only point adjudged was that the importer was not entitled to notice from the collector of his decision before being bound thereby, or required to give a notice of dissatisfaction or take an appeal. It was insisted by the solicitor general that 'the views of the department, legally expressed, so far as they appear in the record, recognize the true interpretation of the statutes to be that the protest must be filed after the final ascertainment and liquidation of the duties.' But the orders and circulars of the treasury department, given in evidence at the trial, either merely repeat the words of the act of 1864, without giving them any construction, or else clearly show that, from the time of the passage of that act until long after the entries now in question, the practical construction was to allow the notice of dissatisfaction to be given at any time after the collector's decision estimating the rate and amount of duty at the time of the entry of the goods, provided it was not given after 10 days from the final ascertainment and liquidation of the duties as stamped upon the entry. The circular of the treasury department of September 30, 1878, and the opinion of the attorney general to the secretary of the treasury, of October 31, 1878, (16 Op. Attys. Gen. 197,) requiring notices of dissatisfaction, under section 2931 of the Revised Statutes, to be filed after the final liquidation of the duties, were based on a misconception of the scope and effect of the decision in Watt's Case, above cited. The circular of the treasury department of July 8, 1879, re-established the practice which, as therein stated, had prevailed before that decision at the port of New York 'and all the other prominent ports of the United States, under which protests and appeals had been recognized, both by the customs officers and by this department, as valid, if filed at any time before the expiration of the time mentioned in the section of law cited.' And the old practice appears to have been since constantly recognized and acted on until 1886, when the treasury department again undertook to establish the opposite rule. Judgment reversed, and the case remanded to the circuit court, with directions to set aside the verdict and order a new trial.

132.US.216

The defendant in a possessory action In the nature of ejectment, brought in a court of Washington Territory where the laws permitted a mingling of common law and equity jurisdictions, pleaded the general issue, and also set up four defences, one of which was the statute of limitations, and one of which was an equitable defence. The plaintiff filed a general demurrer to the second, third and fourth defences. The demurrer being overruled, the plaintiff elected to stand upon it, and the case was thereupon dismissed. Held, that the final judgment was one dismissing the action at law, and was not a judgment in the exercise of chancery jurisdiction. THE case is stated m the opinion.

Appellants commenced a possessory action, in the nature of ejectment, against appellee, in the district court of the second judicial district of Washington Territory, by complaint in the ordinary form. To this the defendant filed an answer, denying title in plaintiffs, and otherwise equivalent to the plea of not guilty; and in addition pleaded affirmatively four defenses, setting up, among other things, the 10-years statute of limitations upon actions for the recovery of real property. Sections 25, 26, Code Wash. T. 1881, p. 39. The fourth affirmative defense was addressed to the judge of the district court, and alleged a variety of facts, constituting, appellants contended, an equitable defense, if any at all, which they denied. The plaintiffs filed a demurrer in these words: 'And now come the plaintiffs, and demur to the second, third, and fourth separate answers and defenses of defendant herein, for the reason that they do not state facts sufficient to constitute a defense to this action.' This demurrer was disposed of, and judgment rendered as follows: 'This case coming on for hearing upon demurrer to the answer, and having been submitted to the court on briefs of counsel of plaintiffs and defendant, and the court, having fully considered the questions presented by the pleadings on file in this case, overrules the demurrer to the answer; to which ruling or decision the counsel for plaintiffs then excepted, and gave notice of his intention to appeal; and the counsel for plaintiffs having elected to stand upon the ruling of the court upon said demurrer, and not to reply or further plead to the answer, the case is now here dismissed, with costs against the plaintiffs to be taxed, and that execution issue therefor. Whereupon counsel for plaintiffs excepted, and gave notice of appeal to the supreme court.' Appeal was accordingly prosecuted to the territorial supreme court, under the act of the territory 'in relation to the removal of causes to the supreme court,' approved November 23, 1883, (Laws Wash. T. 1883, p. 59.) It was held in Breemer v. Burgess, 2 Wash. T. 290, 5 Pac. Rep. 733, 840, that this act was cumulative and complete within itself, and did not repeal sections 458-460, Code 1881, relating to appeals and writs of error, (Code Wash. T. 1881, p. 114;) and that cases might be brought up to the supreme court of the territory, either by the procedure prescribed in the Code or that in the statute of 1883. The Code provided for service of a notice of appeal or writ of error, which should contain, among other things, in case of appeal, 'a particular description of every decision, ruling, order, or decree,' by which appellant claimed to have been aggrieved, and which he relied upon as ground for reversal or modification, and, 'in case of a writ of error, a particular description of the errors assigned.' These requisitions were omitted in the act of 1883, but at its July term of that year the supreme court adopted a rule, which required, in all law causes brought up under that act, an assignment of errors to be made in writing, filed and served, substantially as provided for in section 458 of the Code. No assignment having been made, the appeal was dismissed for non-compliance with the rule in that particular, (Brown v. Hazard, 2 Wash. T. 464, 8 Pac. Rep. 494,) and the case comes before us on appeal from the judgment of dismissal. As the rule did not require such assignment in an equity cause, the question passed upon was whether this cause should be held as one in equity or at law, and the court decided that it was the latter. The act of congress of April 7, 1874, (18 St. 27,) 'concerning the practice in territorial courts and appeals therefrom,' provided that it should not be necessary 'in any of the courts of the several territories of the United States to exercise separately the common law and chancery jurisdictions vested in said courts; and that the several Codes and rules of practice adopted in said territories, respectively, in so far as they authorize a mingling of said jurisdictions or a uniform course of proceeding in all cases, whether legal or equitable, be confirmed: * * * provided, that no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law.' By subdivision 4 of section 76 of the Code of the territory it was provided that, 'when the relief sought is of an equitable nature, the complaint shall be addressed to the judge of the district in which the action is brought;' by subdivision 3 of section 83, that 'the defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated 'legal' or 'equitable' or both;' and by section 445, that 'every final judgment, order, or decision of a district court, or judge thereof, in actions of an equitable nature, where equitable relief is sought, or where chancery jurisdiction has been exercised, shall be reviewed in the supreme court by appeal.' Referring to these provisions, appellants' counsel contends that, the fourth affirmative defense (and he insists the first should be taken with it) being an equitable defense, the cause, by the action taken thereon, became 'transformed into a cause in chancery.' But the demurrer was to the second, third, and fourth affirmative defenses, and the defendant had also pleaded the general issue. The judgment upon demurrer held the three affirmative defenses good. The final judgment was one dismissing the action at law, and, upon the pleadings as they stood, was not a judgment in the exercise of chancery jurisdiction. The supreme court correctly held that the cause was at law, and not in equity, and, this being so, it is not denied that the dismissal for non-compliance with the rule necessarily followed. The judgment is affirmed.

131.US.405

The death of the accused in a criminal case brought here by writ of error abates the suit.

This case is brought before us by a writ of error directed to the judges of the supreme court of appeals of the state of West Virginia. We can, perhaps, best present the questions of federal cognizance, which are supposed to give this court jurisdiction, by a short statement of its history. David Freeland, the present plaintiff in error, brought in the circuit court of Preston county, in the state of West Virginia, against Joseph V. Williams and his brother, Charles Williams, an action of trespass de bonis asportatis for the taking and conversion of of cattle which were the property of the plaintiff; and on the 22d day of December, 1865, he recovered a judgment in that court against Joseph V. Williams, for $1,110, with interest and costs, there being a verdict in favor of the other defendant. From that judgment the defendant took a writ of error, on which it was affirmed in the supreme court of appeals of the state of West Virginia. Williams v Freeland, 2 W. Va. 306. The trespass took place while the late civil war was flagrant in that part of the country. The records of the circuit court of Preston county, in which this judgment was rendered, have been destroyed by fire, and no transcript of the proceedings of that case is to be found in the record presented to us, except that a certified copy of the judgment of the supreme court of appeals, affirming the judgment of the circuit court, is appended as an exhibit to the answer of Freeland made in the suit now under consideration. The judgment thus recovered remaining unsatisfied, the defendant in that case, Joseph V. Williams, on the 15th day of August, 1883, filed his bill in chancery in the circuit court of Preston county, which, as it is short, and contains the matter which we are called upon to review, will be here inserted, as follows: 'The Bill of Complaint of Joseph V. Williams, Plaintiff, against David Freeland, Defendant, filed in the Circuit Court of Preston County.—To the Honorable Wm. T. Ice, Judge of the Circuit Court of Preston County: The plaintiff complains and says that the defendant instituted in the circuit court of said county his action of trespass against the plaintiff and a certain Charles Williams, and on the 22d day of December, 1865, recovered a judgment therein against the plaintiff alone for $1,110, with interest thereon from the 4th day of January, 1864, and for the costs of the plaintiff therein expended. The record of said judgment has been destroyed by the burning of the court-house of said county. From said judgment the plaintiff obtained a writ of error and supersedeas, and the said judgment was by the supreme court of appeals, at the July term thereof, in the year 1867, affirmed; and thereafter, on the ___ day of _____, 1875, the said defendant sued out an execution on said sum of $_____, with interest from the ___ day of _____, and for costs and damages, as was in said case then provided for by law; that the plaintiff then proceeded to invalidate and have said judgment set aside, according to an act of the legislature of the state of West Virginia, on the ___ day of _____, and said judgment was by the circuit court of said county by order entered in said proceedings, set aside, and a new trial ordered in said original action; that from said order an appeal was taken by said Freeland, and said order was reversed, and said proceedings to set aside said judgment were dismissed; and so, therefore, the said original judgment is apparently in force, although, in fact, void,f or reasons hereinafter stated. The plaintiff further states that said action in which said judgment was obtained was not an action ex contractu, but was an action ex delicto; that it was, in fact, for cattle or other personal property, alleged by the defendant to belong to him, taken by the military authorities of the Confederate States, and taken by the soldiery and military authorities aforesaid during the late war between the government of the United States and a part of the people thereof; and the plaintiff says that said judgment was for acts done according to the usages of civilized warfare in the prosecution of said war by the said Confederate States and the military power and authority thereof. The plaintiff further states that during said war he was a citizen of the state of Virginia until the formation of the state of West Virginia, and thereafter was and has been continually since a citizen of the state of West Virginia, and is now a citizen of the state of West Virginia; that he aided and participated in said war in the armies of the said Confederate States from the time he entered the service thereof, in the year 1862, until the termination thereof. The plaintiff further states that he resides in the county of Grant, and is the owner of real estate therein; that said judgment has been docketed in his said county, as he believes, and has occasioned a cloud upon his title to said property. The plaintiff further says that he is advised that said judgment is void, and that his property is not liable to be seized or sold therefor, and, notwithstanding said judgment is void, he is threatened and is in danger of having his property so seized and sold to satisfy said judgment, and the value and salable character of his said real estate by reason of the cloud on the title thereof as aforesaid is greatly impaired. The plaintiff further states that he has not full or adequate relief against said judgment, except by this his bill and the due process of law thereby, and by the enforcement of the protection afforded by the thirty-fifth section of the eighth article of the constitution of this state in his behalf, and to have said judgment by judicial authority declared void any inoperative. The plaintiff therefore prays that said judgment be declared void; that the defendant be perpetually enjoined and restrained from collecting the same and every part thereof, whether of principal, interest, cost, or damages, and from suing out execution thereon; and that he may have such other relief as the court may see fit to grant. 'JOSEPH V. WILLIAMS, by Counsel.' To this bill there was a demurrer by Freeland, and also an answer. The demurrer relies upon the proposition that the thirty-fifth section of article 8 of the constitution of the state, which the plaintiff in that case sets up as the foundation of his relief, is in conflict with the tenth section of the first article of the constitution of the United States, and also with the first section of the fourteenth article of amendment to that constitution, and is therefore null and void. The answer sets out the same matter, and also says that the judgment was for a lot of cattle owned by Freeland, and taken and converted by the plaintiff, but not in accordance with the usages of civilized warfare; and that Williams went to trial on the plea of not guilty to the action of trespass for the recovery of the value of these cattle, though the plaintiff might have waived the trespass, and declared in assumpsit. To this there was a replication, and testimony by way of depositions was taken on the issue as to whether the taking, on which the original judgment for the plaintiff rested, was an exercise of belligerent rights, and was done according to the usages and principles of public war. There can be no question that these depositions establish the fact that Williams, the defendant in the original action, was a soldier under the command of Gen. Fitzhugh Lee, whose force was dominant in that part of Wet Virginia in January, 1864, and that it was under his orders that the cattle were seized while Lee was on a raid through that county, and object of which was to get beef cattle, and the order of the commanding officer was to take beef cattle and surplus horses. Upon the final hearing the circuit court rendered its decree in the following language: 'It is therefore considered by the court that the judgment in the bill mentioned in favor of the defendant against the plaintiff, described as a judgment rendered by the circuit court of Preston county, on the 22d day of December, 1865, for $1,110, with interest thereon from the 4th day of January, 1864, and the costs, is void, and that the defendant be perpetually enjoined and restained from the enforcement and collection of the same and every part thereof, and that the defendant do pay to the plaintiff his costs herein.' Thereupon Freeland, the present plaintiff in error, made application, according to the laws of West Virginia, by a petition, for an appeal, which petition was denied. This denial, as in the case of similar proceedings in the state of Virginia, this court has held to be a final judgment of the highest court of the state, which can be reviewed in this court in a proper case. The errors assigned, and the questions presented by counsel and by this record, are substantially two: (1) That the new constitution of West Virginia, relied on as the foundation of relief by the defendant in error, is a violation of that clause of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts. Section 10, art. 1, of the original constitution. (2) That it violates the provision of the first section of the fourteenth article of amendment, viz., that no state shall 'deprive any person of life, liberty, or property without due process of law.' It is proper to observe that counsel have commented upon the fact that the defendant, Williams, in the original action of trespass, filed certain pleas setting up the fact that what he did in the way of seizing the cattle was under order of superior military authority, and in the exercise of belligerent rights, and that therefore he was not personally liable to the plaintiff for the alleged trespass. But there is no evidence in this record that and such pleas were ever offered to be filed. or were rejected by the trial court; nor is any such fact stated by Williams in the bill which is the foundation of the suit now before us. It is very true that this circumstance is mentioned in some of the opinions of the supreme court of appeals of the state, in one of the cases where this matter was before it, but this could not be received as evidence of a fact not found in the record, even if those opinions and judgments had been made a part of this case by reference or otherwise. But this matter is, we think, immaterial in regard to the issue presented here. The defense which Williams now says he offered to make by those pleas was competent under the plea of not guilty, on which the case was tried; and in the depositions taken in the present case on the bill for an injunction it is made quite clear that such a defense was offered, but held to be insufficient by the court. The constitutional provision of the state of West Virginia, adopted by vote of the people on the 22d of August, 1872, on which the defendant in error mainly relies in support of the decree rendered in this case, is the thirty-fifth section of the eighth article of that instrument, and reads as follows: 'No citizen of this state who aided or participated in the late war between the government of the United States and a part of the people thereof, on either side, shall be liable in any proceeding, civil or criminal; nor shall his property be seized or sold under final process issued upon judgments or decrees heretofore rendered, or otherwise, because of any act done, according to the usages of civilized warfare, in the prosecution of said war, by either of the partiest hereto. The legislature shall provide by general law for giving full force and effect to this section by due process of law.' The legislature of West Virginia undertook to discharge the duty imposed by this constitutional provision, by section 3, c. 58, Acts 1872-73, which is in the following language: 'That if it shall be alleged by petition, under oath of the defendant, or his personal representative, to the court in which any judgment or decree shall have been rendered, or to any court to which such judgment or decree shall be transferred, that such judgment or decree was recovered or rendered by reason of an act done by the defendant according to the usage of civilized warfare in the prosecution of said war, a copy of which having been served on the plaintiff, his agent or attorney at law, or, if he be dead, upon his personal representative, ten days prior to filing the same, the court shall suspend proceedings upon such judgment or decree; and, being satisfied of the truth of said allegation, or if it appears by the record that a plea, setting forth that the matters complained of were done in accordance to the usages of civilized warfare in the prosecution of said war, was filed, or offered to be filed, by the defendant, and rejected or overruled by the court, shall set aside the judgment or decree, and award a new trial therein, which shall be governed by the provisions of this act, and in case the judgment or decree upon the new trial be in favor of the defendant, and he shall have paid the said judgment or decree, * * * or any part thereof, the court shall render a judgment or decree that the same shall be restored to the defendant, with interest, and shall enforce such restitution by execution or other proper process.' The supreme court of appeals of the state of West Virginia, in the case of Peerce v. Kitzmiller, 19 W. Va. 564, held, in a case percisely similar to this, that, while the constitutional provision of that state was not in violation of any provision of the constitution of the United States, the mode prescribed by the legislature for obtaining the relief which the new constitution authorized was not due process of law, and that the statute was void. But it also held that the provisions of the constitution, and the relief which it intended to give, might be carried into effect by processings in courts, which would be due process of law, and intimated that a proceeding in chancery for an injunction against the execution of the original judgment might be such due process of law. We are, therefore, fore, relieved from any further consideration of the special provisions of this statute, and are remitted to the question of conflict between the constitutional provision of 1872 of the state of West Virginia and the constitution of the United States. As we have already said, the first of the questions thus presented is whether that constitutional provision, in its application to a judgment like the present, in existence when this state constitution was adopted, impairs the obligation of a contract. On this question the court has very little difficulty. The proposition that a judgment duly rendered in a court of law, in an action of tort, is protected by this provision of the federal constitution, has been before us more than once in recent years, and was before this court also many years ago. In the case of Louisiana v. Mayor, 109 U. S. 285, 3 Sup. Ct. Rep. 211, the precise question was presented, and very fully considered. In that case a judgment was recovered against the city of New Orleans for injuries received by the riotous proceedings of a mob. At the time when this judgment was rendered the laws of Louisiana authorized taxes to be levied to pay all judgments rendered against the city. Afterwards changes were made in the laws on the subject of taxation, so that hte power of the city to levy taxes was limited in such a manner that no taxes could be raised that could be appropriated to the payment of this judgment. An application was made to the supreme o urt of Louisiana to compel the city authorities of New Orleans to levy taxes to pay this judgment, which was denied by that court. The case was brought here on a writ of error, on the ground that the statute under which the court of Louisiana denied the writ of mandamus impaired the obligation of the contract found in the judgment in favor of the plaintiffs against the city. This court held, however, that that judgment was not a contract, and was not evidence of a contract within the meaning of the constitutional provision. The whole question of the the nature of judgments, as being founded upon torts, or founded upon contracts, as they relate to that provision, was very fully discussed; and, while it was conceded that such a judgment might be declared upon as a specialty, or a contract of record, under the old authorities, such a proposition could not 'convert a transaction, wanting the assent of parties, into one which necessarily implies it. Judgments for torts are usually the result of violent contests, and, as observed by the court below, are imposed upon the losing party by a higher authority against his will and protest. The prohibition of the federal constitution was intended to secure the observance of good faith in the stipulation of parties, against any state action. Where a transaction is not based upon any assent of parties it cannot be said that any faith is pledged with respect to it; and no case arises for the operation of the prohibition. Garrison v. City of New York, 21 Wall. 203. There is, therefore, nothing in the liabilities of the city, by reason of which the relators recovered their judgments, that precluded the state from changing the taxing power of the city, even though the taxation be so limited as to postpone the payment of the judgments.' The case of Garrison v. City of New York, 21 Wall. 196, above referred to, sustains the proposition for which it is quoted. In that case a proceeding to condemn certain real estate in the city of New York for the purpose of widening Broadway had been carried to its end, and an assessment was made in favor of Garrison for taking his property to the amount of $40,000. On this a judgment or order of confirmation was entered in the proper court. The legislature of New York subsequently passed a statute authorizing an appeal from the order of confirmation to be taken by the city at any time within four months, and made it a duty or the court to which such application should be made that, if it should appear that there was any error, mistake, or irregulatity at any stage of the proceedings, or that the assessments or awards had been unfair and unjust, to vacate the order of confirmation, and refer the matter back to new commissioners, who should proceed to amend and correct the report. This court said, in reviewing the judgment of the circuit court for the Southern district of New York on that question, that 'the objection to the act of 1871, that it impairs the vested rights of the plaintiff, and is therefore repugnant to the constitution of the state, is already disposed of by what we have said upon the first objection. There is no such vested right in a judgment, in the party in whose favor it is rendered, as to preclude its re-examination and vacation in the ordinary modes provided by law, even though an appeal from it may not be allowed; and the award of the commissioners, even when approved by the court, possesses no greater sanctity.' The language there used, and the circumstances of that case, are eminently applicable to the one now before us. In the earlier case of Satterlee v. Matthewson, 2 Pet. 380, in an action of ejectment between the parties, twice tried before the supreme court of the state of Pennsylvania, that court had held the law to be—as it undoubtedly was in that state—that the doctrine that a tenant was estopped to deny the title of his landlord was inapplicable to cases where the title originated under the claim of the state of Connecticut to lands in the stateo f Pennsylvania. While a third trial of the same case, between the same parties, was pending, the legislature of the state of Pennsylvania passed a statute to the effect that the 'relation of landlord and tenant shall exist and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants as between other citizens of this commonwealth, on the trial of any cause now pending or hereafter to be brought within this commonwealth, any law or usage to the contrary notwithstanding.' Acts Pa. 1826, c. 88. The supreme court of the state of Pennsylvania conformed its judgment to this statute, which was at variance with the rights established by the two former judgments. The case came to the supreme court of the United States, and was argued before that court on the ground that the statute impaired the obligation of the contract between the tenant and the landlord, and also the obligation of the contract by which one party derived his title from the Connecticut claim. The court held that no such question was raised; that there was no contract in the case affected by this provision of the statute. The opinion, however, is more remarkable, and more pertinent to the present case, in its discussion of the doctrine of vested rights under judgments of a court, and under the condition of the title to be property existing at the time the statute was passed. We are of opinion that the constitution of West Virginia of 1872, in its provision for this class of cases, does not violate the obligation of a contract, where the judgment was founded on a tort committed as an act of public war. The other question which we are called upon to decide presents more difficulty. Ever since the case of Dow v. Johnson, 100 U. S. 158, the doctrine has been settled in the courts that in our late civil war each party was entitled to the benefit of belligerent rights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare under and by military authority of either party, no civil liability attached to the officers or soldiers who acted under such authority. The case as it is now presented to use shows that the trespass for which the original judgment was rendered was of that character; and it is argued with much force that the court which rendered that judgment had no jurisdiction of the case, or, at all events, had no jurisdiction to render such a judgment, and that it is therefore void. It follows from this view of the subject that the court in which it was originally rendered had jurisdiction to set it aside or annul it without the aid of the constitutional provision of the state of West Virginia, and that, on that ground alone, the decree we are called upon to review must be affirmed. In this view of the subject some of the judges of this court concur. On the other hand, it is argued that, from what appears to have been done in that court, it was an action of which the court had jurisdiction when it was brought; that the case presented to it by the pleadings was a simple act of trespass de bonis asportatis, in which the defendant wrongfully seized and carried off the cattle of the plaintiff. On the issue of not guilty, judgment was rendered for the plaintiff. Whether the question of belligerent rights was there presented and tried is not to be ascertained from its records. (1) because no record of the proceeding exists in that court; and, (2) because it does not appear from anything of record now to be found that the question of belligerent rights was there considered. Nor are we prepared to admit, if it was considered and decided against the defendant, that the judgment is wholly and absolutely void. It is not here denied that the doctrine of Dow v. Johnson is correct, and that parties are protected by that doctrine from civil liability for any act done in the prosecution of a public war. But one of the very things to be decided, when an act like this is brought in question, and the defense is that it ws done in the exercise of belligerent rights, is whether this defense is established by the evidence. As regards the case now before us, we are of opinion that the judgment rendered by the circuit court of Preston county in this case is prima facie a valid judgment. On the face of the record, if the record now existed, as set forth in the case before us, it would be prima facie valid. It is only the facts proved by the evidence taken in the present case which impeach that judgment, and establish that it was rendered on account of acts done in pursuance of the powers of a belligerent in time of war. Without, therefore, considering whether this judgment is absolutely void, or whether there existed any rule of law known to the court by which its validity could be inquired into before the adoption of the constitutional provision of the state of West Virginia, we proceed to inquire how the matter stands with the aid of that provision, and under all the circumstances of this case. The proposition of the plaintiff in error is, that by the judgment of the circuit court of Preston county he had acquired a vested right in that judgment; that the judgment was his property; and that any act of the state which prevents his enforcing that judgment, in the modes which the law permitted at the time it was recovered, is depriving him of property without due process of law, and therefore forbidden by the fourteenth amendment of the federal constitution. This right of the plaintiff to enforce that judgment is insisted upon as a vested right with which no authority can lawfully interfere. It is to be observed, in the first place, that the language of the prohibition against state interference with life, liberty, or property is that the deprivation of these precious rights shall not be had without due process of law. This phrase, 'due process of law,' has always been one requiring construction; and, as this court observed long ago, never has been defined, and probably never can be defined, so as to draw a clear and distinct line, applicable to all cases, between proceedings which are by due process of law and those which are not. Judgments, however solemn, however high the court which rendered them, and however conclusive in a general way between the parties, have been subject to review, to reconsideration, to reversal, and to modification by various modes. Among these are motions for new trials, appeals, writs of error, and bills of review; and these have always been held to be due process of law. So, also, judgments of courts of law have been subject to be set aside, to be corrected, and the execution of them enjoined, by bills in chancery, under circumstances appropriate to such relief. This also must be held to be due process of law. The present case is a bill in chancery to enjoin the execution of a judgment, and such was the relief granted by the decree of the court. In that respect it is one of the recognized processes of law for re-examining the matters on which a judgment is founded, and making such corrections, even to setting aside the whole judgment, or perpetually enjoining its execution, as by the rules of equity jurisprudence are just and appropriate to the occasion. Undoubtedly the mode pursued in this case of obtaining relief against the judgment of the circuit court of Preston county is in its form due process of law. It is by an appeal to the courts in their regular course of procedure, and is not by any summary or unusual process applied to the determination of the rights of parties. If it be true that when the original action was presented to the circuit court of Preston county, the thing complained of was found to be an act in accordance with the usages of civilized war, during the existence of a war flagrant in that part of the country, that court should have proceeded no further, and its subsequent proceedings may be held to have been without authority of law. While it is not necessary to hold that the judgment, as presented by the record, is absolutely voi, it may be conceded that a court of equity, in a proper case, can prevent the enforcement of it. But the application of this remedy may have been, and probably was, embarrassed in this case by circumstances which would render it unavailing. There might be raised against it the proposition that the defense had been presented and considered by the court in which the case was tried. Lapse of time might have prevented a court of equity from redressing the wrong inflicted by the judgment. It may have been doubtful whether the case was one of equitable cognizance; it may have been insisted that the jury passed upon the facts of the case adversely to the defendant; and it is undoubtedly true that the supreme court of appeals of the state of West Virginia had decided, in this class of cases, that the defense that the party was acting in accordance with belligerent rights was not a sufficient defense. These reasons, and probably the latter one mainly, were those upon which the constitutional convention of West Virginia acted in framing the provision which we have already cited on this subject. Was it competent for that convention to establish a rule of law which is now the recognized rule of this court, and perhaps of all the courts of the United States, which is commended by the highest authorities, and which is eminently adapted to the purpose of quieting strife and securing repose after the turmoils of a civil war, although the principle asserted was in opposition to that held by the supreme court of appeals to the state? That this principle would govern all cases where the act for which the party was sued occurred after its establishment does not admit of question. That it was the law of the country before its adoption by the state constitution there is as little doubt. Shall it be held to be incapable of enforcement, and forbidden by the constitution of the United States, because it is made to cover judgments already rendered in violation of the principle asserted? The constitution of the state remedies the defects of the proceeding by bill in chancery; it creates no new process of law; it makes that which has always been due process of law efficient by removing objections and obstructions to its operation. It simply declares that a judgment for a wrong or tort, which in itself was erroneous, is a voidable judgment, and may be avoided, if it can be brought within the due processes of the law already existing, and shall by this means be inquired into, and, if it is against right, justice, and law, shall be no longer in force, and the judgment plaintiff shall be forever enjoined from putting it into execution. Prior to the adoption of the fourteenth amendment the power to provide such remedies, although they may have interfered with what were called 'vested rights,' seems to have been fully conceded. The cases in which this has been decided in this court are: Calder v. Bull, 3 Dall. 386; Satterlee v. Matthewson, 2 Pet. 380; Sampeyreac v. U. S., 7 Pet. 222; Watson v. Mercer, 8 Pet. 88; and Freeborn v. Smith, 2 Wall. 160. In the latter case, Mr. Justice GRIER, when the congress of the United States had allowed an appeal where the judgment would have otherwise been final, used this language: 'If the judgment below was erroneous, the plaintiff in error had a moral right at least to have it set aside, and the defendant is only claiming a vested right in a wrong judgment.' And he thus quotes the language of Chief Justice PARKER, in Foster v. Bank, 16 Mass. 245: 'The truth is there is no such thing as a vested right to do wrong; and the legislature, which, in its acts not expressly authorized by the constitution, limits itself to correcting mistakes, and to providing remedies for the furtherance of justice, cannot be charged with violating its duty, or exceeding its authority.' Many other cases might be cited in which it was held that retrospective statutes, when not of a criminal character, though affecting the rights of parties in existence, are not forbidden by the constitution oft he United States. We do not think that the supreme court of appeals of West Virginia, which seems to have carefully considered the question of due process of law in the case of Peerce v. Kitzmiller, and held that the statute of the state in carrying out the provisions of the constitution did not provide due* process of law, was in error when it also held that the remedy provided by the constitution of the state, as carried out by the ancient proceeding of a bill in a court of equity, was not void for want of due process of law, nor in conflict with the constitution of the United States. Its judgment is therefore affirmed. In Ford v. Surget, 97 U. S. 594, 605, this court, speaking by the writer of this opinion, said that to the Confederate army was 'conceded, in the interest of humanity, and to prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged under the laws of nations to the armies of independent governments engaged in war against each other,—that concession placing the soldiers and officers of the rebel army, as to all matters directly connected with the mode of prosecuting the war, 'on the footing of those engaged in lawful was,' and exempting 'them from liability for acts of legitimate warfare." It necessarily results from this doctrine, without reference to the provision of the constitution of West Virginia, that Williams was not civilly responsible for the value of the cattle in question, if, at the time he took them, he was regularly enlisted as a soldier in the Confederate army, and if his taking of them was consistent with the usages of civilized warfare. If the taking was not an act of war, but a mere trespass, his being a soldier in the Confederate army would not have constituted a defense. But whether he was or was not a soldier in that army, and whether his act was or was not one of legitimate warfare, were questions determinable in the action of trespass instituted against him in the circuit court of Preston county. It is not disputed that it was open to him, in that action, to prove every fact relied upon in the present suit as establishing immunity from civil responsibility for the taking of Freeland's cattle. There was a verdict and judgment against him, and that judgment, upon writ of error to the supreme court of appeals of West Virginia, was affirmed in 1867. 2 W. Va. 306. No writ of error was prosecuted to this court. If the taking of the cattle was illegal, the right to recover from the wrongdoer their reasonable value was an absolute one, of which the owner could not be deprived by a legislative enactment of the state, or by an amendment of its constitution. The judgment obtained by Freeland was an adjudication that the taking was illegal. He acquired by that judgment a vested right to have and demand the amount named in it, as well as the benefit of such remedies as the law gave for the enforcement of personal judgments for money. The judgment was therefore property of which the state could not deprive him except by due process of law. And a constitutional provision, subsequently enacted, declaring that the defendant's property should not be seized or sold under final process on such judgment, is not due process of law. I cannot agree that a state may, by an amendment of its fundamental law, prevent a citizen from recovering the value of property, of which, according to the final judgment of its own courts, he has been illegally deprived by a mere trespasser. That would be sheer spoliation under the forms of law. If the amendment in question had, in terms, given the defendant a right to a new trial of the action of trespass in the same court, after the time had passed within which, according to the settled modes of procedure, he could, of right, apply for a new trial, it would have accomplished, in respect to the judgment against him, precisely what, in effect, has been held in this case to be consistent with the fourteenth amendment. The present case § unlike Louisiana v. Mayor, 109 U. S. 285, 3 Sup. Ct. Rep. 211, where the court sustained the validity, so far as the constitution of the United States was concerned, of a state enactment so changing the laws for raising money by municipal taxation as to prevent, for the time, the enforcement of a judgment obtained against the city of New Orleans for damages done to private property by a mob. But, even in that case, the court was careful to say that the relator was not deprived of his judgment, or of the right of himself or assignee to use it as a setoff against any demands of the city. It is also said: 'The question of the effect of legislation upon the means of enforcing an ordinary judgment of damages for a tort rendered against the person committing it, in favor of the person injured, may involve other considerations, and is not presented by the case before us.' The radical difference between that and the present case is that the right to sue the city of New Orleans for damages on account of private property destroyed by a mob was given by statute; whereas the right to claim compensation from a wrongdoer for his illegal conversion of private property to his own use is inherent in the owner, and cannot be taken from him by the state. Nor, in my opinion, is the ruling in the present case sustained by Dow v. Johnson, 100 U. S. 158. That was an action in the circuit court of the United States for the district of Maine, upon a judgment rendered by default in 1863 against Gen. Dow while he was in the active discharge, within the lines of military operations, of his duties as a brigadier general in the army of the United States. The judgment was rendered in a court of the city and parish of New Orleans. That officer was sued in the latter court for the taking of certain personal property by soldiers under his command. He was served with process, but did not appear and make defense. 'The condition of New Orleans,' this court said, 'and of the district connected with it, at the time of the seizure of the property of the plaintiff and the entry of the judgment against Dow, was not that of a country restored to its normal relations to the Union, by the fact that they had been captured by our forces, and were held in subjection. * * * The country was under martial law, and its armed occupation gave no jurisdiction to the civil tribunals over the officers and soldiers of the occupying army. They were not to be harassed and mulcted at the complaint of any person aggrieved by their action. The jurisdiction which the district court was authorized to exercise over civil causes between parties, by the proclamation of Gen. Butler, did not extend to cases against them. The third special plea alleges that the court was deprived by the general government of all jurisdiction except such as was conferred by the commanding general, and that no jurisdiction over persons in the military service for acts performed in the line of their duty was ever thus conferred upon it. It was not for their control in any way, or the settlement of complaints against them, that the court was allowed to continue in existence. It was, as already stated, for the protection and benefit of the inhabitants of the conquered country and others there not engaged in the military service.' Gen. Dow, when thus sued in a local tribunal, existing by military sufferance in a country governed by martial law, was not bound, as this court said, to leave his troops, and attend upon that tribunal, for the purpose of justifying his military orders, by showing that the acts complained of were authorized by the necessities of war. It was consequently held that the New Orleans court was without jurisdiction to proceed against him. There is no analogy between that case and the present one, for the action of trespass against Williams was brought in a superior court of general jurisdiction, after the war closed, and when he was at liberty to appear and make defense; and it was determined by a court whose existence was independent of militr y authority. The only possible ground upon which the judgment below can be sustained consistently with the law of the land is to hold that no court of any state had jurisdiction in the year 1867, even with the parties before it, to inquire, in an action of trespass, whether an alleged taking of the private property of a citizen was a mere trespass, or was an act of war upon the part of the defendant, a Confederate soldier, and to give judgment according to the result of that inquiry. But as the primary object in creating judicial tribunals is to provide a mode for the determination of controversies between individuals, and between individuals and the government, can it be said that no court had jurisdiction to inquire whether Freeland's cattle were taken by Williams without authority of law? Was the mere averment that the latter was a Confederate soldier, and that what he did was an act of war, sufficient to preclude all investigation as to the truth of that averment? If not, how was such an investigation to be had, in any effective mode, except in a court of justice? It is suggested that when the Preston circuit court ascertained that the taking of these cattle was legitimate warfare upon the part of Williams as a Confederate soldier, it ought to have dismissed the action, or directed a verdict to be rendered in his favor. But, even if it erred in this respect, the judgment was not void. Its error, if any there was, could have been corrected in an appellate court. The affirmance of the judgment by the highest court of the state is to be taken as conclusive that no error was committed by the inferior state court in respect to any matter put in issue, or which was embraced by the issue tried. So, if Williams failed to prove, under his plea of not guilty, that he was a Confederate soldier, and that his taking the cattle was an act of legitimate warfare, it was not in the power of the state, by an amendment of its constitution, and after a final judgment against him, to give a new trial. In legal effect, that is what was done. According to the doctrines announced by the court, if the present and similar suits in West Virginia had been decided adversely to the several defendants therein, and such decisions had been affirmed by the highest court of that state, it would be consistent with 'due process of law' for the people of that state to make a further amendment of their constitution, and give the unsuccessful litigants still another opportunity to retry the very questions of law and fact determined against them in previous actions; and so on, indefinitely, until the alleged trespasser obtained a decision in his favor. I had supposed that a final judgment, and the right of the party in whose behalf it was rendered to have the benefit of it, rested upon a firmer basis than the popular will, expressed either in a constitutional amendment or in a legislative enactment. Without considering whether the judgment obtained by Freeland is not 'a contract of the highest nature, being established by the sentence of a court of judicature,' (2 Rl. Comm. 465; Taylor v. Root, *43 N. Y. 344,) I place my dissent from the opinion and judgment in this case upon the ground that the state court, in the action of trespass, had jurisdiction as to person and subject-matter, and that the constitutional amendment of 1872, taking from Freeland, upon the identical grounds involved in that action, the benefit of his judgment against the defendant, after it had been affirmed in the highest court of the state, deprived the former of his property without due process of law.

130.US.611

Unless the fact upon which a reversal of a judgment is claimed appears in the record sufficiently to be passed upon, the judgment will not be reversed. In an action to recover for goods sold and delivered, a copy of an itemized account of them may be handed to a witness to refresh his memory in regard to the matters contained in it. Evidence that a witness is familiar enough with gold mills to know what they can perform and what they can earn, but that he has only seen one silver mill, being the one in controversy, lays no foundation for his testimony as to the fair rental value of that silver mill. In the absence of other and better evidence, the rental value of a silver mill may be shown by proof of the amount of ore delivered and milled. The declarations of the defendant's agent as to matters within the scope of his authority were properly admitted in evidence. When the exception to the refusal of a request to instruct the jury shows no evidence tending to prove the facts which the request assumes to exist, there is nothing before the court for consideration. The legal rate of interest upon the cost of a silver mill may be taken by a jury as its fair rental value, in the absence of other evidence concerning that value. In estimating damages resulting from the stoppage of a mill, the jury may take into consideration the wages of the men thrown out of work while the mill was idle.

The first and second assignments of error rest upon the same ground, and may be considered together. They are: First, that it was error for the court, upon the examination of the witness Chalmers, (who was also one of the plaintiffs,) to admit in evidence the paper handed him showing an itemized statement of account aggregating $2,531.78. It is contended that evidence of this character, 'an unproved copy of an unproved account,' was inadmissible to show the alleged sale and delivery of merchandise. And, second, that the court erred in holding such inadmissible testimony to be sufficient evidence of an indebtedness to permit interest on it to be recovered, as testified to. The assumption of fact involved in these assignments, that the paper was admitted in evidence is not sufficiently supported by the statement in the bill of exceptions. To obtain a reversal of a judgment it is necessary that the fact upon which such reversal is claimed should appear from the record sufficiently to be passed upon. This bill of exceptions falls far short of a distinct statement that the paper was admitted in evidence. On the contrary, we think the import of the language is that it was not admitted, but that it was handed to witness, and read and used by him as a memorandum with which to refresh his recollection of the articles mentioned in the account of plaintiffs. We do not think the court erred in allowing this to be done, and permitting his testimony to go to the jury for what it was worth. The third assignment of error is that the court erred in refusing to allow the witness Sabin, introduced in behalf of the defendant, to answer the question: 'What was the fair rental value per month of this mill and its attachments?' This ruling of the court was manifestly proper. It appears from the testimony of the witness himself that he knew of no other silver-mill in the neighborhood of Columbus; that he knew of none whatever at that time in operation; that he knew of no silver-mill that had been rented in Leadville or in the state anywhere; and that this was the first silver-mill he had ever been connected with, though he had been engaged in mining for 20 years, and was acquainted with gold-mills enough to know what work they can perform, and what they can earn. He evidently had no such knowledge of the marketable condition or rental value of such property as would render his opinion of any use to the jury beyond the merest guess or conjecture. His knowledge and experience of mining-mills was such as to render him competent to testify as to the cost of construction, the value of machinery, and the expense of putting it up; and upon these points his testimony was admitted, and was to the effect, among other things, that the mill cost $75,000. The fourth, fifth, sixth, and seventh assignments of error are based upon the rulings of the court on the objections of the plaintiffs to the other questions propounded by the defendant to the witnesses Sabin and Smith. It does not appear clearly from the bill of exceptions for what purpose these questions were propounded. Evidence to show that the capacity of the mill was 30 tons a day had been offered and received to prove the rental value of the mill, and perhaps very properly, as that might be a necessary preliminary fact leading up to the determination of its value for the rental. But after the defendant utterly failed to show by any admissible evidence that there was any rental value for a mill of that kind, we think the court did not err in holding that such rental value could be shown by proving the value or the amount of ore delivered and milled. If, however, the object of these questions (as counsel contends in his brief) was to prove the actual loss of use of the machinery during the period of stoppage, or the loss of the profits that would have accrued but for the defective machinery, the answers most favorable to defendant could only have tended to show losses too undefined to be subject to computation, and profits too remote and speculative to be capable of ascertainment. The ingenious argument of counsel fails to convince us that the court erred in sustaining the plaintiffs' objections to the questions. The ninth assignment of error is that the court admitted the evidence of the declarations of one Riotti, with regard to the placing of the machinery of the mill, to go to the jury. The introduction of this evidence was objected to upon the ground that Riotti was not an agent of the defendant in respect to the matters covered by these alleged declarations. The objection does not seem to be valid. The witness testified that Riotti was authorized by defendant, in respect of the specifications in the contract between the parties, to give the draughtsman the incline of the hill, the room there was into the base of the retaining wall, the relative positions of where the furnaces should be placed in position, and to give relative positions and distances. The witness Chalmers, being recalled, testified that 'we were notified to comply with Riotti's directions. In looking over the original plan of the furnace the conveyors were shown in the plan. But Riotti said he preferred * * * desired us to follow the drawing in making the furnace. This drawing showed the conveyors as afterwards put in the mill.' We think this direction or declaration of Riotti was made with reference to the very matters which, according to the testimony of Hurlbut and Chalmers, were directly within the scope of his authority and duty. We do not deem it necessary to consider the questions whether the instructions requested by the defendant, as above set forth, and refused, are correct, as abstract propositions of law, with regard to the general principles governing the right of recoupment of damages. The bill of exceptions does not show any evidence tending to prove all the facts which these instructions assume to exist. The counsel for plaintiff in error presses the argument that the effect of the exclusion of the questions above mentioned shut out all evidence of the necessary and immediate loss of profits during the time when, by reason of the alleged breaches of the agreement, the use of the mill and machinery was lost to it. It would, in our opinion, have been error to give instructions applicable to evidence not admitted. The legal princilples in those instructions, as requested, were, so far as they were founded on the evidence, substantially put before the jury in the general charge of the court. The bill of exceptions states only so much of the charge as relates to the question of damages in the cause. The learned judge having, as we are authorized to assume, fairly left to the jury the facts as to the alleged breaches of the contract, instructed them that, if they found the defendant entitled to deduct from the plaintiffs' claim its damages resulting from the delay in the operations of the mill caused by the defective machinery, it was undoubtedly entitled to deduct therefrom the rental value of the mill. Recapitulating the evidence on this point, he then instructed the jury that, in the absence of all evidence as to the rental value, they were at liberty to allow interest on the investment; and that it was shown in evidence that the mill cost $75,000; so that, if they found that the defendant was entitled to damages for delay in running the mill, they would properly allow interest at 10 per cent. per annum (which was the statutory rate in Colorado, Gen. St. Col. 1883, § 1706) for the time of the delay as proven. He instructed them further that there was more in the way of damages shown in the wages of the men employed in the mill whose time was lost while the mill was idle, and that for this loss of time, during which they were receiving wages from the defendant, the amount so paid could be added as an element of damages to be deducted from the plaintiffs' demand. We think the law of the case was fully disclosed to the jury, and that fuller or more specific instructions were not required. The judgment of the circuit court is affirmed.

129.US.366

A judgment of the Supreme Court of the District of Columbia, quashing a writ of certiorari, after a justice of the peace, in obedience to the writ, has returned the record of his proceedings and judgment in a landlord and tenant process, is reviewable by this court on writ of error, if the right to the possession of the premises is worth more than $5000. A judgment of a justice of the peace, which is subject to appeal, cannot be quashed by writ of certiorari, except for want of jurisdiction, appearing on the face of his record. Under the Landlord and Tenant Act of the District of Columbia, requiring a "w1ritten complaint on oath of the person entitled to the possession of the premises to a justice of the peace," the oath may be taken before a notary public outside of the District. Under the Landlord and Tenant Act of the District of Columbia, a complaint which alleges that the complainant is entitled to the possession of the premises, and that they are detained from him and held without right by the defendant, his tenant at sufferance, and whose tenancy and estate therein have been determined by a thirty days' notice in writing to quit, is sufficient to support the jurisdiction of the justice of the peace.

The grounds relied on in support of the motion to dismiss this writ of error are, in substance, that the granting or refusing of a writ of certiorari is a matter of discretion, and not the subject of review; that there is no sufficient pecuniary value in dispute to support the jurisdiction of this court; and that the proceedings of a justice of the peace under the landlord and tenant act of the District of Columbia cannot be reviewed except by appeal. The writ of error before us is not upon the judgment of the justice in the landlord and tenant process, but upon the judgment of the supreme court of the District of Columbia quashing the writ of certiorari to the justicie. The last ground assigned for the motion to dismiss is untenable, because it affects the correctness of the judgment quashing the writ of certiorari, and not the jurisdiction of this court to review that judgment. The other grounds for the motion to dismiss, though more plausible, appear, upon examination, to be also insufficient. A writ of certiorari, when its object is not to remove a case before trial, or to supply defects in a record, but to bring up after judgment the proceedings of an inferior court or tribunal, whose procedure is not according to the course of the common law, is in the nature of a writ of error. Although the granting of the writ of certiorari rests in the discretion of the court, yet after the writ has been granted, and the record certified in obedience to it, the questions arising upon that record must be determined according to fixed rules of law, and their determination is reviewable on error. People v. Assessors, 39 N. Y. 81; People v. Commissioners, 103 N. Y. 370, 8 N. E. Rep. 730; Farmington Co. v. Commissioners, 112 Mass. 206, 212. It is argued that the justice of the peace had no jurisdiction to try the title to land, (Rev. St. D. C. §§ 687, 997;) that the only matter in dispute before him was the right of possession; and that the rental value of the property in question cannot be considered as in dispute, because, whatever the judgment might be in the action for possession, the defendant would have to pay that value, either as rent under the lease if the judgment should be in his favor, or for use and occupation if the judgment should be against him. The case differs from any of the precedents cited at the bar, and is not free from difficulty. But the petition for the writ of certiorari alleges, upon the oath of the petitioner, that he is in the possession of the premises under a lease having nearly a year to run, with a privilege of extension for four years more; and that he has expended $15,000 in permanent improvements upon the leased property, of which he will be deprived, if the judgment of the justice of the peace, which he alleges to be void for want of jurisdiction, is not set aside by writ of certiorari. The reasonable inference from this is that the possession of the premises, with the right to use these improvements, throughout the lease and the extension thereof, would be worth more than $5,000; showing that the matter in dispute is of sufficient pecuniary value to support the jurisdiction of this court, under the act of March 3, 1885, c. 355, (23 St. 443.) But upon the merits of the case, the judgment below is so clearly right that the motion to affirm must be granted. The landlord and tenant act, embodied in the Revised Statutes of the District of Columbia, provides not only that every occupation, possession, or holding of real estate without express contract or lease, or by a contract or lease the terms of which have expired, shall be deemed a tenancy at sufferance, but also that 'all estates at sufferance may be determined by a notice in writing to quit of thirty days;' and that 'when forcible entry is made, or when a peaceable entry is made, and the possession unlawfully held by force, or when possession is held without right after the estate is determined by the terms of the lease, by its own limitation, or by notice to quit, or otherwise,' then, 'on written complaint on oath of the person entitled to the premises, to a justice of the peace, charging such forcible entry or detainer of real estate,'—that is to say, charging either a 'forcible entry,' or any 'detainer,' whether forcible after a peaceable entry, or without right after the estate is determined,—a summons may be issued to the person complained of; and, if it appears that the complainant is entitled to the possession of the premises, he shall have judgment for the possession and costs, but, if the complainant fails to prove his right to possession, the defendant shall have judgment for costs; and that either party may appeal from the judgment of the justice of the peace to the supreme court of the District of Columbia. Rev. St. D. C. §§ 680, 681, 684, 686, 688. As an appeal lies from the judgment of the justice of the peace, his procedings cannot be quashed by writ of certiorari, unless for want of jurisdiction, appearing on the face of his record. People v. Betts, 55 N. Y. 600; Gaither v. Watkins, 66 Md. 576, 8 Atl. Rep. 464. It is suggested that the justice of the peace had no jurisdiction, because the oath to the complaint was not taken before him, but before a notary public in the state of New York. But the statute only requires a 'written complaint on oath of the person entitled to the premises.' Rev. St. D. C. § 684. As it requires the oath to be made by the complainant in person, and does not in terms require it to be administered by the justice or within the district, it is a more reasonable construction to permit the oath to be taken anywhere before a proper officer than to require the personal attendance of the complainant at the filing of the complaint. It is further suggested that the complaint does not allege that the complainant is 'entitled to the premises,' but only that he is 'entitled to the possession' of the premises; but, as the whole scope and aim of the complaint are to recover the possession, the difference is immaterial The remaining suggestion is that the complaint does not show the defendant to have been such a tenant as is contemplated by the landlord and tenant act of the District of Columbia. But that act, as we have seen, provides that all tenancies at sufferance may be determined by 30 days' written notice to quit, and does not require the facts constituting the relation of landlord and tenant to be set forth in the complaint. Its requirements are satisfied, at least so far as to support the jurisdiction of the justice, by the distinct allegations in the complaint before us that the complainant is entitled to the possession of the premises, that they are detained from him and held without right by the defendant, that the defendant is his tenant at sufferance, and that the defendant's tenancy and estate in the premises have been determined by such a notice to quit. As was well said by Mr. Justice MERRICK, in delivering the opinion of the court below: 'These averments constitute fully a statement of the relation of landlord and tenant between the parties. Now, whether the proof came up to these averments or not cannot be inquired into upon a writ of certiorari. Certiorari goes only to the jurisdiction. It does not go to any errors of judgment that may have been committed by the justice in the progress of the exercise of that jurisdiction.' The decisions cited at the bar, made under statutes requiring the proceedings to be commenced by affidavit of the facts requisite to bring the case within the statutes, and giving no appeal from the decision of the justice of the peace,1 have no application to this case. Judgment affirmed.

131.US.352

A suit instituted by a creditor of a corporation, on his own behalf and on behalf of other unsecured creditors, to set aside a conveyance of its real estate and a mortgage of its personal property, both made by the corporation.in trust to secure certain preferred creditors, including among them a director of the corporation, and also to procure a dissolution of the corporation, and the closing up of its business, is a suit brought to remove an incumbrance or lien or cloud upon the title to such property within the meaning of § 8 of the act of March 3, 1875, 18 Stat. 472, c. 137, which authorizes a Circuit Court of the United States to summon in an absent defendant, and to Iexercise jurisdiction over his rights in the property in suit within the jurisdiction of the court. It is not necessary that the creditor of an insolvent corporation should obtain judgment on his claim, and take out execution and exhaust his remedies at law, in order to invoke the jurisdiction of a court of equity in his favor to remove an incumbrance or cloud or lien upon the title of the corporation's property, under the act of March 3, 1875, 18 Stat. 470, c. 137. An adjudication that a particular case is of equitable jurisdiction is not void, even if erroneous, and cannot be disturbed by a collateral attack. A sale of the trust property which is in dispute in a cause pending in a court of equity, made by the receiver by order of court, and after full compliance with its directions as to notice, is not open to attack by one who is subsequently summoned into the suit, if there has been no fraud, no sacrifice of the property, or no improvidence; since the proceeds of the sale take the place of the property, and all his rights in the latter are transferred to the former. The proceedings in this case to remove the incumbrance upon the property of the Moline Iron Works, which are set forth and described in the opinion of the court, conformed to the requirements of the act of March 3, 1875, 18 Stat. 470. Purchasers of property involved in a pending suit may be admitted as parties, in the discretion of the court; but they cannot demand, as of absolute right, to be made parties, nor can they complain if they are compelled to abide by whatever decree the court may render, within the limits of its power, in respect to the interest their vendor had in the property purchased by them pendente lite.

Was the decree in the suit instituted by the National Furnace Company (to be hereafter called the 'Furnace Company') against the Moline Malleable Iron Works (to be hereafter called the 'Iron-Works') and others, declaring that Hill was not entitled to a lien or security by reason of the trust-deed and chattel mortgage of June 23, 1883, void for want of jurisdiction in the court that rendered it? This is the principal question in the present case. It solution depends upon the construction of the eighth section of the act of March 3, 1875, determining the jurisdiction of the circuit courts of the United States. 18 St. 472, c. 137, § 8. That section authorizes an order to be made firecting an absent defendant, in any suit brought in a circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or could upon, the title to real or personal property within the district where such suit is brought,—such defendant not being an inhabitant of or found therein, and not voluntarily appearing in the suit,—to appear, plead, answer, or demur by a designated day. The order must be served upon the absent defendant, if practicable, wherever found, and upon the person, if any, in charge or possession of the property. If such personal service be not practicable, the order must be published in such manner as the court may direct, not less than once a week, for six consecutive weeks. If the defendant does not appear, plead, answer, or demur within the time limited, or within such further time as may be allowed, the court—proof being made of service or publication of the order, and of the performance of the directions therein contained—may 'entertain jurisdiction and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district.' 'But,' the act declares, 'said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit, and under the jurisdiction of the o urt therein, within such district.' A defendant, not personally notified as provided in the act, may within one year after final judgment enter his appearance in the suit; whereupon the court must make an order setting aside the judgment, and permitting him to plead, on payment of such costs as shall be deemed just, the suit then to proceed to final judgment, according to law. The previous statute gave the above remedy only in suits 'to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought,' while the act of 1875 gives it also in suits brought 'to remove any incumbrance or lien or cloud upon the title to' such property. Rev. St. § 738; 18 St. 472, c. 137, § 8. We are of opinion that the suit instituted by the furnace company against the ironworks and others belonged to the class of suits last described. The trust-deed and chattel mortgage in question embraced specific property within the district in which the suit was brought. The furnace company, in behalf of itself and other creditors of the iron-works, claimed an interest in such property as constituting a trust fund for the payment of the debts of the latter, and the right to have it subjected to the payment of their demands. In Graham v. Railroad Co., 102 U. S. 148, 161, this court said that, 'when a corporation became insolvent, it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors. A court of equity, at the instance of the proper parties, will then make those funds trust funds, which, in other circumstances, are as much the absolute property of the corporation as any man's property is his.' See, also, Mumma v. Potomac Co., 8 Pet. 281, 286; County of Morgan v. Allen, 103 U. S. 498, 509; Railway Co. v. Ham, 114 U. S. 587, 594, 5 Sup. Ct. Rep. 1081; 2 Story, Eq. Jur. § 1252; 1 Perry, Trusts, § 242. The trust-deed and chattel mortgage executed by the iron-works created a lien upon the property in favor of Wheeler, Carson, Hill, and the Keator Lumber Company superior to all other creditors. The furnace company, in behalf of itself and other unsecured creditors, as well as Wheelock, denied the validity of Hill's lien as against them. That lien was therefore an incumbrance or could upon the title to their prejudice. Until such lien or incumbrance was removed, they could not know the extent of their interest in the property or in the proceeds of its sale. The case made by the original as well as cross-suit seems to be within both the letter and the spirit of the act of 1875. It is, however, contended that the furnace company could not rightfully invoke the aid of a court of equity to remove this lien or incumbrance until it had, by obtaining judgment for its debt and suing out execution, exhausted its legal remedies. Jones v. Green, 1 Wall. 330; Van Weel v. Winston, 115 U. S. 228, 245, 6 Sup. Ct. Rep. 22. But that was one of the questions necessary to be determined in the suit brought by that company, and any error in deciding it would not authorize even the same court, in an original, independent suit, to treat the decree as void. Besides, the removal of alleged liens or incumbrances upon property, the closing up of the affairs of insolvent corporations, and the administration and distribution of trust funds are subjects over which courts of equity have general jurisdiction. It is also suggested that the court proceeded in the suit instituted by the furnace company upon the theory that it was maintainable under the provisions of the Illinois statute giving courts of equity 'full power, on good cause shown, to dissolve or close up the business of any corporation, to appoint a receiver therefor who shall have authority, by the name of the receiver of such corporation, to sue in all courts and do all things necessary to closing up its affairs, as commanded by the decree of such court.' 1 Starr & C. Ann. St. Ill. 618, tit. 'Corporations,' c. 32, § 25. h e appellants earnestly insist that no case was made that would bring that suit within these provisions of the Illinois statute, or that would give the furance company any right to have the iron-works dissolved as a corporation, and its business closed up; and on behalf of the appellees it is contended that the suit brought by the furnace company was not an ordinary creditor's suit, but one for the administration and distribution of a trust fund. In the view we take of the case it is not necessary to determine the soundness of any of these propositions; for, if the court erroneously ruled upon any of them, its decree could not for that reason be assailed in a collateral proceeding as void for want of jurisdiction. An adjudication that a particular case is of equitable cognizance cannot be disturbed by an original suit. Such adjudication is not void, even if erroneous. This brings us to the question whether the steps taken in the suit brought by the National Furnace Company were such as authorized a decree that would affect Hill's interest in the property covered by the trust-deed and chattel mortgage. We lay out of view the fact that Hill was a citizen of Ohio, and neither appeared, nor was served, with process within the district in which the suit was brought. He was personally served with copies of the orders requiring him to plead, ansser, or demur, and the decree only affects his interest in property within the territorial limits of that district. It appears from the plea upon which the cause was heard that on the 1st of August, 1883, after the present appellees had answered the original bill in most part, and after the iron-works had demurred, the court, upon the application of the furnace company, appointed a receiver to take possession of the property of the first-named company, including that covered by the trust-deed and chattel mortgage, for the benefit of all parties interested in it; and that, on the 28th of November, 1883, Wheelock, by leave, filed his cross-bill against the iron-works, the furnace company, George H. Hill, Hemenway, and Carson, asking a decree declaring said trust-deed and mortgage valid as to himself, Carson, and the Keator Lumber Company, and void as to Hill. He alleged that the property embraced in the trust-deed and chattel mortgage was rapidly depreciating in value, and ought to be sold, and the proceeds applied, primarily, to relieve himself, Carson, and the Keator Lumber Company from the liabilities assumed by them as indorsers for the iron-works. On the same day an order was entered requiring the defendants to the cross-bill to plead, answer, or demur to the same on or before December 20, 1883, and providing that if Hill (being served with a copy of the order on or before December 5, 1883) did not appear, plead, answer, or demur to the cross-bill, by the time fixed, the same would be taken as confessed by him. Hill was served presumably in Ohio, where hr resided—on the 1st of December, 1883, with such copy; but neither he nor the iron-works appeared, pleaded, answered, or demurred to the cross-bill. It appearing from the petition of the receiver, filed December 22, 1883, that the property covered by the trust-deed and mortgage was rapidly depreciating in value, he was authorized by an order of court to advertise and sell it. He did sell it, and February 20, 1884, reported a sale by him to Wheelock, pursuant to and in the manner directed by the court. That sale was approved, time being given to show cause why it should not be confirmed. The property was conveyed by the receiver to Wheelock. On the 3d of March, 1884, Hill was required by order of court to appear on or before April 15, 1884, and plead, answer, or demur to the original and supplemental bill, and it was ordered that if he did not, on or before the latter day, being previously served with a copy of such order, appear and plead, answer or demur, the bill would be taken as confessed by him. Long prior to the sale to Mellen of Hill's interest in the trust and mortgage the late r was served with a copy of the order of March 3, 1884, and on the 22d of April, 1884, the original and supplemental bills, Hill not having appeared and answered, pleaded or demurred, were taken as confessed by him. On the succeeding day a like order was entered against him as to the cross-bill, he not having appeared, pleaded, answered, or demurred thereto. The cause came on to be heard on the 26th of June, 1884, upon the original and supplemental bill, upon the cross-bill, upon the answer and replications thereto, and upon the testimony taken in the cause, when the final decree was rendered as set forth in the plea embraced in the statement of facts preceding this opinion. A large part of the argument on behalf of the appellants is in support of the proposition that, as the order requiring Hill to appear and plead, answer or demur, to the original and supplemental bills was not made until after the receiver had, by order of the court, sold the property, the sale was a nullity. We do not assent to this view. Whether the condition of the property was such as to require, for the protection of the parties, that it be sold, was a matter for the court, in its discretion, to determine. There is nothing to show that the order of sale was even improvidently made, much less that it was procured by fraud, or that the property was sacrificed. If the circumstances justified immediate action, the court had power to order a sale in advance of a final decree. The sale was not ordered or made until after Hill had been duly served with a copy of the order of November 28, 1883, to appear and plead, answer or demur, to the cross-bill by the day fixed in that order. If the sale was irregular, by reason of its being ordered and made before Hill was directed to appear and plead, answer or demur, to the original and supplemental bills, that is not a matter affecting the jurisdiction of the court to render a final decree in respect to his interest in the property; for the proceeds took the place of the property, and whatever rights Hill had in the latter were transferred to the former. So that the real question, upon this part of the case, is whether the proceedings in question conformed to the act of March 3, 1875. We are of opinion that they did. Before the final decree was rendered, Hill had been served with a copy of the several orders requiring him to appear and plead, answer and demur, as well to the original and supplemental bills as to the cross-bill, and was in default in respect to each order. It may not have been in accordance with the usual or proper practice to take the cross-bill for confessed before he had been duly served with the order to appear and plead, answer or demur, to the original and supplemental bills. But if that was an irregularity it was one that did not affect the power of the court to make a final decree, and constitutes no ground for disregarding that decree in this collateral proceeding. We have considered the case just as if the present suit had been brought by Hill. The appellants have no greater rights than he would have, if the present suit had been instituted by him; for Mellen, the trustee for Sophia H. Boyd, acquired his rights pendente lite. Hill sold and conveyed to him, after he had been personally served with copies of the order to appear and plead, answer or demur, to the original and supplemental bills, and only three days before the time fixed for his appearance to the original suit. His sale was more than three months after he was required to appear and plead, answer or demur, to the cross-bill. That sale and conveyance could not affect the power of the court to proceed to a final decree, so far as his interest in the property was concerned. Nor by such sale and conveyance did Mellen and his cestui que trust acquire any absolute right to become a party to the suit instituted by the furnace company. Purchasers of property involved in a pending suit may be admitted as parties in the discretion of the court; but thy cannot demand, as of absolute right, to be made parties, nor can they complaint if they are compelled to abide by whatever decree the court may render, within the limits of its power, in respect to the interest their vendor had in the property purchased by them pendente lite. Eyster v. Gaff, 91 U. S. 521, 524; Trust Co. v. Improvement Co., 130 U. S.—, ante, 606; 1 Story, Eq. Jur. § 406; Murray v. Ballou, 1 Johns. Ch. 566. As said by Sir WILLIAM GRANT in Bishop of Winchester v. Paine, 11 Ves. 194, 197: 'The litigating parties are exempted from the necessity of taking any notice of a title so acquired. As to them, it is as if no such title existed. Otherwise, such suits would be indeterminable; or, which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined.' The present proceeding is an attempt, upon the part of a purchaser pendente lite, to relitigate, in an original, independent suit, the matters determined in the suit to which his vendor was a party. That cannot be permitted, consistently with the settled rules of equity practice. There is no error in the decree, and it is affirmed.

135.US.342

Claim 3 of reissued letters patent No. 7947, granted November 13, 1877 to James Sargent, for an "improvement in combined time-lock, combination lock, and bolt-work for safes," the original patent, No. 195,539, having been granted to Sargent, September 25, 1877; namely, "3. The combination, with the bolt-work of a safe or vault-door,-of a combination or key lock controllable mechanically from the exterior of said door, with a time-lock having a lock-bolt or obstruction for locking and unlocking controllable from the interior of the door, both of said locks being arranged so as to rest against or connect with the bolt-work, the time-lock being automatically unlocked by the operation. of the timemovement, both 'of said locks being independent of each other, and arranged to control the locking and unlocking of the bolt-work, so that said safe or vault-door cannot be opened when locked until both of said locks have been unlocked or have released their dogging action, to enable the door to. be opened, substantially as described," is invalid, because the specification of the original patent was not defective or insufficient, and the patent was not inoperative; and the sole object of the reissue was to obtain claim 3 as an enlarged claim; and the proceedings in the Patent Office prior to the granting of the original patent show that Sargent abandoned that claim ; and because, although the reissue was applied for only 13 days after the granting of the original patent, there was not a clear mistake, inadvertently committed, in the wording of a -claim. Claims 1 and 7 of reissued letters patent No. 8550, granted to the Yale Lock Manufacturing Company, January 21st, 1879, for an "improvement in time-locks," the original patent, No. 146,832, having been granted, to Samuel A. Little, as inventor, January 27th, 1874, and having been reissued as No. 71.04, to that company, May 9th, 1876, and again reissued to it, as No.8 035, January 8th, 1878; namely, "1. The combination of independent multiple bolt-work with the time mechanism'and locking or dogging mechanism of a time-lock, automatically both dogging and releasing the bolt-work at predetermined times, substantially as described." "7. In a time-lock, the combination, substantially as above set forth, of the time movements and two adjustable devices, one fbr determining the time of locking, and the other of unlocking," are invalid, 'because the original patent was not inoperative or invalid by reason of a defective or insufficient specification,_ within the terms of the statute, so as to warrant the reissues ; and because the claims are enlarged ; and because of the unexcused delay of more than two years in applying for a reissue ; and because the claims were formally abandoned during ti, proceedings in the Patent Office.

This is a suit in equity, brought January 29, 1879, in the circuit court of the United States for the district of Massachusetts, by the Yale Lock Manufacturing Company, a Connecticut corporation, and James Sargent and Halbert S. Greenleaf, composing the firm of Sargent & Greenleai, against the Berkshire National Bank, a national banking corporation doing business at North Adams, in Massachusetts. The suit was brought for the infringement of two reissued letters patent. One of them is reissue No. 7,947, granted November 13, 1877, to James Sargent, as inventor, for an 'improvement in combined time-lock, combination lock, and bolt-work for safes,' on an application filed October 8, 1877; the original patent, No. 195,539, having been granted to Sargent, September 25, 1877. Only claim 3 of reissue No. 7,947 is alleged to have been infringed. The other reissue is No. 8,550, granted to the Yale Lock Manufacturing Company, January 21, 1879, on an application filed October 14, 1878, for an 'improvement in time-locks;' the original patent, No. 146,832, having been granted to Samuel A. Little, as inventor, January 27, 1874, and having been reissued as No. 7,104, to the Yale Lock Manufacturing Company, May 9, 1876, and again reissued to that company, as No. 8,035, January 8, 1878. Only claims 1 and 7 of reissue No. 8,550 are alleged to have been infringed. After the filing of the bill, and by agreement of the parties, Joseph L. Hall, of Cincinnati, Ohio, was admitted as a defendant. An amended bill was filed, and the bank and Hall answered it. As to both reissues, the answer denied that, before they were granted, the patents were inoperative by reason of a defective or insufficient specification; that any errors arose by inadvertency, accident, and mistake; that any reissues were necessary or are valid; and that the reissues were for the same in ventions as were shown and described in the original patents. It also set up want of novelty and non-infringement. After replication, proofs were taken on both sides, and the case was heard in the circuit court by Judge LOWELL. His opinion is reported in 17 Feb. Rep. 531. He held that claim 3 of the Sargent reissue, No. 7,947, was invalid, and ordered a decree for the plaintiffs as to claims 1 and 7 of the Little reissue, No. 8,550. On the 14th of August, 1883, an interlocutory decree was entered, adjudging reissue No. 8,550 to be valid, as to claims 1 and 7; that the defendants had infringed those claims; and ordering a reference to a master to take an account of profits, and to report damages. In July, 1884, the defendants were allowed to amend their answer by setting up an additional anticipation of the Little patent, proofs were taken thereon, and the case was reheard, before Judge COLT, on the new evidence. He affirmed the former decree, in an opinion reported in 26 Fed. Rep. 104. The master reported $60 damages in favor of the plaintiffs, and both parties excepted to the report. A final decree was entered on the 12th of February, 1886, confirming the report, overruling the exceptions of both parties, and adjudging a recovery in favor of the plaintiffs for $60 damages and certain costs, dismissing the bill as to the Sargent reissue, No. 7,947, and awarding a perpetual injunction as to claims 1 and 7 of the Little reissue, No. 8,550. From this decree both parties have appealed. Joseph L. Hall having died, his executors and trustees have been made parties in his place. The respective specifications and claims of the original Sargent patent, No. 195,539, and of its reissue, No. 7,947, are set forth below in parallel columns, the parts in each which are not found in the other being in italic. The drawings are the same in both. ORIGINAL PATENT NO. 195,539. 'Be it known that I, James Sargent, of the city of Rochester, in the county of Monroe and state of New York, have invented a certain new and useful improvement in locks; and I do hereby declare that the following is a full, clear, and exact description of the construction and operation of the same, reference being had to the accompanying drawings, in which figure 1 is an elevation of my improvement applied to a safe-door. Fig. 2 is a section of the bolt of the time-lock. Fig. 3 is an inside view of the same. Fig. 4 represents detached views of the dial, and escape-wheel. Fig. 5 is a bolt constructed as integral with the holding-latch. 'My improvement relates to that class in which two independent locks are employed upon a safe, vault, or other door for the purpose of preventing the unlocking of the door-bolts until both locks have been unlocked. Combination or key locks have only heretofore been used for this purpose, so far as I am aware. As such locks are set on combinations, or operated by means of keys, burglars can force the holders of the combination or key to unlock the door, and hence such locks are not a perfect safeguard against robbery. Clock-locks have also been used upon doors for the purpose of opening the door only at a determined hour, thus placing it beyond the power of any person to open the door until that hour arrives; but, so far as I am aware, such locks have either been used singly on a door, (in which case, when the lock releases the bolt or other fastening, the door is unlocked, and may be opened by any one,) or else a time-movement has been combined directly with a lock i such a manner that the two really constitute but a single lock, in which case, if violence is applied to the lock, it at once destroys the efficiency of the time movement. 'My invention consists, primarily, in the combination, with the door-bolt, of a clock-lock and a combination or key lock applied separately upon the door, having each an independent action, whereby the clock-lock will not release its bolt until a certain determined hour, and when it does release its bolt the combination or key-lock still remains locked and secures the door. 'My invention further consists in combining a clock-lock with a combination or key lock, both constructed to be applied on a safe, vault, or other door, to operate in connection with the bolt-work of such door, said clock-lock being provided with a lock-bolt constructed with an opening or offset, which is automatically brought in and out of coincidence with the tongue of the door-bolt in such a manner that the door-bolt may be retained in an unlocked condition for shutting, and prevented from being withdrawn when locked until both locks have been unlocked; the prime object being that each lock shall have an independent action, so that the clock-lock will not release the bolt until a certain determinate hour, and when it does release its bolt the combination or key lock still remains locked, and secures the door. 'A represents the combination or key lock, and B the clock-lock. These locks are provided with bolts C, D, of any desired kind, against which strike the studs, a, a', of the tie-piece, E. When the locks are locked, the bolts hold said studs out, and both locks have to be unlocked to allow the door-bolt to retract. 'The locks, A, B, are separate and independent of each other, and complete in themselves, and may be located at any position on the door. The combination or key lock will naturally be located in line with the spindle that operates it; but the clock-lock may be placed anywhere, where space is best found for it, on the door, and the stud, a', of the door-bolt, which connects with it, may be lengthened, bent, or otherwise arranged to rest against the lock-bolt, in whatever position it may be, as shown in Fig. 1. 'In locking the safe or vault-door, some device is necessary to allow the door-bolt to remain back in the unlocked position until the door is closed, without interfering with the clock-lock. 'In Fig. 1 the bolt, D, of the clock-lock is constructed in two parts, D', D2, turning independently on the same bearings, c. The inner part, D2, has the socket, d, into which the stud of the door-bolt enters in drawing back. It is connected to the outer part, D', by a coiled spring, f, (Fig. 3,) resting in a cavity in the side of the outer part. The outer part is also connected by a similar coiled spring, g, with the fixed bearing, c. Instead of the spring, g, it may have a counterweight, g', (Fig. 5.) The spring, g, causes the outer part, D', to turn back or fall, so that the socket, d, of the inner part, comes in position to allow the stem, a', of the door-bolt to enter therein. When this is done, the outer part is turned up to engage the dog, (presently to be described,) while the inner part remains stationary, on the stem of the door-bolt. The door is then shut, and the door-bolt thrown out, and the tension of the spring, g, causes the part, D 2, to turn when released, thereby locking the door-bolt stops, by which the motion is gaged to bring the socket of the part, D2, in proper position in its throw. 'The device above described forms a part of the clock-lock, being the bolt of the same. In Fig. 1 is shown another device for the same purpose, situated outside the lock, which is the subject-matter of a separate application. It consists of a socket or bearing, h, attached to the tie-piece, E, of the door-bolt, and sliding on an independent stud, a', resting against the lock-bolt. A spring locking-pin, i, is used to connect the parts when the door-bolt is thrown forward to connect with the jamb. In this case the lock-bolt, D, may be made solid, and may be either of the turning or sliding kind. 'G is a dog for holding the lock-bolt, D, up in the locked position. It turns on an axis, k, and its point engages under a stop, l, preferably a roller, of the bolt when the latter is raised. It is held in engagement by a light spring, j. The dog has two branching arms, m, m, projecting inward over the faces of the dial-wheels, H, H. The dial-wheels have pins, n, n, projecting out from their faces, and when they or either of them strike the levers, m, m, they release the dog from its engagement with the bolt, and the latter turns back or falls, thereby unlocking the lock, as before described. 'I prefer to use two independent time movements or clocks, each connected with and operating one of the dial-wheels, h, so that if one movement should accidentally stop the other would be sure to unlock the lock. 'The dial-wheels are indexed or marked with a scale of hours from 0 to 48, or any other number corresponding with the longest interval the lock is to remain locked at one time,—say from Saturday night to Monday morning. This scale is used in conjunction with a pointer, e, at the top of the wheel. In setting the lock, the dial-wheels are moved backward from 0 to any number in the scale that will indicate the number of hours the safe or vault is to remain closed; and the pins, n, n, must be so located with reference to the scale as to strike the levers, m, m, and release the bolt, when the 0 mark comes forward to the pointer. The time movements or mechanism may be of any ordinary construction to measure time. 'Each of the dial-wheels, H, H, is cogged, and engages with the arbor, 0, of the mainspring barrel, either directly by means of the pinion, p, attached to said arbor, or through intermediate gearing. The arbor, 0, is the stem by which the clock is wound. 'When the clock is finished, it is fully wound up before the dial-wheel is adjusted in place. The motion is then imparted to the dial-wheel, which runs forward to unlock the lock, and in moving the dial-wheel back to reset the lock the clock is rewound. 'The dial-wheel is turned back to reset the lock by a key applied at the winding arbor, 0. 'By the means above described I obviate a great objection to common clock-locks, which run on until they run down, thus subjecting the lock to the danger of being locked in by neglect of winding. By this means the lock cannot be reset without winding, for the pins, n, n, resting in contact with the levers, m, m, prevent the dog, G, from being engaged with the bolt until the dial-wheels have been moved back, as described. The relocking of the lock, therefore, requires rewinding of the clock as a necessity. 'On the back of the dial-wheel, H, is a pin, r, (Fig. 4,) forming a stop. On the pallet, s, which engages with the scape-wheel, t, is a pin, u, which projects out through a slot, v, of the stationary clock,-frame. As soon as the dial-wheel has acted upon the lever, m, to unlock the lock, the pin, r, of the dial-wheel, strikes the pin, u, of the pallet, and locks the latter in the scape-wheel, thereby stopping the clock.T here is therefore no loss of motion, nor can the dial-wheel get out of position with respect to the pointer. 'By combining an independent clock-lock and combination or key lock with the door-bolt, as described, I produce an effect which cannot be produced by a clock-lock alone, or by two or more combination locks together. The clock-lock serves as a safe-guard by night, and the combination lock by day. If the holder of the combination is forced to open the combination lock at night, the clock-lock remains intact, and cannot be opened by the burglars or the holder of the combination. On the other hand, when the clock-lock releases its bolt in the morning, the combination lock still remains locked, and burglars cannot make an entrance to the safe. Such results cannot be accomplished by a clock-lock alone, because when it releases its bolt the safe is absolutely unlocked; nor by two or more combination locks together, because the holders of the combination may be taken to the bank and forced to open the lock. Neither can tampering with the combination lock affect the clock-lock.'The combination lock may be punched from place, but the clock-lock, being separate and independent from it, and having no opening through the door, cannot be affected. It is therefore superior to a lock which has the time movement combined directly with the combination lock, both forming one lock, in which case any violence to the lock-work disarranges the clock. Another advantage of this invention is the capability of the separate locks of being applied on different parts of the door indifferently. The bolt-work on different doors is frequently such that the two locks cannot be applied together. The clock-lock in such case may be attached at the most convenient location, as before described. It can also be applied with facility on old safes having the combination or key lock already on, thus securing the advantage of a clock-lock and combination lock without the necessity of removing the old lock, and substituting a new one having a time movement combined directly with the lock. 'I do not claim, broadly, a clock-lock; nor do I claim two or more combination locks combined with the door-bolt; but 'I claim—— '(1) The combination, with a door-bolt, E, of a clock-lock, B, and a combination or key lock, A, applied independently on a safe, vault, or other door, so as to rest against or connect with said door-bolt, and provided with a device whereby the door-bolt may be retained in the unlocked position for shutting the door, the whole arranged so that the door-bolt cannot be withdrawn, when locked, until both locks have been unlocked. '(2) The combination of a clock-lock and a combination or key lock, both constructed to be applied on a safe, vault, or other door, so as to rest against the door-bolt, and provided with a lock-bolt having an opening or an offset, which is automatically brought in and out of coincidence with the tongue of the door-bolt, whereby the door-bolt may be retained in the unlocked position for shutting the door, and prevented from being withdrawn, when locked, until both locks have been unlocked.' REISSUE NO. 7,947. 'Be it known that I, James Sargent, of the city of Rochester, in the county of Monroe and state of New York, have invented a certain new and useful improvement in combined time-locks, combination locks, and bolt-work for safe and vault doors; and I do hereby declare that the following is a full, clear, and exact description of the construction and operation of the same, reference being had to the accompanying drawings, in which figure 1 illustrates a portio of a safe or vault door having thereon a time-lock and a combination lock, both of said locks being represented in a locked condition, with the bolt-work projected and locked. Fig. 2 illustrates one form of lock-bolt or obstruction for use in a time-lock. Fig. 3 illustrates an inside view of said lock-bolt or obstruction. Fig. 4 represents detached views of the pallet and escape-wheel,and a portion of one of the revolving dials. Fig. 5 illustrates another form of lock-bolt or obstruction for use in connection with the time-lock for admitting of locking or unlocking of the bolt-work. 'My invention consists—First, in the combination with the bolt-work of a safe or vault door, of a time-lock and a combination or key lock, both constructed to be applied on a safe, vault, or other door, so as to rest against or connect with the bolt-work on said door, and provided with a device whereby the bolt-work may be retained in the unlocked position for shutting the door, and be automatically locked by the lock-bolt or obstruction of the time-lock, and mechanically by the combination or key lock, the whole so arranged that the bolt-work cannot be withdrawn when locked till both locks have been unlocked; second, in the combination of a time-lock and a combination or key lock, both constructed to be applied on a safe, vault, or other door, so as a rest against the bolt-work, each of said locks being provided with a lock-bolt or obstruction, that of the combination lock or key lock being of the usual construction, while that of the time-lock has an opening or offset, which is automatically brought into and out of coincidence with the tongue of the bolt-work, whereby the bolt-work may be retained in the unlocked position for shutting the door, and prevented from being retracted when locked, until both locks have been unlocked; third, in the combination, with the bolt-work of of a safe or vault door, of a combination lock, controllable mechanically from the exterior of said door, with a time-lock, controllable automatically for unlocking by the operation of its time mechanism, both of said locks arranged to control the locking and unlocking of the bolt-work, so that said safe or vault door cannot be opened when locked until both of said locks have been unlocked or released their dogging action to enable the door to be opened, substantially as hereinafter described. 'The construction and arrangement of the time-lock will be more fully hereinafter described; but it is evident that any form or construction of a time-lock may be used as a part constituting one element of the combination called for in my claims. 'Combination or key locks have heretofore been used by bankers and others for the purpose pose of preventing the unlocking of the bolt-work of a safe or vault door; but as such locks are 'set on' combinations, or operated by means of keys, burglars can force the holders of the 'combination' or key to unlock the combination lock or locks, and thus admit of the bolt-work being retracted, and the door thrown open. Therefore such locks are not a safeguard against robbery. 'Clock-locks have also been used upon safe or vault doors for the purpose of opening the door at a predetermined hour, thus placing it beyond the power of any person, until the arrival of the appointed time, to open the door; but, as far as I am aware, such clock-locks have either been used singly on a safe-door, so that, when said lock released the bolt-work or other fastening of the said door, it was unlocked, and the door could be opened by any one, or, in another instance, when a time movement had been combined with a combination lock in such a manner that the two really constituted but a single lock, the time mechanism constructed and provided with a lever to engage with the fence or dog of the combination lock,s o that the entire mechanism of the time movement and combination lock really constitute but a single lock, as aforesaid; the result being that, if violence be applied to such a lock through the dial-spindle or otherwise, the efficiency of the time movement will be destroyed. 'Referring to the drawings, the letter A designates a combination or key lock, and B the time-lock. These locks are illustrated as being upon a portion of a safe or vault door, with the bolt-work projected and locked, the lock-bolts or obstructions being in locked position. The lock-bolts or obstructions, C, D, are, in the present example, shown as being constructed each with a notch or recess, so that, when said notches or recesses are brought in line with the tongue-pieces or studs, a, a', arranged upon the carrying-bar, E, of the bolt-work, they (the said tongue-pieces or studs) can, by a movement of the bolt-work, be made to enter said notches or recesses, and thus the bolt-work can be retracted, and the safe or vault-door thrown open. When the bolt-work is projected or cast so as to lock the safe or vault door, the lock-bolts or obstructions can be brought into a locked position, the lock-bolt or obstruction of the combination lock being placed in a locked position by mechanically operating the dial-spindle, which controls the movements of the tumblers and other portions of the lock, while the lock-bolt or obstruction of the time-lock will automatically bring itself into a locked position after the door is closed, whereby the door of the safe or vault will be locked and guarded by two locks, one of which is operated from the exterior mechanically, while the other operates on the interior automatically, there being no hole through the door whereby it might be operated upon by any mechanical means. 'The combination lock and the time-lock are separate from each other in performing their office or function with respect to the bolt-work on the safe or vault-door, and each of said locks should be complete in itself, and so constructed that they may be placed at any position on a safe or vault door. 'The combination or key lock should be located in line with the dial spindle or key which operates it, but the time-lock may be located anywhere on the safe or vault door where sufficient space is present for it, and the tongue-pieces or studes on the carrying-bar of the bolt-work may be of any required length, bent or otherwise arranged so as to connect with or rest against the lock-bolts or obstructions, when the latter is moved to the proper position for obstructing or dogging the bolt-work, and prevent its retraction or unlocking, thus retaining the door in a locked position until both locks have been unlocked. 'When it is desired to lock or fasten the bolt-work of the safe or vault door by means of a combination lock and a time-lock, some mechanical arrangement or device should be employed to enable the lock-bolt or obstruction of the time-lock to be set or adjusted while the safe-door is open, and the bolt-work in a retracted or unlocked position, so that the door can be closed to admit of the bolt-work being projected or cast. The lock-bolt or obstruction will, as hereinafter set forth, present its lock-bolt or obstruction automatically, thus securing the door in a locked position until the arrival of the time determined by the time mechanism or register, at which time the lock-bolt or obstruction will be automatically moved and brought into a position for admitting of the releasing and unlocking of the bolt-work, so that said door can be opened. 'To accomplish such mechanical arrangement or device in the time-lock, a lock-bolt or obstruction is employed in the time-lock itself, or by means of an adjustable tongue-piec or stud connected with the carrying-bar of the bolt-work,—such for instance, as those illustrated in Figs. 1, 2, 3, 5, of the accompanying sheets of drawings. 'The lock-bolt or obstruction, D, illustrated in Figs. 1, 2, and 3, is one of the devices that should be employed to enable the time-lock to be set while the bolt-work remains in a retracted or unlocked position, so that the bolt-work will remain in such retracted position without interfering with the time-lock; the combination lock, of course, during such intervals, being in an unlocked position; and through such mediums the bolt-work, when projected for closing the door, will be held in a locked position by the automatic movement of the lock-bolt or obstruction of the time-lock, and by the lock-bolt of the combination lock, which is brought into a locked position by the mechanical operation of the dial-spindle, 'The lock-bolt or obstruction of the time-lock is constructed in two parts, D1, D2, adapted to turn independently of the other on the same bearing, c. The inner part, D2, has a notch or recess, d, into which the tongue-piece or studon the carrying-bar enters when the bolt-work is retracted, so as to open the safe or vault door if the combination lock be unlocked, The said inner part, D 2 part, D1, by a spring, f, resting in a cavity or recess in the side of the outer part. The outer part, D1, is also connected by a spring, g, with the bearing, c. The spring, g, being connected with the outer part, D 1, and with its bearing, c, causes the outer part, D1, to be moved or turned on its axis inner part, D 2 tongue or stud, a', of the carrying-bar to enter it, and thus the bolt-work can be retracted, and when so retracted the outer part, D1, is turned or moved, and made to connect and engage with the portion of a yoke, while the inner part, D2, remains stationary, being prevented from moving or turning on its axis by the tongue-piece or stud on the carrying-bar resting in the notch or recess of the part, D 3 'The parts constituting the lock-bolt or obstruction, and forming a part of the time-lock, being thus constructed, arranged, and adjusted, the time mechanism having been previously wound, and the dials set for a certain predetermined time, the bolt-work is projected or cast, when the lock-bolt or obstruction of said time-lock will automatically be brought into a locked position, and the door of the safe or vault securely guarded by a combination lock, if it be locked, and a time-lock, and the bolt-work be prevented from being retracted, or the safe or vault door opened, until both locks have been unlocked. 'The parts, D1, D2, composing the lock-bolt, or obstruction, are supplied with suitable stops, by which their motion or throw is limited so as to bring the notch, recess, or offset of the part, D2, in proper position in its rolation to coincide with the tongue-piece or stud on the carrying-bar of the bolt-work. 'In lieu of forming the lock-bolt or obstruction in two parts, as above described, it has been found eminently practical and successful to employ a lock-bolt or obstruction made in a single piece, or as an integral. Such a lock-bolt or obstruction is shown in Fig. 5 of the drawing, and, as it will be perceived, it is constructed with a notch, recess, or offset, to admit of a tongue-piece or stud entering it when the bolt-work is retracted for unlocking the safe or vault door, and said lock-bolt or obstruction is likewise provided with an arm, g', having a pin or stud connecting or engaging with a yoke in such a manner that when said arm and yoke are in connection the lock-bolt r obstruction will be placed so as to prevent the retraction of the bolt-work, and when said arm and yoke are disconnected through the medium of revolving dials, to be hereinafter mentioned, the lock-bolt or obstruction will be automatically brought to a position for allowing the bolt-work to be retracted, and such automatic movement of the lock-bolt or obstruction is due to the action of the arm, g', acting as a counter-weight. 'When a lock-boltor obstruction of the character last described is employed, some provision must be made for adjusting and setting the time-lock, or the lock that measures time, prior to closing the safe or vault door, and this must be accomplished while the bolt-work is in a retracted position; therefore, to enable such to be done, there is arranged on the carrying-bar of the bolt-work a socket or bearing, which is provided with a movable tongue-piece and a spring-bolt, constructed and arranged in such a manner that, when the spring-bolt is moved out of contact with the socket or bearing of the movable tongue-piece or stud of the carrying-bar, it, together with the bolt-work, can be retracted as the socket or bearing on said carrying-bar moves or slides along the tongue-piece or stud in a longitudinal direction, one end of it bearing upon the lock-bolt or obstruction of the time-lock, and in such condition the safe or vault door can be closed, and, when the bolt-work is projected or cast into the jamb of the door, the socket or bearing moves along the tongue-piece until the spring-bolt engages with it, when it—the socket or bearing will be automatically locked, in place, and the bolt-work, performing its office, will securely fasten the safe or vault door, upon which the combination lock is placed, together with the time-lock. 'From the foregoing it will be seen that the lock-bolt or obstruction shown in several figures are each stationary, except during the brief interval of time when locking or unlocking is being effected, and that each is adapted to be turned on its pivot or bearing for obstructing or cogging the bolt work for preventing its retraction, or for releasing the bolt-work at the time appointed, so that it can be retracted; and it should be noliced that the lock-bolt or obstruction of the time-lock is so located in the time-lock that if pressure be exerted upon the lock-bolt or obstruction, by force applied to the bolt-work, such pressure will not be transmitted to the delicate workmanship forming part of the time-lock; for the lock-bolt or obstruction, so to speak, is isotated from the time mechanism, in order to bring and retain the lock-bolt or obstruction in a position to have the bolt-work, or to move it to release the bolt-work, the bolt-work, or to move it to release the bolt-work, whereby the same may be retracted. 'There is arranged within the time-lock a yoke, G, which is capable of being oscilated or turned on its axis or pivot, said yoke being acted on by two rotating dials, H, H, in such a manner that said yoke will be operated by either or both of said dials at the predetermined time for which said revolving dials have been set. 'In the example shown in the time-lock in Fig. 1, the yoke engages under a stop, l, preferably a roller, arranged on the lock-bolt or obstruction, and, when the latter is brought into a position for obstructing the bolt-work, to prevent its retraction until the arrival of the predetermined time, while in the example shown in Fig. 5 said yoke connects or engages with the bolt-lock or obstruction. 'In both examples the yoke relains the lock-bolt or obstruction in a position for obstructing and prerenting the retraction of the bolt-work until the arrival of the predetermined time for which the revolving dials carrying pins have been set. 'The arms or members, m, m, of the aforesaid yoke, extend over a portion of the revolving dials, from which project pins, and when either of said pn § come in contact with the arms or members of said yoke, which will occur at the arrival of the time previously determined upon when setting the revolving dials, it (the said yoke) will be operated or turned on its axis or pivot, and release the lock-bolt or obstruction, and leave the same to be brought into a position to permit the bolt-work to be retracted, which is accomplished by turning the knob or handle connected with the carrying bar, said knob or handle being on the outside the safe or vault door. 'It is preferred to use two independent time mechanisms, each connected with and operating one of the revolving dials, so that if one of the time mechanisms should accidentally stop the other would be sure to operate the yoke, and by its movement release the lock bolt or obstruction, which would automatically assume such a position as to present an unobstructed pathway for the tonguepiece or stud to move in, and thus the bolt-work could be released and be left free to be with-drawn or retracted. 'The revolving dials are cogged—that is, provided with teeth, which engage with the arbor, O, of the mainspring barrel, either directly or by means of the pinion, p, attached to said arbor, or through intermediate gearing—so that the setting of the time mechanism for operating the yoke at any given time will necessarily wind up the time mechanism, to the extent, at least, that it will unwind by the arrival of the predetermined time at which the lock-bolt or obstruction is to be released for enabling the bolt-work to be retracted. 'The revolving dials are indexed or marked with a scale from zero (0) upward to 48, or any other number corresponding with the longest interval the time-lock is to present its lock-bolt or obstruction to obstruct the bolt-work at one time,—say, from Saturday night to Monday morning. This scale is used in conjunction with a pointer or index, e, arranged in the time-lock above the revolving dials. 'In setting the time-lock the revolving dials are turned or moved backward from zero (0) to any number in the scale that will indicate the number of hours the safe or vault-door is to remain closed or locked, and the pins, n, of the revolving dials, must be so adjusted with reference to the yoke as to come in contact with the arms or members, m, m, of the yoke, so that either or both of the said arms or members will act upon the yoke, causing it to move so as to release the lock-bolt or obstruction of the time-lock when the zero (0) mark arrives at the index or pointer. 'The winding up of the time mechanism and the setting of the revolving dials is per formed simultaneously by imparting proper motion to the arbor, o, of the mainspring barrel. 'The revolving dials are provided with a pin, r, as shown in Fig. 4, the same serving as a stop. 'On the pallet, s, which engages with the escape-wheel, t, is a pin, u, which projects out through a slot, v, of the stationary time mechanism frame, the whole arranged in such a manner that, as soon as the revolving dial has acted upon the yoke for causing it to release the lock-bolt or obstruction, the pin, r, of the said revolving dial, will strike the pin, u, of the pallet, and lock the latter in the escape-wheel, thereby stopping the time mechanism, so that there will be no loss of power, as it is intended that the time-lock should be wound up when first finished, prior to adjusting in place the revolving dials; and, further, by stopping the time mechanism, as above described, the revolving dials cannot get out of position with respect to the index or pointer. 'By my invention the time-lock cannot be reset without winding, for the pins of the revolving dials, resting in contact with the arms or members of the yoke, prevent it from being broughti nto action with the lock-bolt or obstruction struction until the revolving dials have been moved back the number of hours for which it is designed to obstruct the bolt-work. Thus the resetting of the time-lock requires rewinding of the time mechanism as a necessity, and hence no danger of it being unlocked accidentally during the period of hours for which it is set. 'The dial-wheel is turned back to set the time-lock by a key applied at the winding arbor, o. 'By the means above described I obviate a great objection to common clock-locks, which run on until they run down, thus subjecting the lock to the danger of a 'lock-out,' caused by neglect of winding. 'By this means the time-lock cannot be set without winding, for the pins, n, n, resting in contact with the arms of the yoke, it (the yoke) cannot be engaged with the lock-bolt or obstruction until the dial-wheels have been moved back to set the lock, as before described. 'By combining an independent time-lock of the character described, and a combination or key lock, I produce an effect or result which cannot be produced by a time-lock alone, or by two or more combination locks together. 'The time-lock serves as a safeguard by night, in connection with the combination lock, for holding the bolt-work in a locked condition; but, when the time-lock releases the bolt-work at the appointed hour, the bolt-work will remain locked, and the safe or vault door closed, until the combination lock is unlocked by the holder of the combination on which said lock is set when the bolt-work can be retracted and the door opened, thus leaving the time-lock free from performing any locking action, which leaves the combination lock free for use during the day for locking or unlocking the safe or vault door,—an important desideratum present in my invention. 'If the time-lock present on the safe or vault-door is set for holding the bolt-work from the time the bank closes in the afternoon to release the bolt-work at a certain hour the next morning, it will admirably and with certainty perform its office, leaving the combination lock to be opened before the bolt-work can be retracted; and should the officer if the bank bolding the combination be seized during the night, carried to the bank, and forced to open the combination lock, the time-lock will remain intact, and cannot be opened by the burglars or the officer in charge of the combination. Such results cannot be accomplished by a time-lock alone, because when it releases its bolt-work the safe or vault-door is absolutely unlocked, and no lock present for use during the day; nor by two or more combination locks together, because the holders of the combinations may be taken to the bank, and forced to open the locks. Neither can tampering with the combination lock affect the time-lock. 'The combination lock may be punched from its position by burglars; but then the time-lock, being separate and independent from it, cannot be affected or disturbed, because there is no opening through the door by which it can be reached. It is therefore superior to a lock which has the time movement combined directly with the combination lock, both forming one lock, in which case any violence to the lock-work disarranges the time movement. 'Another advantage of my invention is the capability of the separate locks being applied on different parts of the safe or vault door, with respect to the bolt-work, indifferently. 'The bolt-work on different safe or vault-doors is frequently such that the time-lock and the combination or key lock cannot be applied together; but in such case the time-lock may be attached at the most convenient location, as no opening through the door is requisits. 'The time-lock can be applied with ease ad facility to the doors of old safes or vaults having the combination or key lock already thereon, thus securing the advantage of a time-lock and a combination or key lock without the necessity of removing the old lock. 'I do not claim, broadly, a time-lock of any peculiar construction; nor do I claim two or more combination locks combined with the bolt-work of a safe or vault door, as such are old and wetl known. 'What I claim and desire to secure by letters patent is—— '(1) The combination, with the bolt-work of a safe or vault-door, of a time-lock and a combination or key lock, both applied independently on a safe, vault, or other door, so as to rest against or connect with the bolt-work on said door, and provided with a device whereby the bolt-work may be retained in the unlocked position for shutting the door, and be automatically locked by the time-lock and mechanically by the combination or key lock when the bolt-work is cast, the whole so arranged that the bolt-work cannot be withdrawn when locked till both locks have been unlocked. '(2) The combination of a time-lock and a combination or key lock, both constructed to be applied on a safe, vault, or other door, so as to rest against the bolt-work, and provided with a lock-bolt or obstruction having an opening or offset, which is automatically brought into and out of coincidence with the tongue of the bolt-work, whereby the bolt-work may be retained in the unlocked position for shutting the door, and prevented from being retracted when locked, until both locks have been unlocked. '(3) The combination, with the bolt-work of a safe or vault-door, of a combination or key lock controllable mechanically from the exterior of said door, with a time-lock having a lock-bolt or obstruction for locking and unlocking controllable from the interior of the door, both of said locks being arranged so as to rest against or connect with the bolt-work, the time-lock being automotically unlocked by the operation of the time movement, both of said locks being independent of each other, and arranged to control the locking and unlocking of the bolt-work, so that said safe or vault-door cannot be opened when locked until both of said locks have been unlocked or have released their dogging action, to enable the door to be opened, substantially as described.' Claim 3 of reissue No. 7,947 was passed upon by Judge SHIPMAN, in the circuit court for the district of Connecticut, in March, 1881, in the suits of Yale Lock Manuf'g Co. v. Norwich Nat. Bank, and Same v. New Haven Sav. Bank, reported in 19 Blatchf. 123, and 6 Fed. Rep. 377. He held that claim 3 covered a new and patentable invention, and was valid. On the question of the validity of the reissue as to claim a, he said: 'It is next urged that the third claim of the reissue is void, because it was abandoned by the patentee upon the objection of the patent-office, when the original application was pending. In Sargent's original application he made one broad claim. The application was rejected by the examiner, whose decision was reversed by the board of examiners. The examiner then requested that a new application be made, upon the ground that the case presented to the board was not the same case which had been presented to him. A new application was made, containing only the first two claims of the reisspe. Then followed a long and earnestly contested litigation in the patent-office between various interfering applicants, in which, apparently, both patentability and priority were discussed. The Little application contained the broad claim, and the board of examiners said, at one stage of the litigation, whether this question was properly before them or not, that this claim was patentable: so that, when the question came before them upon appeal from the decision of the examiner against h e Sargent reissue, the board say: 'The claim in controversy is the same, in substance, as the first claim of Little, whose application was once in interference with Sargent, and which was admitted to be patentable by the office at the time of the declaration of the interference. The patentability of Little's claim has once been before us in the aforesaid interference, and, after full argument, we concluded that his claim was tenable, and held that some one who was first to combine with the bolt-work, on a vault or safe door, a key-lock and time-lock acting independently of each other, but jointly upon the bolt-work, might have a valid patent therefor.' These facts exclude the third claim from the decision or the dicta, in the case of Leggett v. Avery, 101 U. S. 256. I do not understand that the objection that the reissue is for a different invention from the original was pressed by either of the counsel for the defendant. It is sufficient to say that the claims of the original were for the combination of the third claim, provided with a device whereby the bolt-work may be retained in the unlocked position, for shutting the door, and be automatically locked by the time-lock and mechanically by the key-lock when the bolt-work is cast. The patentee had shown 'means whereby;' but if I have been correct thus far, the gist of his invention consisted, not in that device, but in the triple combination. Other different 'devices whereby' could be introduced by other inventors, which would destroy the value of his patent, if it was unduly limited. As said by the board of examiners, 'means whereby,' while being essential to the convenient use of this combination, is merely incidental to the main idea, and may be varied indefinitely without departing from the spirit and scope of the applicant's invention.' The only remark made by Judge LOWELL, in his opinion in the present case, as to the validity of reissue No. 7,947, as respects claim 3, is that the patent 'was reissued so soon after its granting that it is not obnoxious to the objection of undue delay.' The application for the reissue was filed 13 days after the original patent was issued, and the reissue was granted 36 days after the application for it was filed. Judge LOWELL held claim 3 to be invalid, on the ground that, if it was a claim irrespective of any particular means for carrying it out, it was void as a patent for a principle, independently of the state of the art; and that, in view of the state of the art, it was void. He was of opinion that there was no patentable novelty in putting a time-lock, which was old, in place of one of two combination locks, where two combination locks had been before used to dog one combined bolt-work; that it was not patentable to substitute a well-known multiple bolt-work for two such bolt-works, where a time-lock and a combination lock had been before combined in the use of two multiple bolt-works; and that there was no patentable novelty in combining two locks with a single door. A history of the proceedings in the patent-office in regard to patent No. 195,539 and reissue No. 7,947 shows that claim 3 of that reissue must be held to be invalid. On the 9th of May, 1874, Sargent filed an application for a patent which claimed broadly the combination of a time-lock, an ordinary lock, and a safe-bolt connected with both of them. The claim he made was as follows: 'What I claim is the combination, with a clock or time movement lock and an ordinary lock, attached independently to a safe or vault door, of a safe-bolt constructed so as to rest against or connect with both of said locks, substantially as described, whereby the safe-bolt cannot be withdrawn till both locks have been unlocked.' In the specification he then filed he said: 'This improvement belongs to that class in which two locks are applied upon a safe or vault-door for the purpose of preventing the withdrawal of the safe-bolt till both locks have been unlocked. * * * I employ one ordinary combination or key lock and one tie movement or clock lock, attached independently to the door, and employ in combination therewith a safe-bolt that bears against or connects with both of said locks in such a manner that, though the ordinary lock may be picked or opened, yet the clock-lock cannot be reached, and the safe-bolt, therefore, cannot be released till the clock has performed its office, and unlocked its lock, at the predetermined hour. * * * But it is by no means essential to this invention that the circular form of lock-bolt should be used, as the ordinary style of sliding-bolt, or other forms of shifting bearings, could be employed, if desired. * * * Clock-locks have before been used both separately and in connection with combination locks. Where used alone, they are insecure, for the reason that burglars, ascertaining the hour upon which the lock is set, may, by confining or disabling the officers of the bank having control of the same, open the safe when the hour arrives. In my improvement such result cannot occur, because the combination lock still locks the safe. Where clock-locks have been combined with ordinary locks heretofore, so far as I am aware, the said locks have been connected by a lever or other connection, so that their actions are dependent on each other. In such case, if the combination or key-lock is injured by a lock-pick, by violence or otherwise, the clock-lock is liable to injury also. By making these independent, as described, I avoid these difficulties.' This application was rejected by the examiner, but, on appeal, his decision was overruled by the examiners in chief, February 17, 1875. The examiner then ascertained that the case had been argued before the examiners in chief on an invention which had not been before the examiner, and that another model was used before the examincrs in chief in place of the one properly in the case. The new feature of invention was a device by which the time-lock could be properly set, and the door then be closed; but that device, which made the invention an operative one, was not shown in the drawing, the specification, or the model, which had been before the examiner. In a communication made to Sargent by the examiner at the time, February 20, 1875, he said: 'As far as the office knows by the record of the case, this new invention may not have been contemporaneous with the first one. The examiner would suggest that a new case be at once filed embodying this invention, which makes the devices operative, and against the patentability of which no question will be raised. The claim, however, must be not broadly for A combined with C, which is not conceded to be entirely inoperative, but A and B combined either with C or some mechanical equivalent thereof, which alone makes A and B operative.' He also said: 'It is suggested to applicant that he file a new case, introducing the new combining device, which allows the door to be shut after the time-lock is set, and thus takes it out from the new reference cited, and the examiner will, in all proper ways, hasten the case forward upon a legitimate claim for A and B with suitable combining device to allow the door to be closed after the time-lock is set, inasmuch as no obstacle exists, as the examiner is at present advised.' In accordance with this suggestion, Sargent, on the 10th of March, 1875, filed a new application, which resulted in the granting of patent No. 195,539. The specification of this application said: 'In locking the safe or vault door, some device is necessary to allow the door-bolt to remain back in the unlocked position until the door is closed, without interfering WITH THE CLOCK-LOCK. [A VARIETY OF devices may be employed for thIs purpose.]' This clause in brackets was afterwards erased. The specification of this application also said: 'In Fig. 1 is shown another device for the same purpose, situated outside the lock, which is the subject-matter of another application. It consists of a socket or bearing, h, attached to the tie-piece, E, of the doo- bolt, and sliding on an independent stud, a', resting against the lock-bolt. A spring locking-pin, i, is used to connect the parts, when the door-bolt is thrown forward to connect with the jamb. In this case the lock-bolt, D, may be made solid, and may be either of the turning or sliding kind. [Other devices might be used to allow the door to shut. I do not wish to confine myself to any particular form of the device.'] The sentences in brackets were afterwards erased. Sargent thus limited himself to combinations wherein one or the other of the peculiar devices invented by him should be an essential element, which is further evidenced by the fact that in claim 1, as accepted by him, the combination of the clock-lock and combination lock, as applied to the door-bolt, was to be provided with a device whereby the door-bolt might be retained in the unlocked position for shutting the door; and in claim 2 the same combination was to be provided with a lock-bolt having an opening or an offset which was automatically brought in and out of coincidence with the tongue of the door-bolt, whereby the latter might be retained in the unlocked position for shutting the door. On the 16th of March, 1875, the examiner rejected claim 1, saying that it was to be found substantially in the patent granted to Cornell, August 10, 1858, for 'safe bolt-work,' and referring also to three prior patents for time-locks, and adding, that 'merely to substitute either one of the above time-locks for one of the locks shown in Cornell's patent is not regarded as a patentable difference.' To this Sargent's attorney replied, on the 17th of March, 1875: 'The combination is such as to require something else to be done other than to simply substitute for one of the key-locks shown in Cornell's patent one of the time-locks cited by the examiner.' This referred to the devices invented by Sargent, by which his combination was made operative. On the 19th of March, 1875, Sargent's attorney struck out the parts in brackets, before quoted, and also struck out claim 1, and substituted as claim 1 what is claim 2 in the original patent as granted. On March 20, 1875, the attorney reinstated claim 1, and added as claim 2 what is claim 2 in the original patent. On the 22d of March, 1875, the examiner rejected both of the claims on the references before made, and referred also to the English patent to W. Rutherford of April 14, 1831. He added, that 'a rotating lock-bolt having an opening or an offset is not new,' and referred especially to two prior patents, and said: 'The second claim may possibly be allowed if amended by inserting the words 'constructed in two parts and' after 'lock-bolt." An appeal was taken from this decision; and on the 27th of March, 1875, the board of examiners in chief reversed the decision of the examiner, doing so on the ground that the combination embracing Sargent's peculiar devices for retaining the door-bolt in an unlocked position, for shutting the door, was new and patentable. Before Sargent's patent could issue, he was put into interference with Stockwell, Burge, and Little, and also with Pillard and Lillie. It is evident from decisions made by the examiner of interferences, and by the commissioner of patents, in questions arising in some of these interferences, that Sargent was regarded as making no claim to a broad combination between the bolt-work of the door, and a time-lock, and an independent non-time lock, which is the subject-matter of claim 3 of reissue No. 7,947. The examiner, the examiners in chief, and the commissioner of patents decided priority of invention in favor of Sargent as to the combination by Sargent of the bolt-work with a time-lock and a non-time lock, and his device for retaining the door-bolt in its retracted position, for shutting the door without interfering with the lock mechanism. The patent No. 195,539 was then issued, on September 25, 1877, with the two claims before set forth, limited by the proceedings which so took place in the patent-office. Th lock of the defendants did not infringe either of the two claims of the original patent; for it did not contain what is called in claim 1 'a device whereby the door-bolt may be retained in the unlocked position for shutting the door,' after the time-lock is set, nor did it contain what is called in claim 2 'a lock-bolt having an opening or an offset which is automatically brought in and out of coincidence with the tongue of the door-bolt.' This is apparent from the fact that it is not contended that the defendant's clock infringes either claim 1 or claim 2 of reissue No. 7,947, which two claims are substantially identical with claims 1 and 2 of the original patent. On the 8th of October, 1877, Sargent filed an application for a reissue of patent No. 195,539. He inserted in his specification what is claim 3 of the reissue as granted. That claim is as broad as the claim made in his application of May 9, 1874, which, as before shown, he abandoned. The examiner rejected this claim twice; and after the second rejection, and on the 26th of October, 1877, Sargent appealed to the examiners in chief. In the statement of appeal his attorney said: 'All time-locks used with bolt-work must have some mechanical arrangement to enable the bolt-work to be retracted for closing the door. Such is present in many old patents, and has never been claimed by my client; but what is claimed by him is for the union of such an old, well-known time-lock with a combination lock and bolt-work all arranged on the same door.' This shows the breadth of the claim as compared with claims 1 and 2 of the original patent. The examiner, in his answer to the reasons of appeal, said: 'Leaving out the descriptive and recitative parts of the claim as well as all superfluous and misleading matter, we have, as the claim, the following elements and arrangements, viz.: A combination or key lock, and a time-lock, combined with the bolt-work of a safe-door, both used independently, and resting against or connecting with the bolt-work. The only elements are the two locks and the bolt-work, no other element being hinted at, even; and the arrangement of said elements is that the locks rest against or connect with bolt-work, and are used independently of each other. To recite in the claim that the 'key-lock is controllable from the outside,' and the 'time-lock upon the inside only,' is entirely unnecessary; for all key or combination locks of safes are controlled only from the outside, and all time-locks, as a matter of course, upon the inside, are automatically unlocked. It is a well-settled principle that a mere explanation of parts or recital of functions neither adds to nor takes away from a claim. All the matter which recites that the door cannot be opened until the lock allows it is a mere superfluity. If, in an ordinary lock patent, we were to add to the claim, 'the arrangement being such that the door cannot be opened until it is unlocked,' it would be simply laughable, as all locks of all sorts serve just this purpose. This vast mass of words in the claim, while, at first glance seeming to restrict the claim, will be found to be entirely misleading; the indisputable scope of the claim being 'the simple, independently acting time and combination or key lock resting against bolt-work of a safe.' That is all; no more, no less. It is to be carefully noted that the claim does not restrict to using the locks upon the door, but only 'in combination with the bolt-work of the door,' and that the claim covers putting on Little or Derby, in the usual way, a Sargent or other combination lock.' After reviewing the various decisions which took place during the pendency of the application of Sargent for his original patent, and showing that the limitation of claims 1 and 2 thereof so as to embrace the peculiar devices of Sargent was what saved them on the question of patentability, the examiner said: 'It very clearly follows that the claim, expanded so as to omit those restrictions, is entirely untenable, in accordance with thev ery terms of the commissioner and board decisions.' The examiners in chief, however, on appeal, reversed the examiner's decision, and the reissue was granted. It is very clear, from a comparison of the specification of the original patent No. 195,539 with that of reissue No. 7,947, that the specification of the original was not defective or insufficient, and that the patent was not inoperative. Not only is there no evidence in this suit to that effect, but the evidence is to the contrary. The sole object of the reissue was manifestly to obtain claim 3 as an enlarged claim. Not only is claim 3 an enlarged claim, but, assuming that it was new, and for a patentable combination, and that Sargent would have been entitled to make it in his application for his original patent, he was debarred from making it in his reissue. As has been shown, he made such a claim in May, 1874, and abandoned it. The application on which his patent No. 195,539 was granted, was pending in the patent-office from March 12, 1875, to September 25, 1877; and no such claim was made. On the contrary, be struck out from his specification matters evincing an intention to claim something more than the specific devices he had invented; and it is quite evident that the consideration by the patent-office of those specific devices, and the evidence of invention afforded by them, enabled him to procure his original patent with its limited claims 1 and 2. The effect of such an abandonment of a claim upon the validity of a reissue has been often adjudged by this court. Leggett v. Avery, 101 U. S. 256, 259; Mahn v. Harwood, 112 U. S. 354, 359, 5 Sup. Ct. Rep. 174; Union Metallic Cartridge Co. v. United States Cartridge Co., 112 U. S. 624, 644, 5 Sup. Ct. Rep. 475; Shepard v. Carrigan, 116 U. S. 593, 597, 598, 6 Sup. Ct. Rep. 493; Roemer v. Peddie, 132 U. S. 313, 317, ante, 98. Nor does the fact that reissue No. 7,947 was applied for only 13 days after the grant of the original patent establish its validity. In Coon v. Wilson, 113 U. S. 268, 277, 5 Sup. Ct. Rep. 537, enlarged claims in a reissued patent were declared invalid, although the reissue was applied for a little over three months after the original was granted, on the ground that a clear mistake, inadvertently committed, in the wording of a claim, was necessary, without reference to the length of time. See, also, Ives v. Sargent, 119 U. S. 652, 663, 7 Sup. Ct. Rep. 436; Parker v. Clock Co., 123 U. S. 87, 103, 8 Sup. Ct. Rep. 38. These views dispose of claim 3 of reissue No. 7,947, independently of the ground on which the circuit court held it to be invalid, and all other considerations urged by the defendants. We come now to consider claims 1 and 7 of reissue No. 8,550 of the Little patent, granted January 21, 1879, on an application filed October 14, 1878. The specification, drawings, and claims of Little's original patent, No. 146,832, were as follows: 'Be it known that I, Samuel A. Little, of Buckland, in the county of Franklin and state of Massachusetts, have made certain new and useful improvements in clock-locks, whereof the following is a specification, reference being had to the accompanying drawings, in which Fig. 1 is a front view of my improved clock-lock attached to the inside of a safe, adjacent to the hinged part of the safe-door. Fig. 2 show a seventh-day wheel, marked 'A' in Fig. 1. Fig. 3 shows a cam-wheel, marked 'B' in Fig. 1. Fig. 4 shows a graduated cam-wheel, marked 'C,' in Fig. 1. Fig. 5 represents the inside of a safe with the door-bolts locked forward by the lever dog, which is elevated by the clock-lock. Fig. 6 represents a horizontal section of my clock-lock detached from the clocks, the dog-lever excepted, taken through the line, x, x, of Fig. 1. Fig. 7 represents a vertical section of the same, (similarly detached, except that the clock-wheels to which the same is immediately attached are shown,) taken through the line, y, y, of Fig. 1. In the various figures, similar letters indicate similarp arts. D and E are two clock movements fastened to the inside, F, of a safe, adjacent to the hinged part of a safe-door, G. Said clock movements, through the wheels and ratchets, K and L, (shown by the dotted lines, Fig. 1,) which are rotated once in twelve hours by the clock, propel the wheels, H and I, in the same time, in the direction of the arrows thereon. The wheels, H and I, are both geared to the common wheel, M, having twice as many teeth as either H or I, and propel the same in the direction of the arrow thereon, so that, while H and I are rotated once in twelve hours, M is rotated once a day. It will, therefore, be seen that both clocks work together in turning the wheel, M, and thereby operating the lock, while, if either clock stops, the wheel, H or I, of the other will alone continue to rotate the wheel, M, and operate the lock, as the ratchet allows free motion to the wheel, I or H, of the other clock, although said clock may be stopped. Forming part of the wheel, M, is the toothed wheel, N, which is geared into and drives the toothed wheel, O. Forming part of the wheel, O, is the toothed wheel, P, which is geared into and drives the seventh-day wheel, A. A has twice as many teeth as P, and O has three and a half times as many teeth as N. Therefore, while M revolves once in a day, it propels A to revolve once in seven days. The wheel, C, which is graduated for the hours of the day, is fastened upon the hub, a, of the wheel, M, by the projection, b, and rotates with the same. On the same hub is the wheel, B, which is fastened by friction to C in different positions by the thumb-screw, Q, which forms part of the wheel, B, and passes through the slot, c, of the wheel, C. p, p, p, p, p, are pivots on which the several wheels revolve. The wheel, B, is cut away on the outer edge, leaving the depressions, d, and the cam projection, e, thereon; and the edge of C is similarly cut away, leaving the depression, f, and the cam projection, g, thereon. When the two wheels, B and C, are fastened together by the thumb-screw, Q, side by side, they form one wheel, and have a common depression, h, which may be enlarged or diminished by rotating the wheel, B, on the wheel, A, with the thumb-screw, and setting the same, and a common cam or projection, i, which may be enlarged or diminished in the same manner. Pivoted near the lock is the two-armed lever, R, whereof one arm carries the roller, S, and is lifted through the same by the cam, i, revolving under the same at said cam's inclined plane, k, and at the same time the other arm, T, of said lever, lifts the dog-lever, V, as shown by the dotted lines, Fig. 1, up behind the door-bolts, W, W, W, W, into the position shown in Fig. 5, thereby locking said bolts forward behind the jamb of the safe so the door cannot be opened. Said doglever, V, is pivoted at 1. On the other band, when the cam, i, is rotated entirely under the roller, S, said roller is suffered to drop by gravity into the depression, h, at the inclined plane, m, which allows the dog-lever, V, to fall from behind the safe-bolts, and the safe to be opened. The seventh-day wheel, A, has on its edge a cam projection, n, which rotates once while the depression, h, rotates seven times, as described, and is so arranged relatively to the said depression, h, that, on every seventh revolution thereof, it is brought under the roller, S, and holds up the lever, R, while the depression, h, passes under it, so that every seventh day the same prevents the safe from being unlocked. 'From the description aforesaid, the mode of operation will be obvious. The clocks are set to true time by bringing the hour-mark on the dial, C, under the roller, S, which is readily done by turning the dial, as the wheels, A, B, C, and M, are freely turned in the direction of the arrow on C, inasmuch as the ratchets behind H and I do not interfere with motion in that direction, bt take up, and, through the clock's force, proceed with, whatever advance of said wheels may be made. The lock is then set to lock up at any given hour by loosening the thumb-screw, Q, and turning the inclined plane, k, of the wheel, B, to the mark of the required hour, and then fastening the wheels, B and C, together by setting the thumb-screw, Q. If it is desired to have the lock open any amount of time earlier than the set time, (nine o'clock,) the wheel, C, must be turned as described until the time indicated under the roller shall be that amount fast of true time, the closing mark being altered, if desired, to suit the case. If it is desired to open later, the clocks must be stopped until they are slow of time as much as it is desired the lock shall open later than the set time, correcting the closing mark, if desired. If the wheels, A, B, C, and M, are turned as described until the cam part, n, of the wheel, A, shall be in position to come under the roller, S, and keep the lock from opening on Sunday, it will continue to do so on Sunday each week, if the clocks run on unchanged. In case that it shall be desired that the lock shall not open for a holiday or other day, the said wheels may be rotated until said cam part, n, is in position to come under and hold up the lever, R, on said day. The lock is affixed to the side, F, of the safe, as described, to avoid derangement or stoppage of the clocks by concussion on the door. It is evident that the dog-lever, V, and the lever, R, may be the same piece. The object in making the same in two parts is to save the weight of the part, V, which depends upon the pivot, 1, from adding to the labor of the clocks. 'What I claim as my invention, and for which I pray letters patent, is: (1) The combination, with one or more clock movements, of one or more wheels, H, I, one or more ratchets, K, L, and a common wheel, M, arranged as described, for the purposes set forth. (2) The wheels, B and C, with the depressions, d and f, and the projections, e and g, located relatively to each other as described, to increase and diminish the surface of a common cam, i, or depression, h, by rotation on each other, for the purposes described. (3) The wheel A, with a cam, n, adjusted as described, to prevent the falling of the lever, R, and dog, V, either periodically or at required times, as described.' The specifications, claims, and drawings of reissue No. 8,550 are as follows: 'Be it known that I, Samuel A. Little, of Shelburne, in the county of Franklin and state of Massachusetts, have invented certain new and useful improvements in chronometric locks, and I do hereby declare that the following is a full, clear, and exact description thereof, that will enable others skilled in the art to which it appertains to make and use the same, reference being had to the accompanying drawings, and to the letters of reference marked thereon, which form a part of this specification: 'The object of my invention is to construct a time-lock which shall dog and release the multiple bolt-work of a safe or vault at certain predetermined times; both the dogging and releasing being caused by the operation of the time mechanism. By this means the time when the lock will dog the bolt-work depends entirely on the adjustment of the internal mechanism of the lock, hereinafter described. I provide adjustable devices, so that the periods when the lock shall be locked and unlocked may be varied at will; and I also provide a device whereby, at certain intervals, say on every seventh day, the lock will remain locked during the time when ordinarily it would be unlocked. It will thus be seen that I have constructed a lock which will of itself dog and release bolt-work at a regular hour each day, except on certain predetermined days,—Sundays, for example,—when it will remain in the locked position all day. My lock, when once adjusted, is therefore absolutely automatic, requiring no attention except winding and it is, so far as I am aware, the first time-lock which locks at a time determined by the time mechanism, while at the same time the hours for locking and unlocking can be changed without altering the construction of the lock. To diminish the chances of accident from the stoppage of the time mechanism, I provide two indepedent movements, both of which assist in rotating the dial to actuate the lock; but, should one stop, the other will continue to rotate the dial. The particular construction of my lock is that the two time movements rotate a graduated dial so arranged that its motion oscillates, at certain regular, determinable intervals, a pivoted bent lever, which in turn, in one instance, for automatic locking, lifts the free part of, and thus oscillates on its stationary pivot a metallic dog or obstruction, so as to cause it to rest in the way, and prevent the retraction, of the sliding bolt-work; and in the other instance, for automatic unlocking, it withdraws its support from under, and permits the dog to oscillate by gravity, so as to clear the way for the retraction of the bolt-work. The adjustability of my lock for locking and unlocking I obtain by means of my dial, which is so arranged that what I may call its 'bolt or dog-actuating points' can readily be changed from one position to another, so that they will actuate the dogging mechanism at any desired hours for locking or unlocking; and it is to be noted that in all continuously running dials the adjustability for unlocking or locking preferably will be obtained in substantially the same way, i. c., by varying the position of the dog-actuating points, because the dial itself should alway be run on correct time. I cause the lock to remain locked on Sundays or other desired days by means of a supplemental cam which temporarily assumes one of the functions of my dial, and by which I can at any desired time cause the lock to remain locked during a greater period than twenty-four hours. 'Referring now to the drawings in aid of a description of my lock in detail, Fig. 1 is a front view of my improved time-lock attached to the inside of a safe, adjacent to the hinge part of the safe-door; Fig. 2, a view of the same, partly in elevation and partly in section, on the line, 2, 2, of Fig. 1; Fig. 3, a horizontal transverse section thereof, on the line, 3, 3, of Fig. 1, with the upper time movements removed, showing a plan of the locking mechanism proper; Fig. 4, a horizontal transverse section through the center of the locking dials; Fig. 5, a perspective view of the interior of a safe, showing the door-bolts locked forward by the lever-dog; Fig. 6, a perspective view of the graduated dial, marked 'C' in Fig. 1; Fig. 7, a similar view of wheel, B, in Fig. 1; Fig. 8, a similar view of a seventh-day wheel, marked 'A' in Fig. 1. D and E designate two time movements fastened to the inside, F, of a safe, adjacent to the hinged part of the safe-door, G. These time movements, through the wheels and ratchets, K and L, propel the wheels, H and I, in the direction of the arrows thereon. These wheels, H and I, rotate once in twelve hours, and are both geared to the common wheel, M, which has twice as many teeth as either of them; and they propel it in the direction of the arrow thereon, so that, while wheels, H and I, are rotated once in twelve hours, wheel, M, is rotated only once a day. It will be seen that both time movements work together in turning the wheel, M, and thereby operate the lock; but, if either accidentally stops, the wheel, H or I, of the other will alone continue to rotate the wheel, M, and operate the lock, because each ratchet will allow free motion to either wheel, I or H, in the absence of its normal impelling force. The toothed wheel, N, forming part of the wheel, M, is geared into and drives the toothed wheel, O. The toothed wheel, P, forming part of the wheel, O, is geared into and drives the seventh-day wheel, A, which turns loosely on the hub, a, of the wheel, M. This wheel, A, has twice asm any teeth as wheel P; and wheel O has three and a half times as many teeth as wheel N. Therefore, while wheel M revolves once in a day, it only causes wheel A to revolve once in seven days. The wheel, C, which is graduated for the hours of the day, is fastened rigidly upon the hub, a, by means of the projection, b, and rotates with it. Loose on the same hub is the wheel, B, which may be fastened by friction to the wheel, C, in different positions, by the thumbscrew, Q, that is attached to, or forms part of, the wheel, B, and passes through the slot, c, of the wheel, C. p, p, p, p, p, designate pivots on which the several wheels revolve. The wheel, B, is cut away on its periphery, leaving the depression, d, and the cam projection, e; and the periphery of the wheel, C, is similarly cut away, leaving the depression, f, and the cam projection, g, of the same form and size as the depression and projection of the wheel, B. When these two wheels are fastened together by the thumb-screw, Q, side by side, they form one wheel or dial, having a depression, h, which may be enlarged or diminished by rotating the wheel, B, by means of the thumb-screw, and then setting it, and also having a cam or projection, i, which may be enlarged or diminished in the same manner. Pivoted near its middle to the lock-case is the bent lever, R, one arm of which carries the friction roller, S, and is lifted by the cam, i, revolving under the roller at the cam's inclined plane, k; and at the same time the other arm, T, of said lever lifts the dog, V, pivoted at l, up behind the door-bolts, W, W, W, W, into the position shown in Fig. 5, thereby locking the bolts forward behind the jamb of the safe so that the door cannot be opened. In due time, when the cam, i, is rotated entirely from under the roller, S, the latter will drop into the depression, h, at the inclined plane, m, which allows the dog, V, to fall from behind the safe-bolts, when they may be retracted, and the safe opened. It will be noted that the dog always tends to turn on its pivot automatically by gravity, so as to present a free space for the retraction of the bolt-work; and it is held up only for predetermined periods, to be measured by the time mechanism, by the bent lever. The seventh-day wheel, A, has on its periphery a cam projection, n, which rotates once while the depression, h, rotates seven times, as described; and it is so arranged relatively to the depression, h, that, on every seventh revolution hereof, it is brought under the roller, S, and holds up the lever, R, while the depression, h, passes under it, so that every seventh day this projection, n, prevents the safe from being unlocked. 'From the foregoing description, the mode of operation will be obvious. The time-movements should be set to correct time by bringing the hour-mark on the dial, C, under the roller, S, which is readily done by turning the dial, as the wheels, A, B, C, and M, turn freely in the direction of the arrow on wheel, C, because the ratchets behind wheels, H and I, do not interfere with motion in that direction, but take up, and, through the force of the time movements, proceed with, whatever advance of said wheels may be made. The lock should then be set to lock up at any given hour by loosening the thumb-screw, Q, and turning the inclined plane, k, of the wheel, B, to the mark of the required hour, and then fastening the wheels, B and C, together by setting the thumb-screw, Q. The dial will then indicate the time of locking and unlocking, and the operation of the time movements will cause the oscillation of the dog into position to obstruct the retraction of the bolt-work in a little time, or at whatever time may have been decided upon; and it will be held there until the time arrives for unlocking, when the continued operation of the time movements will withdraw its support, and it will fall out of the way. If it is desired to have the sae opened any given amount of time earlier than the set time, say 9 o'clock, the wheel, C, must be turned as described until the time indicated under the roller shall be that amount fast of the correct time, the closing mark being altered, if desired, to suit the case. If it is desired to open later, the clocks must be stopped until they are slow of the time as much as it is desired the lock shall open later than the set time, correcting the closing mark if desired. If the wheels, A, B, C, and M, are turned as described until the cam part, n, of the wheel, A, shall be in a position to come under the roller, S, and keep the lock from opening on Sunday, it will continue to do so on Sunday each week, if the time movements run on unchanged. Thus the necessity for setting the mechanism on every Saturday, so that it shall keep the safe locked over Sunday, is obviated, which is a great convenience to bankers, and is furthermore a security against neglect to set the mechanism weekly, which might sometimes occur. In case it shall be desired that the lock shall not open for a holiday or other day, the said wheels may be rotated until the cam projection, n, is in position to come under the roller, S, and hold up the lever, R, on such day. The lock is affixed to the side, F, of the safe, as described, to avoid derangement or stop-page of the time movements by concussion on the door; but it is obvious that it may be affixed to the door without modifying its construction if desired, that being merely a change of location. It is evident that the dog, V, and the lever, R, may be one and the same piece. The object of making them in two parts is to save the weight of the part, V, which depends upon the pivot, 1, from adding to the labor of the time movements, and also to make the dog or obstruction entirely distinct from the time mechanism. I am aware of the patent granted to Williams and Cumming, No. 17,245, and dated May 5, 1857, and do not claim anything shown therein, but intend to limit my claims to comprehend only the improvements I have made over the peculiar combinations shown in that patent, whereby I reduce the number, modify the construction, change the relative position and mode of operation of the parts, and simplify my mechanical organization, as will fully appear by comparison. 'What I claim as my invention is: (1) The combination of independent multiple bolt-work with the time mechanism and locking or dogging mechanism of a time-lock, automatically both dogging and releasing the bolt-work at predetermined times, substantially as described. (2) The combination in a time-lock of a continuously revolving adjustable device for determining the time of operation of the unlocking mechanism, a pivoted arm or lever actuated by said device, and a dog or obstruction movable directly by said pivotal arm, at regularly recurring periods, to permit the retraction of the bolt-work, substantially as described. (3) In a time-lock, the combination of time mechanism, a revolving dial actuated thereby, a dog and suitable connecting mechanism, whereby the continuous revolution of the dial causes the dog to move into the locked and unlocked positions alternatively, substantially as described. (4) In a time-lock, the combination of a continuously rotating dial and mechanism which causes the lock to lock and unlock automatically, substantially as described. (5) In a time-lock, a continuously rotating dial provided with an adjustable device for automatically determining the time of locking, substantially as described. (6) In a time-lock, the combination, substantially as above set forth, of the time movements, and an adjustable device for automatically determining the time of locking. (7) In a time-lock, the combination, substantially as above set forth, of the time movements and two adjustable devices,—one for determining the time of locking, and the other of unlocking. (8) In a time-lock, the combination with the time mechanism, and the locking or dogging mechanism, of an adjustable deivce which, through the continuous operation of the time mechanism, will periodicaly, or at required times, cause the lock to remain locked during during a greater period than twenty-four hours, substantially as described. (9) In a continuously running automatic time-lock, the [Graphics from pages 393-394 found on this page] combination, with the time mehanism and the locking or dogging mechanism, of an independent device adapted to be set to prevent, at any desired time, the unlocking of the lock for a greater period than twenty-four hours, substantially as described. (10) The combination, substantially as above set forth, of the adjustable mechanism for continuously locking and unlocking daily the time movements, and a device for preventing unlocking during a greater period than twenty-four hours. (11) In a time-lock, provided with two independent time movements, and an interlocking device common to both, the combination with each of said movements of a ratchet and pawl interposed between the last or driving arbor of each movement and the said common unlocking device, whereby the said device may be driven by either or both of the movements, and the stoppage of one movement will not necessarily cause the stoppage of the other, substantially as described. (12) The combination with the time movements, of the wheels, H and I, the ratchets, K, L, and the common wheel, M, arranged substantially as described, for the purpose set forth. (13) In combination with the dial, the seventh-day cam-wheel, A, adjustable, as described, to prevent the falling of the bent lever, R, and dog, V, either periodically or at required times, as described. (14) The combination, in a time-lock, of time mechanism, a revolving graduated dial actuated thereby, a bent lever oscillated by the revolution of the dial on an immovable pivot, and a dog or obstruction, also oscillated on an immovable pivot, the lever and dog being so arranged that, when one arm of the lever is pushed aside at a predetermined time by the revolution of the dial, the other arm withdraws its support from under, and permits the dog to turn by gravity, thereby leaving a free space for the retraction of the bolt-work, substantially as described. (15) The combination of multiple sliding bolt-work, a dog or obstruction oscillated on an immovable pivot, and tending by gravity to turn so as not to dog the bolt-work, a bent lever, oscillated also on an immovable pivot, for holding the dog in position against gravity, to dog the bolt-work, a revolving graduated dial, which, by its revolution at a predetermined time, oscillates the bent lever and time mechanism that actuates the dial, substantailly as described. (16) The combination, substantially as before set forth, by means of suitable connecting mechanism, of the following elements, adapted, as combined, so to secure the door of a safe or vault, and to automatically release the same at a predetermined time, viz.: First, the multiple sliding bolt-work; second, the oscillating stop or dog, adapted to prevent the retraction of the bolt-work, and to be turned on its pivot to release the bolt-work at a time determined by the clock-work; third, the vibrating lever for holding the stop or dog in position to prevent the retraction of the bolt-work; and, fourth, the clock-work for determining the time when said lever shall be moved to permit the stop or dog to release the bolt-work. (17) In a chronometric locking mechanism, the combination, substantially as before set forth, of the following elements, adapted as combined, to guard or dog the bolt-work of a safe or vault door, and to automatically release the same at a predetermined time, viz.: First, the oscillating stop or dog, adapted to prevent the retraction of the bolt-work, and to be turned on its pivot to release the bolt-work at a time determined by the clock-work; second, the vibrating lever for holding the dog in position to prevent the retraction of the bolt-work; third, the clock-work for determining the time when said lever shall be moved to permit the do to fall to release the bolt-work; and, fourth, the graduated wheel or dial, rotated by the clock-work, and adapted to operate said lever, and to be set for varying and controlling the time when said lever shall be moved to permit the dog to release the bolt-work.' Only claims 1 and 7 of the reissue are alleged to have been infringed. They take the place of claim 2 of the original patent. They were before Judge SHIPMAN in the cases in 19 Blatchf. and 6 Fed. Rep., above referred to, and he held that they covered new inventions and patentable improvements. Judge LOWELL, in his opinion in the present case states that he fully agrees with the views of Judge SHIPMAN as to the novelty and patentability of claims 1 and 7. Although the defendants' lock has but one time movement to control the lever which controls the dog, Judge LOWELL held that that did not affect the question of the infringement of claims 1 and 7. In September, 1887, in Yale Lock Manuf'g Co. v. New Haven Sav. Bank, 32 Fed. Rep. 167, in the circuit court for the district of Connecticut, Judge SHIPMAN had before him the question of a rehearing as to the validity of claims 1 and 7, and especially the question whether claim 7 was an enlargement of claim 2 of the original patent. He held that claim 7 'should be limited to the invention which was described and claimed in the original patent, which invention was not confined to a 'common cam,' or to a device which was connected with the compound wheel in the same way in which the cam was connected, but was broad enough to include equivalent means of connection with the dog.' He held, also, that the owners of the patent had not abandoned, by proceedings in the patent-office in respect to the two prior reissues of it, their right to claim, in reissue No. 8,550, a double or compound disk, and to obtain a valid patent therefor. Claims 1 and 7 were sustained, also, by Judge SAGE, in the circuit court of the western division of the southern district of Ohio, in May, 1889, in the case of Yale & Towne Manuf'g Co. v. Consolidated Time-Lock Co., 38 Fed. Rep. 917. This patent, as before stated, was reissed May 9, 1876, as No. 7,104, and again, January 8, 1878, as No. 8,035. The lock used by the defendants is made under letters patent No. 173,121, granted to Henry Gross, February 8, 1876, for an 'improvement in time attachments for locks.' This patent was issued prior to the granting of any reissue of the Little patent. While the original patent, No. 146,832, had only 3 claims, reissue No. 7,104 had 8 claims, reissue No. 8,035 had 6 claims, and reissue No. 8,550 has 17 claims. On comparing the various reissues with the original patent, it is found that the drawings and the description of them are substantially the same in all, with some changes in nomenclature; and it is quite apparent that the original patent was not inoperative or invalid by reason of a defective or insufficient specification, within the terms of the statute, so as to warrant the reissues. There is in the record a copy of the file-wrapper and contents of reissue No. 8,035, applied for December 15, 1877, and granted January 8, 1878. The specification presented with the application contained only two claims, both of which made 'a revolving dial' an essential element. On the 18th of December, 1877, an entirely new specification and claims were put in, the claims being 10 in number. Claim 3 was as follows: '(3) In a time-lock, the combination, substantially as above set forth, of the clock-work and two adjustable devices for determining, respectively, the times of locking and unlocking.' That claim 3 is very similar to claim 7 of issue No. 8,550. On the 21st of December, 1877, that claim 3 was amended by striking out the word 'clock-work,' and inserting the words 'time movements,' so that it became almost exactly the same as claim 7 of reissue No. 8,550. On the 26th of December, 1877, that claim 3 was erased. Claim 4 of reissue No. 8,035, as originally apple d for, read as follows: 'The combination with one or more time movements of one or more wheels, H, I, one or more ratchets, K, L, and a common wheel, M, arranged as described, for the purposes set forth.' This claim 4 was erased with claim 3, and in their place there was inserted the following as claim 3: 'The combination with the time movements of the wheels, H, I, the ratchets, K, L, and the common wheel, M, arranged as described, for the purpose set forth.' Claim 5 of reissue No. 8,035, as applied for, was identical with claim 2 of the original patent, No. 146,832, as granted. That claim 5 was rejected by the examiner on the ground that it was old in valve-gear for steam-engines, with a reference to a prior patent; and on the 26th of December, 1877, it was erased and abandoned. Therefore, more than a year before reissue No. 8,550 was granted, claim 2 of the original patent was abandoned by Little; and at the same time he also abandoned claim 3 of his application, after he had put it in such shape that it became substantially the same as claim 7 of reissue No. 8,550. Reissue No. 8,035 was taken out without those claims. No one of the six claims of reissue No. 8,035 was infringed by the lock of the defendants, which was applied to use during the existence of reissue No. 8,035. A little over nine months after it was granted, the application for reissue No. 8,550 was filed, and the present suit was brought eight days after that reissue was granted. In the specification of reissue No. 8,035, the following statements were made: 'The object of my invention is to construct a time-lock, and to combine it with the multiple sliding bolt-work of a safe or vault-door, so that, by the continuous movement of its time mechanism, locking and unlocking will be effected daily or periodically. * * * The gist of my invention, therefor, is the combination in a time-lock of time mechanism revolving a graduated dial, which serves to oscillate a pivoted bent lever. That, in turn, induces the oscillation of a pivoted dog or obstruction to the retraction of the multiple sliding bolt-work. Subordinate to this main principle or chief organization of my time-lock, I provide that my dial shall be composite in its construction, whereby I obtain what I term a 'differential cam' for convenience of adjustment.' These statements do not appear in the specification of reissue No. 8,550. In the latter specification, what had been previously called 'a revolving graduated dial' is called 'adjustable devices.' The dial is said to have 'bolt or dog-actuating points;' and a statement is made that the lock of Little 'is, so far as I am aware, the first time-lock which locks at a time determined by the time mechanism, while at the same time the hours for locking and unlocking can be changed without altering the construction of the lock.' So that in this reissue, which was granted almost five years after the date of the original patent, and over three years after the Gross patent was issued, the attempt is made by Little to cover all devices for determining the time of locking and unlocking, on the view that he was the first to invent a lock that would lock up, as well as unlock, at a predetermined time. This attempt is embodied in claims 1 and 7 of reissue No. 8,550, which are here repeated: '(1) The combination of independent multiple bolt-work with the time mechanism and locking or dogging mechanism of a time lock, automatically both dogging and releasing the bolt-work at predetermined times, substantially as described.' '(7) In a time-lock, the combination, substantially as above set forth, of the time movements and two adjustable devices, one for determining the time of locking, and the other of unlocking.' Although the first reissue, No. 7,104, was applied for March 15, 1876, more than two months after the Gross patent was issued, no such claims as the above were applied for or taken; nor were they taken in reissue No. 8,035. Claims 3, 7, and 8 of reissue No. 7,104 were abandoned in reisu e No. 8,035, and severally appear as claims 7, 16, and 17, in reissue No. 8,550; claim 7 in No. 8,550 being in these words, as claim 3, in No. 7, 104: '(3) In a chronometric locking mechanism, the combination, substantially as before set forth, of the clock-work and two adjustable devices for determining, respectively, the times of locking and unlocking.' Claims 1, 2, 3, 4, 5, 8, 9, and 11 in No. 8,550 are entirely new. Claim 2 of the original patent, No. 146,832, was not retained in No. 8,550; and only 2 claims out of the 17 in No. 8,550 are found in the original patent. Infringement is alleged of claim 1 of reissue No. 8,550, which is an entirely new claim, not found in the original patent or in any prior reissue, and of claim 7, which was claim 3 in reissue No. 7, 104, and was first amended and then abandoned in the application for reissue No 8,035. If claim 1 of reissue No. 8,550 is construed to cover only the specific devices of Little, operating in the mode described by him, and thus is no broader than claim 2 of the original patent, the defendants' lock does not infringe it. If it is not so limited, it is void, under numerous decisions of this court. In Little's time-lock, there is a compound cam-wheel or disk, composed of two cam-wheels placed face to face on the same axis, each having a portion of its outer edge cut away, and so arranged that they can be turned with relation to each other so as to increase the length of their common projection or common depression, and be fastened together in any desired position by means of a slot and a thumb-screw in one of them. When adjusted, this compound cam-wheel is revolved by clock-work, and made alternately to lift up and let down a lever which in turn lifts up or lets down another lever, the end of which is supported in a position behind one of the bolts of the door, or is allowed to drop away from behind it; thus alternately dogging and releasing the bolt. It is the office of the common projection on the wheels to lift, and then hold up, the levers in the dogging position, and the length of time the bolts will remain dogged depends solely on the length of the common projection. In the defendants' lock there is only one time movement, and there are no wheels of any kind, much less wheels like the cam-wheels, B and C, of Little's original patent, with projections and depressions, which can be rotated so as to increase and diminish the surface of a common cam or depression; nor has it any cam projection or cam depression of any kind, formed in any manner, whose office is to lift and hold up and let fall a lever, and thus dog and release the bolt of a safe-door; nor has it a device of any kind capable of performing the function of Little's cam-wheels. Little does not describe or suggest, in his original patent, any way by which he can dispense with the use of his cam projections to lift and hold up the dog; and he confines claim 2 of his original patent to a combination in which two cam-wheels, capable of being rotated and adjusted with relation to each other, so as to increase and diminish the surface of a common cam, for the purpose of lifting and holding up the dog, are essential. Claim 7 of reissue No. 8,550 was evidently drawn so as to cover the time attachment of the defendants' lock, which does not itself lock up or unlock the bolt-work, but only determines the time when the bolt-work may be unlocked by the combination lock. Claim 7 is not limited to devices which automatically lock and unlock, but extends to devices which merely interfere with mechanical locking and unlocking. Such a construction of claim 7—a claim once abandoned in the patent-office, and restored in this reissue—cannot be admitted in consistency with numerous decisions of this court on the subject of reissues. If, however, claim 7 is so construed as to be no broader than claim 2 of the original patent, then the defendants' lock, as it did not infringe the latter claim, does not infringe claim 7. It is shown that it was old to use time-mechanism revolving dials with adjustable devices, pivoted levers, and dogs, to lock and unlock door-bolts; and that the combination of clock-work, adjustable cam-wheels, and a two-armed lever oscillated thereby, was old. In this view, in his original patent, Little very properly limited his claims to his mode of connecting two clocks with a common wheel, so that both could act together in turning it, and either one could turn it alone in case the other stopped; and to the employment of the specific cam-wheels with depressions and projections so located as to increase and diminish the surface of a common cam by rotation on each other, so as to lift and hold up the dog behind the bolt of the door; and to the introduction of his Sunday wheel. The lock of the defendants did not infringe any of the claims of the original patent, because it did not have the two clocks, the Sunday wheel the cam-wheels, or any mechanical equivalent therefor, and did not move the dog automatically into the dogging position. The application for reissue No. 7,104 was made more than two years after the original patent was granted, and one month and seven days after the Gross patent was issued, containing the devices which are employed in the defendants' lock. Reissue No. 8,550 was applied for nearly four years and nine months after the original patent was granted, and more than two years and eight months after the Gross patent was issued, and after the lock of the defendants had been put into use. No excuse is shown for these delays; nor is there any defect or insufficieny in the specification of the original patent. In December, 1877, during the pendency of the application for reissue No. 8,035, Little acquiesced in the rejection, for want of novelty, of claim 2 of his original patent, and then abandoned a claim corresponding with claim 7 of reissue No. 8550, and took out reissue No. 8,035, without such claim. The lock of the defendants did not infringe any claim of reissue No. 8,035. Claim 1 of reissue No. 8,550 is entirely new, and claim 7 of that reissue is the same as claim 3 of the application for reissue No. 8,035, which claim was first amended and then abandoned. It was not lawful to introduce claim 7 into reissue No. 8,550, after such formal abandonment of it. If either claim 1 or claim 7 of reissue No. 8,550 covers a device which would not have been covered by claim 2 of the original patent, or by any of the claims of reissue No. 8,035, it is invaid; and, even if claims 1 and 7 could properly be restricted to the cam-wheels of the specification or their mechanical equivalents, operating as described, as claim 2 of the original patent was restricted, the lock of the defendants does not infringe either claim 1 or claim 7. For these reasons, it must be held that the plaintiffs have no cause of action against the defendants under claims 1 and 7 of reissue No. 8,550. It results that the decree of February 12, 1886, must be affirmed so far as it relates to the Sargent reissue, No. 7,947, and reversed so far as it relates to the Little reissue, No. 8,550, and the cause be remanded to the circuit court with a direction to dismiss the bill of complaint, with costs to the defendants. As the plaintiffs fail in this court on both appeals, they are to pay the costs of this court on both appeals.

131.US.58

No statute of the United States authorizes a commissioner of a Circuit Court to administer an oath to a deputy surveyor of the United States in regard to the manner in which he fulfilled a contract for surveying public land. United States v. Hall, ante, 50, affirmed and applied to the certificate of division in opinion in this case.

This case comes before us from the circuit court of the United States for the district of California, upon a certificate of division in opinion between the judges holding that court. It arises out of an indictment against the defendant, M. T. Reilly, in which he is charged with falsely certifying, as a commissioner of the circuit court of the United States for that circuit, to an oath or affidavit taken before him by one Charles Holcomb. The indictment sets out that Holcomb, as a deputy United States surveyor, had a contract similar to that recited in the previous case of United States v. Hall, ante, 663, by which contract it was necessary that he should make affidavit that he had personally rendered the service required by it before he could obtain the certificate of the surveyor general, William H. Brown, or his successor in office, upon which he could draw compensation for that service. The indictment alleges that, instead of making such affidavit, he, or some one for him, procured the defendant, Reilly, who was a commissioner appointed by the circuit court of the United States under the act of congress on that subject, to make out the form of an affidavit, and certify to it under his seal as such commissioner; when in fact no such oath was taken by Holcomb, nor any such affidavit made by him. For this offense Reilly is indicted. A demurrer to this indictment was filed, alleging eight different objections to it, and on the argument of that demurrer the judges holding the circuit court certified to us ten different questions on which they were divided in opinion on that hearing. The remarks already made in the previous case, in regard to splitting up the case into numerous points in order to get this court to decide the whole matter in dispute in advance, apply with increased force to this case. Without further comment on this, it is sufficient to say that in the present case, as in that, one of the questions, relating to the power of the commissioner to administer the oath in this case, if he had attempted to do it, is, we think, pertinent, and should be answered. That question, the fifth one of the series certified to us, is as follows: 'Has a commissioner of the United States circuit court authority to administer oaths and make certificates for the purposes for which the certificate set out in the indictment is alleged to have been made and used?' Of course, if he had no authority to administer the oath, it was a wholly useless paper in which he made the certificate that the oath had been taken, and whether there is any law punishing him for that offense we are not informed, nor are we required by any of these certificates of division in opinion to inquire. With regard to the question here asked us, it is sufficient to say that, as in regard to the power of notaries public to administer oaths, presented by the preceding case referred to, we have been unable to find any authority for a circuit court commissioner to take such affidavits or to administer such oaths. The question is therefore answered in the negative.

130.US.653

An action on the official bond of a collector of customs is not one of which this court has appellate jurisdiction, under § 699 of the Revised Statutes, without regard to the sum or value in dispute.

The motion to dismiss must be granted. The amount in dispute is less than $5,000; and the case does not come within any of the classes specified in section 699 of the Revised Statutes, in which this court has appellate jurisdiction without regard to the sum or value in dispute. The only subdivisions which could possibly be supposed to cover this case are the second and third. The second subdivision relates to judgments 'in any civil action brought by the United States for the enforcement of any revenue law thereof;' and, as was directly adjudged in the recent case of U. S. v Hill, 123 U. S. 681, 8 Sup. Ct. Rep. 308, a suit upon an official bond is not an action for the enforcement of a revenue law of the United States. The third subdivision relates to judgments 'in any civil action against any officer of the revenue, for any act done by him in the performance of his official duty, or for the recovery of any money exacted by or paid to him which shall have been paid into the treasury.' This applies only to suits, whether sounding in tort or in contract, brought by individuals or corporations against officers of the revenue acting on behalf of the United States, and does not include any suit brought by the United States against one of those officers. It has regard to actions in which the interest of the United States is as defendant, not as plaintiff. Writ of error dismissed for want of jurisdiction.

130.US.412

In settling the meaning and application of tariff laws, the commercial designation of an article is the first and most important thing to be ascertained. When the commercial designation of an article fails to give it its proper place in the classification of a tariff law, then resort must be had to its common designation. In an action to recover back duties paid on an importation of white beans, which were classified at the Custom House as "vegetables," in the general category of "articles of food," it was error in the court to exclude evidence offered by the collector to prove the common designation of "beans" as "an article of food."

This is an action brought by the defendants in error against the collector of New York, to recover an alleged excess of duties on goods imported. The goods referred to were white beans, upon which the collector levied a duty of 20 per cent. ad valorem, as garden seeds. This charge was paid under protest, the plaintiffs insisting that the article was exempt from duty, under the free list, as seeds 'not otherwise provided for,' or, if not free, they were only dutiable, at 10 per cent., as 'vegetables.' The treasury department finally conceded that the beans did not properly come under the denomination of 'garden seeds,' and directed 10 per cent. to be refunded, but still insisted that they are liable to a duty of 10 per cent. as 'vegetables,' in the general category of 'articles of food.' The plaintiffs adhere to their first position, that beans are free of duty, as seeds 'not otherwise provided for,' and that is the only question here presented. The clauses of the law which are to be construed in determining the controversy are to be found in the last customs-duties act, passed March 3, 1883, as a substitute for title 33 of the Revised Statutes. Among the various schedules attached to this act, classifying the articles subject to, or free from, import duties, is one entitled 'Provisions,' in which are enumerated, among other things, beef and pork, cheese, butter, lard, wheat, rye, barley, Indian corn, oats, meal, flour, potato or corn starch, rice, hay, different kinds of fish, pickles, potatoes, vegetables, in their natural state, or in salt or brine, not specifically enumerated or provided for in this act, vegetables prepared or preserved, currants, dates, fruits of various kinds, almonds, walnuts, peanuts, etc. Beans are not mentioned specifically in this list. If they are properly classed under the term 'vegetables in their natural state,' they are subject to a duty of 10 per cent., as contended for by the government. Under the head of 'Free List—Sundries,' we find, among a great number of other miscellaneous articles, the following: 'Plants, trees, shrubs, and vines of all kinds, not otherwise provided for, and seeds of all kinds, except medicinal seeds, not specially enumerated or provided for in this act.' If the white beans imported by the plaintiffs are properly to be classified as 'seeds,' then they are free from all duty, as claimed by the plaintiffs. Schedule N, entitled 'Sundries,' contains a list of miscellaneous articles, (many of them articles of manufacture,) subject to various rates of duty. The following is one of the items of this schedule: 'Garden seeds, except seed of the sugar beet, 20 per cent. ad valorem.' If white beans are to be classed as 'garden seeds,' then the original decision of the collector was right. This decision, however, has been abandoned, and we think very properly. Although beans are often planted in gardens as seed, yet, as a product, and a commodity in the market, they are not generally denominated as 'garden seeds,' any more than potatoes, which are also sometimes planted as seed in gardens. The same consideration also applies in regard to the use of the more general term 'seeds.' We do not see why they should be classified as seeds any more than walnuts should be so classified. Both are seeds, in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand, in speaking generally of provisions, beans may well be included under the term 'vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject very little evidence is necessary, or can be produced. But on the trial the parties deemed it important to introduce a great deal of testimony. The court, however, did not allow the defendant to prove the common designation of beans as an article of food. It was shown by the evidence that beans are generally sold and dealt in under the simple designation of 'beans;' but that does not solve the question as between the rival designations of 'seeds' and 'vegetables.' The common designation, as used in every-day life, when beans are used as food, (which is the great purpose of their production,) would have been very proper to be shown, in the absence of further light from commercial usage. We think that the evidence on this point ought to have been admitted. In addition to this, the court told the jury that 'the commercial designation of the article, or what the article is called in trade and commerce, or the name 'bean,' has nothing to do with the question.' We think the court erred in this instruction. The commercial designation, as we have frequently decided, is the first and most important designation to be ascertained in settling the meaning and application of the tariff laws. See Arthur v. Lahey, 96 U. S. 112, 118; Barber v. Schell, 107 U. S. 617, 623, 2 Sup. Ct. Rep. 301; Worthington v. Abbott, 124 U. S. 434, 436, 8 Sup. Ct. Rep. 562; Arthur's Ex'rs v. Butterfield, 125 U. S. 70, 75, 8 Sup. Ct. Rep. 714. But If the commercial designation fails to give an article its proper place in the classifications of the law, then resort must necessarily be had to the common designation. We think, therefore, that the court erred both in its charge and in the exclusion of the evidence offered, especially as, without any evidence, and with the common knowledge which we all possess, the court might almost have been justified in directing a verdict for the defendant. We have not adverted to a clause of the customs act in which beans are specifically named, because we do not think it applies to the case. We refer to that clause of the free list which enumerates 'drugs, barks, beans, berries, etc., any of the foregoing of which are not edible, and are in a crude state.' As this clause refers to articles 'not edible,' it cannot include beans of the character now under consideration. Nor have we thought it necessary to refer particularly to the case of Ferry v. Livingston, 115 U. S. 542, 6 Sup. Ct. Rep. 175, in which the clauses of the law respecting 'garden seeds' in Schedule N, and 'seeds of all kinds' in the free list are elaborately discussed and commented on. There the question was between 'garden seeds' and 'field seeds,' and the decision depended on the particular circumstances of the case. The opinion concludes with this declaration: 'As this case rests for decision on the facts found, it is not possible for this court to lay down any general rules which will apply to cases differing in their facts from this case.' We regard our present decision as in harmony with the decision in that case, and only refer to it for the purpose of disclaiming any intention to dissent from it. The judgment of the circuit court is reversed, and the cause remanded, with instructions to order a new trial.

129.US.19

Claim 3 of letters patent No. 223,338, granted to John M. Gorham, January 6th, 1880, for an improvement in wash-board frames, namely, "3. In combination with a wash-board, a protector located below the crownpiece and between the side pieces of the wash-board frame, and constructed to fold down into or upon said wash-board even with or below the general plane of said wash-board frame, substantially as and for the purpose shown," cannot, in view of the state of the art, and of the course of proceeding in the Patent Office on the application for the patent, be so construed as to cover a protector which does not have the yielding, elastic or resilient function described in the specification. The defendant's protector, constructed in accordance with letters patent No. 255,555, granted to Charles H. Willams, March 28th, 1882, and having no yielding or resilient function, and not being pivoted, or folding down, after the manner of the Gorham protector, does not infringe claim 3.

This is a suit in equity, brought by the administrators of John H. Gorham, deceased, against Edwin K. Burgess, in the circuit court of the United States for the Eastern district of Pennsylvania, to recover for the alleged infringement of letters patent No. 223,338, granted to John M. Gorham, January 6, 1880, for an improvement in wash-board frames. The following is a copy of the specification and drawings of the patent: 'To all whom it may concern, be it known that I, John M. Gorham, of Cleveland, in the county of Cuyahoga and state of Ohio, have invented certain new and useful improvements in wash-board frames; and I do hereby declare the following to be a full, clear, and exact description of the invention, such as will enable others skilled in the art to which it pertains to make and use it,—reference being had to the accompanying drawings, which form part of this specification. My invention relates to wash-boards, particularly to the combination with a wash-board of a protector constructed to bend or yield to pressure, and to return to position when said pressure is removed. This protector is to shield the person of the washer from splashing water or suds. Protectors have been heretofore employed in connection with wash-boards, and they have been of but two general types,—one wherein the protector is rigid, and rigidly attached to the wash-board frame. A protector thus constructed and attached is not capable of yielding or moving from its position, when the body of the operator presses against it, and it is on this account frequently objected to. The second type is when the protector is attached to the wash-board frame by a joint or pivot, and is allowed a swinging movement; but it possesses no elastic or resilient quality or function, and, when moved by pressure, has no power to return again to normal position when said pressure is removed. My invention is designed to overcome the objections and defects presented in these two old types of protectors; and, as said invention broadly comprehends any wash-board protector constructed to bend or yield to pressure and to return to position when said pressure is removed, it is apparent that I am not to be confined to any specific form or mere construction of device, inasmuch as a variety of modified mechanical structures may be adopted embodying my said invention. I will, however, illustrate and describe one or two effective forms of device according to this invention. In the drawings, Fig. 1 illustrates a wash-board and its protector made according to my invention. This figure is in longitudinal vertical section, and it represents the protector as laid down upon the face of the board, as packed for shipment. Fig. 2 is a similar view of the same device, only the protector is shown as freed and sprung out into operative position. Fig. 3 is a front view of the device as shown in Fig. 2. Fig. 4 represents a modified form of my device, wherein the protector, instead of being formed from a rigid piece, and elastically pivoted to the frame, as shown in Figs. 1, 2, and 3, is made from a piece of rubber, spring metal, or equivalent material, susceptible of itself yielding and returning to position, and this is rigidly fixed to the wash-board frame, as shown. Fig. 5 shows another modified embodiment of my invention, merely illustrating a different spring-coupler, C', from that shown in Figs. 1, 2, and 3. A is the wash-board frame, which may be of any size, description, or material. B is the rubbing-surface, which may also be of any character. C is the protector, and C' a spring, which may be either coupler between the protector and wash-board frame, as shown in Fig. 5 of the drawings, or the protector may be pivoted to the frame, and the spring, C', act to push or pull the protector into the position illustrated in Figs. 2 and 3. The construction of the device shown in Fig. 4 I have already sufficiently specified in the preceding explanation of the drawings. The operation of my device is readily understood. The spring, C', or the elastic character of the thing itself, as shown in Fig. 4, serves always to keep the protector in operative position. (See Figs. 2 and 3.) When the body of the operator presses against it, it yields in such a way as at the same time to press snugly against her person, and also to return at all times to position when said pressure is removed. It thus becomes very effective as a protector, while at the same time it is not wearing to the person or clothes of the operator. Another peculiar feature of my wash-board is the flat manner in which it can be packed, as shown in Fig. 1 of the drawings. This is a great convenience and advantage in packing for shipment; and, moreover, when thus packed, the protector is itself protected from injury to which it would otherwise be exposed. This is accomplished by locating the protector, as shown in Figs. 1, 2, and 3 of the drawings, below the crown-piece and between the side-pieces of the frame.' The claims of the patent are three in number, as follows: '(1) In combination with a wash-board, a protector constructed substantially as described, so as to yield to pressure, and to return to position when said pressure is relieved, substantially as and for the purpose shown. (2) The combination, with a wash-board, of a protector and a spring, said spring interposed between the wash-board and protector, and constructed to operate in retaining said protector in its open position, and to return it to that position when removed therefrom. (3) In combination with a wash-board, a protector located below the crown-piece and between the side-pieces of the wash-board frame, and constructed to fold down into or upon said wash-board even with or below the general plane of said wash-board frame, substantially as and for the purpose shown.' Only claim 3 is alleged to have been infringed. The defenses set up were want of novelty and non-infringement. Several prior patents were introduced in evidence, as bearing upon the question of the proper construction of claim 3, and upon the question of infringement. They are No. 8,161, to William T. Barnes, June 17, 1851; No. 127,325, to John Epeneter and Bernhardt Grahl, May 28, 1872; No. 146,433, to James A. Cole, January 13, 1874; No. 150,315, to Anna Frike, April 28, 1874; and No. 222,846, to Wyatt M. Stevens, December 23, 1879. The circuit court dismissed the bill, and the plaintiffs have appealed. The specification of the Gorham patent clearly shows that the protector whose combination with a wash-board is the subject of the invention is a protector constructed to bend or yield to pressure, and to return to its position when such pressure is removed, in contradistinction to a protector which is rigid and is rigidly attached to the wash-board frame; and also in contradistinction to a protector which is attached to the wash-board frame by a joint or pivot, and is allowed a swinging movement, but possesses no elastic or resilient function, and, when moved by pressure, has no power to return again to its normal position, when such pressure is removed. The specification states that the invention of Gorham is designed to overcome the defects presented in those two old types of protectors. The invention does not comprehend a protector which is not constructed so as to bend or yield to pressure, and to return to its position when such pressure is removed. The description and drawings of the Gorham protector are limited to such a construction, and do not show or indicate any other. The operation of the device is stated in the specification to be such that the spring, or the elastic character of the protector itself, serves always to keep the protector in operative position, because it yields to pressure against it in such a way as always to press snugly against the person, and to return at all times to position when such pressure is removed. This feature of the protector is not claimed to have been infringed by the defendant. The defendant's protector, constructed in accordance with the description contained in letters patent No. 255,555, granted to Charles H. Williams, March 28, 1882, has no spring and no elastic or resilient quality, does not yield to pressure, and has no capacity of returning automatically to its normal position. In the defendant's structure, the ordinary cap-piece of the wash-board has a rounded exterior surface, and its inner surface performs the function of a protector. Upon the upper edge of such cap-piece is mounted a supplemental protector, the two parts being locked rigidly together by a tongue-and-groove joint. From the ends of the supplemental protector are extended rigid arms, which are slotted and connected to the side-pieces of the frame by means of pins, one of which passes through each slot. By removing the supplemental protector from the cap-piece, it can be placed between the side-pieces of the frame, so as to stand edgewise therein, by drawing it slightly backward, by then raising it slightly, by then advancing it to the front, and by then dropping it and placing it edgewise within the frame. In this latter position the structure is adapted for packing. Not only is the defendant's protector without any yielding or resilient function, but it is not pivoted after the manner of the Gorham protector, nor does it fold down in the manner of the Gorham protector, in the sense of the words 'fold down,' as used in claim 3 of the Gorham patent. The contention of the plaintiff is that claim 3 of the patent does not require, as an element of the combination covered by it, that the protector should have any yielding, elastic, or resilient function, or should be accompanied by a spring; but that it is sufficient if, by any mechanism, it can be so disposed of as to be packed away for convenience in shipment, or for other purposes, in a flat manner, in the vacant space in which it is packed; and that, as the defendant's protector is to a large extent packed away in the same vacant space, claim 3 is infringed. It may be questionable whether, if the claim were to be construed thus broadly, it would not be for merely a new use of a device before used in many things besides wash-boards. But in view of the state of the art, as shown by the patents above referred to, and in view of the course of proceeding in the patent-office on the application for the Gorham patent, we are of opinion that claim 3 of that patent cannot be so construed as to cover a protector which does not have the yielding, elastic, or resilient function of the Gorham protector, and is not accompanied by a spring or constructed substantially according to the description in the Gorham specification. Gorham evidently had no idea of such a construction as that of the Williams patent, found in the defendant's wash-board; and no person could, by following the description in the Gorham specification, arrive at the defendant's structure. Claim 3 of the Gorham patent requires that the protector shall be 'constructed to fold down,' 'substantially as' 'shown.' The defendant's protector is not constructed to fold down in the manner of the Gorham protector, and is not constructed substantially as shown in the Gorham specification. The decree of the circuit court is affirmed.

131.US.293

The judgments of Courts of Ordinary in Georgia in respect to subject matter within their jurisdiction are no more open to collateral attack than those of any other court. The judgment of the Court of Ordinary allowing the resignation of one of two administrators upon proceedings had pursuant to statute, and discharging him after he had accounted to his co-administrator, and the latter had given a new bond, operated to exonerate the sureties upon the joint bond of both from liability for a devastavit committed after such order of discharge. Cross-bills are necessary where certain defendants seek affirmative relief against their codefendants. Where the Ordinary takes an administrator's bond in good faith, and it appears after liability has been incurred, that the names of some of the supposed sureties were signed thereto without authority, the mere fact 0 that the latter cannot be held, will not constitute a defence as to those who executed the bond without being misled or having relied upon the others being bound.

By the order of the ordinary of May 1, 1876, the resignation of John A. Erwin, as administrator of the estate of Lewis Tumlin, deceased, was allowed, and Frank P. Gray was appointed sole administrator, and required to give a new bond and security, which being given, and Erwin having settled and accounted with Gray, his successor in administratin , and filed his receipt as provided by law, it was ordered that John A. Erwin, as administrator, and his securities, be discharged from 'any and all liability for any mismanagement of said estate in the future, but not from any past liability;' and this settlement having been made and receipt filed and new bond given by Gray, and these successive acts approved, by order of June 12, 1876, the discharge of Erwin as administrator was made absolute. From the judgment of the ordinary an appeal was prosecuted to the superior court of Bartow county by three of the heirs, one of whom dismissed her appeal, and, upon trial had, the decision of the court of ordinary was affirmed by the verdict of a jury, and time taken to perfect a bill of exceptions, with the view of carrying the case to the supreme court, which was not done. Judgment appears not to have been entered upon the verdict until pending this cause, when it was so entered nunc pro tunc as of July term, 1876. The superior court thus determined the order of the ordinary to have been a proper one, and passed upon the question of jurisdiction. Mrs. Ada S. Rice was duly served with Erwin's petition to be discharged, and citation to appear, but acquiesced in said orders, and did not participate in the appeal therefrom, and paid no further attention thereto, as she says in her petition to amend of May 19, 1883. Something over five years after wards she filed the bill in this case, and by amendment, some two years after that, sought to hold the sureties on the bond of Erwin and Gray for alleged maladministration of the latter after the discharge of the former. The courts of ordinary in Georgia are courts of original, exclusive, and general jurisdiction over decedents' estates and the subject-matter of these orders, and their judgments are no more open to collateral attack than the judgments, decrees, or orders of any other court. Davie v. McDaniel, 47 Ga. 195; Barnes v. Underwood, 54 Ga. 87; Patterson v. Lemon, 50 Ga. 231, 236; Caujolle v. Ferrie, 13 Wall. 465. In Jacobs v. Pou, 18 Ga. 346, it was held that 'the judgment of dismissal, by the court of ordinary, in such cases, must operate as a discharge from all liability on the part of the administrator, unless the same be impeached in that court, for irregularity, or in the superior court, for fraud;' and in Bryan v. Walton, 14 Ga., 186, that the order appointing an administrator, and in Davie v. McDaniel, 47 Ga. 195, and McDade v. Burch, 7 Ga. 559, that an order for sale of lands could not be collaterally attacked. It is argued, however, that upon Erwin's resignation the whole trust remained in Gray as survivor, and that the ordinary could not make a new appointment while the office was not vacant; and section 2514 of the Code is referred to, providing that, upon the revocation of the letters of one administrator, the trust remains in the hands of the other. The well-known case of Griffith v. Frazier, 8 Cranch, 9, is also cited as in point, where letters of administration were held invalid, there being a qualified executor capable of exercising the authority with which he had been invested by the testator. But we think the position taken is untenable. Under the Code, upon the death of an administrator, where there are more than one, the right of administration survives, (section 2499,) but the ordinary may apparently grant letters to others, (section 2500;) and upon the revocation of the letters of one administrator, where there are more than one, the trust remains in the hands of the other, 'and with him, as to an administrator de bonis non, the removed co-administrator must account,' (section 2514,) and his sureties are 'liable for his acts in connection with his trust, up to the time of his settlement with an administrator de bonis non or the distributees of the estate,' (section 2512.) When an administrator resigns, and the resignation is allowed, he 'shall be discharged from his trust whenever he has fairly settled his accounts with his successor, and file with the ordinary the receipt in full of such successor.' Section 2610. This section uses the singular number, but undoubtedly covers the case of more than one administrator. Paragraph 4 of section 4 of the Code reads: 'The singular or plural number shall each include the other, unless expressly excluded.' Code 1882, p. 3. Every administrator after the first is an administrator de bonis non in fact, and it is not important it should so appear of record. Steen v. Bennett, 24 Vt. 303; Grande v. Herrerra, 15 Tex. 534; Moseley's Adm'r v. Mastin, 37 Ala. 219; Ex parte Maxwell, Id. 362. The ordinary, in accepting the resignation of Erwin, treated the case as he would have done if Erwin's letters had been revoked by removal, and entered the orders in respect to Gray, as successor of Erwin and Gray, and so administrator de bonis non, and the new bond was accordingly conditioned to secure the administration of the property which remained to be administered. It is said by counsel that prior to 1854 there was no provision in the laws of Georgia for the resignation of an administrator, but it would seem that if an administrator had resigned, and his resignation had been accepted, such action on the part of the ordinary would have been held equivalent to a revocation of his letters in the exercise of the power of removal. Marsh v. People, 15 Ill. 284. As already stated, under the provisions of the Georgia Code, where there are more than one administrator, and the letters of one are revoked, he must account to his co-administrator 'as to an administrator de bonis non,' and as, in the instance of the resignation of a sole administrator, he must account to his successor, so where there are more than one, he who resigns must account to his co-administrator, as such successor, who would in effect in such case be an administrator de bonis non. Irrespectively of statutory regulation, an administrator de bonis non could only administer upon the assets remaining unadministered, in specie; but under these provisions the retiring administrator must account to his successor, and such accounting is required before discharge. It is urged that, as Erwin applied only for his own discharge as administrator, and not as surety for Gray, and as the sureties made no application in their own behalf, the effect of Erwin's discharge was not to release the sureties. By section 2509 of the Code, the provisions where a surety on a guardian's bond desires to be relieved as surety are made applicable to sureties on administrators' bonds; and by section 1817 a mode is provided for obtaining such relief on complaint made by the surety to the ordinary, citation to the guardian, hearing, and order of discharge. And in Dupont v. Mayo, 56 Ga. 306, it was held that, where there was no petition, citation, or hearing, an order accepting a new bond already executed by the guardian, and declaring a former surety discharged, could not be sustained. But those sections apply to a different state of case, namely, where the sureties are asking to be relieved from liability, and not where the administrator himself is requesting leave to retire. Erwin proceeded in conformity with the statute in such case made and provided, and, under the orders of May 1 and June 12, 1876, ceased to be administrator, and was discharged from further liability as such, as were the sureties who had signed the bond of Erwin and Gray. In Justices, etc., v. Selman, 6 Ga. 432, the second section of an act of 1812 came under consideration, which read as follows: 'Any executor, executrix, administrator, administratrix, or guardian, whose residence may be changed from one county to another, either by the creation of a new county, removal, or otherwise, shall have the privilege of making the annual returns required of them by this act, to the court of ordinary of the county in which they reside, by having previously obtained a copy of all the records concerning the estates for which they are bound as executors, executrix, administrators, administratrix, or guardians, and having had the same recorded in the proper office in the county in which they then reside, and having given new bond and security, as the law directs, for the performance of their duty.' The court held, LUMPKIN, J., delivering the opinion, 'that the mere taking of a new bond does not, necessarily, release the old sureties, and especially where the new bond is taken by authority of law, for the purpose of strengthening the existing security,' but that, when the second or subsequent bond is given for a new and different undertaking, it operates, ipso facto, as a discharge of the prior parties, and hence that when the provisions of the act are fully complied with the sureties on the first bond are discharged from all further liability on account of their principal. We are of opinion that the court erred in rendering a decree against the sureties on the joint bond of Erwin and Gray for a devastavit committed after June 12, 1876. Counsel for appellees contend that the sureties on this bond were not discharged because the service of the petition and citation on the three minor heirs, on Erwin's petition to resign, was insufficient, and guardians ad litem should have been appointed; that the resignation was not effectual as to them, and therefore not as to any of the others. This point was not passed upon by the special master or the circuit court, nor was a cross-bill filed on behalf of either of these defendants. They asked no relief as against complainants, but affirmative relief against their co-defendants, these sureties, and under such circumstances cross-bills are necessary. If, however, cross-bills were filed, as all the defendants are citizens of Georgia, and the complainants are citizens of Tennessee, it is questionable whether the relief which complainants could not obtain on their own case could be properly awarded by the circuit court, even though it could be successfully contended that these particular defendants were entitled to relief upon the ground suggested, and that their co-distributees could avail themselves of such conclusion, in respect to which we express no opinion, as these questions are not before us for decision in the present condition of the record. It is assigned as error that the court decreed in accordance with the special master's report that the discharge of J. G. B. Erwin, H. C. Erwin, and L. R. Ramsauer, because their names had been improperly signed to the joint bond of Erwin and Gray, did not discharge their co-sureties; but this was not urged on the argument. The master proceeded upon the ground that it was appellants' duty to see for themselves that he signatures of their co-sureties were binding upon them, if they intended to rely upon their being bound; and that it was the ordinary's duty to see that valid signatures were made to the bond, but not to protect any one as surety, and that no fraud, concealment, or want of good faith could be charged on the ordinary. We do not regard the overruling of the exception, based as it is on the assumption of knowledge on the part of the ordinary, and concealment misleading the other sureties, as erroneous. Dair v. U. S., 16 Wall. 1; Lewis v. Board, 70 Ga. 486; Mathis v. Morgan, 72 Ga. 517; Trustees v. Sheik, 119 Ill. 579, 8 N. E. Rep. 189. It is further objected by appellants that the court erred in disallowing any commissions to Erwin and Gray, and particularly the commissions of $3,433.68 for distribution in kind. Upon a careful consideration of the proofs in the printed record, and the various reports of the special master bearing upon this subject, we do not find such evidence of mismanagement on the part of Erwin and Gray as requires the forfeiture of all commissions, and, without entering upon any discussion of the details, we approve of the conclusions reached by the master in his first report, and direct a modification of the decree accordingly, if, upon the return of the case to thec ircuit court, it is found, in view of our decision in respect to the discharge of Erwin and the sureties on the bond of Erwin and Gray, that Mrs. Rice is not concluded by the accounting at the time of such discharge. Decree reversed, and cause remanded, with directions to proceed in conformity with this opinion.