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353 U.S. 210 77 S.Ct. 793 1 L.Ed.2d 776 UNITED STATES of America for the Benefit and on Behalf of Harry SHERMAN, Chas. Robinson, Ronald D. Wright, et al., Petitioners,v.Donald G. CARTER, Individually; Donald G. Carter, Doing Business as CarterConstruction Company, et al. No. 48. Argued Dec. 5, 1956. Decided April 29, 1957. Mr. Thomas E. Stanton, Jr., San Francisco, Cal., for petitioners. Mr. Richard C. Dinkelspiel, San Francisco, Cal., for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 This case concerns the extent of the liability of the surety on a payment bond furnished by a contractor, as required by the Miller Act, for the protection of persons supplying labor for the construction of federal public buildings.1 The collective-bargaining contract under which the laborers were hired obligated the contractor to pay them wages at specified rates and, in addition, to pay 7 1/2 cents per hour of their labor to the trustees of a health and welfare fund established for their benefit and that of other construction workers. When the contractor failed to pay in full the required contributions to the health and welfare fund, the trustees of the fund sued the surety on the contractor's payment bond to recover the balance due the fund, plus liquidated damages, attorneys' fees, court costs and expenses. For the reasons hereafter stated, we hold that § 2(a) of the Miller Act imposes liability on the surety. 2 In November 1952, the respondent contractor, Donald G. Carter, contracted with the United States to construct certain public buildings at Air Force bases in California. As required by the Miller Act, he filed performance and payment bonds executed by the respondent, Hartford Accident and Indemnity Company, as surety. The payment bond was in the penal sum of $52,434.30, and provided that the obligation of the surety shall be void 'if the principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract * * * otherwise to remain in full force * * *.' 3 The terms under which Carter employed laborers for the prosecution of the work were prescribed in master labor agreements governing the conditions of employment in the construction industry in 46 counties of northern California. Those agreements had been negotiated in June 1952 through collective bargaining between the local council of a labor union representing construction workers and several associations of employers, one of which acted as an agent for Carter. The agreements obligated Carter to pay wages to his employees at specified rates which were to be not less than the prevailing rates determined by the Government. The agreements required also that, beginning February 1, 1953, Carter was to pay to the trustees of a health and welfare fund 7 1/2 cents for each hour worked by his construction employees. 4 The specified fund was established by a trust agreement dated March 4, 1953, and negotiated by the parties to the master labor agreements. Its pertinent provisions were as follows: The fund was to be administered by a board of trustees representing employers and employees. The trustees were authorized to use employer contributions to purchase various types of insurance, such as life, accidental death, hospitalization and surgical benefit policies, with eligible employees and their dependents as the beneficiaries.2 The employees had no rights to the insurance benefits except as provided in the policies. Also, they had no right, title or interest in the contributions, and it was expressly stated that the contributions 'shall not constitute or be deemed to be wages' due the employees. 5 The trustees had the sole power to demand and enforce prompt payment of employer contributions. Those contributions were payable in monthly installments. Any installment not paid by the 25th of the month in which it came due was delinquent, and the sum of $20 per delinquency or 10% of the amount due, whichever was greater, was owed by the delinquent employer as liquidated damages and not as a penalty. If the trustees filed suit to secure payment of any installments, the defaulting employer was to pay the reasonable attorneys' fees, court costs and all other reasonable expenses of the trustees incurred in the litigation. 6 Carter became insolvent after completing the construction work and paying his employees the wages payable directly to them. However, he failed to make his required contributions to the fund for February, March and April 1953. Pursuant to § 2(b) of the Miller Act, the trustees of the fund, in the name of the United States, instituted this action on the payment bond against Carter and his surety in the United States District Court for the Northern District of California. The complaint sought recovery of the unpaid contributions and the prescribed liquidated damages, attorneys' fees, court costs and expenses, in the total amount of about $500. The facts were stipulated and the court, after hearing, granted the surety's motion for summary judgment. The Court of Appeals affirmed, holding that the trustees had no right to sue on the bond under § 2(a) of the Act, since they were neither persons who had furnished labor or material, nor were they seeking sums 'justly due' such persons. 9 Cir., 229 F.2d 645. We granted certiorari to resolve the questions of statutory construction which are at issue. 351 U.S. 917, 76 S.Ct. 710, 100 L.Ed. 1450. 7 Section 1(a)(2) of the Miller Act provides that before any contract exceeding $2,000 for the construction of any public work of the United States is awarded to any person, such person shall furnish to the United States a payment bond with a satisfactory surety 'for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract * * *.' 49 Stat. 793, 40 U.S.C. § 270a(a)(2), 40 U.S.C.A. § 270a(a)(2). Section 2(a), which is at issue here, provides that 'Every person who has furnished labor or material in the prosecution of the work provided for in such contract * * * and who has not been paid in full therefor * * * shall have the right to sue on such payment bond * * * for the sum or sums justly due him * * *.' (Emphasis supplied.) 49 Stat. 794, 40 U.S.C. § 270b(a), 40 U.S.C.A. § 270b(a). 8 The surety's liability on a Miller Act bond must be at least coextensive with the obligations imposed by the Act if the bond is to have its intended effect. The bond involved here was furnished to meet the statutory requirements of the Act and appears, on its face, to comply with these requirements. There is no indication that the coverage of the bond was intended to exceed them. The bond insures prompt payment 'to all persons supplying labor and material in the prosecution of the work provided for in said contract * * *.' The trustees' rights against the surety depend upon, and are to be measured by, the applicable provisions of § 2(a) of the Act. 9 While the precise questions of statutory construction now presented are ones of first impression, prior decisions of this Court construing the Miller Act of 1935 and its predecessor, the Heard Act of 1894,3 indicate that the Miller Act should receive a liberal construction to effectuate its protective purposes. 10 'The Miller Act, like the Heard Act, is highly remedial in nature. It is entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects. Fleisher Engineering Co. v. United States, for Use and Benefit of Hollenbeck, 311 U.S. 15, 17, 18, 61 S.Ct. 81, 82, 83, 85 L.Ed. 12; cf. United States, to Use of Noland Co. v. Irwin, 316 U.S. 23, 29, 30, 62 S.Ct. 899. 902, 86 L.Ed. 1241. But such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds.' Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163. 11 The Miller Act represents a congressional effort to protect persons supplying labor and material for the construction of federal public buildings in lieu of the protection they might receive under state statutes with respect to the construction of nonfederal buildings. The essence of its policy is to provide a surety who, by force of the Act, must make good the obligations of a defaulting contractor to his suppliers of labor and material. Thus the Act provides a broad but not unlimited protection.4 12 It is undisputed that if the collective-bargaining agreement had required the contractor to pay each employee 7 1/2 cents per hour above the prevailing wage rate, and the employee had, by contract with his bargaining representative, agreed to contribute that sum to the fund, the surety would have been obligated to make good any default in the contractor's payment of that extra 7 1/2 cents per hour. The surety argues that employer contributions made directly to a health and welfare fund should be theated differently. It contends that, under the provisions of the trust agreement, the unpaid contributions are not 'wages' due to Carter's employees, and that the employees, having received all the 'wages' owed to them, have been 'paid in full' as that term is used in § 2(a) of the Act. The Act, however, does not limit recovery on the statutory bond to 'wages.' The parties have stipulated that contributions to the fund were part of the consideration Carter agreed to pay for the services of laborers on his construction jobs. The unpaid contributions were a part of the compensation for the work to be done by Carter's employees. The relation of the contributions to the work done is emphasized by the fact that their amount was measured by the exact number of hours each employee performed services for Carter. Not until the required contributions have been made will Carter's employees have been 'paid in full' for their labor in accordance with the collective-bargaining agreements. 13 The surety suggests that Carter's obligation to contribute to the fund was not covered by the statutory bond because that obligation was not set forth in his construction contract with the United States, but appeared only in the master labor agreements. Those labor agreements were also the source of Carter's obligation to pay the 'wages' payable directly to his employees, an obligation concededly guaranteed by the bond. Nothing in the Miller Act restricted the obligations of the surety to what was set forth specifically in Carter's agreement with the United States. In fact, the surety's obligations extended to some persons who had no contractual relationship with Carter. For example, persons who contributed labor and material to Carter's subcontractors were entitled to the Act's protection. See the MacEvoy Co. case, supra, 322 U.S. at pages 105, 107—108, 64 S.Ct. at pages 892, 893—894. As long as Carter's obligations relating to compensation for labor have not been satisfied, his employees will not have been 'paid in full' and the Miller Act will not have served its purpose. 14 The surety also argues that the trustees are not entitled to recover the promised contributions under § 2(a) of the Miller Act, since they are neither persons who have furnished labor or material, nor are they seeking 'sums justly due' to persons who have furnished labor or material. An answer to this contention is found in cases arising under the Heard Act involving suits by assignees of the claims of persons furnishing labor or material. Such assignees were not the persons who had furnished the labor or material for which the claims were made. They did not seek 'sums justly due' to persons who had themselves furnished labor or material, since the assignments had extinguished the right which those persons had to the performance of the contractors' obligation.5 Yet these cases established that assignees of the claims of persons furnishing labor or material came within the protection of the statutory bond.6 It was pointed out that a denial of an assignee's right to sue on the bond might deprive those for whom the security was intended of a fair chance to realize upon their claims by assignment.7 There is nothing in the language, legislative history, or related decisions to indicate that Congress intended to overturn these cases when it replaced the Heard Act with the broader and more liberal provisions of the Miller Act.8 15 If the assignee of an employee can sue on the bond, the trustees of the employees' fund should be able to do so. Whether the trustees of the fund are, in a technical sense, assignees of the employees' rights to the contributions need not be decided. Suffice it to say that the trustees' relationship to the employees, as established by the master labor agreements and the trust agreement, is closely analogous to that of an assignment. The master labor agreements not only created Carter's obligation to make the specified contributions, but simultaneously created the right of the trustees to collect those contributions on behalf of the employees. The trust agreement gave the trustees the exclusive right to enforce payment. The trustees stand in the shoes of the employees and are entitled to enforce their rights. 16 Moreover, the trustees of the fund have an even better right to sue on the bond than does the usual assignee since they are not seeking to recover on their own account. The trustees are claiming recovery for the sole benefit of the beneficiaries of the fund, and those beneficiaries are the very ones who have performed the labor. The contributions are the means by which the fund is maintained for the benefit of the employees and of other construction workers. For purposes of the Miller Act, these contributions are in substance as much 'justly due' to the employees who have earned them as are the wages payable directly to them in cash. 17 The trustees' claim for liquidated damages, attorneys' fees, court costs and other related expenses of this litigation has equal merit. The contractor's obligation to pay these items is set forth in the trust agreement. It is stipulated that they form a part of the consideration which Carter agreed to pay for services performed by his employees. If the employees are to be 'paid in full' the 'sums justly due' to them, these items must be included. Their amount, however, remains to be determined. 18 We hold that the Miller Act makes the surety liable on its payment bond for the delinquent contributions to the fund, together with the additional items above described. The judgment of the Court of Appeals, therefore, is reversed and the cause is remanded to the District Court for further action consistent with this opinion. 19 Reversed and remanded. 20 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 1 '* * * (a) before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as 'contractor': '(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States. '(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. * * * 'Sec. 2. (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under this Act and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. * * * '(b) Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit, but no such suit shall be commenced after the expiration of one year after the date of final settlement of such contract. The United States shall not be liable for the payment of any costs or expenses of any such suit.' 49 Stat. 793, 794, 40 U.S.C. §§ 270a(1, 2), 270b, 40 U.S.C.A. §§ 270a(1, 2), 270b. 2 The trustees established by regulation the requirements for eligibility for insurance benefits. Any employee in the bargaining unit, whether or not a member of the laborers' union, could become eligible. Each employee was given a credit for every hour he worked for an employer obligated to contribute to the fund. Any employee who received credits for at least 400 hours in a designated six-month period was entitled to the benefits of the plan for the succeeding six months. His eligibility during that period did not depend on his further employment in the construction industry. 3 Act of August 13, 1894, 28 Stat. 278, as amended, 33 Stat. 811, 36 Stat. 1167. See 40 U.S.C. (1934 ed.) § 270, 40 U.S.C.A. § 270. 4 One limitation, inapplicable here, comes from the proviso in § 2(a). See note 1, supra. In the MacEvoy Co. case, supra, this Court concluded that the effect of the proviso was to limit the right to bring suit on the bond to '(1) those materialmen, laborers and subcontractors who deal directly with the prime contractor and (2) those materialmen, laborers and sub-subcontractors who, lacking express or implied contractual relationship with the prime contractor, have direct contractual relationship with a subcontractor and who give the statutory notice of their claims to the prime contractor.' 322 U.S. at pages 107—108, 64 S.Ct. at page 894. Here the trustees of the fund are claiming sums on behalf of workmen who supplied labor for the project directly to the contractor under an express contractual relationship with him. 5 4 Corbin, Contracts (1951 ed.), § 891; Restatement, Contracts, § 150. See also, Looney v. District of Columbia, 113 U.S. 258, 5 S.Ct. 463, 28 L.Ed. 974; Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465. 6 Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24, 35, 31 S.Ct. 140, 142, 55 L.Ed. 72; U.S. Fidelity & Guaranty Co. v. United States ex rel. Bartlett, 231 U.S. 237, 243, 34 S.Ct. 88, 89, 58 L.Ed. 200; United States to Use of Fidelity Nat. Bank v. Rundle, 9 Cir., 100 F. 400, 403; United States to Use of Jackson Ornamental Iron & Bronze Works v. Brent, D.C., 236 F. 771, 777; Bartlett & Kling v. Dings, 8 Cir., 249 F. 322, 325. 7 See United States v. Rundle, supra. 8 See United States v. Conn., D.C., 19 F.R.D. 274, 277. In Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 105—106, 64 S.Ct. 890, 892, this Court concluded that— 'The Miller Act, while it repealed the Heard Act, reinstated its basic provisions and was designed primarily to eliminate certain procedural limitations on its beneficiaries. There was no expressed purpose in the legislative history to restrict in any way the coverage of the Heard Act; the intent rather was to remove the procedural difficulties found to exist under the earlier measure and thereby make it easier for unpaid creditors to realize the benefits of the bond.'

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353 U.S. 222 77 S.Ct. 787 1 L.Ed.2d 786 FOURCO GLASS COMPANY, Petitioner,v.TRANSMIRRA PRODUCTS CORPORATION, and Robert Aronstein. No. 310. Argued April 2, 1957. Decided April 29, 1957. Mr. Edward S. Irons, Washington, D.C., for petitioner. Mr. W. R. Hulbert, Boston, Mass., for respondents. Mr. Justice WHITTAKER delivered the opinion of the Court. 1 The question presented is whether 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b), is the sole and exclusive provision governing venue in patent infringement actions, or whether that section is supplemented by 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c). 2 Section 1400 is title 'Patents and copyrights,' and subsection (b) reads: 3 '(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.' 4 Section 1391 is titled 'Venue generally,' and subsection (c) reads: 5 '(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.' 6 Petitioner, Fourco Glass Company, a West Virginia corporation, was sued for patent infringement in the Southern District of New York. It moved to dismiss for lack of venue,1 because, although it had a regularly established place of business in the district of suit, there was no showing that it had committed any of the alleged acts of infringement there. The District Court held that there had been no showing of any acts of infringement in the district of suit and that venue in patent infringement actions is solely and exclusively governed by § 1400(b), as a special and specific venue statute applicable to that species of litigation. It accordingly granted the motion and dismissed the action. 133 F.Supp. 531. The Court of Appeals, without passing on the District Court's ruling that there had been no showing of acts of infringement in the district of suit, reversed, 233 F.2d 885, 886, holding that proper construction 'requires * * * the insertion in' § 1400(b) 'of the definition of corporate residence from' § 1391(c), and that the two sections, when thus 'read together,' mean 'that this defendant may be sued in New York, where it 'is doing business." We granted certiorari2 because of an asserted conflict with this Court's decision in Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026, and to resolve a conflict among the circuits3 upon the question of venue in patent infringement litigation. 7 We start our considerations with the Stonite case. The question there—not legally distinguishable from the question here was whether the venue statute applying specifically to patent infringement litigation (then § 48 of the Judicial Code, 28 U.S.C. (1940 ed.) § 109) was the sole provision governing venue in those cases, or whether that section was to be supplemented by what was then § 52 of the Judicial Code, 28 U.S.C. (1940 ed.) § 113, which authorized—just as its recodified counterpart, 28 U.S.C. § 1392(a), 28 U.S.C.A. § 1392(a), does now—an action, not of a local nature, against two or more defendants residing in different judicial districts within the same state, to be brought in either district. That supplementation, if permissible, would have fixed venue over Stonite Products Company (an inhabitant of the Eastern District of Pennsylvania) in the District Court for the Western District of Pennsylvania, where the suit was brought, because its codefendant was an inhabitant of that district. 8 After reviewing the history of, and the reasons and purposes for, the adoption by Congress of the venue statute applying specifically to patent infringement suits—ground wholly unnecessary to replow here—this Court held 'that Section 48 is the exclusive provision controlling venue in patent infringement proceedings' and 'that Congress did not intend the Act of 1897 (which had become § 48 of the Judicial Code, 28 U.S.C. (1940 ed.) § 109) to dovetail with the general provisions relating to the venue of civil suits, but rather that it alone should control venue in patent infringement proceedings.'4 9 The soundness of the Stonite case is not here assailed, and, unless there has been a substantial change in what was § 48 of the Judicial Code at the time the Stonite case was decided, on March 9, 1942, it is evident that that statute would still constitute 'the exclusive provision controlling venue in patent infringement proceedings.' 10 The question here, then, is simply whether there has been a substantive change in that statute since the Stonite case. If there has been such change, it occurred in the 1948 revision and recodification of the Judicial Code.5 At the time of the Stonite case the venue provisions of that statute (§ 48 of the 1911 Judicial Code, 28 U.S.C. (1940 ed.) § 109) read: 11 'In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business.' The reports of the Committee on the Judiciary of the Senate,6 and of the House,7 respecting the 1948 revision and recodification of the Judicial Code, make plain that every change made in the text is explained in detail in the Revisers' Notes. As shown by their notes on § 1400(b), the Revisers placed the venue provisions (quoted above) of old § 48 (28 U.S.C. (1940 ed.) § 109), with word changes and omissions later noted, in § 1400(b), and placed the remainder, or process provisions, with certain word changes, in § 1694 of the 1948 Code. The Revisers' Notes on § 1400(b) point out that 'Subsection (b) is based on section 109 of Title 28 U.S.C., 1940 ed., with the following changess:' (1) 'Words 'civil following changes:' (1) 'Words 'civil and words 'in law or in equity,' after 'shall have jurisdiction' were deleted, in view of Rule 2 of the Federal Rules of Civil Procedure'; (2) 'Words in subsection (b) 'where the defendant resides' were substituted for 'of which the defendant is an inhabitant" because the 'Words 'inhabitant' and 'resident,' as respects venue, are synonymous' (we pause here to observe that this treatment, and the expressed reason for it, seems to negative any intention to make corporations suable, in patent infringement cases, where they are merely 'doing business,' because those synonymous words mean domicile, and, in respect of corporations, mean the state of incorporation only. See Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768); and (3) 'Words 'whether a person, partnership, or corporation' before 'has committed' were omitted as surplusage.' Statements made by several of the persons having importantly to do with the 1948 revision are uniformly clear that no charges of law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed.8 12 'The change of arrangement, which placed portions of what was originally a single section in two separated sections cannot be regarded as altering the scope and purpose of the enactment. For it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect, unless such intention is clearly expressed. United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196 (201), 28 L.Ed. 308; United States v. Le Bris, 121 U.S. 278, 280, 7 S.Ct. 894 (895), 30 L.Ed. 946; Logan v. United States, 144 U.S. 263, 302, 12 S.Ct. 617 (629), 36 L.Ed. 429, 442; United States v. Mason, 218 U.S. 517, 525, 31 S.Ct. 28 (31), 54 L.Ed. 1133, 1136.' Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 198—199, 32 S.Ct. 626, 630, 56 L.Ed. 1047. 13 In the light of the fact that the Revisers' Notes do not express any substantive change, and of the fact that several of those having importantly to do with the revision say no change is to be presumed unless clearly expressed, and no substantive change being otherwise apparent, we hold that 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b) made no substantive change from 28 U.S.C. (1940 ed.) § 109 as it stood and was dealt with in the Stonite case. 14 The main thrust of respondents' argument is that § 1391(c) is clear and unambiguous and that its terms include all actions including patent infringement actions—against corporations, and, therefore, that the statute should be read with, and as supplementing, § 1400(b) in patent infringement actions. That argument is not persuasive, as it merely points up the question and does nothing to answer it. For it will be seen that § 1400(b) is equally clear and, also, that it deals specially and specifically with venue in patent infringement actions. Moreover, it will be remembered that old § 52 of the Judicial Code, 28 U.S.C. (1940 ed.) § 113, was likewise clear and generally embracive, yet the Stonite case held that it did not supplement the specific patent infringement venue section (then § 48 of the Judicial Code, 28 U.S.C. (1940 ed.) § 109). The question is not whether § 1391(c) is clear and general, but, rather, it is, pointedly, whether § 1391(c) supplements § 1400(b), or, in other words, whether the latter is complete, independent and alone controlling in its sphere as was held in Stonite, or is, in some measure, dependent for its force upon the former. 15 We think it is clear that § 1391(c) is a general corporation venue statute, whereas § 1400(b) is a special venue statute applicable, specifically, to all defendants in a particular type of actions, i.e., patent infringement actions. In these circumstances the law is settled that 'However inclusive may be the general language of a statute, it 'will not be held to apply to a matter specifically dealt with in another part of the same enactment. * * * Specific terms prevail over the general in the same or another statute which otherwise might be controlling.' Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704.' Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 894, 88 L.Ed. 1163. 16 We hold that 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c). The judgment of the Court of Appeals must therefore be reversed and the cause remanded for that court to pass upon the District Court's ruling that there had been no showing of acts of infringement in the district of suit. 17 Reversed and remanded. 18 Mr. Justice HARLAN, believing that the Revisers' Notes have been given undue weight, Ex parte Collett, 337 U.S. 55, 61—71, 69 S.Ct. 944, 947—952, 959, 93 L.Ed. 1207, and that they are in any event unclear, dissents for the reasons given by the Court of Appeals, 233 F.2d 885. See also Dalton v. Shakespeare Co., 5 Cir., 196 F.2d 469; Lindley, C.J., dissenting In C-O-Two Fire Equipment Co. v. Barnes, 2 Cir., 194 F.2d 410, 415; Denis v. Perfect Parts, Inc., D.C., 142 F.Supp. 259; Moore, Commentary on the U.S. Judicial Code, 184—185, 193—194. 1 Under Rule 12(b)(3) of Federal Rules of Civil Procedure, 28 U.S.C.A. 2 352 U.S. 820, 77 S.Ct. 68, 1 L.Ed.2d 45. 3 The Third Circuit, in Ackerman v. Hook, 183 F.2d 11, the Seventh Circuit in C-O-Two Fire Equipment Co. v. Barnes, 194 F.2d 410, and the Tenth Circuit, in Ruth v. Eagle-Picher Company, 225 F.2d 572, as well as numerous District Courts, have held that 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b) alone controls venue in patent infringement cases, while, on the other hand, the Fifth Circuit, in Dalton v. Shakespeare Co., 196 F.2d 469, and in Guiberson Corp. v. Garrett Oil Tools, Inc., 205 F.2d 660, and several District Courts, have held that the provisions of 28 U.S.C. § 1391(c), 28 U.S.C.A. § 1391(c) are to be read into, and as supplementing, § 1400(b), as the Second Circuit held in this case, and that, hence, a corporation may be sued for patent infringement in any district where it merely 'is doing business.' 4 315 U.S. at pages 563, 566, 62 S.Ct. at page 781. 5 62 Stat. 869. 6 S.Rep. No. 1559, 80th Cong., 2d Sess., p. 2, which contains the statement 'Appended to the report are the revisers' notes to each section, together with accompanying tables. These explain in great detail the source of the law and the changes made in the course of the codification and revision.' 7 H.R.Rep. No. 308, 80th Cong., 1st Sess., p. 7, which contains the statement 'The reviser's notes are keyed to sections of the revision and explain in detail every change made in text.' 8 Mr. William W. Barron, the Chief Reviser of the Code, in his article on 'The Judicial Code 1948 Revision,' 8 F.R.D. 439, pointed out, at pages 445—446, that: '* * * no changes of law or policy will be presumed from changes of language in revision unless an intent to make such changes is clearly expressed. Mere changes of phraseology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the original meaning of the statute revised.' Professor James William Moore of Yale University, a special consultant on this revision, stated that: 'Venue provisions have not been altered by the revision.' Hearings before Subcommittee No. 1 of the House Judiciary Committee on H.R. 1600 and H.R. 2055, 80th Cong., 2d Sess., p. 1969. Judge Albert B. Maris of the Third Circuit, Conference of the United States to collaborate with the congressional committees in carrying forward the work of this revision, stated that: '(C)are has been taken to make no changes in the existing laws which would not meet with substantially unanimous approval.' Id., p. 1959.

89

353 U.S. 194 77 S.Ct. 779 1 L.Ed.2d 765 UNITED STATES of America, Appellant,v.George I. WITKOVICH, Also Known an Juri Isador Witkovich. No. 295. Argued Feb. 28, 1957. Decided April 29, 1957. Mr. John F. Davis, Washington, D.C., for appellant. Miss Pearl M. Hart, Chicago, Ill., for appellee. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Appellee was indicted under § 242(d) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 208, originally part of § 23 of the Internal Security Act of 1950, 64 Stat. 1010, on the charge that, as an alien against whom a final order of deportation had been outstanding for more than six months, he had wilfully failed to give information to the Immigration and Naturalization Service as required by that section. Appellee moved to dismiss the indictment on the grounds, inter alia, that it failed to state an offense within the statuted and in the alternative, if it did so, that the statute was unconstitutional. The District Court held that the statute as construed by it was not unconstitutional. 140 F.Supp. 815. Thereupon the United States filed a motion for clarification of the court's opinion, and appellee filed a supplemental motion to dismiss the indictment, claiming that the statute as construed by the district judge did not authorize the Government to elicit the demanded information. The District Court, in a second opinion, dismissed the indictment for failure to state an offense. 140 F.Supp. at page 820. The case was brought here, 352 U.S. 817, 77 S.Ct. 66, 1 L.Ed.2d 44, under the Criminal Appeals Act of 1907, as amended, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. 2 The section, as amended, 68 Stat. 1232, 8 U.S.C. (Supp. II) § 1252(d), 8 U.S.C.A. § 1252(d), is as follows: 3 '(d) Any alien, against whom a final order of deportation as defined in subsection (c) heretofore or hereafter issued has been outstanding for more than six months, shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General. Such regulations shall include provisions which will require any alien subject to supervision (1) to appear from time to time before an immigration officer for identification; (2) to submit, if necessary, to medical and psychiatric examination at the expense of the United States; (3) to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper; and (4) to conform to such reasonable written restrictions on his conduct or activities as are prescribed by the Attorney General in his case. Any alien who shall willfully fail to comply with such regulations, or willfully fail to appear or to give information or submit to medical or psychiatric examination if required, or knowingly give false information in relation to the requirements of such regulations, or knowingly violate a reasonable restriction imposed upon his conduct or activity, shall be fined not more than $1,000 or imprisoned not more than one year, or both.' 4 The District Court construed § 242(d) as conferring upon the Attorney General 'power to supervise the alien to make sure he is available for deportation, and no further power.' Accordingly, it held that clause (3) of this subsection is to be restricted to require only 'such information as is necessary to enable the Attorney General to be certain that the alien is holding himself in readiness to answer the call to be deported when it comes.' 140 F.Supp. at pages 819—820. The court found that the questions listed in the indictment, which are set forth in the margin,* were not relevant to appellee's availability for deportation. The interpretation that the District Court thus placed on § 242(d) was derived from a consideration of its relation to the entire statutory scheme of deportation of which it is a part. The court below was further guided by the principle that requires courts, when construing statutes, to avoid constitutional doubts. 'To hold that the statute intended to give an official the unlimited right to subject a man to criminal penalties for failure to answer absolutely any question the official may decide to ask would raise very serious constitutional questions.' Id., 140 F.Supp. at page 821. 5 The Government does not support the questions put to the alien on the basis of the construction that the District Court placed upon § 242(d). This construction authorizes all questions reasonably appropriate to keep the Attorney General advised regarding the continued availability for departure of a deportable alien. The Government contends that the District Court misconceived the scope of the statute. It points to what it characterizes as 'the eloquent breadth' of clause (3), whereby the alien is to give 'such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper.' This, says the Government, establishes a requirement 'in the broadest possible statutory terms for the furnishing of information by the alien.' And this view, it maintains, fits into the statutory scheme. In the circumstances defined by § 242(a), an alien may be detained pending determination of deportability; and § 242(c) authorizes such detention for six months after the alien has been found deportable. So, the Government argues, § 242(d), though it does not authorize detention after six months, is an attempt to accomplish in a modified form the ends that would justify detention in the earlier stages of the deportation process. Our decision in Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547, is heavily invoked. If, so the argument runs, detention of active alien Communists pending deportation hearings was sustainable under § 242(a), the national interest in avoiding recurrence of past Communist activity for which appellee is being deported should at least require him to answer questions regarding any present Communist relationships. For this view of the purpose of supervision, support is found in two other statutory provisions: s 242(e), making an alien's wilful failure to leave the country a felony but providing for suspension of sentence and release of the alien upon judicial consideration, inter alia, of the effect of release upon the national security and the likelihood of resumption of conduct that serves as a basis for deportation; and the recital in § 2(13) of the Internal Security Act of 1950, that 'numerous aliens who have been found to be deportable, many of whom are in the subversive, criminal, or immoral classes * * * are free to roam the country at will without supervision or control.' 64 Stat. 987, 50 U.S.C.A. § 781(13). 6 The language of § 242(d)(3), if read in isolation and literally, appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months after it has been commanded. The Government itself shrinks from standing on the breadth of these words. But once the tyranny of literalness is rejected, all relevant considerations for giving a rational content to the words become operative. A restrictive meaning for what appear to be plain words may be indicated by the Act as a whole, by the persuasive gloss of legislative history or by the rule of constitutional adjudication, relied on by the District Court, that such a restrictive meaning must be given if a broader meaning would generate constitutional doubts. 7 The preoccupation of the entire subsection of which clause (3) is a part is certainly with availability for deportation. Clause (1) requires the alien's periodic appearance for the purpose of identification, and clause (2) dealing with medical and psychiatric examination, when necessary, clearly is directed to the same end; and the 'reasonable written restrictions on (the alien's) conduct or activities' authorized by clause (4) have an implied scope to be gathered from the subject matter, i.e., the object of the statute as a whole. Moreover, this limitation of 'reasonableness' imposed by clause (4) upon the Attorney General's power to restrict suggests that, if we are to harmonize the various provisions of the section, the same limitation must also be read into the Attorney General's seemingly limitless power to question under clause (3). For, assuredly, Congress did not authorize that official to elicit information that could not serve as a basis for confining an alien's activities. Nowhere in § 242(d) is there any suggestion of a power of broad supervision like unto that over a probationer. When Congress did want to deal with the far-flung interest of national security or the general undesirable conduct of aliens, it gave clear indication of this purpose, as in § 242(e). In providing for the release of aliens convicted of wilful failure to depart, that subsection specifically requires courts to inquire into both the effect of the alien's release upon national security and the likelihood of his continued undesirable conduct. 8 The legislative history likewise counsels confinement of the mere words to the general purpose of the legislative scheme of which clause (d) is a part, namely, the actual deportation of certain undesirable classes of aliens. Section 242(d), as it was reported by the House Judiciary Committee and passed by the House in 1949, was in its present state in all but one significant respect. It provided for indefinite detention of any alien who wilfully failed to comply with the regulations, to appear, to give information or to submit to medical examination, or who knowingly gave false information or violated a reasonable restriction upon his activity. H.R.Rep. No. 1192, 81st Cong., 1st Sess., pp. 2—3. The report of the House Committee, although in several places focusing only upon availability for deportation, does indicate concern over the threat to the national interest represented by undesirable but undeportable aliens. The Senate Judiciary Committee, while sharing the desire of the House to control the activities of such aliens, substituted for the House bill's detention provision the imposition of criminal penalties for failure to comply with the conditions of supervision. The report of the Senate Committee significantly states the reason for the change: 'This provision in the bill as it passed the House of Representatives appears to present a constitutional question.' S.Rep. No. 2239, 81st Cong., 2d Sess., p. 8. This history, although suggesting a desire to exercise continuing control over the activities as well as the availability of aliens whose deportation had been ordered but not effected shows a strong congressional unwillingness to enact legislation that may subject the Attorney General's supervisory powers to constitutional challenge. 9 Acceptance of the interpretation of § 242(d) urged by the Government would raise doubts as to the statute's validity. By construing the Act to confer power on the Attorney General and his agents to inquire into matters that go beyond assuring an alien's availability for deportation we would, at the very least, open up the question of the extent to which an administrative officer may inhibit deportable aliens from renewing activities that subjected them to deportation. See 70 Harv.L.Rev. 718. This is not Carlson v. Landon, supra, where the question was whether an alien could be detained during the customarily brief period pending determination of deportability. Contrariwise, and as the Senate and House Committees recognized in passing on § 242(d), supervision of the undeportable alien may be a lifetime problem. In these circumstances, issues touching liberties that the Constitution safeguards, even for an alien 'person,' would fairly be raised on the Government's view of the statute. 10 The path of constitutional concern in this situation is clear. 11 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598. 12 See also cases cited in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, note 8, 56 S.Ct. 466, 483, 80 L.Ed. 688. 13 Section 242(d) is part of a legislative scheme designed to govern and to expedite the deportation of undesirable aliens, and clause (3) must be placed in the context of that scheme. As the District Court held and as our own examination of the Act confirms, it is a permissible and therefore an appropriate construction to limit the statute to authorizing all questions reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue. Accordingly, the judgment of the District Court is affirmed. 14 Affirmed. 15 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 16 Mr. Justice CLARK, with whom Mr. Justice BURTON joins, dissenting. 17 The Congress has authorized the Attorney General to retain an alien in custody during the pendency of deportation proceedings. 66 Stat. 208, 8 U.S.C. § 1252(a), 8 U.S.C.A., § 1252(a). This Court approved such custody in Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547. The Congress has also authorized the Attorney General to retain an alien in custody for six months subsequent to a final order of deportation within which to 'effect the alien's departure.' 66 Stat. 210, 8 U.S.C. § 1252(c), 8 U.S.C.A. § 1252(c). The section here in question further declares that an alien under a final order of deportation for over six months 'shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General.' 64 Stat. 1011, as amended, 8 U.S.C. (Supp. IV) § 1252(d), 8 U.S.C.A. § 1252(d). The Attorney General has implemented this provision by a regulation requiring the alien, inter alia, to 'Give information under oath as to his nationality, circumstances, habits, associations and activities, and other information whether or not related to the foregoing as may be deemed fit and proper.' 8 CFR § 242.3(c)(3). This language was taken from subsection (3) of 8 U.S.C. § 1252(d), 8 U.S.C.A. § 1252(d), the source of the Attorney General's power of supervision. But today the Court has denied the Attorney General the right to question the deportee in regard to activities in conjunction with the deportee's prior conduct on which the deportation order was based. By its interpretation the Court has deleted the crux of this subsection from the Act and limited this phase of the Attorney General's 'supervision' of aliens under final deportation order for over six months solely to interrogation relevant to the availability of the alien for deportation. In this respect the construction places an alien who has been under a final order of deportation for more than six months in a more favorable position than one who is under no order at all. Other aliens are obliged to report to the Attorney General when called upon to do so. Indeed, they must testify or claim their privilege. No privilege was claimed here. The Congress could not have intended the anomalous result reached today, one which is entirely foreign to its over-all plan of control over resident aliens. For the power of the Attorney General over aliens generally see 66 Stat. 223—225, 8 U.S.C. §§ 1301—1306, 8 U.S.C.A. §§ 1301—1306. 18 The majority reasons that the entire subsection of which clause (3) is a part is preoccupied with an alien's availability for deportation. We believe, however, that 'the danger to the public safety of (the alien's) presence within the community,' United States ex rel. Potash v. District Director of Immigration and Naturalization, 2 Cir., 1948, 169 F.2d 747, 751, was the basis on which the Congress placed this power with the Attorney General. In short, 'the alien's anticipated personal conduct * * * (based on his past action) must be considered.' See the dissenting opinion in Carlson v. Landon, supra, 342 U.S. at pages 563—564, 72 S.Ct. at pages 545—546. And so here, highly relevant to the decision regarding any additional supervision that is to be placed over appellee, or the removal of any prior supervision, is information as to whether he has resumed his past activities in the Communist Party. Yet the Court does not allow inquiry into this and related areas unless it is necessary to determine appellee's availability for deportation. The Attorney General is thereby deprived of this information vital to the exercise of his supervisory duties. 19 The statute was motivated by national security problems with which the Congress felt impelled to deal. In § 1252(d) Congress was not concerned with 'actual deportation,' but with that class of deportees who could not be deported because no country would permit them entrance. It believed that an alien finally ordered deported but who could no longer be held in custody pending eventual effectuation of the order should be under the supervision of the Attorney General. All aliens, regardless of their status, are under some supervision and must answer inquires in respect to: (1) the date and place of their entry into the United States; (2) the activities in which they have been and intend to be engaged; (3) the length of time they expect to remain in the United States; (4) their police or criminal record, if any; and (5) such additional matters as may be prescribed. 66 Stat. 224, 8 U.S.C. § 1304(a), 8 U.S.C.A. § 1304(a). In addition, all aliens must register1 and be fingerprinted, 66 Stat. 224, 8 U.S.C. § 1302, 8 U.S.C.A. § 1302; they must notify the Attorney General of their address annually and any change must be filed within 10 days thereof, 66 Stat. 225, 8 U.S.C. § 1305, 8 U.S.C.A. § 1305. Criminal penalties are imposed for willful failure to comply with any of these registration provisions, 66 Stat. 225, 8 U.S.C. § 1306, 8 U.S.C.A. § 1306. Congress thought that deportees should have closer supervision than other aliens. As the Court indicated in Carlson v. Landon, supra, 342 U.S. at page 538, 72 S.Ct. at page 533, 'aliens arrested for deportation would have opportunities to hurt the United States * * *.' Deportees have a stronger motivation for carrying on subversive activities than other persons and are more likely to adopt old habits, return to old haunts, and resume old activities. Since 1939 Congress had been considering the tightening of controls over such aliens. Even then a bill introduced in Congress referred to 'the likelihood of the alien's resuming the course of conduct which made him deportable.' H.R. 5643, 76th Cong., 1st Sess.; 84 Cong.Rec. 5179. In the Eighty-first Congress a House Committee declared in comment on its bill which contained a provision similar to that here involved, 'The situation has now become so serious * * * that the committee feels that the enactment of legislation of this type is a necessity, not only to the proper administration of the immigration laws, but from the standpoint of the national security of the United States.' H.R.Rep. No. 1192, 81st Cong., 1st Sess. 8. Before the presidential veto of the proposed Internal Security Act of 1950, H.R. 9490, 81st Cong., 2d Sess., of which this provision was a part, but to which the President expressed no opposition on constitutional grounds,2 a substitute bill had been offered in the Senate.3 This proposal contained the identical language which this Court now reads out of the Act, i.e., requiring the alien to give 'information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper.' While this substitute bill was not enacted, the same language was included within the present Act, showing that the section here involved has long been acceptable to all sides. In view of the legislative history of the forerunners of the present provision it is surprising that the Court now reads out of the Act the identical language which has repeatedly been included by the Congress. In so doing the Court deprives the Attorney General of a power of supervision over deportees that he possesses and exercises every day over other aliens not under deportation orders. 20 The Court takes the position that any construction other than that today adopted 'would, at the very least, open up the question of the extent to which an administrative officer may inhibit deportable aliens from renewing activities that subjected them to deportation.' But no such question is involved here. As the trial judge puts the issue, it is whether the Congress may constitutionally give the Attorney General 'the unlimited right to subject a man to criminal penalties for failure to answer absolutely and question * * *.' 140 F.Supp., at page 821. There is nothing in the record to indicate that the Attorney General attempted further to 'inhibit' the appellee 'from renewing activities that subjected (him) to deportation.' It may be that the Attorney General would have tried further to 'inhibit' appellee if the answers put to him had indicated any necessity therefor in the interest of national security. But that stage was never reached. All the Attorney General undertook was to question appellee. He got no answers. And the Court, in affirming, prevents the Attorney General from obtaining any answers to the questions. It is for this reason that we dissent. The scope of the Attorney General's right to inquiry is the sole issue here. The Congress beyond any question gave the Attorney General the authority he exercised. Whether it placed further authority in his hands to 'inhibit' the alien's activities is not involved. We, therefore, see no necessity of invoking the rule of avoidance of constitutional questions. There are none to avoid for the Attorney General clearly has the right to question as to activities indicated by past conduct. It will be soon enough to pass on other supervisory powers when they are here. 21 However, since the majority has enlarged the issue to include the power to restrict the alien's activities we feel it necessary to comment thereon. We believe that the purpose of the Act was to prevent a deportable alien from using the period of his further residence for the continuation of subversive, criminal, immoral, or other undesirable activities which formed the basis of his ordered deportation. This is a part of the 'congressional plan' with reference to control of subversive activities within the United States. Commonwealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 503—504, 76 S.Ct. 477, 480—481, 100 L.Ed. 640. Several thousand alien Communists who have been finally ordered deported will from now on, due to the Court's decision today, be under virtually no statutory supervision. Still they will, in all probability, remain among us for neither they nor the countries of which they are nationals wish them to leave. To their countries they are potential agents. The House Committee on the Judiciary recognized this danger in its report on facilitating the deportation of aliens. H.R.Rep. No. 1192, 81st Cong., 1st Sess. 8—13. Case histories set out in this report indicate that aliens ordered deported were refused visas by their native countries so that they might remain in the United States and carry on the very activities for which they were ordered deported. See also Hearings before the Senate Subcommittee on Immigration and Naturalization of the Committee on the Judiciary on S.1832, 81st Cong., 1st Sess. 323. Were the deportee to cease the activity, no doubt his native land would issue the requisite visa and deal with him when he was returned. 22 In our view the power of the Congress with respect to aliens is exceedingly broad. Nothing points this out more forcibly than our own cases. Congress may expel any noncitizen it may determine is undesirable. The power given here is merely supplemental to that of explusion and is a necessary concomitant thereof under the circumstances here presented. It gives to the Attorney General supervision of alien deportees whose past record discloses activities dangerous to our people. The appellee does not contest the charge as to his past activities. As we see it, the Congress has merely provided limited supervision which might prevent the alien from resuming the activity which brought on his ordered deportation. It may turn out that further limited supervisory precautions need not be exercised over appellee. However, we are in no position to know. The Attorney General himself does not know because he was prevented from requiring the alien to give him the information. It is vital to effective supervision by the Attorney General for him to have the information he sought here. We believe that the counterbalancing necessity of preventing further detrimental conduct, or at least providing the authorities charged with the internal security of our country with some warning signal of it, substantially outweighs 'issues touching liberties' which might be raised by the interrogation. Like 'the police establishment of fire lines during a fire * * * the validity of the restraints * * * depends on all the conditions which obtain at the time * * *.' Hirabayashi v. United States, 1943, 320 U.S. 81, 99, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774. 23 To us jailing alien deportees on the basis of our safety pending deportation proceedings as well as for six months thereafter, admittedly valid, is largely futile if the Attorney General cannot subsequently supervise them effectively. Certainly the Congress intended no such stultification. 24 We regret that the Court has used the rule of avoidance of constitutional issues to strip the Attorney General of this important power so necessary in the performance of his duty to protect our internal security. * '(a) Q. Do you subscribe to the Daily Worker? '(b) Q. Mr. Witkovich, can you read in any other language other than Solvene and English? '(c) Q. Since the order of supervision was entered on March 4, 1954, have you at any time visited the office of the 'Narodny Glasnik,' 1413 West 18 th Street, Chicago, Illinois? '(d) Q. Since the order of supervision was entered on March 4, 1954, Mr. Witkovich, have you ever visited the offices of the Bohemian publication 'Nova Dova' or the Slovakian publication 'Ludovy Noviny,' 1510 West 18th Street, Chicago, Illinois? '(e) Q. Do you know the editor of the 'Narodni Glasnik'? '(f) Q. Do you know Leo Fisher? '(g) Q. Do you know Anton Minerich? '(h) Q. Do you know Nick Rajkovich? '(i) Q. Do you know Arsenio Bartl? '(j) Q. Do you know John Zuskar? '(k) Q. Do you know Calvin Brook? '(l) Q. Since the order of deportation was entered in your case on June 25, 1953 have you attended any meeting of the Communist Party of the U.S.A.? '(m) Q. Since the order of supervision was entered on March 4, 1954 have you attended any meeting of any organization other than the singing club? '(n) Q. Have you addressed any lodges of the Slovene National Benefit Society requesting their aid in your case, since the order of deportation was entered June 25, 1953? '(o) Q. Have you distributed petitions or leaflets published by the Slovene National Benefit Society seeking aid for you, in your behalf, in your deportation case since the order of deportation was entered June 25, 1953? '(p) Q. Since the order of supervision have you attended any meetings or lectures at the Peoples Auditorium, 2457 West Chicago Avenue, Chicago, Illinois? '(q) Q. Since the order of supervision was entered against you have you attended any meetings or socials at the Chopin Cultural Center, 1547 North Leavitt Street, Chicago? '(r) Q. Have you attended any movies since your order of supervision was entered at the Cinema Annex, 3210 West Madison Street, Chicago? '(s) Q. Are you acquainted with an individual named Irving Franklin? '(t) Q. Are you now a member of the Communist Party of U.S.A.? '(u) Q. Are you now or have you ever been a member of the Slovene American National Council? '(v) Q. Are you now or have you ever been a member of the United Committee of South Slavic Americans?' 1 The alien registration form includes a long series of questions requiring answer under oath by the alien. It covers virtually every type of question involved here, except those directed at whether the appellee knew a specific person. One of the questions requires disclosure of the alien's participation in clubs, organizations, or societies; another is directed at any criminal convictions of the alien either in or outside of the United States; still another inquires as to the alien's affiliation or activity in organizations influencing or furthering in any way the political activities, public relations, or public policy of a foreign government. 2 The President in his message to the Congress explaining his veto of the Internal Security Act of 1950 stated that he would 'be glad to approve' § 23, the forerunner of the section here involved, 'although the language of (§ 23) is in some respects weaker than is desirable.' H.R.Doc. No. 708, 81st Cong., 2d Sess. 3. 3 S. 4130, 81st Cong., 2d Sess. This substitute was proposed by Senators Benton, Douglas, Graham, Humphrey, Kefauver, Lehman, and the Chairman of the Senate Judiciary Committee, Senator Kilgore. For a discussion of the effect of the bill on the problem here presented see the remarks of Senator Humphrey at 96 Cong.Rec. 14486.

12

353 U.S. 313 77 S.Ct. 799 1 L.Ed.2d 846 OFFICE EMPLOYES INTERNATIONAL UNION, LOCAL NO. 11, AFL-CIO, Petitioner,v.NATIONAL LABOR RELATIONS BOARD. No. 422. Argued March 28, 1957. Decided May 6, 1957. Rehearing Denied June 17, 1957. See 354 U.S. 928, 77 S.Ct. 1375. Mr. Joseph E. Finley, Washington, D.C., for the petitioner. Mr. Dominick L. Manoli, Washington, D.C., for the respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This case concerns the attempt of the petitioner, Local 11 of the Office Employes International Union, AFL-CIO, to represent for collective bargaining purposes the office-clerical workers employed at the Teamsters Building in Portland, Oregon. These office-clerical employees were engaged by the various local unions and affiliates of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL. Local 11 filed a series of unfair labor practice complaints with respondent, National Labor Relations Board, charging in substance that the Teamster group1 had interfered with the Local's effort to organize the office-clerical workers in violation of § 8(a) of the National Labor Relations Act.2 The primary question is whether with respect to their own employees labor organizations are 'employers' within the meaning of § 2(2) of the Act.3 Since we decide this question in the affirmative a subsidiary question is posed: Whether the Board may, by the application of general standards of classification, refuse to assert any jurisdiction over labor unions as a class when they act as employers. The Board here refused to assert any jurisdiction, and the complaints were dismissed. 113 N.L.R.B. 987. The Court of Appeals affirmed, 98 U.S.App.D.C. 335, 235 F.2d 832. The importance of the jurisdictional questions involved caused us to grant certiorari in the interest of the proper administration of the Act. 352 U.S. 906, 77 S.Ct. 149, 1 L.Ed.2d 116. We believe the Board erred when it refused to take jurisdiction and thus, in effect, engrafted a blanket exemption upon the Act for all labor unions as employers. 2 We shall not deal with the merits of the unfair labor practice complaints. As to the jurisdictional question, the findings indicate that there are 23 workers employed by the various Teamster organizations at the Teamsters Building. They are paid by the Teamster group which, excluding the Security Plan Office, forms 'an integral part of a multistate enterprise.'4 The trial examiner concluded that the Teamster group came within the term 'employer' under § 2(2) of the Act. He further found that their operation was well within the monetary jurisdictional standards set by the Board in Jonesboro Grain Drying Cooperative, 1954, 110 N.L.R.B. 481. While the Board agreed with the examiner's interpretation of § 2(2) as to the term 'employer,' it held, by a divided vote,5 that since the Teamster group was composed of unions, all engaged in a nonprofit business, the criteria applied to other nonprofit employers should govern. It further concluded 'that labor organizations, which, when engaged in their primary function of advancing employee welfare, are institutions unto themselves within the framework of this country's economic scheme', should not 'be made subject to any of the standards originated for business organizations.' 113 N.L.R.B., at page 991. I. 3 With regard to the jurisdiction of the Board the wording of § 2(2) of the Act is clear and unambiguous. It says that the term 'employer' includes any labor organization 'when acting as an employer.' It follows that when a labor union takes on the role of an employer the Act applies to its operations just as it would to any other employer. The Board itself recognized this fact as early as 1951 in Air Line Pilots Association, 97 N.L.R.B. 929. There the Air Line Pilots Association was found to be an employer and the Board ordered that an election be held to determine the wishes of that union's own employees in regard to the selection of appropriate employee bargaining units and a collective bargaining representative. Section 9 of the Act6 was therefore applied to the union as an employer. 4 The legislative history of § 2(2) unequivocally supports our conclusion. The Act, before its adoption in 1935, was considered by both the 73d and 74th Congresses.7 On each occasion the bill went into committee with labor unions excluded from the definition of an employer.8 Twice the Senate Committee to which it was referred amended it to include within the category of an employer labor unions when dealing with their own employees. The Committee inserted the words 'other than when acting as an employer' after the exclusion of labor organizations from the definition of an employer. The Senate Committee on Education and Labor to which the bill was referred stated in explanation of this alteration: 5 'The reason for stating that 'employer' excludes 'any labor organization, other than when acting as an employer' is this: In one sense every labor organization is an employer, it hires clerks, secretaries, and the like. In its relations with its own employees, a labor organization ought to be treated as an employer, and the bill so provides.' (Emphasis added.) S.Rep. No. 1184, 73d Cong., 2d Sess. 4. 6 The bill which became the Act in 1935, S.1958, 74th Cong., 1st Sess., contained the identical language set forth in italics in the above Senate Report. It is inescapable that the Board has jurisdiction. II. 7 The question remains whether the Board may, nevertheless, refuse to assert jurisdiction over labor unions, as a class, when acting as employers. The Board in the face of the clear expression of the Congress to the contrary has exempted labor unions when acting as employers from the provisions of the Act. We believe that such an arbitrary blanket exclusion of union employers as a class is beyond the power of the Board. While it is true that 'the Board sometimes properly declines to (assert jurisdiction) stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case' (emphasis supplied), National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 1951, 341 U.S. 675, 684, 71 S.Ct. 943, 949, 95 L.Ed. 1284, here the Board renounces jurisdiction over an entire category of employers, i.e., labor unions, a most important segment of American industrial life. It reasons that labor unions are nonprofit organizations. But until this case the Board has never recognized such a blanket rule of exclusion over all nonprofit employers. It has declined jurisdiction on an ad hoc basis over religious, educational, and eleemosynary employers such as a university library, a symphony orchestra, a research laboratory, and a church radio station.9 When the Act was amended in 1947 the Congress was aware of the Board's general practice of excluding nonprofit organizations from the coverage of the Act when these organizations were engaged in non-commercial activities.10 The House of Representatives attempted to give these exclusions specific legislative approval.11 However, the Senate draft of the bill excluded only hospital employers from the Act's coverage. The Senate version became a part of the Act and the language is the same as that involved here. The joint committee report on which the final enactment was based recited that the activities of nonprofit employers or their employees had been considered as coming within the Act only 'in exceptional circumstances and in connection with purely commercial activities.'12 To place labor unions in this category is entirely unrealistic for the very nature of the excluded nonprofit employers is inherently different from that of labor unions and the reason for such exclusion has no applicability to union activity such as that found here. This is particularly true when we consider the pointed language of the Congress—repeated in Taft-Hartley in 1947—that unions shall not be excluded when acting as employers. As the dissenting judge in the Court of Appeals points out, '§ 2(2)'s strikingly particular reference to labor unions sharply differentiates them from nonprofit organizations generally * * *.' 98 U.S.App.D.C., at page 337, 235 F.2d, at page 834. We do not, therefore, believe that it was within the Board's discretion to remove unions as employers from the coverage of the Act after Congress had specifically included them therein. 8 It is true that the dollar volume jurisdictional standards adopted by the Board to govern its jurisdiction, Hollow Tree Lumber Co., 1950, 91 N.L.R.B. 635, exclude small employers whose business does not sufficiently affect commerce.13 But its exercise of discretion in the local field does not give the Board the power to decline jurisdiction over all employers in other fields. To do so would but grant to the Board the congressional power of repeal. See also Guss v. Utah Labor Relations Board, 1957, 353 U.S. 1, 4, 77 S.Ct. 598, 599, 609, where the Court refused to pass 'upon the validity of any particular declination of jurisdiction by the Board or any set of jurisdictional standards.' 9 We therefore conclude that the Board's declination of jurisdiction was contrary to the intent of Congress, was arbitrary, and was beyond its power. The judgment is therefore reversed and the case is remanded to the Court of Appeals for remand to the Board for further proceedings in accordance with this opinion. It is so ordered. 10 Judgment reversed and case remanded. 11 Mr. Justice BRENNAN, with whom Mr. Justice FRANKFURTER, Mr. Justice BURTON and Mr. Justice HARLAN join, concurring in part and dissenting in part. 12 I agree that labor organizations are 'employers' under § 2(2) of the Act with respect to their own employees. I dissent, however, from the Court's holding that the Board is without power to decline to assert jurisdiction over labor unions as a class. I am of the view that the Board has discretionary authority to decline to do so when the Board determines, for proper reasons, that the policies of the Act would not be effectuated by its assertion of jurisdiction. Cf. National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 684, 71 S.Ct. 943, 949; Hotel Association of St. Louis, 92 N.L.R.B. 1388, affirmed, Hotel Employees Local No. 255, etc. v. Leedom, D.C., 147 F.Supp. 306; Checker Cab Co., 110 N.L.R.B. 683. However, the declination to assert jurisdiction was rested upon the same grounds relied upon by the Board in declining jurisdiction over nonprofit organizations. These grounds, in my view, are not proper reasons for declining to assert jurisdiction over labor organizations. I would, therefore, remand the case to the Court of Appeals for remand to the Board for reconsideration. 1 The complaints were leveled at the International Brotherhood of Teamsters and its representative, Teamster Local No. 206, Teamster Local No. 223, the Teamsters' Joint Council of Drivers No. 37, the Oregon Teamsters' Security Plan Office and its administrator, and the Teamsters Building Association, Inc. The latter owns and operates an office building in Portland, Oregon. The office-clerical employees petitioner attempted to organize perform services for the various teamster organizations here involved. These organizations are the exclusive tenants of the building. 2 61 Stat. 140, 29 U.S.C. § 158(a), 29 U.S.C.A. § 158(a). 3 61 Stat. 137, 29 U.S.C. § 152(2), 29 U.S.C.A. § 152(2), provides in pertinent part: 'Sec. 2. When used in this Act— '(2) The term 'employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.' (Emphasis supplied.) 4 The annual payment of initiation fees and taxes from members of the Teamsters Union throughout the country to the International's headquarters in Washington, D.C., amounts to more than $6,000,000. The minimum monetary jurisdictional requirement for a multistate enterprise such as the Teamsters, promulgated by the Board in Jonesboro Grain Drying Corp., 1954, 110 N.L.R.B. 481 is $250,000. The Security Plan Office administers 18 trust funds and receives contributions provided for by collective bargaining agreements with some 2,000 employers located in four western States. Some of the funds are invested in health and welfare insurance policies on which over $2,000,000 per annum in premiums is paid to a California insurance carrier. The minimum 'direct outflow' requirement established for jurisdictional purposes in Jonesboro, supra, is $50,000. The California insurance carrier remits 4% of the premiums to the Security Plan Office to defray the expense of maintaining an office and processing and paying claims under the health and welfare plan. The Security Plan Office employed and paid at various times from five to ten of the personnel at the Teamsters Building. The Teamsters Building Association, Inc., is, as are the other Teamsters, a nonprofit corporation. Its stock is held by six Teamster locals including Local 206, one of the defendants charged with unfair labor practices in the complaint before the Board. The Association's sole function is the ownership and maintenance of the office building in Portland which is occupied by the various Teamster organizations. 5 We treat the opinion of the Board, as did the Court of Appeals, as being that of members Farmer and Peterson. While Mr. Murdock's concurrence was on the 'more limited grounds' that Congress never intended labor unions to be employers with respect to their own employees when engaged in union activities, he concurred in the dismissal by Messrs. Farmer and Peterson. The other two members dissented. 6 61 Stat. 143, 29 U.S.C. § 159, 29 U.S.C.A. § 159. 7 S. 2926, 73d Cong., 2d Sess.; S. 1958, 74th Cong., 1st Sess. 8 '(2) The term 'employer' * * * shall not include * * * any labor organization * * *.' S. 2926, 73d Cong., 2d Sess. 3. This bill, while receiving committee approval as altered, was not enacted. When Senator Wagner resubmitted the bill the next year he did so in its original form. 9 Trustees of Columbia University, 1951, 97 N.L.R.B. 424 (library); Philadelphia Orchestra Association, 1951, 97 N.L.R.B. 548 (orchestra); Armour Research Foundation, 1954, 107 N.L.R.B. 1052 (laboratory); and Lutheran Church, Missouri Synod, 1954, 109 N.L.R.B. 859 (radio station). 10 H.R.Rep. No. 510, 80th Cong., 1st Sess. 32. 11 H.R. 3020, 80th Cong., 1st Sess. 4. The exclusions would have included 'any corporation, community chest, fund, or foundation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals.' 12 See note 10, supra. 13 See also Hotel Association of St. Louis, 1951, 92 N.L.R.B. 1388 where the Board declined jurisdiction over hotel employers. The Board's refusal was based on the local character of the hotel business. The District Court for the District of Columbia has held that such refusal is not arbitrary in Hotel Employees Local No. 255 v. Leedom, D.C.1957, 147 F.Supp. 306. In Checker Cab Co., 1954, 110 N.L.R.B. 683, the Board declined jurisdiction of an action involving a purely local employer operating two taxicab companies in Baton Rouge, Louisiana. See also Yellow Cab Company of California, 1950, 90 N.L.R.B. 1884; Skyview Transportation Co., 1950, 90 N.L.R.B. 1895; and Brooklyn Cab Corp., 1950, 90 N.L.R.B. 1898. In these cases the declination of jurisdiction was based on the local character of the operations. We indicate neither approval nor disapproval of these jurisdictional declinations.

67

353 U.S. 232 77 S.Ct. 752 1 L.Ed.2d 796 Rudolph SCHWARE, Petitioner,v.BOARD OF BAR EXAMINERS OF THE STATE OF NEW MEXICO. No. 92. Argued Jan. 14, 15, 1957. Decided May 6, 1957. Mr. Herbert Monte Levy, New York City, for the petitioner. Mr. William A. Sloan, Albuquerque, N.M., for the respondent. Mr. Fred M. Standley, Clovis, N.M., for the respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The question presented is whether petitioner, Rudolph Schware, has been denied a license to practice law in New Mexico in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 2 New Mexico has a system for the licensing of persons to practice law similar to that in effect in most States.1 A Board of Bar Examiners determines if candidates for admission to the bar have the necessary qualifications. When the Board concludes that an applicant qualifies it recommends to the State Supreme Court that he be admitted. If the court accepts the recommendation, the applicant is entitled to practice law upon taking an oath to support the constitutions and laws of the United States and New Mexico. An applicant must pass a bar examination before the Board will give him its recommendation. The Board can refuse to permit him to take this examination unless he demonstrates that he has 'good moral character.' 3 In December 1953, on the eve of his graduation from the University of New Mexico School of Law, Schware filed an application with the Board of Bar Examiners requesting that he be permitted to take the bar examination scheduled for February 1954. His application was submitted on a form prescribed by the Board that required answers to a large number of questions. From the record, it appears that he answered these questions in detail. Among other things, he disclosed that he had used certain aliases between 1933 and 1937 and that he had been arrested on several occasions prior to 1940. When he appeared to take the examination, the Board informed him that he could not do so. He later requested a formal hearing on the denial of his application. The Board granted his request. At the hearing the Board told him for the first time why it had refused to permit him to take the bar examination. It gave him a copy of the minutes of the meeting at which it had voted to deny his application. These minutes read: 4 'No. 1309, Randolph Schware. It is moved by Board Member Frank Andrews that the application of Rudolph Schware to take the bar examination be denied for the reason that, taking into consideration the use of aliases by the applicant, his former connection with subversive organizations, and his record of arrests, he has failed to satisfy the Board as to the requisite moral character for admission to the Bar of New Mexico. Whereupon said motion is duly seconded by Board Member Ross L. Malone, and unanimously passed.'2 5 At the hearing petitioner called his wife, the rabbi of his synagogue, a local attorney and the secretary to the dean of the law school to testify about his character.3 He took the stand himself and was thoroughly examined under oath by the Board. His counsel introduced a series of letters that petitioner had written his wife from 1944 through 1946 while he was on duty in the Army. Letters were also introduced from every member of petitioner's law school graduating class except one who did not comment. And all of his law school professors who were then available wrote in regard to his moral character. The Board called no witnesses and introduced no evidence. 6 The record of the formal hearing shows the following facts relevant to Schware's moral character. He was born in a poor section of New York City in 1914 and grew up in a neighborhood inhabited primarily by recent immigrants. His father was an immigrant and like many of his neighbors had a difficult time providing for his family. Schware took a job when he was nine years old and throughout the remainder of school worked to help provide necessary income for his family. After 1929, the economic condition of the Schware family and their neighbors, as well as millions of others, was greatly worsened. Schware was then at a formative stage in high school. He was interested in and enthusiastic for socialism and trade-unionism as was his father. In 1932, despairing at what he considered lack of vigor in the socialist movement at a time when the country was in the depths of the great depression, he joined the Young Communist League.4 At this time he was 18 years old and in the final year of high school. 7 From the time he left school until 1940 Schware, like many others, was periodically unemployed. He worked at a great variety of temporary and ill-paying jobs. In 1933, he found work in a glove factory and there he participated in a successful effort to unionize the employees. Since these workers were principally Italian, Schware assumed the name Rudolph Di Caprio to forestall the effects of anti-Jewish prejudice against him, not only in securing and retaining a job but in assisting in the organization of his fellow employees. In 1934 he went to California where he secured work on the docks. He testified that he continued to use the name Rudolph Di Caprio because Jews were discriminated against in employment for this work. Wherever Schware was employed he was an active advocate of labor organization. In 1934 he took part in the great maritime strikes on the west coast which were bitterly fought on both sides. While on strike in San Pedro, California, he was arrested twice on 'suspicion of criminal syndicalism.' He was never formally charged nor tried and was released in each instance after being held for a brief period. He testified that the San Pedro police, in a series of mass arrests jailed large numbers of the strikers. 8 At the time of his father's death in 1937 Schware left the Communist Party but later he rejoined. In 1940 he was arrested and indicted for violating the Neutrality Act of 1917. He was charged with attempting to induce men to volunteer for duty on the side of the Loyalist Government in the Spanish Civil War. Before his case came to trial the charges were dismissed and he was released. Later in 1940 he quit the Communist Party. The Nazi-Soviet Non-Aggression Pact of 1939 had greatly disillusioned him and this disillusionment was made complete as he came to believe that certain leaders in the Party were acting to advance their own selfish interests rather than the interests of the working class which they purported to represent. 9 In 1944 Schware entered the armed forces of the United States. While in the service he volunteered for duty as a paratrooper and was sent to New Guinea. While serving in the Army here and abroad he wrote a number of letters to his wife. These letters show a desire to serve his country and demonstrate faith in a free democratic society. They reveal serious thoughts about religion which later led him and his wife to associate themselves with a synagogue when he returned to civilian life. He was honorably discharged from the Army in 1946. 10 After finishing college, he entered the University of New Mexico law school in 1950. At the beginning he went to the dean and told him of his past activities and his association with the Communist Party during the depression and asked for advice. The dean told him to remain in school and put behind him what had happened years before. While studying law Schware operated a business in order to support his wife and two children and to pay the expenses of a professional education. During his three years at the law school his conduct was exemplary. 11 At the conclusion of the hearing the Board reaffirmed its decision denying Schware the right to take the bar examination. He appealed to the New Mexico Supreme Court. That court upheld the denial with one justice dissenting. 60 N.M. 304, 291 P.2d 607, 630. In denying a motion for rehearing the court stated that: 12 '(Schware's membership in the Communist Party), together with his other former actions in the use of aliases and record of arrests, and his present attitude toward those matters, were the considerations upon which (we approved the denial of his application).' 13 Schware then petitioned this Court to review his case alleging that he had been denied an opportunity to qualify for the practice of law contrary to the Due Process Clause of the Fourteenth Amendment. We granted certiorari. 352 U.S. 821, 77 S.Ct. 34, 1 L.Ed.2d 46. Cf. In re Summers, 325 U.S. 561, 562, 564 569, 65 S.Ct. 1307, 1308, 1309, 1312, 89 L.Ed. 1795. And see Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722. 14 A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.5 Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. And see Ex parte Secombe, 19 How. 9, 13, 15 L.Ed. 565. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Cummings v. State of Missouri, 4 Wall. 277, 319—320, 18 L.Ed. 356. Cf. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. 15 Here the State concedes that Schware is fully qualified to take the examination in all respects other than good moral character. Therefore the question is whether the Supreme Court of New Mexico on the record before us could reasonably find that he had not shown good moral character. 16 There is nothing in the record which suggests that Schware has engaged in any conduct during the past 15 years which reflects adversely on his character. The New Mexico Supreme Court recognized that he 'presently enjoys good repute among his teachers, his fellow students and associates and in his synagogue.' Schware's professors, his fellow students, his business associates and the rabbi of the synagogue of which he and his family are members, all gave testimony that he is a good man, a man who is imbued with a sense of deep responsibility for his family, who is trustworthy, who respects the rights and beliefs of others. From the record it appears he is a man of religious conviction and is training his children in the beliefs and practices of his faith. A solicitude for others is demonstrated by the fact that he regularly read the Bible to an illiterate soldier while in the Army and law to a blind student while at the University of New Mexico law school. His industry is depicted by the fact that he supported his wife and two children and paid for a costly professional education by operating a business separately while studying law. He demonstrated candor by informing the Board of his personal history and by going to the dean of the law school and disclosing his past. The undisputed evidence in the record shows Schware to be a man of high ideals with a deep sense of social justice. Not a single witness testified that he was not a man of good character. 17 Despite Schware's showing of good character, the Board and court below thought there were certain facts in the record which raised substantial doubts about his moral fitness to practice law. 18 (1) Aliases.—From 1934 to 1937 Schware used certain aliases. He testified that these aliases were adopted so he could secure a job in businesses which discriminated against Jews in their employment practices and so that he could more effectively organize non-Jewish employees at plants where he worked. Of course it is wrong to use an alias when it is done to cheat or defraud another but it can hardly be said that Schware's attempt to forestall anti-semitism in securing employment or organizing his fellow workers was wrong. He did give an assumed name to police in 1934 when he was picked up in a mass arrest during a labor dispute. He said he did this so he would not be fired as a striker. This is certainly not enough evidence to support an inference that petitioner has bad moral character more than 20 years later. 19 (2) Arrests.—In response to the questions on the Board's application form Schware stated that he had been arrested on several occasions: 20 1. In 1934, while he was participating in a bitter labor dispute in the California shipyards, petitioner was arrested at least two times on 'suspicion of criminal syndicalism.' After being held for a brief period he was released without formal charges being filed against him. He was never indicted nor convicted for any offense in connection with these arrests. 21 The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct.6 An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated. Moreover here, the special facts surrounding the 1934 arrests are relevant in shedding light on their present significance. Apparently great numbers of strikers were picked up by police in a series of arrests during the strike at San Pedro and many of these were charged with 'criminal syndicalism.'7 The California syndicalism statutes in effect in 1934 were very broad and vague.8 There is nothing in the record which indicates why Schware was arrested on 'suspicion' that he had violated this statute. There is no suggestion that he was using force or violence in an attempt to overthrow the state or national government. Again it should be emphasized that these arrests were made more than 20 years ago and petitioner was never formally charged nor tried for any offense related to them. 22 2. In 1940 Schware was arrested for violating the Neutrality Act of 1917 which makes it unlawful for a person within the United States to join or to hire or retain another to join the army of any foreign state.9 He was indicted but before the case came to trial the prosecution dropped the charges. He had been charged with recruiting persons to go overseas to aid the Loyalists in the Spanish Civil War. Schware testified that he was unaware of this old law at the time. From the facts in the record it is not clear that he was guilty of its violation.10 But even if it be assumed that the law was violated, it does not seem that such an offense indicated moral turpitude—even in 1940. Many persons in this country actively supported the Spanish Loyalist Government. During the prelude to World War II many idealistic young men volunteered to help causes they believed right. It is commonly known that a number of Americans joined air squadrons and helped defend China and Great Britain prior to this country's entry into the war. There is no record that any of these volunteers were prosecuted under the Neutrality Act. Few Americans would have regarded their conduct as evidence of moral turpitude. In determining whether a person's character is good the nature of the offense which he has committed must be taken into account.11 23 In summary, these arrests are wholly insufficient to support a finding that Schware had bad moral character at the time he applied to take the bar examination.12 They all occurred many years ago and in no case was he ever tried or convicted for the offense for which he was arrested. 24 (3) Membership in the Communist Party.—Schware admitted that he was a member of the Communist Party from 1932 to 1940. Apparently the Supreme Court of New Mexico placed heavy emphasis on this part membership in denying his application.13 It stated: 25 'We believe one who has knowingly given his loyalties to (the Communist Party) for six to seven years during a period of responsible adulthood is a person of questionable character.' (60 N.M. 319, 291 P.2d 617.) 26 The court assumed that in the 1930's when petitioner was a member of the Communist Party, it was dominated by a foreign power and was dedicated to the violent overthrow of the Government and that every member was aware of this. It based this assumption primarily on a view of the nature and purposes of the Communist Party as of 1950 expressed in a concurring opinion in American Communications Ass'n v. Douds, 339 U.S. 382, 422, 70 S.Ct. 674, 695, 94 L.Ed. 925. However that view did not purport to be a factual finding in that case and obviously it cannot be used as a substitute for evidence in this case to show that petitioner participated in any illegal activity or did anything morally reprehensible as a member of that Party. During the period when Schware was a member, the Communist Party was a lawful political party with candidates on the ballot in most States.14 There is nothing in the record that gives any indication that his association with that Party was anything more than a political faith in a political party. That faith may have been unorthodox. But as counsel for New Mexico said in his brief, 'Mere unorthodoxy (in the field of political and social ideas) does not as a matter of fair and logical inference, negative 'good moral character."15 27 Schware joined the Communist Party when he was a young man during the midst of this country's greatest depression. Apparently many thousands of other Americans joined him in this step.16 During the depression when millions were unemployed and our economic system was paralyzed many turned to the Communist Party out of desperation or hope. It proposed a radical solution to the grave economic crisis. Later the rise of fascism as a menace to democracy spurred others who feared this form of tyranny to align with the Communist Party.17 After 1935, that Party advocated a 'Popular Front' of 'all democratic parties against fascism.' Its platform and slogans stressed full employment, racial equality and various other political and economic changes.18 28 During the depression Schware was led to believe that drastic changes needed to be made in the existing economic system. There is nothing in the record, however, which indicates that he ever engaged in any actions to overthrow the Government of the United States or of any State by force or violence, or that he even advocated such actions. Assuming that some members of the Communist Party during the period from 1932 to 1940 had illegal aims and engaged in illegal activities, it cannot automatically be inferred that all members shared their evil purposes or participated in their illegal conduct. As this Court declared in Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216: 'Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power.' Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 136, 71 S.Ct. 624, 630, 95 L.Ed. 817.19 And finally, there is no suggestion that Schware was affiliated with the Communist Party after 1940—more than 15 years ago. We conclude that his past membership in the Communist Party does not justify an inference that he presently has bad moral character. 29 The State contends that even though the use of aliases, the arrests, and the membership in the Communist Party would not justify exclusion of petitioner from the New Mexico bar if each stood alone, when all three are combined his exclusion was not unwarranted. We cannot accept this contention. In the light of petitioner's forceful showing of good moral character, the evidence upon which the State relies—the arrests for offenses for which petitioner was neither tried nor convicted, the use of an assumed name many years ago, and membership in the Communist Party during the 1930's—cannot be said to raise substantial doubts about his present good moral character. There is no evidence in the record which rationally justifies a finding that Schware was morally unfit to practice law.20 30 On the record before us we hold that the State of New Mexico deprived petitioner of due process in denying him the opportunity to qualify for the practice of law. The judgment below is reversed and the case remanded for proceedings not inconsistent with this opinion. 31 It is so ordered. 32 Reversed and remanded with directions. 33 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 34 Mr. Justice FRANKFURTER, whom Mr. Justice CLARK and Mr. Justice HARLAN join, concurring. 35 Certainly since the time of Edward I, through all the vicissitudes of seven centuries of Anglo-American history, the legal profession has played a role all its own. The bar has not enjoyed prerogatives; it has been entrusted with anxious responsibilities. One does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to 'life, liberty and property' are in the professional keeping of lawyers. It is a fair characterization of the lawyer's responsibility in our society that he stands 'as a shield,' to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as 'moral character.' From the thirteenth century to this day, in England the profession itself has determined who should enter it. In the United States the courts exercise ultimate control. But while we have nothing comparable to the Inns of Court, with us too the profession itself, through appropriate committees, has long had a vital interest, as a sifting agency, in determining the fitness, and above all the moral fitness, of those who are certified to be entrusted with the fate of clients. With us too the requisite 'moral character' has been the historic unquestioned prerequisite of fitness. Admission to practice in a State and before its courts necessarily belongs to that State. Of course, legislation laying down general conditions of an arbitrary or discriminatory character may, like other legislation, fall afoul of the Fourteenth Amendment. See Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356. A very different question is presented when this Court is asked to review the exercise of judgment in refusing admission to the bar in an individual case, such as we have here. 36 It is beyond this Court's function to act as overseer of a particular result of the procedure established by a particular State for admission to its bar. No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant for admission, a judgment of which it may be said as it was of 'many honest and sensible judgments' in a different context that it expresses 'an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions,—impressions which may lie beneath conciousness without losing their worth.' Chicago, B. & Q.R. Co. v. Babcock, 204 U.S. 585, 598, 27 S.Ct. 326, 329, 51 L.Ed. 636. Especially in this realm it is not our business to substitute our judgment for the State's judgment—for it is the State in all the panoply of its powers that is under review when the action of its Supreme Court is under review. 37 Nor is the division of power between this Court and that of the States in such matters altered by the fact that the judgment here challenged involves the application of a conception like that of 'moral character,' which has shadowy rather than precise bounds. It cannot be that that conception—moral character—has now been found to be so indefinite, because necessarily implicating what are called subjective factors, that the States may no longer exact it from those who are to carry on 'the public profession of the law.' (See Elihu Root, in 2 A.B.A.J. 736.) To a wide and deep extent, the law depends upon the disciplined standards of the profession and belief in the integrity of the courts. We cannot fail to accord such confidence to the state process, and we must attribute to its courts the exercise of a fair and not a biased judgment in passing upon the applications of those seeking entry into the profession. 38 But judicial action, even in an individual case, may have been based on avowed considerations that are inadmissible in that they violate the requirements of due process. Refusal to allow a man to qualify himself for the profession on a wholly arbitrary standard or on a consideration that offends the dictates of reason offends the Due Process Clause. Such is the case here. 39 Living under hard circumstances, the Petitioner, while still in his teens, encountered the confusions and dislocations of the great depression. By one of those chance occurrences that not infrequently determine the action of youth, petitioner joined the Young Communist League to-ward the end of his high-school days. That association led to membership in the Communist Party, which he retained until the Hitler-Stalin Pact began a disaffection that was completed by his break with the Party in 1940. After 1940, the record of his life, including three years of honorable service in the army, establishes that these early associations, and the outlook they reflected, had been entirely left behind.1 After his war service, three years as a small businessman, and one year at Western Michigan College, petitioner resolved on becoming a lawyer. And so in 1950, at the age of 36, he enrolled in the University of New Mexico Law School and made full disclosure of his early Communist career to its Dean. These are the facts that, taken together with the use of aliases and arrests without conviction or even prosecution, both in his early years, led the Surpeme Court of New Mexico, in an original proceeding before it after adverse action by the Board of Bar Examiners, to deny petitioner's application to take the bar examination. 40 For me, the controlling element in determining whether such denial offended the Due Process Clause is the significance that the New Mexico Supreme Court accorded the early Communist affiliations. In its original opinion and in its opinion on rehearing, the court thus reiterated its legal position: 41 'We believe one who has knowingly given his loyalties to such a program and belief for six to seven years during a period of responsible adulthood is a person of questionable character.' 60 N.M. 304, 319, 339, 291 P.2d 607, 617, 630. 42 Since the New Mexico Supreme Court unequivocally held this to be a factor without which, on a fair reading of its opinion, it would not have denied the application, the conclusion that it drew from all the factors in necessary combination must fall if it drew an unwarranted legal conclusion from petitioner's early Communist affiliation. Not unnaturally the New Mexico Supreme Court evidently assumed that use of aliases in the pre-1940 period, several unprosecuted arrests, and what it deemed 'his present attitude toward those matters,' 60 N.M. at page 339, 291 P.2d at page 630 (as drawn from the printed record and not on the basis of having given the petitioner a hearing before the court) precluded denial of his application on these factors alone. 43 This brings me to the inference that the court drew from petitioner's early, pre-1940 affiliations. To hold, as the court did, that Communist affiliation for six to seven years up to 1940, fifteen years prior to the court's assessment of it, in and of itself made the petitioner 'a person of questionable character' is so dogmatic an inference as to be wholly unwarranted. History overwhelmingly establishes that many youths like the petitioner were drawn by the mirage of communism during the depression era, only to have their eyes later opened to reality. Such experiences no doubt may disclose a woolly mind or naive notions regarding the problems of society. But facts of history that we would be arbitrary in rejecting bar the presumption, let alone an irrebuttable presumption, that response to foolish, baseless hopes regarding the betterment of society made those who had entertained them but who later undoubtedly came to their senses and their sense of responsibility 'questionable characters.' Since the Supreme Court of New Mexico as a matter of law took a contrary view of such a situation in denying petitioner's application, it denied him due process of law. 44 I therefore concur in the judgment. 1 Generally, see N.M.Stat.Ann., 1953, § 18—1—8 and the Rules Governing Admission to the Bar appended thereto. 2 Apparently the Board had received confidential information that Schware had once been a member of the Communist Party. The Board's application form did not request disclosure of such information and so Schware did not mention it in his application. At the hearing he testified at length about his membership. The Board refused to let petitioner see the confidential information against him, although it appears that its initial denial of his application was partially based on this information. While this secret evidence was not made a part of the record of the hearing, counsel for petitioner contends that the Board was influenced by it in adhering to its view that petitioner was not qualified. In the New Mexico Supreme Court the members of the majority did not look at the confidential information. And while that court passed on petitioner's qualifications in the exercise of its original jurisdiction, the majority placed considerable reliance on the Board's recommendations. Therefore, petitioner contends, the Board's use of confidential information deprived him of procedural due process. Cf. Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494; Bratton v. Chandler, 260 U.S. 110, 43 S.Ct. 43, 67 L.Ed. 157; Minkoff v. Payne, 93 U.S.App.D.C. 123, 210 F.2d 689, 691; In re Carter, 89 U.S.App.D.C. 310, 192 F.2d 15, certiorari denied, 342 U.S. 862, 72 S.Ct. 89, 96 L.Ed. 648. We find it unnecessary to consider this contention. 3 The dean was on sabbatical leave and not available. 4 At times during 1932 more than 12,060,000 of the nation's 51,000,000 working persons were unemployed. Statistical Abstract of the United States (1956) 197. 5 We need not enter into a discussion whether the practice of law is a 'right' or 'privilege.' Regardless of how the State's grant of permission to engage in this occupation is characterized, it is sufficient to say that a person cannot be prevented from practicing except for valid reasons. Certainly the practice of law is not a matter of the State's grace. Ex parte Garland, 4 Wall. 333, 379, 18 L.Ed. 366. 6 Arrest, by itself, is not considered competent evidence at either a criminal or civil trial to prove that a person did certain prohibited acts. Cf. Wigmore, Evidence, § 980a. 7 Petitioner testified that during a two-month period about 2,000 persons were arrested in connection with the strike. Generally, for criticism of these arrests and the conduct of the police during these and related strikes see S.Rep. No. 1150, 77th Cong., 2d Sess. 35, 131, 133—141. 8 'The term 'criminal syndicalism' as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.' Cal.Stat.1919, c. 188, § 1.* See also De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, where application of a similar statute was held unconstitutional. 9 40 Stat. 39, now 18 U.S.C. § 959(a), 18 U.S.C.A. § 959(a). 10 See Kiker, J. (dissenting), 60 N.M. 304, 321, 291 P.2d 607, 618. * Now West's Ann.Pen.Code, § 11400. 11 For example, New Mexico makes conviction of a felony or a misdemeanor grounds for disbarment only if it involves moral turpitude. N.M.Stat.Ann., 1953, § 18—1—17(1). Compare In re Burch, 73 Ohio App. 97, 54 N.E.2d 803, where, in a disbarment proceeding, conviction for violation of a federal statute for failing to register as an agent of the German Government in 1941 was held not to evidence moral turpitude. 12 In 1941 Schware was arrested by police in Texas while driving a friend's car to the west coast. Apparently the police suspected the car was stolen. After a brief delay they became convinced that the car was rightfully in petitioner's possession and he was allowed to go on his way. This detention offers no proof of bad moral character and the State does not rely on it here. 13 Petitioner argues that a State constitutionally cannot consider his membership in a lawful political party in determining whether he is qualified for admission to the bar. He contends that a denial based on such membership abridges the right of free political association guaranteed by the Fourteenth Amendment. Because of our disposition of this case, we find it unnecessary to pass on this contention. 14 For example in 1936 its presidential nominee was on the ballot in 35 States, including New Mexico. Statistical Abstract of the United States (1937) 159. 15 In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, this Court declared: 'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.' 16 According to figures of the Communist Party it had 14,000 members in 1932, 26,000 in 1934, 41,000 in 1936. W. Z. Foster, From Bryan to Stalin (1937), 303. It has been estimated that more than 700,000 persons in this country have been members of the Communist Party at one time or another between 1919 and 1951. Ernst and Loth, Report on The American Communist (1952), 14. 17 For the numerous and varied reasons why individuals have joined the Communist Party, see Taylor, Grand Inquest (1955), 155 159; Ernst and Loth, Report on The American Communist (1954); Almond, The Appeals of Communism (1952); Crossman, The God That Failed (1949); Department of Defense, Know Your Communist Enemy: Who Are Communists and Why?, DOD PAM 4—6, Dec. 8, 1955. Many of these reasons are not indicative of bad moral character. 18 See Moore, The Communist Party of the U.S.A.; An Analysis of a Social Movement, 39 Am.Pol.Sci.Rev. 31, 32—33. 19 And see Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796, where this Court stated: '* * * under our traditions beliefs are personal and not a matter of mere association, and that men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.' 20 It must be borne in mind that if petitioner otherwise qualifies for the practice of law and is admitted to the bar, the State has ample means to discipline him for any future misconduct. N.M.Stat.Ann.1953, §§ 18—1—15 to 18—1—18. 1 The only bit of evidence that may be adduced to the contrary is a single phrase in a letter to his wife in 1944. To give it an unfavorable and disqualifying significance in the entire context of the letter is to draw so strained a meaning as to be inadmissibly unreasonable.

56

353 U.S. 322 77 S.Ct. 804 1 L.Ed.2d 852 CIVIL AERONAUTICS BOARD, Petitioner,v.Ida Mae HERMANN et al. No. 540. Argued April 25, 1957. Decided May 6, 1957. Rehearing Denied June 17, 1957. See 354 U.S. 927, 77 S.Ct. 1376. Solicitor General J. Lee Rankin, Washington, D.C., for the petitioner. Mr. Roland E. Ginsburg, Los Angeles, Cal., for the respondents. PER CURIAM. 1 Petitioner had instituted an administrative enforcement proceeding against the respondents, a group of individuals and business entities operating as the 'Skycoach' air travel system. The Board's complaint charged violation of its regulations as well as of the Civil Aeronautics Act and sought certain revocation and cease-and-desist orders against respondents. In the course of the proceedings, the Hearing Examiner issued a number of subpoenas duces tecum calling for the production of certain categories of documents of the respondent companies covering specified periods of time. On a motion to quash on the grounds, inter alia, that the subpoenas were vague, excessively broad in scope, and oppressive, both the Hearing Examiner and the Board found that the subpoenas described the documents to be produced with sufficient particularity, were reasonable in scope and were not oppressive. Upon respondents' continued refusal to honor the subpoenas, petitioner filed this enforcement proceeding. Initially the trial judge continued the cause for 10 days 'on condition that respondents * * * make the documents specified in the administrative subpenas * * * available immediately to the representatives of the Civil Aeronautics Board for examination and copying at the usual places of business of the named respondents * * *.' Upon the expiration of this period, the court, on a showing that respondents had not complied with this condition, entered an order of enforcement allowing 'a sufficient length of time between dates for the production of the documents * * * so that the respondents will not be deprived of all of their books and records at the same time.' The court found that it could not say 'that any of the documents or things called for in any of the subpoenas are immaterial or irrelevant to the proceedings before the Board * * *.' without an examination of each of the items ordered produced. The Court of Appeals reversed, establishing certain procedural requirements the Board must follow before an enforcement proceeding is in order. 237 F.2d 359, 362. 2 As we read the order of the District Court, it duly enforced the Board's right to call for documents relevant to the issues of the Board's complaint, with appropriate provisions for assuring the minimum interference with the conduct of the business of respondents. The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court with instructions to reinstate its enforcement order of May 16, 1955. See § 1004(b), Civil Aeronautics Act of 1938, 52 Stat. 1021, as amended, 49 U.S.C. § 644(b), 49 U.S.C.A. § 644(b); Brown v. United States, 1928, 276 U.S. 134, 142—143, 48 S.Ct. 288, 289—290, 72 L.Ed. 500; Oklahoma Press Pub. Co. v. Walling, 1946, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614; Endicott Johnson Corp. v. Perkins, 1943, 317 U.S. 501, 509, 63 S.Ct. 339, 343, 87 L.Ed. 424. Of course this enforcement order leaves open to the respondents ample opportunities for objecting, on relevant grounds, to the admissibility into evidence of any particular document. 3 It is so ordered. 4 Reversed and remanded with instructions.

89

353 U.S. 252 77 S.Ct. 722 1 L.Ed.2d 810 Raphael KONIGSBERG, Petitioner,v.The STATE BAR OF CALIFORNIA and the Committee of Bar Examiners of the State Barof California. No. 5. Argued Jan. 14, 1957. Decided May 6, 1957. Rehearing Denied June 17, 1957. See 354 U.S. 927, 77 S.Ct. 1374. Mr. Edward Mosk, Hollywood, Cal., for the petitioner. Mr. Frank B. Belcher, Los Angeles, Cal., for the respondents. Mr. Justice BLACK delivered the opinion of the Court. 1 The petitioner, Raphael Konigsberg, graduated from the Law School of the University of Southern California in 1953 and four months later satisfactorily passed the California bar examination. Nevertheless, the State Committee of Bar Examiners, after several hearings, refused to certify him to practice law on the grounds he had failed to prove (1) that he was of good moral character and (2) that he did not advocate overthrow of the Government of the United States or California by unconstitutional means.1 As permitted by state law, Konigsberg asked the California Supreme Court to review the Committee's refusal to give him its certification. He contended that he had satisfactorily proved that he met all the requirements for admission to the bar, and that the Committee's action deprived him of right secured by the Fourteenth Amendment to the United States Constitution. The State Supreme Court, without opinion, and with three of its seven justices dissenting, denied his petition for review. We granted certiorari because the constitutional questions presented were substantial. 351 U.S. 936, 76 S.Ct. 832, 100 L.Ed. 1464. I. 2 Before reaching the merits, we must first consider the State's contention that this Court does not have jurisdiction to review the case. The State argues (1) that petitioner did not present his constitutional claims to the California Supreme Court in the manner prescribed by that court's rules, and (2) that the state court's decision not to grant him relief can be attributed to his failure to conform to its procedural rules rather than to a rejection of his constitutional claims. 3 In considering actions of the Committee of Bar Examiners the California Supreme Court exercises original jurisdiction and is not restricted to the limited review made by an appellate court. For example, that court declared in In re Lacey, 11 Cal.2d 699, at page 701, 81 P.2d 935, at page 936: 4 'That this court has the inherent power and authority to admit an applicant to practice law in this state or to reinstate an applicant previously disbarred despite an unfavorable report upon such application by the Board of Bar Governors of the State Bar, we think is now well settled in this state. * * * The recommendation of the Board of Bar Governors is advisory only * * *. (T)he final determination in all these matters rests with this court, and its powers in that regard are plenary and its judgment conclusive.'2 5 The California Supreme Court has a special rule, Rule 59(b) which governs review of actions of the Bar Examiners.3 Rule 59(b) requires that a petition for review 'shall specify the grounds relied on and shall be accompanied by petitioner's brief.' Konigsberg complied with this rule. In his petition for review he specifically charged that the findings of the Committee were not supported by any lawful evidence.4 The petition then went on to assert that the Committee's action, which was based on findings that the petition had previously alleged were not supported by evidence, was an attempt by the State of California in violation of the Fourteenth Amendment to deprive him 'of life, liberty, or property, without due process of law' and to deny him 'the equal protection of the laws.' 6 Throughout the hearings before the Bar Examiners Konigsberg repeatedly objected to questions about his beliefs and associations asserting that such inquiries infringed rights guaranteed him by the First and Fourteenth Amendments. He urged that the Committee would abridge freedom of speech, press and assembly, violate due process, and deny equal protection of the laws if it denied his application because of his political opinions, writings, and affiliations. He asserted that he had affirmatively proved his good moral character and that there was no legal basis for finding that he was morally unfit to practice law. He insisted that in determining whether he was qualified the Committee had to comply with due process of law and cited as supporting his position Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, and Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, where this Court condemned arbitrary findings as offensive to due process.5 Since Konigsberg challenged the sufficiency of the evidence in his petition for review, it seems clear that the State Supreme Court examined the entire record of the hearings before the Bar Examiners6 and must have been aware of the constitutional arguments made by Konigsberg during the hearings and the authorities relied on to support these arguments. 7 The State contends, however, that it was not enough for Konigsberg to raise his constitutional objections in his petition, in the manner prescribed by Rule 59(b), and at the hearings. It claims that under California practice the State Supreme Court will not consider a contention unless it is supported by an argument and citation of authorities in a brief submitted by the person seeking review. Because Konigsberg's brief did not repeat, precisely and in detail, the constitutional objections set forth in his petition,7 the argument continues, this Court is compelled to hold that the State Supreme Court could have refused relief to petitioner on a narrow procedural ground. But the California cases cited by the State do not require such a conclusion. It is true that the State Supreme Court has insisted that on appeal in ordinary civil cases alleged errors should be pointed out clearly and concisely, with reasons why they are erroneous, and with reference to supporting authorities.8 However this case was not reviewed under the rules of appeal which apply to the ordinary civil case but rather under a special rule applying to original proceedings. We are pointed to nothing which indicates that the State Supreme Court has adopted any rule in this type of case which requires that contentions raised in the petition for review must also be set out in the brief. The one case cited, Johnson v. State Bar of California, 4 Cal.2d 744, 52 P.2d 928, indicates the contrary. In challenging the recommendation of the Board of Governors of the State Bar that he be suspended from the practice of law, Johnson alleged, apparently in an offhand way, that the entire State Bar Act was 'unconstitutional.' He made no argument and cited no authority to support this bare, sweeping assertion. While the court said that this was an insufficient presentation of the issue it nevertheless went ahead to consider and reject Johnson's argument and to hold the Act constitutional. 8 Counsel for California concedes that the state courts in criminal cases often pass on issues ineptly argued in a defendant's brief or sometimes not raised there at all.9 As counsel states, the reasons for relaxing this standard in criminal cases are obvious—such cases may involve forfeiture of the accused's property, liberty, or life. While this is not a criminal case, its consequences for Konigsberg take it out of the ordinary run of civil cases. The Committee's action prevents him from earning a living by practicing law. This deprivation has grave consequences for a man who has spent years of study and a great deal of money in preparing to be a lawyer. 9 In view of the grounds relied on in Konigsberg's petition for review, his repeated assertions throughout the hearings of various federal constitutional rights, and the practices of the California Supreme Court, we cannot conclude that that court, with three of its seven justices dissenting, intended to uphold petitioner's exclusion from the practice of law because his lawyer failed to elaborate in his brief the constitutional claims set forth in his petition for review and in the record of the hearings. Our conclusion is that the constitutional issues are before us and we must consider them.10 II. 10 We now turn to the merits. In passing on Konigsberg's application, the Committee of Bar Examiners conducted a series of hearings. At these hearings Konigsberg was questioned at great length about his political affiliations and beliefs. Practically all of these questions were directed at finding out whether he was or ever had been a member of the Communist Party. Konigsberg declined to respond to this line of questioning, insisting that it was an intrusion into areas protected by the Federal Constitution. He also objected on the ground that California law did not require him to divulge his political associations or opinions in order to qualify for the Bar and that questions about these matters were not relevant.11 11 The Committee of Bar Examiners rejected Konigsberg's application on the ground that the evidence in the record raised substantial doubts about his character and his loyalty which he had failed to dispel. At the conclusion of the hearings, the Committee sent a formal written notice—which later served as the basis for his petition to the California Supreme Court—stating that his application was denied because: 12 1. We failed to demonstrate that he was a person of good moral character and 13 2. He failed to show that he did not advocate the overthrow of the Government of the United States or the State by force, violence or other unconstitutional means. 14 He was not denied admission to the California Bar simply because he refused to answer questions.12 15 In Konigsberg's petition for review to the State Supreme Court there is no suggestion that the Committee had excluded him merely for failing to respond to its inquiries. Nor did the Committee in its answer indicate that this was the basis for its action. After responding to Konigsberg's allegations, the Bar Committee set forth a defense of its action which in substance repeated the reasons it had given Konigsberg in the formal notice of denial for rejecting his application.13 16 There is nothing in the California statutes, the California decisions, or even in the Rules of the Bar Committee, which has been called to our attention, that suggests that failure to answer a Bar Examiner's inquiry is, ipso facto, a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners. Serious questions of elemental fairness would be raised if the Committee had excluded Konigsberg simply because he failed to answer questions without first explicitly warning him that he could be barred for this reason alone, even though his moral character and loyalty were unimpeachable, and then giving him a chance to comply.14 In our opinion, there is nothing in the record which indicates that the Committee, in a matter of such grave importance to Konigsberg, applied a brand new exclusionary rule to his application—all without telling him that it was doing so.15 17 If it were possible for us to say that the Board had barred Konigsberg solely because of his refusal to respond to its inquiries into his political associations and his opinions about matters of public interest, then we would be compelled to decide far-reaching and complex questions relating to freedom of speech, press and assembly. There is no justification for our straining to reach these difficult problems when the Board itself has not seen fit, at any time, to base its exclusion of Konigsberg on his failure to answer. If and when a State makes failure to answer a question an independent ground for exclusion from the Bar, then this Court, as the cases arise, will have to determine whether the exclusion is constitutionally permissible. We do not mean to intimate any view on that problem here nor do we mean to approve or disapprove Konigsberg's refusal to answer the particular questions asked him. 18 We now pass to the issue which we believe is presented in this case: Does the evidence in the record support any reasonable doubts about Konigsberg's good character or his loyalty to the Governments of State and Nation? In considering this issue, we must, of course, take into account the Committee's contention that Konigsberg's failure to respond to questions was evidence from which some inference of doubtful character and loyalty can be drawn. 19 Konigsberg claims that he established his good moral character by overwhelming evidence and carried the burden of proving that he does not advocate overthrow of the Government. He contends here, as he did in the California court, that there is no evidence in the record which rationally supports a finding of doubt about his character or loyalty. If this contention is correct, he has been denied the right to practice law although there was no basis for the finding that he failed to meet the qualifications which the State demands of a person seeking to become a lawyer. If this is true, California's refusal to admit him is a denial of due process and of equal protection of the laws because both arbitrary and discriminatory.16 After examination of the record,17 we are compelled to agree with Konigsberg that the evidence does not rationally support the only two grounds upon which the Committee relied in rejecting his application for admission to the California Bar. 20 A. Good Moral Character.—The term 'good moral character' has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer.18 Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law. 21 While we do not have the benefit of a definition of 'good moral character' by the California Supreme Court in this case, counsel for the State tells us that the definition of that term adopted in California 'stresses elements of honesty, fairness and respect for the rights of others and for the laws of the state and nation.' The decisions of California courts cited here do not support so broad a definition as claimed by counsel. These cases instead appear to define 'good moral character' in terms of an absence of proven conduct or acts which have been historically considered as manifestations of 'moral turpitude.' To illustrate, California has held that an applicant did not have good character who had been convicted of forgery and had practiced law without a license,19 or who had obtained money by false representations and had committed fraud upon a court,20 or who had submitted false affidavits to the Committee along with his application for admission.21 It should be emphasized that neither the definition proposed by counsel nor those appearing in the California cases equates unorthodox political beliefs or membership in lawful political parties with bad moral character. Assuming for purposes of this case that counsel's broad definition of 'good moral character' is the one adopted in California, the question is whether or the whole record a reasonable man could fairly find that there were substantial doubts about Konigsberg's 'honesty, fairness and respect for the rights of others and for the laws of the state and nation.' 22 A person called on to prove his character is compelled to turn to the people who know him. Here, forty-two individuals who had known Konigsberg at different times during the past twenty years attested to his excellent character.22 These testimonials came from persons in every walk of life. Included among them were a Catholic priest, a Jewish rabbi, lawyers, doctors, professors, businessmen and social workers. The following are typical of the statements made about Konigsberg: 23 'He seems to hold the Constitution in high esteem and is a vigorous supporter of civil rights. * * * He indicated to me an open-mindedness seemingly inconsistent with any calculated disregard of his duty as a loyal and conscientious citizen.' A rabbi: 24 'I unreservedly recommend Mr. Konigsberg as a person who is morally and ethically qualified to serve as a member of (the bar).' A lawyer: 25 'I recommend Mr. Konigsberg unreservedly as a person of high moral principle and character. * * * He is a much more profound person than the average bar applicant and exhibits a social consciousness which, in my opinion, is unfortunately too rare among applicants.' A Catholic Monsignor: 26 'I do not hesitate to recommend him to you. I am satisfied that he will measure up to the high requirements established for members of the legal profession.' 27 Other witnesses testified to Konigsberg's belief in democracy and devotion to democratic ideas, his principled convictions, his honesty and integrity, his conscientiousness and competence in his work, his concern and affection for his wife and children and his loyalty to the country. These, of course, have traditionally been the kind of qualities that make up good moral character. The significance of the statements made by these witnesses about Konigsberg is enhanced by the fact that they had known him as an adult while he was employed in responsible professional positions. Even more significant, not a single person has testified that Konigsberg's moral character was bad or questionable in any way. 28 Konigsberg's background, which was also before the Committee, furnished strong proof that his life had always been honest and upright. Born in Austria in 1911, he was brought to this country when eight years old. After graduating from Ohio State University in 1931, he taught American history and literature for a time in a Cleveland high school. In 1934 he was given a scholarship to Ohio State University and there received his Master of Arts degree in Social Administration. He was then employed by the District of Columbia as a supervisor in its Department of Health. In 1936 he went to California where he worked as an executive for several social agencies and at one time served as District Supervisor for the California State Relief Administration. With our entry into the Second World War, he volunteered for the Army and was commissioned a second lieutenant. He was selected for training as an orientation officer in the Army's information and education program and in that capacity served in North Africa, Italy, France and Germany. He was promoted to captain and while in Germany was made orientation officer for the entire Seventh Army. As an orientation officer one of his principal functions was to explain to soldiers the advantages of democracy as compared with totalitarianism. After his honorable discharge in 1946 he resumed his career in social work. In 1950, at the age of thirty-nine, Konigsberg entered the Law School of the University of Southern California and was graduated in 1953. There is no criticism in the record of his professional work, his military service, or his performance at the law school. 29 Despite Konigsberg's forceful showing of good moral character and the fact that there is no evidence that he has ever been convicted of any crime or has ever done anything base or depraved, the State nevertheless argues that substantial doubts were raised about his character by: (1) the testimony of an ex-Communist that Konigsberg had attended meetings of a Communist Party unit in 1941; (2) his criticism of certain public officials and their policies; and (3) his refusal to answer certain questions about his political associations and beliefs. When these items are analyzed, we believe that it cannot rationally be said that they support substantial doubts about Konigsberg's moral fitness to practice law. 30 (1) Testimony of the Ex-Communist.—The suspicion that Konigsberg was or had been a Communist was based chiefly on the testimony of a single ex-Communist that Konigsberg had attended meetings of a Communist Party unit in 1941. From the witness' testimony it appears that this unit was some kind of discussion group. On crossexamination she conceded that her sole basis for believing that Konigsberg was a member of that party was his attendance at these meetings. Her testimony concerned events that occurred many years before and her identification of Konigsberg was not very convincing.23 She admitted that she had not known him personally and never had any contact with him except at these meetings in 1941. Konigsberg denied that he had ever seen her or known her. And in response to a Bar Examiner's question as to whether he was a communist, in the philosophical sense, as distinguished from a member of the Communist Party, Konigsberg replied: 'If you want a categorical answer to 'Are you a communist?' the answer is no.'24 31 Even if it be assumed that Konigsberg was a member of the Communist Party in 1941, the mere fact of membership would not support an inference that he did not have good moral character.25 There was no evidence that he ever engaged in or abetted and unlawful or immoral activities—or even that he knew of or supported any actions of this nature. It may be, although there is no evidence in the record before us to that effect, that some members of that party were involved in illegal or disloyal activities, but petitioner cannot be swept into this group solely on the basis of his alleged membership in that party. In 1941 the Communist Party was a recognized political party in the State of California. Citizens of that State were free to belong to that party if they wanted to do so. The State had not attempted to attach penalties of any kind to membership in the Communist Party. Its candidates' names were on the ballots California submitted to its voters. Those who accepted the State at its word and joined that party had a right to expect that the State would not penalize them, directly or indirectly, for doing so thereafter.26 32 (2) Criticism of Certain Public Officials and Their Policies. In 1950 Konigsberg wrote a series of editorials for a local newspaper. In these editorials he severely criticized, among other things, this country's participation in the Korean War, the actions and policies of the leaders of the major political parties, the influence of 'big business' in American life, racial discrimination, and this Court's decisions in Dennis (Dennis v. U.S., 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137) and other cases.27 When read in the light of the ordinary give-and-take of political controversy the editorials Konigsberg wrote are not unusually extreme and fairly interpreted only say that certain officials were performing their duties in a manner that, in the opinion of the writer, was injurious to the public. We do not believe that an inference of bad moral character can rationally be drawn from these editorials.28 Because of the very nature of our democracy such expressions of political views must be permitted. Citizens have a right under our constitutional system to criticize government officials and agencies. Courts are not, and should not be, immune to such criticism.29 Government censorship can no more be reconciled with our national constitutional standard of freedom of speech and press when done in the guise of determinign 'moral character,' than if it should be attempted directly. 33 (3) Refusal to Answer Questions.—During the prolonged hearings before the Committee of Bar Examiners, Konigsberg was not asked directly about his honesty, trustworthiness, or other traits which are generally thought of as related to good character. Almost all of the Bar Examiner's questions concerned his political affiliations, editorials and beliefs. Konigsberg repeatedly declined to answer such questions, explaining that his refusal was based on his understanding that under the First and Fourteenth Amendments to the United States Constitution a State could not inquire into a person's political opinions or associations and that he had a duty not to answer. Essentially, this is the same stand he had taken several years before when called upon to answer similar questions before the Tenney Committee. 34 The State argues that Konigsberg's refusal to tell the Examiners whether he was a member of the Communist Party or whether he had associated with persons who were members of that party or groups which were allegedly Communist dominated tends to support an inference that he is a member of the Communist Party and therefore a person of bad moral character. We find it unnecessary to decide if Konigsberg's constitutional objections to the Committee's questions were well founded. Prior decisions by this Court indicate that his claim that the questions were improper was not frivolous30 and we find nothing in the record which indicates that his position was not taken in good faith. Obviously the State could not draw unfavorable inferences as to his truthfulness, candor or his moral character in general if his refusal to answer was based on a belief that the United States Constitution prohibited the type of inquiries which the Committee was making.31 On the record before us, it is our judgment that the inferences of bad moral character which the Committee attempted to draw from Konigsberg's refusal to answer questions about his political affiliations and opinions are unwarranted. 35 B. Advocating the Overthrow of Government by Force.—The Committee also found that Konigsberg had failed to prove that he did not advocate the overthrow of the Government of the United States or California by force and violence. Konigsberg repeatedly testified under oath before the Committee that he did not believe in nor advocate the overthrow of any government in this country by any unconstitutional means. For example, in response to one question as to whether he advocated overthrowing the Government, he emphatically declared: 'I answer specifically I do not, I never did or never will.' No witness testified to the contrary. As a matter of fact, many of the witnesses gave testimony which was utterly inconsistent with the premise that he was disloyal.32 And Konigsberg told the Committee that he was ready at any time to take an oath to uphold the Constitution of the United States and the Constitution of California.33 36 Even if it be assumed that Konigsberg belonged to the Communist Party in 1941, this does not provide a reasonable basis for a belief that he presently advocates overthrowing the Government by force.34 The ex-Communist, who testified that Konigsberg attended meetings of a Communist unit in 1941, could not remember any statements by him or anyone else at those meetings advocating the violent overthrow of the Government. And certainly there is nothing in the newspaper editorials that Konigsberg wrote that tends to support a finding that he champions violent overthrow. Instead, the editorials expressed hostility to such a doctrine. For example, Konigsberg wrote: 37 'It is vehemently asserted that advocacy of force and violence is a danger to the American government and that its proponents should be punished. With this I agree. Such advocacy is un-American and does undermine our democratic processes. Those who preach it must be punished.' 38 Counsel for California offers the following editorial as evidence that Konigsberg advocates overthrow of the Government by force and violence: 39 'Loyalty to America, in my opinion, has always meant adherence to the basic principles of our Constitution and Declaration of Independence—not loyalty to any man or group of men. Loyalty to America means belief in and militant support of her noble ideals and the faith of her people. Loyalty to America today, therefore, must mean opposition to those who are betraying our country's traditions, who are squandering her manpower, her honor and her riches.' 40 On its surface this editorial does not appear to be a call for armed revolution. To the contrary, it manifests a strongly held conviction for our constitutional system of government. However, the State attempts to draw an inference adverse to Konigsberg from his use of the word 'militant' which it points out in one sense means 'war-like.' To us it seems far-fetched to say that exhortation to 'militant' support of America's 'noble ideals' demonstrates a willingness to overthrow our democratic institutions.35 41 We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association. A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. It is also important both to society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar.36 In this case we are compelled to conclude that there is no evidence in the record which rationally justifies a finding that Konigsberg failed to establish his good moral character or failed to show that he did not advocate forceful overthrow of the Government. Without some authentic reliable evidence of unlawful or immoral actions reflecting adversely upon him, it is difficult to comprehend why the State Bar Committee rejected a man of Konigsberg's background and character as morally unfit to practice law. As we said before, the mere fact of Konigsberg's past membership in the Communist Party, if true, without anything more, is not an adequate basis for concluding that he is disloyal or a person of bad character. A lifetime of good citizenship is worth very little if it is so frail that it cannot withstand the suspicions which apparently were the basis for the Committee's action. 42 The judgment of the court below is reversed and the case remanded for further proceedings not inconsistent with this opinion. 43 Reversed and remanded. 44 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 45 Mr. Justice FRANKFURTER, dissenting. 46 Insistence on establishment of the Court's jurisdiction is too often treated, with slighting intent, as a 'technicality.' In truth, due regard for the requirements of the conditions that alone give this Court power to review the judgment of the highest court of a State is a matter of deep importance to the working of our federalism. The admonition uttered a hundred years ago by Benjamin R. Curtis, one of the ablest Justices who ever sat on this Court, cannot be too often repeated: 'Let it be remembered, also,—for just now we may be in some danger of forgetting it,—that questions of jurisdiction were questions of power as between the United States and the several States.' 2 Memoir of Curtis 340—341. The importance of keeping within the limits of federal jurisdiction was emphasized in the opinion of Mr. Justice Stone, for a unanimous Court, in Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248: 'Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute ('the action of Congress in conformity to the judiciary sections of the Constitution') has defined.' 47 Prerequisites to the power of this Court to review a judgment of a state court are that a federal claim was properly before the state court and that the state court based its decision on that claim. If a state court judgment is rested on a non-federal ground, i.e., on relevant state law, this Court is constitutionally barred from reviewing it. While a State may not, under the guise of regulating its local procedure, strangle a federal claim so as to prevent it from coming before a state court, it has the undoubted power to prescribe appropriate procedure for bringing all questions for determination befoer its courts. Squeezing out of the record in this case all that can be squeezed, the most that the five pages of the Court's opinion dealing with this threshold question can be said to demonstrate is that there is doubt whether or not the claim under the United States Constitution was properly presented to the California Supreme Court, according to its requirements. 48 Before this Court can find that a State—and the judgment of the Supreme Court of California expresses 'the power of the state as a whole,' Rippey v. State of Texas, 193 U.S. 504, 509, 24 S.Ct. 516, 517, 48 L.Ed. 767; Skiriotes v. State of Florida, 313 U.S. 69, 79, 61 S.Ct. 924, 930, 85 L.Ed. 1193—has violated the Constitution, it must be clear from the record that the state court has in fact passed on a federal question. As a safeguard against intrusion upon state power, it has been our practice when a fair doubt is raised whether a state court has in fact adjudicated a properly presented federal claim not to assume or presume that it has done so. The Court has not based its power to review on guess-work. It has remanded the case to the state court to enable it to make clear by appropriate certification that it has in fact rested its decision on rejection of a federal claim and has not reached its decision on an adequate state ground. Strict adherence to the jurisdictional requirement was insisted upon in Whitney v. People of State of California, the well-known civil liberties case, by a Court that included Justices Holmes and Brandeis, as mindful as any in protecting the liberties guaranteed by the Due Process Clause. Whitney v. People of State of California, 269 U.S. 530, 46 S.Ct. 22, 70 L.Ed. 396; 269 U.S. 538, 46 S.Ct. 120, 70 L.Ed. 400; 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. See also Honeyman v. Hanan, 300 U.S. 14, 57 S.Ct. 350, 81 L.Ed. 476; cf. State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920. 49 The procedure of making sure, through appropriate certification by a state court, that the federal question was in fact adjudicated, is a safeguard against infringement of powers that belong to the States and at the same time duly protects this Court's jurisdiction to review denial of a federal claim by a state court, if in fact it becomes clear that there was such a denial. This may involve some delay in the final determination of a federal question. The price of such delay is small enough cost in the proper functioning of our federal system in one of its important aspects. This Court has a special responsibility to be particularly mindful of the respective boundaries between state and federal authority. 50 I would remand the case to the Supreme Court of California for its certification whether or not it did in fact pass on a claim properly before it under the Due Process Clause of the Fourteenth Amendment. 51 Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting. 52 I share the jurisdictional views of my brother FRANKFURTER. Even so, since the Court decides the case on the merits, I feel it appropriate to deal with it on that basis, since the case is important and my views about it differ widely from those of the Court. I feel impelled to do so, more particularly, for two reasons: (1) The record, in my opinion, reveals something quite different from that which the Court draws from it; (2) this case involves an area of federal-state relations—the right of States to establish and administer standards for admission to their bars into which this Court should be especially reluctant and slow to enter. Granting that this area of state action is not exempt from federal constitutional limitations, see Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, I think that in doing what it does here the Court steps outside its proper role as the final arbiter of such limitations, and acts instead as if it were a super state court of appeals. 53 The following is what I believe to be anaccurate statement of the issue to be decided. California makes it one of its requirements concerning admission to its Bar that no one be certified to the Supreme Court who advocates the overthrow of the Government of the United States or of California by force or violence. It also requires that an applicant be of good moral character. The applicant has the burden of proof in showing that these requirements have been met. Petitioner, under examination by the designated state agency, made unequivocal disavowal of advocacy of the overthrow of the Government by force or violence. With a view to testing the reliability of this disavowal, and the moral character of petitioner, the Bar Examiners questioned him about organizations to which he belonged, especially current or past membership in the Communist Party. Petitioner persisted in refusing to answer these questions despite the entirely reasoned and repeated efforts of members of the Committee to secure answers. His refusals were not based on a claim that the questions were irrelevant to an examination of his fitness under California law. The refusals were based solely on the ground that constitutionally the Committee was limited to asking him whether he advocated the overthrow of the Government by force and violence, and having asked that question, it could ask him no related question. 54 On the basis of the foregoing circumstances, the Supreme Court of California refused to overrule the finding of the Bar Committee that he had not qualified for admission to the Bar. 55 The question for this Court is whether in so refusing petitioner admission to the Bar, California through its Supreme Court deprived petitioner of liberty and property without due process. 56 At the outset there should be laid aside certain things which are not involved in this case. The Court does not find wanting in any respect California's requirements for admission to the Bar that an applicant (a) must be 'a person of good moral character,'1 and (b) must not be an advocate of the overthrow of the Federal or State Government 'by force, violence, or other unconstitutional means.'2 Nor does the Court question the state rule of practice placing the burden of proof on the applicant in both respects.3 The Court does not hold that the First or Fourteenth Amendment entitled Konigsberg to refuse to answer any of the questions put to him by the Bar Committee,4 or that any of such questions were irrelevant or improper. The fairness of the four hearings accorded Konigsberg is not attacked in any respect.5 The Court's decision rests wholly on the alleged insufficiency of the record to support the Committee's conclusion that Konigsberg had failed to meet the burden of establishing that he was a person of good moral character and not an advocate of violent overthrow of the Government. The Court says: 57 '* * * we are compelled to conclude that there is no evidence in the record which rationally justifies a finding that Konigsberg failed to establish his good moral character or failed to show that he did not advocate forceful overthrow of the Government. Without some authentic reliable evidence of unlawful or immoral actions reflecting adversely upon him, it is difficult to comprehend why the State Bar Committee rejected a man of Konigsberg's background and character as morally unfit to practice law.' 58 This makes the record important. Before turning to it, however, it will be well to revert to the true character of the issue before us. The Court decides the case as if the issue were whether the record contains evidence demonstrating as a factual matter that Konigsberg had a bad moral character. I do not think that is the issue. The question before us, it seems to me, is whether it violates the Fourteenth Amendment for a state bar committee to decline to certify for admission to the bar an applicant who obstructs a proper investigation into his qualifications by deliberately, and without constitutional justification, refusing to answer questions relevant to his fitness under valid standards, and who is therefore deemed by the State, under its law, to have failed to carry his burden of proof to establish that he is qualified.6 59 I do not understand the process of reasoning by which the Court attempts to make a separate issue out of petitioner's refusal to answer questions, and then, in effect, reads it out of the case because California has not constituted such refusal an 'independent' ground for denying admission. What the State has done, and what the Bar Committee repeatedly warned the petitioner it would do,7 is to say that the petitioner's refusal to answer questions made it impossible to proceed to an affirmative certification that he was qualified—i.e., that his refusal placed him in a position where he must be deemed to have failed to sustain his burden of proof. Whether the State was justified in doing this under the Fourteenth Amendment is the sole issue before us, and that issue is not susceptible of the fragmentation to which the Court seeks to subject it. I am unable to follow the Court when it says, on the one hand, that on the issue of petitioner's qualifications 'we must, of course, take into account the Committee's contention that Konigsberg's failure to respond to questiosn was evidence from which some inference of doubtful character and loyalty can be drawn,'8 and, on the other hand, that the Committee was not entitled to treat petitioner's refusal to answer as a failure on his part to meet the burden of proof as to his qualifications. 60 Of course California has not laid down an abstract rule that refusal to answer any question under any circumstances ipso facto calls for denial of admission to the Bar. But just because the State has no such abstract statutory rule does not mean that a Bar Committee cannot in a particular case conclude that failure to answer particular questions so blocks the inquiry that it is unable to certify the applicant as qualified. In other words, what California has done here is to say that the Committee was justified in concluding that refusal to answer these questions under these circumstances means that the applicant has failed to meet the requirement that he set forth his qualifications affirmatively. Thus I think the Court is quite mistaken in stating that 'the Board itself has not seen fit, at any time, to base its exclusion of Konigsberg on his failure to answer.' I turn now to the State's brief and the record, which show, it seems to me, that failure to answer was the reason for exclusion. I. 61 I had not supposed that it could be seriously contended that California's requirements for admission to the bar do not authorize the rejection of a candidate for constitutionally unprotected obstruction of a valid investigation into his qualifications under such requirements. Cf. Schware v. Board of Bar Examiners of State of New Mexico, supra (concurring opinion). And it is unmistakable from the State's brief in this Court that California does claim the right, in the circumstances of this case, to reject the petitioner for his refusal to answer the questions that were relevant to his qualifications under the State's requirements for admission to the Bar.9 The following appears on pp. 56—59 of that brief: 62 'Even where no serious doubt arises with respect to an applicant's qualifications, it is standard practice to inquire into many personal matters which a person is normally privileged to keep to himself. Thus, the standard application form required of all applicants asks the applicant for details of his past employment, education, whether he was ever suspended, reprimanded or censured as a member of any profession or organization, whether he has ever been arrested, whether he has ever been a party to a lawsuit and for the details of any incidents of a derogatory nature bearing on his fitness to practice law. If the answers to such questions embarrass an applicant, he is privileged to refuse to answer just as he is privileged to refuse to answer any question on the Bar examination. However, in either case he runs the risk that failure to answer such questions will prevent his admission to the Bar. 63 'Respondents submit that it is in no sense unreasonable or improper to require an applicant to cooperate in supplying all requested information that is relevant to his statutory qualifications. * * * 64 '(a) Good Moral Character:—Reasonable doubts that petitioner was a person of good moral character arose from many sources: 65 '(5) Petitioner's refusal to answer questions in such broad areas of inquiry as to effectively prevent inquiry into broad areas of doubt. 66 'Petitioner stated that he did not advocate the violent overthrow of the government. He thereafter took the position that any further inquiry by the Committee with respect to this requirement was foreclosed. This is equivalent to his appearing before the Committee and stating that he is a person of good moral character and the Committee must accept his statement and not inquire further. Even were there no adverse evidence in the record, respondents could properly refuse to certify an applicant as not having established his compliance with * * * Section 6064.1, where, as here, he took the position that his bare answer that he complied with the requirement foreclosed further inquiry. * * *' (Italics, except as to subheading '(a),' added.) 67 I now turn to the record which also shows in unmistakable terms that the Committee's primary concern related to the petitioner's persistent blocking of its efforts to test the veracity of his statement that he did not advocate forcible overthrow of government.10 II. 68 The story is best told in the language of the record itself. I shall interpolate only to the extent necessary to put what is quoted in context. 69 The first hearing before the Subcommittee took place on September 25, 1953. At that time Konigsberg appeared without counsel. After some preliminary inquiries as to Konigsberg's history, and questioning as to his connections with allegedly 'subversive' organizations, the following ensued: 70 'Q. I assume that you are acquainted with the State statute that we now have on our books where among other things we are obliged to inquire into this type of a thing, and where we find that any people appear to have the views of endeavoring to change our government and so forth by force or violence, or in other words the popular conception of communism that we are expressly prohibited from certifying that person. You are familiar with the statute? A. Yes, I am. 71 'Q. Mr. Konigsberg, are you a Communist? A. Mr. Chairman, I would be very glad to answer that question. 72 'Q. If you will answer the question, I would be very happy to have it. A. I would be very glad to answer it if the circumstances were different. That is when I am faced with a question of this kind or when anyone else is faced with a question of this kind today what he is faced with is the fact that various nameless accusers or informers, or call them what you will, whom he has never had a chance to confront and cross-examine, he is put in a position of answering these statements or accusations, or suspicions, and without any of the protections that ordinarily exist in such a situation, and I don't think that I can place myself in that position of having to answer something out in the void, some statement. I know these statements have been made obviously. I am not pretending to be shocked or naive about this. I can say very definitely I did not, I don't, I never would advocate the overthrow of the government by force or violence clearly and unequivocably, but to answer a specific question of that kind, whether I am a member of this party, that party or the Communist party, that puts me in the position, whatever the truth is, whether I was or wasn't you would get a dozen informers who would say the opposite, and as indicated by an editorial just two or three days ago in the Daily News questioning seriously why the word of these informers, these turncoats is accepted unquestionably as against the word of other responsible citizens. Therefore, Mr. Preston, I do not think that under these circumstances, first, yes, I understand that under the law as it is today you may ask me specifically do I advocate the overthrow of the government by force or violence. I answer specifically I do not, I never did or never will. When you get into the other question of specific views in a political party, it seems to me only the fact, the right of political opinion is protected under the First Amendment and is binding on the states. Certainly attorneys ought to be in the leadership of those who defend the right of diverse political views. I think the First Amendment is important. * * * I answer again on the specific question of force and violence, I did not, I don't and never would advocate the overthrow of the government by force or violence. 73 'Q. When answering it you don't intend to give us a specific, categorical responsive answer? A. As I said I would be very happy to if we met out in the hall. I would be glad to answer you, but you see under these circumstances, that is I am speaking now under oath and I am speaking for the record, I am speaking against in a sense whatever evidence that may be in the files—I shouldn't dignify it by calling it evidence; I should say whatever statements may be there from various informers. I have told you about my record both in the Army and in the community. I have been active politically, I admit it. I am proud of it. I would be happy to discuss it. This is the record that I think should be the basis for judgment, not the record of some hysterical characters that appeared before the Tenney Committee or any such group. 74 'Q. I am not asking anyone else. I am trying to ask you because you are the one who is seeking admission, the privilege of practicing law in this state. That is the reason I am asking you the question. I made the question very broad, and what I would like you to tell us, if you will answer the question; now of course as you well know and you have told me in your answer up to this point, you don't have to answer the question, of course you don't have to answer the question, but we feel that on a matter of this kind, this kind of information, we have a job to inquire about your character. The statute says character, it doesn't say reputation. The only way I can find out and aid this Committee in finding out about your character is to ask you these questions, not what someone else thinks about you, your reputation. That is the reason I have asked the question. Could you give us a categorical answer? A. I can only give you the answer I have given you, and I would be very happy to answer that under other circumstances.' 75 At this point Konigsberg stated that his refusals to answer rested on rights of 'free opinion, free speech,' and that the legal profession should be the champion of 'the right to diverse political opinion.' He was then asked whether he had 'ever knowingly participated in an organization which (he) then believed was sympathetic to the communistic cause,' to which he replied that 'I can't say I knowingly did that, because I don't think it would have made a great deal of difference to me if I had known one way or the other' if the organization's objectives were what he believed in, 'say a better School Board or whatever the issue might have been.' Then followed this: 76 'Q. Mr. Konigsberg, I assume that you know that your name has been listed in the public press by witnesses before the Congressional Un-American Activities Committee. A. Yes. 77 'Q. And have been identified by persons who said that you were a member of the Communist Party at the same time they were. A. I saw that report. That is the sort of thing I was referring to a moment ago when I referred to the various accusations.' 78 Next there was discussion as to the attitude of the Association of American Universities with reference to teachers claiming the Fifth Amendment privilege against self-incrimination: 79 'Mr. Sterling: Let me try to clarify it as I understand it. This Association of Universities takes the position that complete candor on the part of the teacher with respect to his political beliefs, and in particular whether or not he subscribes to the beliefs of the Communist Party is a prerequisite to continuing in the teaching job. He doesn't have to disclose whether or not he is a Communist or is sympathetic to the Communist beliefs, but that if he doesn't answer those questions with complete candor he has lost his right to a position in the teaching community. Translating that into terms of an Association of lawyers such as our State Bar or any Bar Association, you are seeking admission to the profession and that we as your prospective colleagues have a right to expect complete candor from you on this particular question, and that if you don't wish to be completely candid with us then we are justified in saying you don't belong in our profession. That I think is the stand that the American Universities took. A. I understand that. I can only say what I said several times already. Under those circumstances the constitutional guarantee of free speech means nothing, if it doesn't mean you can keep your views to yourself, and certainly lawyers recognize that and should be among the first to defend that right. I think the legal profession, particularly the leaders of the legal profession, should be the first to insist on it. Put another way, of what meaning is any constitutional guarantee if it becomes a crime to invoke that guarantee?' 80 This answer was then elaborated by the petitioner at some length, after which the record continues as follows: 81 'Mr. Sterling: If you accept as true the premise that the Communist Party, as it is embodied in the present Soviet Union government, has for its objective the overthrow of not only the government of the United States but any other noncommunist government, and that that overthrow may be accomplished either from within by a bloodless revolution or if necessary by force, if you accept that premise then I think that your argument about constitutional rights of free speech and right to have your own political views and so on go by the board because then it seems to me that we are asking you no more than whether or not you belong to or believe in the principles of such an organization as Mafia, which is pretty generally, I think, regarded as one which has objectives that can be accomplished according to their tenets by what we regard as criminal acts. Now if I asked you whether or not you believed in the right to murder you would answer me no, I think, but as I say this whole business seems to be a turn on whether you accept the premise that the Communist Party—I am paraphrasing for the purpose of illustration—if you accept the premise that the Communist Party believes in murder and has that as its objective then I don't think you have a right or justification to refuse to answer the question of whether you belong to the Communist Party or whether you believe in its principles, you see. A. Well I can't argue with you. 82 'Mr. Sterling: Well, you can say that you think my premise is wrong. You can say the Communist Party as constituted does not believe in the overthrow, is not trying to and does not have as its objective the overthrow of the United States by one means or the other. Then I simply have to disagree with you because it seems to me that is their objective. A. Well, are you suggesting, Mr. Chairman, that since of course this is a critical period in our country's history that in the face of such threats as you are basing your premise on that we have to forego then the use of the constitutional privileges or the protection of the Constitution, is that what your proposal is? I would like to understand your argument. 83 'Mr. Sterling: No, as I say you don't feel there is any question of constitutional privilege when in a proceeding such as this where we are charged with determining the moral qualifications of an applicant in the profession, you don't feel that the constitutional privilege is hurt if I ask you if you believed in murder? A. No. 84 'Mr. Sterling: You will answer that unhesitatingly, 'No, I don't believe in murder.' So I say that most of us now accept as true the premise that the Communist Party as we know it and as embodied in the Russian Government, the present Soviet Union Government, does have as its objective world domination by the Communist Party. So we accept that premise. Therefore it seems to us that we have the right to ask the question of applicants for admission to the Bar, because our statute as we pointed out says that you are not qualified if you do believe in overthrowing or advoate the overthrow of the United States by force or violence. A. I am answering specifically in terms of that statute too that I do not. That is the question you are asking me specifically. I am answering I never did, I do not and I never would advocate the overthrow of the government by force or violence. I do believe like leaders like Jefferson people should have the right through discussion, ballot, the minority view becomes the majority view, that changes like that are sought through the ballot box but never through force and violence. That I do not believe. I think my whole experience has shown that. I don't know how more direct that can be, and the only reason as I said before that I don't specifically answer the question, 'Are you a member of this political party?' is because of the situation anyone is in who is faced with accusations as indicated by the newspaper report, accusations by people who I think are gradually being discredited by many sources, when you don't know who it is who is accusing you, you don't know on what evidence, anonymous faces, you never have a chance to cross examine them, how can anyone be put in that position? What can you fight except wind-mills and air in such a situation. The direct question, 'Do you believe in force and violence?' I answered that. 85 'Mr. Black: It still puzzles me a little to see why it is that you think you are prejudicing your own position by taking a position on that irrespective of whether there is any other evidence in the file or not. A. Because very practically this as you know has happened before. In the theory of today it is the words of these informers that is accepted above the words of anyone else. 86 'Mr. Black: How do you know? A. The newspaper report says so. Isn't that the report you were referring to where I was named before the Un-American Activities Committee? 87 'Mr. Preston: Yes, but that doesn't answer the question. 88 'Mr. Black: How do you assume this Committee accepts the hearsay report against your direct testimony? A. I am not assuming that. I didn't mean to give that implication. What I am saying is that where on one side we have these hearsay reports and nameless informers, and I don't need to go into a discussion of how willing they are to sell their evidence, if it is evidence, when there is the possibility of their word being placed against my word or anyone in my position, and because in view of the hysteria today their word is accepted. All it has to do is appear in the paper and you are discredited. Wasn't it two or three weeks ago in San Francisco a woman won an amount in a suit for being called a 'Red,' a teacher, when it is prima facie—libel, whatever the case was. Then it becomes not only a basic matter of principle on the First Amendment but a matter of protecting yourself in a legal situation, because this is an official body. I am not talking to a group of people like I would be talking to on the street. 89 'Mr. Sterling: You are afraid if you answer the question as to membership in the Communist Party in the negative and say, 'No, I am not a member and I never have been,' assuming you made that answer, you are afraid that we could find half a dozen people who would say that you were and had been, and therefore if you were on a perjury trial and the jury believed them and not you, you committed perjury. A. I am saying no matter what answer I gave whether I was or wasn't, undoubtedly there would be several whom you could get to say the opposite, and as I said before— 90 'Mr. Sterling: Subjecting you to a perjury charge? A. Yes. As I said before if you want to ask me outside in the hall I will tell you, but in view of these circumstances where you just have no right, you have no opportunity rather, to defend yourself against these people, I don't think that is fair play. I don't think that is justice. I don't think it is what the American democratic system teaches.' At this point Konigsberg testified that he did not recall knowing a Mrs. Bennett (formerly Mrs. Judson), the Subcommittee's next witness, the following occurring just before she testified: 91 'Mr. Preston: Is there any further statement you wish to make, Mr. Konigsberg? A. By the Witness: I can't think of anything I could add to what I said unless there is some specific point you want me to enlarge on. 92 'Mr. Preston: I assume, of course, if I ask you the question as to if you were ever a member of the Communist Party you would give me substantially the same answer. A. Yes, I think I would. 93 'Mr. Preston: You observed, I assumed, Mr. Konigsberg, I didn't ask you in the first instance if you were a member of the Communist Party. I asked you if you were a Communist. I recognize there is a philosophical Communist. I made my first question very broad to include that. A. I understood you to say a member of the Communist Party. 94 'Mr. Preston: Would your answer be any different? A. I thought you said a member of the Communist Party. 95 'Mr. Preston: I deliberately did not. The first question we discussed at length is, 'Are you a Communist?' A. I will say no, definitely no. The only thing I would describe myself very simply as one who has read a lot, studied a lot, because as a teacher of history and political education in the Army I believe strongly in the fundamental concepts of our democratic system. 96 'Mr. Preston: Your answer that you gave was directed to the question, 'Are you a member of the Communist Party?' A. Yes, and solely to that. If you want a categorical answer to 'Are you a Communist?' the answer is no. 97 'Mr. Preston: You gave us that. 98 'Mr. Sterling: That is your answer. 99 'A. By the Witness: No. 100 'Mr. Black: Would you care to state whether you have ever been a Communist? A. Do you mean by that as he is making the distinction philosophically or a member of the Communist Party? 101 'Mr. Black: I mean in the same sense you have just answered that you are not now a Communist. A. I would say my thinking has only been what I described a moment ago as being based on the elementary concepts of the American democracy, assuming that you mean do I think like a Communist; that is assuming we have some common understanding what you mean by that term. 102 'Mr. Sterling: We are not talking now about a membership in any party. A. Yes, philosophical views.' 103 Mrs. Bennett, an ex-Communist Party member, then testified, in the presence of Konigsberg, that Konigsberg had attended in 1941 meetings of the party unit of which she had been a member. 104 The next hearing was on December 9, 1953, which was attended by Konigsberg's counsel, a Mr. Mosk. This hearing was devoted in part to the cross-examination of Mrs. Bennett by Mr. Mosk, the net of which was that Mrs. Bennett admitted that she recognized Konigsberg when she first came to the earlier hearing only after not seeing anyone else in the room with whom she was familiar. After general colloquy as to some of the petitioner's writings, the questioning returned to Konigsberg's refusal to answer questions concerning his alleged membership in the Communist Party, this time with particular reference as to how petitioner reconciled his First Amendment claim with his willingness to answer ideological questions, but not questions as to whether he had ever been a member of the Communist Party. The record continues: 105 'Mr. Freston: May I ask a question of counsel? 106 'Mr. Sterling: Yes. 107 'Mr. Freston: One of the things that was bothering me, Mr. Mosk, is the general answer we have received to the question concerning present and past Communist affiliation, and I recognize the objection that counsel raises under the First Amendment. 108 'Mr. Mosk: The witness. 109 'Mr. Freston: The witness has raised. The thing that troubles me is we have an affirmative duty under the statute to certify as to this applicant's good moral character. We have endeavored to point out to him that the burden of showing that character is upon him. It appeared to me that he wasn't being quite forthright with us in not giving us an answer to those questions. He stated in effect his reason, at least as I understood it, that he did not want to answer the questions because he might sometime be accused of or prosecuted for perjury. Now, that is the rationale as I remember it, and frankly I am left in a rather confused state. As a member of this Committee I have to take an affirmative act of certification as to a good moral character. I wonder if you could perhaps enlighten me or help clarify the situation so perhaps maybe I might understand it better. 110 'Mr. Black: May I interpose another question directed to the same point, and you can answer them at one and the same time. Just to make sure that I understand the witness' position, at the last hearing—Mr. Konigsberg's position—as I understood he was perfectly willing to deny categorically he is a Communist and took that position, am I right on that? 111 'The Witness: I said philosophical Communist. 112 'Mr. Black: It seems to me that question we wouldn't have a right to ask you under your argument, but that we would very definitely have a right to ask you whether you are now a member of the Communist party as it is commonly understood. Now, am I right on that that you still take the position that there is no objection to your answering us categorically that you are not now a Communist, namely that you don't believe in the philosophical doctrines of communism, generally speaking, that is a matter of belief? 113 'The Witness: I think I understand your question. 114 'Mr. Black: But you do take the position that we do not have the right or you have no obligation to answer the question, 'Are you now a member of the Communist party?' and that you refuse to answer. I am not trying to argue. I just want to be sure I understand your position. Am I correct in that? 115 'Mr. Mosk: Either way. The first question was addressed to me. * * * (W)e are endeavoring to address ourselves to that issue which we feel most pertinent that is 'What has Mr. Konigsberg done as an individual with relation to the people with whom he has dealt, the occupations and professions that he has followed, what has he done to show affirmatively that he is of good moral character and would be a good member of the Bar?' 116 'Now, as I understood Mr. Konigsberg's position it is his feeling that one of the matters of principle on which he has always stood is the principle that one may not inquire as to a person's belief, religious, political or otherwise, and that by answering such questions as they are being asked throughout the country in these days, and in all sorts of places and under all sorts of circumstances, as I understand Mr. Konigsberg's position that by answering such a question he is in effect giving way to and giving ground on the principle that one may not be asked these things, and that by his failure to answer he is neither affirming nor denying. 117 'Now as to the second question, which I think is most pertinent and certainly struck me at the moment when I read through the transcript for the first time, I was struck by exactly that same question, and I asked Mr. Konigsberg about it, and I think that perhaps he should answer this himself, but we did discuss this very matter, and I know that his position is now that if you were to ask the same question today he feels that it is a question he should not have answered, and that by way of principle in coming unprepared he did not think through the principle to that extent. I think I am answering correctly. 118 'The Witness: That is exactly what I told counsel. As you are aware I came in without counsel, without any preparation, without knowing exactly what I might be asked. I did have an indication since I had informed the Committee, I appeared before the Tenney Committee, that I might be asked about that. I came prepared with nothing. In the heat or in the tension of a meeting of this kind, as you are aware, very often one will say things that one regrets later or would have said later. If I were asked that today I think my answer would be the same as to the other question as to whether I am or am not a member of the Communist party, or whether I ever was. 119 'Mr. Black: I might say without expressing my own view on the thing that I think it must be obvious to you at least under popular conception there is a distinction between what a man believes in a doctrinaire's sense, which I think everybody agrees who at least tries to follow American principles is sacred ground as to his individual concepts. The belief of the doctrines on the one side, and at least in popular view, affiliation with a party that has its policies dominated by the Soviet Union is quite a different conception, and that the argument at least is that inquiry goes to the very essence of a man's loyalty to the country and has nothing to do with his individual beliefs in the matter of religion or political philosophy or a code of ethics, and that is the distinction that we are trying to get at here. 120 'The Witness: I think you are quite right, and the position you take is quite correct, and I confess that I was in error at the time again due to the tension of the moment, and as I was going to say I don't think Mr. Freston's recollection is correct. I did not say that I was giving the kind of answer, was giving or refusing to answer because I was afraid of a perjury charge, as I recall. That is not the basis of refusal or the type of answer I have given. The reason that perjury discussion came up, as I recall now—I haven't been thinking about it—was in connection with the nature of the hearing where a person does not have the opportunity to cross examine and confront witnesses or see documents or things of that nature, and it so happens in the case of Owen Lattimore, who faced a perjury charge, even though he denied a half dozen ways any association with subversive elements—I am recalling from memory— it had to do with whether he expressed a certain opinion. How is a man to remember what opinions he expressed. His appeal is pending at the moment for his conviction of perjury. It is only with reference to that situation that I mentioned or commented upon the element of perjury, because that has nothing to do with the basis for my giving the kind of answer I am giving to the question as to my political affiliation, none whatsoever. You correct me on the record if I am wrong. That is my recollection of that discussion. At least I would like to say for the record that has nothing to do with the type of answer I have given. 121 'Mr. Wright: I would like to ask a question that perhaps in some stage of this proceeding you might enlighten at least this member of the Committee on, whether you consider inquiry into present membership in the Communist party as at all relevant in the inquiries of this Committee as to moral character? In other words, is it a relevant factor? Does it have any bearing? Is it a proper scope of inquiry? 122 'Mr. Mosk: I think you have to draw this distinction. It may be under some circumstances the Committee would feel that it would be a type of information that it would like to have to reach its conclusion, and to that extent perhaps it may be considered relevant, but many relevant matters are not inquired into in legal proceedings because for other reasons those matters are not competent testimony. And it is the position of Mr. Konigsberg here that inquiries into the realm of his political, religious or other beliefs are matters that are protected under the First Amendment to the Constitution, and therefore while it may be information which the Committee would feel it would like to have it is a field in which the Committee may not inquire by Mr. Konigsberg's position, and I think therefore perhaps I am answering your question yes and no, but I think I make my point clear as to what position Mr. Konigsberg takes. 123 'Mr. Wright: Having felt that we would like the information and being denied, now I won't argue with you that being denied that we have no way of compelling it, but are we therefore faced with going forward? 124 'Mr. Mosk: I think that also is a fair question, and that is why we are approaching the hearing in the manner in which we do. * * * 125 '* * * I could, I know, bring responsible social workers, other lawyers, persons at the universities with whom he has dealt, all of whom are prepared to come and say that they have known him in these various capacities, and that on the basis of the things that he has done himself, not what someone else has done, but what he, Raphael Konigsberg, has done that he is of good moral character to become a member of the legal profession, and these are things that as I say we will submit affirmatively, and it seems to me that this is the affirmative answer to what I can well understand the Committee feels is a void which Mr. Konigsberg, for reasons of principles he does not feel he wants to fill, but I think that even there one must always have respect for people who at recognizing the danger to him in standing on his principle is still prepared to do that in order to carry out things that he believes in so firmly. 126 'Mr. Wright: I commend his moral principle, let me say, but perhaps have a little doubt for his judgment. 127 'Mr. Mosk: If I may comment on that also I think that certainly— 128 'Mr. Wright: He is making it extremely hard for the Committee.' The third, and last, hearing before the Subcommittee occurred on January 27, 1954. At this time the letters from character witnesses were presented, and there ensued general colloquy as to the scope of a memorandum to be filed by Mr. Mosk. The record shows the following as to the Subcommittee's concern over Konigsberg's refusal to answer: 129 'Mr. Wright: Thank you, Mr. Mosk. I was wondering whether or not you in the course of your memorandum you had addressed yourself at all to the problem of the disinclination of the applicant to respond to questions proposed by the Committee. 130 'Mr. Mosk: I have addressed myself to that. The memorandum, however, is not lengthy and if you wish I would like to say just a brief word in addition then on that point. 131 'Mr. Wright: That is one thing that frankly bothers me that we discussed in our previous hearing. 132 'Mr. Mosk: I can understand why that is a matter that does bother you. I think that I indicated at the previous hearing by analogy one of the answers that I feel is pertinent to this. I indicated, and I feel that in every judicial proceeding and every legal proceeding there are many matters that the tribunal would like well to know to assist it in reaching its conclusion. 133 'Now, it is implicit in what I have said up until now that matters of the political, economic and social nature, matters of the mind, cannot become the standards upon which the decision as to whether an applicant is of good moral character can be predicated. There are basic principles as to whether the Committee or any other tribunal may inquire into matters of the mind and thinking. 134 'Now, Mr. Konigsberg is obviously, as indicated by many of these letters, and has always been a man of great principle, and I feel that the Committee, since it is our position that it may not inquire into these fields must not make its decision based on Mr. Konigsberg's principal refusal to answer questions in a field in which the Committee may not inquire. And this fundamentally is our answer that these are matters which can have no bearing on his moral fitness to practice law, and since they cannot I think it then becomes even a greater indication of the extreme principles upon which this man stands, and an even greater indication that as a lawyer he will be a credit to the legal profession' 135 The Subcommittee having reported unfavorably, a hearing to review its recommendation was held before the full State Bar Committee on March 13, 1954, at which Konigsberg read a prepared statement, following which the record shows the following: 136 'Mr. Fuller: What organizations do you presently belong to? 137 'Mr. Mosk: To which I object on the grounds that this is a violation of the witness's rights under the First Amendment of the Constitution. 138 'Mr. Fuller: You mean to say that he shouldn't tell us whether he belongs to the Elks or the Masons or things of that sort? 139 'Mr. Mosk: That would be my position. 140 'Mr. Fuller: We can't determine any organization he belongs to? He doesn't have to answer at all? 141 'Mr. Mosk: That would be my position that his beliefs and associations are not within the scope of this hearing. 142 'Mr. Fuller: It does not necessarily relate to beliefs. We all know many organizations are not based on beliefs. I think we are entitled to know who he associates with. 143 'Mr. Konigsberg: I respectfully say that you are not entitled to know my associations and any person may refuse to answer on the basis of the rights of a citizen under the First Amendment which I have previously referred to in my testimony. 144 'Mr. Konigsberg: May I ask this question, Mr. Chairman: Is it the Committee's position (and I would sincerely like to know) that it has the power to ask such a question and that questions relating to opinions do have a bearing on the applicant's moral character? 145 'Mr. Fuller: I don't want to put it on that basis. It is my position, not necessarily the entire Committee's position, that we have a rather general scope of inquiry to determine whether an applicant tells the truth, for one thing. I think that is a factor in determining whether or not he is morally qualified. He may state that he is not now a Communist, if he has been a Communist in the past, and if we believe he is telling the truth, that will have a bearing on our determination. I think we have the right to test the veracity of the applicant to the extent that if he denies that, I am influenced in the final conclusion I will come to, that I haven't determined yet. I do think that the applicant who wishes to afford us the facilities for determining his moral character to the utmost, should permit us to test his veracity. 146 'Mr. Konigsberg: Mr. Chairman, in all sincerity I have attempted to show in my initial analysis that under Section 6064.1, that I think sets the limit to any inquiry that any body of Examiners has. Once you ask 'Do you now?,' does that person advocate the overthrow by force, violence, or other unconstitutional means, and he answers, as I have answered, that he does not, you cannot ask any questions about his opinions. You are not empowered to ask any questions. There is some question as I pointed out in my statement whether this is constitutional even to allow it to this extent. 147 'Mr. Fuller: Do I understand that it is your position, and I think I understand your position, that we should not go ahead and find out whatever information we can obtain in order to make the best decision? 148 'Mr. Konigsberg: I make this point which I did not make before that I don't think constitutional such action, to draw inferences of the truth or falsity of any statements based on the position (whether of the First or any other Amendment) which the applicant takes. For the Bar to maintain the position, as the Chairman is doing, that it does have the right to ask about my opinions (at least as he is doing this afternoon), as I pointed out these opinions and beliefs which have been expressed coincide with those of prominent leaders of the Bar, which they are expressing today * * *. I am wondering if that is the position the Committee wishes to take. 149 'Mr. Fuller: There is no position of the Committee. I am only one member. We are conducting an impartial examination. 150 'A lady by the name of Bennett testified here. You heard her testimony. Is there any part of that testimony you wish to deny? 151 'Mr. Konigsberg: Well, again, Mr. Chairman, that is the same question. That is a question relating to opinions, beliefs, political affiliations. 152 'Mr. Fuller: It has nothing to do with beliefs. 153 'Mr. Konigsberg: It certainly is related to political organizations, political activity, however you choose to describe it. 154 'Mr. Fuller: Do you want to read it again? 155 'Mr. Konigsberg: I recall it. 156 'Mr. Fuller: Do you wish to deny any part? 157 'Mr. Konigsberg: I wish to say that any questions relating to such political affiliation, which the testimony dealt with * * * 158 'Mr. Fuller: You refuse to affirm or deny her testimony? 159 'Mr. Konigsberg: The Committee is not empowered to ask with regard to political affiliations or that type * * * 160 'Mr. Fuller: I am calling your attention to the fact part of it is not connected with political beliefs or associations. 161 'Mr. Konigsberg: Which part? 162 'Mr. Fuller: You are free to read it. 163 'Mr. Konigsberg: If you wish, I shall be glad to. 164 'Mr. Fuller: If you want you may either affirm or deny anything if you need to do that. We want to afford you the privilege. (Witness read the testimony referred to) 165 'Mr. Konigsberg: Mr. Chairman, I think I would recall all the questions relating to me. She answered a number of questions not relating to me. All relating to me are based on a matter of political affiliation or opinion and political association and I think that is amply covered under the protection of the First Amendment as I referred to a moment ago. The Committee's rights to inquire about this matter are limited to one, the present personal advocacy of the overthrow by force or violence or other means as set forth in 6064.1. 166 'Mr. O'Donnell: Are you a member of the Communist party now? 167 'Mr. Konigsberg: How does that differ from the questions asked before? 168 'Mr. O'Donnell: I would just like you to answer it. 169 'Mr. Konigsberg: The answer is the same I would give. The Committee is not empowered to inquire any more than they may inquire whether I am an Elk, a Freemason, a Democrat or a Republican. It might become incriminating to be a member of the Democratic party today, like saying all Democrats are traitors. 170 'Mr. O'Donnell: Have you ever been a member? 171 'Mr. Konigsberg: I would give the same answer. 172 'Mr. O'Donnell: You refuse to say whether you now are? 173 'Mr. Konigsberg: I refuse on the ground that the Committee is not empowered to question anyone about political opinions or affiliations, whether past affiliations or present ones. I say this can have no bearing on moral qualifications to practice law, unless the Committee is prepared, as I said in my statement, to take the position that it is now a crime in California to have opinions different than general popular opinions or conforming opinions. 174 'Mr. Fuller: Of course, the Committee takes the position it is doing so affirmatively, when it goes before the Supreme Court and states you have the proper moral character and we feel we have the right to inquire very deeply into that because it is an affirmative obligation on our part. 175 'Mr. Konigsberg: I think, Mr. Chairman, on that point the court has said— 176 'Mr. Fuller: We may be wrong. The Supreme Court may tell us otherwise but that is the way it appears at the moment.' Finally, the Committee put to Konigsberg these questions: 177 'Mr. Whitmore: It is not your contention, is it, Mr. Konigsberg, that the only basis which the Committee may rely on in determining whether or not it can certify you under the provisions of 6064.1 is by asking you the questions and getting a yes or no answer. It is not your position that that is the extent of the right of this body in making its determination under 6064.1? 178 'Mr. Konigsberg: In essence, that is it. My interpretation of that code section is simply that it sets the limit as to whatever questions relating to opinion—because that is obviously a political issue—there may be asked by the Bar Examiners. It sets the limit as I interpret it. I may be wrong, as I think the Subcommittee is wrong; because of the history of this act as I have related it the Committee can only ask 'Do you now personally advocate the overthrow of the government of the United States or of this State by force or violence or other unconstitutional means' and if I say 'No,' 'Yes' or whatever it may be, that is as far as you can go; that is without raising the question on this point (which I don't think is pertinent) as to whether that is even constitutional under the First Amendment. 179 'Mr. Whitmore: You are saying that the Committee is precluded under Section 6064.1 from considering acts or omissions of yours in the past with respect to that problem? 180 'Mr. Konigsberg: Yes, I think so. I am saying they can only ask do I advocate the overthrow by force or violence or other means. 181 'Mr. Whitmore: You are contending that we are bound by your answer of yes or no which you give. 182 'Mr. Konigsberg: You can decide for yourselves whether I am telling the truth. You can use any means of determining the truth. You don't have to accept any individual's yes or no answer as the truth. I think that is understood. 183 Mr. Maxfield: Doesn't your answer right there defeat the only purpose if we can cross examine as to the truth or falseness of that statement? Why can't— 184 'Mr. Konigsberg: I didn't say you could cross examine me as to the truthfulness. The question as I understand it was whether the Committee couldn't consider other things, records, past acts. 185 'Mr. Whitmore: Acts or omissions. 186 'Mr. Konigsberg: Anything in my record to evaluate whether I am telling the truth, certainly. 187 'Mr. Maxfield: The general principles of cross examination testing the veracity of a statement, those you know under the rules of evidence are pretty broad. Do you deny us the right to ask these questions for that purpose? 188 'Mr. Konigsberg: Again under the rules of evidence there might be many items of hearsay, fact or whatever it might be, which the court would like to know but the court prevents the prosecution or the other side from introducing because of a deep-seated public policy or other evidentiary rule or the First Amendment. The rule of search and seizure is something else of that nature. The information might be pertinent but the court says that the results of such act, as established over the years, may not be asked or introduced. 189 'It is my contention as I tried to make clear—(it might be unconstitutional, I am not questioning that now)—it may only go as far as this law permits you to go. The history of that act shows that the Legislature tried to do other things but failed to because it failed of passage. And a person can be asked (such people as myself) 'Do you?' than (sic) the Committee must determine and evaluate as to the truth by what is in the individual's record. 190 'Mr. Maxfield: We are not entitled to an evaluation of that truth or in an effort to evaluate it to cross examine you with respect to present or past associations? 191 'Mr. Konigsberg: That is right. That is my interpretation.' 192 On February 8, 1954, the State Bar Committee refused to certify Konigsberg for admission, and the California Supreme Court denied review on April 20, 1955. III. 193 So ends the story. Whatever might be the conclusions to be drawn were we sitting as state judges, I am unable to understand how on this record it can be said that California violated the Federal Constitution by refusing to admit petitioner to the bar. 194 The members of the Committee before whom the petitioner appeared were under a statutory duty to inquire into his qualifications for admission. Among the matters into which they were obligated to inquire were moral character and the applicant's advocacy of forcible overthrow of the Government. Petitioner stated readily enough that he did not advocate overthrow of government by force, violence, or other unconstitutional means. But once that basic question was answered he took the position that the Committee's authority was exhausted; that it had no power to ask him about the facts underlying his conclusory denial or to test his response by cross-examination. The Court holds that the State's conclusion—that an applicant who so obstructs the Committee has not met his burden of proof in establishing his qualifications of good moral character and non-advocacy of forcible overthrow—violates the Fourteenth Amendment. 195 I think this position is untenable. There is no conceivable reason why the Committee should not attempt by cross-examination to ascertain whether the facts squared with petitioner's bare assertion that he was qualified for admission. It can scarcely be contended that the questions were irrelevant to the matter under inquiry, namely, whether petitioner advocated forcible overthrow of the Government. At least it seems apparent to me that Communist Party membership is relevant to the question of forcible overthrow. In fact petitioner himself admitted that the questions were relevant, relying entirely on his First Amendment privilege.11 Yet the Court assumes, for the purposes of this case, that the questions did not invade an area privileged under the First Amendment. In other words, we have here a refusal to answer relevant and unprivileged questions. 196 We are not dealing with a case where the State excludes an applicant from the bar because of bare membership, past or present, in the Communist Party. The Schware case attests that that is a wholly different question. Nor are we dealing with a case where an applicant is denied admission because of his political views. We have here a case where a state bar committee was prevented by an applicant from discharging its statutory responsibilities in further investigating the applicant's qualifications. The petitioner's refusal to answer questions in order to dispel doubts conscientiously entertained by the Committee as to his qualifications under a valid statutory test can, it seems to me, derive no support from the Fourteenth Amendment. 197 The principle here involved is so self-evident that I should have thought it would be accepted without discussion. Can it really be said that a bar-admissions committee could not reject an applicant because he refused to reveal his past addresses, or the names of his former employers, or his criminal record? An applicant might state with the utmost sincerity that he believed that such information was none of the committee's business; yet it must be clear that his application could be rejected. And in such a case the committee would not have to point to 'evidence' establishing either that the applicant had bad moral character or that he was asserting the constitutional privilege in bad faith. For the applicant is the moving party, and his failure to go forward is itself sufficient to support denial of admission. 198 For me it would at least be more understandable if the Court were to hold that the Committee's questions called for matter privileged under the First and Fourteenth Amendments. But the Court carefully avoids doing so. It seems to hold that the question of privilege is irrelevant as long as the applicant is 'in good faith' and as long as there is other material in the record which the Court interprets as affirmatively attesting to his good moral character. I cannot agree. It is not only that we, on the basis of a bare printed record and with no opportunity to hear and observe the applicant, are in no such position as the State Bar Committee was to determine whether in fact the applicant was sincere and has a good moral character. Even were we not so disadvantaged, to make such a determination is not our function in reviewing state judgments under the Constitution. Moreover, resolution of this factual question is wholly irrelevant to the case before us, since it seems to me altogether beyond question that a State may refuse admission to its Bar to an applicant, to matter how sincere, who refuses to answer questions which are reasonably relevant to his qualifications and which do not invade a constitutionally privileged area. The opinion of the Court does not really question this; it solves the problem by denying that it exists. But what the Court has really done, I think, is simply to impose on California its own notions of public policy and judgment. For me, today's decision represents an unacceptable intrusion into a matter of state concern. 199 For these reasons I dissent. 1 Under California procedure the State Supreme Court may admit a person to the bar upon certification by the Committee of Bar Examiners that he meets the necessary requirements. California Business and Professions Code, 1937, § 6064. Section 6060(c) requires that an applicant must have 'good moral character' before he can be certified. Section 6064.1 provides that no person 'who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, shall be certified to the Supreme Court for admission and a license to practice law.' 2 See also Preston v. State Bar of California, 28 Cal.2d 643, 171 P.2d 435; Brydonjack v. State Bar of California, 208 Cal. 439, 281 P. 1018, 66 A.L.R. 1507. 3 Rule 59(b) is set out at 36 Cal.2d 43, West's Ann.Rules on Appeal, rule 59(b). Generally, the California Supreme Court divides its rules into two main parts: (1) 'Rules on Appeal,' which govern appeals in civil and criminal cases; and (2) 'Rules on Original Proceedings in Reviewing Courts.' 4 The petition asserted: '1. That the petitioner sustained his burden of proof of establishing his good moral character and all other requirements established by law in the State of California for applicants for admission to the bar. '2. That the committee erred in asserting that the petitioner had failed to meet his burden of proof of establishing his good moral character. '3. That no lawful evidence was received or exists supporting the denial of the application of the petitioner.' 5 He also referred to Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, and Frost & Frost Trucking Co. v. Railroad Commission of State of California, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101. 6 Cf. In re Investigation of Conduct of Examination for Admission to Practice Law, 1 Cal.2d 61, 33 P.2d 829. 7 The brief did refer to pages of the record where constitutional arguments were made and cases cited to support them. 8 People v. McLean, 135 Cal. 306, 67 P. 770; Title Guarantee & Trust Co. v. Fraternal Finance Co., 220 Cal. 362, 30 P.2d 515. 9 See, e.g., People v. Hadley, 175 Cal. 118, 119, 165 P. 442; People v. Yaroslawsky, 110 Cal.App. 175, 176, 293 P. 815; People v. Buck, 72 Cal.App. 322, 237 P. 63. 10 Cf. People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 17 L.Ed. 571. 11 The record, when read as a whole, shows that Konigsberg took the position that he would answer all questions about his character or loyalty except those directed to his political views and beliefs and to questions about membership in the Communist Party. The record also shows that the Committee made no effort to pursue any other course of interrogation. 12 Neither the Committee as a whole nor any of its members ever intimated that Konigsberg would be barred just because he refused to answer relevant inquiries or because he was obstructing the Committee. Some members informed him that they did not necessarily accept his position that they were not entitled to inquire into his political associations and opinions and said that his failure to answer would have some bearing on their determination of whether he was qualified. But they never suggested that his failure to answer their questions was, by itself, a sufficient independent ground for denial of his application. 13 The answer, in pertinent part, read as follows: '(P)etitioner was invited to appear at a hearing before the Southern Subcommittee of the Committee of Bar Examiners on the 25th day of September, 1953, at which time he was informed of evidence raising doubts as to his fitness to practice law, and was questioned concerning such evidence and other matters relevant to his qualifications to become a member of the State Bar of California. 'On or before the 8th day of February, 1954 the Southern Subcommittee of the Committee of Bar Examiners considered all of the evidence which had been presented, and determined that petitioner had failed to show his good moral character so that his application must be denied. On or about the 8th day of February, 1954 said Subcommittee informed the petitioner in writing of the denial of his application and the reasons therefor. 'On or prior to the 17th day of May, 1954 (the Full Committee) considered all of the evidence which had been introduced and determined that petitioner had not sustained the burden of proof that he was possessor of the good moral character required by California Business and Professions Code, Section 6060(c) and that he had not complied with Section 6064.1 of said Code, so that his application must be denied. Petitioner was notified of this decision and the reasons therefor by letter dated May 17, 1954. 'Petitioner has not complied with the requirements of California Business and Professions Code, Sections 6060(c) and 6064.1 and so is not entitled to be and should not be admitted to practice law in the State of California.' (Emphasis supplied.) As pointed out in note 1, supra, § 6064.1 excludes applicants who advocate the overthrow of the Government of California or the United States by 'unconstitutional means,' while § 6060(c) requires that an applicant must have good moral character. 14 Cf. Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. 15 In presenting its version of the questions before this Court, the Bar Committee did not suggest that the denial of Konigsberg's application could be upheld merely because he had failed to answer questions. Nor was such a position taken on oral argument. Counsel, instead, reiterated what the Bar Committee had contended throughout, namely, that Konigsberg was rejected because he failed to dispel substantial doubts raised by the evidence in the record about his character and loyalty. 16 Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752; cf. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. 17 Cf. Local Union No. 10, etc. v. Graham, 345 U.S. 192, 197, 73 S.Ct. 585, 587, 97 L.Ed. 946. 18 See Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 708, 95 L.Ed. 886 (dissenting opinion); United States ex rel. Iorio v. Day, 2 Cir., 34 F.2d 920, 921; Cahn, Authority and Responsibility, 51 Col.L.Rev. 838. 19 In re Garland, 219 Cal. 661, 28 P.2d 354. 20 In re Wells, 174 Cal. 467, 163 P. 657. 21 Spears v. State Bar of California, 211 Cal. 183, 294 P. 697, 72 A.L.R. 923. 22 This testimony was in the form of written statements. Konigsberg offered to produce witnesses to testify in person but the Board preferred to have their statements in writing. An instructor at the University of Southern California Law School: 23 Counsel for the Bar Committee acknowledged this in oral argument. He stated: 'Now Mrs. Bennett's testimony left much to be desired, that I concede. Her identification of this man is not all that you might wish.' 24 Konigsberg gave this answer during the first hearing held by the Committee. He was not represented by counsel at the time. At a subsequent hearing he stated that his earlier willingness to answer this question was inconsistent with his general position that the Committee had no right to inquire into his political associations and beliefs. He said he would not answer if the same question were then presented to him. 25 Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232. 77 S.Ct. 752; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. See Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796. 26 Cf. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, where this Court struck down an attempt to exclude from the practice of law individuals who had taken up arms against the United States in the War Between the States. See also Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356; Brown and Fassett, Loyalty Tests for Admission to the Bar, 20 U. of Chi.L.Rev. 480 (1953). 27 For example, petitioner wrote: 'When the Supreme Court of these benighted states can refuse to review the case of the Hollywood Ten thus making that high tribunal an integral part of the cold war machine directed against the American people—then the enemies of democracy have indeed won a major victory. When the commanders of the last legal bulwark of our liberties all out to the enemy, then the fascists have gone far, much farther than most people think. He who cannot see the dangerous damnable parallel to what happened in Germany is willfully blind.' 28 In 1948 Konigsberg appeared before the Un-American Activities Committee of the California Senate, commonly known as the Tenney Committee. At that time he sharply criticized this committee, accusing it of subverting the liberties of Americans, and declared: 'I pledge my word to use every democratic means to defeat you.' The State points to petitioner's criticism of this committee as casting doubt on his moral character. What is said in the text disposes of this contention. 29 Cf. Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192. 30 See, e.g., United States v. Rumely, 345 U.S. 41, 48, 73 S.Ct. 543, 547, 97 L.Ed. 770 (concurring opinion); Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628; Cantwell v. State of Connecticut, 310 U.S. 296, 303—304, 60 S.Ct. 900, 903. 84 L.Ed. 1213; De Jonge v. State of Oregon, 299 U.S. 353, 365—366, 57 S.Ct. 255, 260, 81 L.Ed. 278. A dissenting opinion in Jones v. City of Opelika, 316 U.S. 584, 611, 618, 62 S.Ct. 1231, 1245, 1249, 86 L.Ed. 1691, which was adopted on rehearing, 319 U.S. 103, 63 S.Ct. 800, 87 L.Ed. 1290, declared: 'Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind.' 31 Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 557, 76 S.Ct. 637, 640, 100 L.Ed. 692; Sheiner v. State of Florida, Fla., 82 So.2d 657; Ex parte Marshall, 165 Miss. 523, 147 So. 791. And see Ullmann v. United States, 350 U.S. 422, 426—428, 76 S.Ct. 497, 500—501. 100 L.Ed. 511; Opinion of the Justices, 332 Mass. 763, 767—768, 126 N.E.2d 100; In re Holland, 377 Ill. 346, 36 N.E.2d 543; Matter of Grae, 282 N.Y. 428, 26 N.E.2d 963, 127 A.L.R. 1276. 32 See, for example, text 353 U.S. 264, 265, 77 S.Ct. 729. 33 California Business and Professions Code, 1937, § 6067, requires: 'Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.' 34 Compare the discussion in the text at footnote 25, supra, and see cases cited in that footnote. 35 Petitioner also contends that it violates due process to make advocacy of overthrow of the Government of the United States or of a State by force, violence, or other unconstitutional means an automatic ground for denying the right to practice law regardless of the reasons for or the nature of such advocacy. Because of our disposition of the case, it is unnecessary to consider this argument. 36 See Cammer v. United States, 350 U.S. 399, 406—407, 76 S.Ct. 456, 459—460, 100 L.Ed. 474. Compare Chafee, the Harvard Law School Record, Nov. 1, 1950, and Nov. 8, 1950. 1 Section 6060, Cal.Bus. and Prof.Code (1937). The Court does suggest that this standard is 'unusually ambiguous' and that it 'can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer.' I respectfully suggest that maintenance of high professional standards requires that a State be allowed to give that term its broadest scope. 2 Id., § 6064.1. 3 Spears v. State Bar, 211 Cal. 183, 294 P. 697; In re Wells, 174 Cal. 467, 163 P. 657. All but 2 of the 48 States have this practice requirement. See Farley, Admission of Attorneys from Other Jurisdictions, in Survey of the Legal Profession, Bar Examinations and Requirements for Admission to the Bar, 151, 159. 4 The Court does say (353 U.S. 270, 77 S.Ct. 732): 'Prior decisions by this Court indicate that his (Konigsberg's) claim that the questions were improper was not frivolous and we find nothing in the record which indicates that his position was not taken in good faith.' The record at least gives one pause as to the correctness of the latter conclusion. See 353 U.S. 292, 298, 299, 77 S.Ct. at pages 742, 743, 745, 746, infra. 5 The record contains the following exchange between Mr. O'Donnell, a member of the full State Bar Committee, and Mr. Mosk, the petitioner's counsel: 'Mr. O'Donnell: There was some suggestion that the Subcommittee was not fair at the previous hearings. Mr. Mosk: May I interrupt immediately. There was no inference in any comments made by Mr. Konigsberg or myself. They were solely directed to the decision of the Subcommittee and our disagreement with the ultimate results. The Committee was absolutely fair and treated Mr. Konigsberg and myself with the utmost degree of fairness and impartiality. We have no complaints about the Subcommittee.' 6 Perhaps the most precise possible formulation of the question before us is whether a State may adopt a rule of administration to the effect that, in circumstances such as are disclosed here, an applicant who refuses to supply information relevant to his fitness may be deemed to have failed to sustain the burden of establishing his qualifications. I have no doubt that such a rule is constitutional. Cf. Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 349—351, 29 S.Ct. 370, 379, 53 L.Ed. 530; Fed.Rules Civ.Proc., rule 37(b), 28 U.S.C.A. 7 See the italicized portions of pp. 11, 12, 13, 14, 15, 20, 24, 25, 26, 28, 31, 32, 33, (77 S.Ct. 740, 741, 742 to 744, 746, 747, 748, 749, 750) infra. 8 Even on this basis I consider today's action of the Court unjustified upon this record. Whether considered as the adoption and application of a reasonable rule of administration, or as the drawing of an adverse inference of fact, the Committee's action in this case was proper. As the Hammond case shows, a State may treat a refusal to supply relevant information as establishing facts against the refusing party even though he does not have the burden of proof. A fortiori, a State need not give affirmative relief to one who refuses to supply evidence needed to support his own claim. Cf. Moore's Federal Rules and Official Forms (1956) 163 165, taking the position that judgment should be entered against a party to civil litigation who refuses to answer relevant questions, even where the refusal is justified by a valid privilege. In this case the Court takes the position, apparently, that refusal to supply relevant information cannot justify state action in a civil proceeding even where the refusal is unprivileged, and where the refusing party is a claimant upon whom rests the burden of proof. 9 There is no question here of drawing an unfavorable inference from a claim of the Fifth Amendment privilege. Petitioner repeatedly disclaimed any assertion of that privilege. 10 In quoting from the record I have italicized some parts to give emphasis to this point. 11 Cf. Garner v. Board of Public Works, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317; and see 353 U.S. 299, 300, 301, 77 S.Ct. 746, 747, 748, supra.

56

353 U.S. 368 77 S.Ct. 855 1 L.Ed.2d 897 SECURITIES AND EXCHANGE COMMISSION, Petitioner,v.LOUISIANA PUBLIC SERVICE COMMISSION, Middle South Utilities, Inc., andLouisiana Power and Light Company. No. 466. Argued April 30 and May 1, 1957. Decided May 13, 1957. Rehearing Denied June 17, 1957. See 354 U.S. 928, 77 S.Ct. 1375. Mr. Thomas G. Meeker, Washington, D.C., for the petitioner. Mr. Robert A. Ainsworth, Jr., New Orleans, La., for respondent, Louisiana Public Service Commission. Mr. J. Raburn Monroe, New Orleans, La., for respondent, Louisiana Power and Light Company. PER CURIAM. 1 On January 29, 1953, the Securities and Exchange Commission, pursuant to § 11(b)(1) of the Public Utility Holding Company Act of 1935, 49 Stat. 820, 15 U.S.C. § 79k(b)(1), 15 U.S.C.A. § 79k(b)(1), issued a notice and order for hearing directed to Middle South Utilities, Inc., and its subsidiary, Louisiana Power & Light Company, upon the matter of '(w)hether Middle South and Louisiana (Power) should be required to take action to dispose of the gas utility assets and non-utility assets of Louisiana (Power) and, if so, what terms and conditions should be imposed in connection therewith.' A copy of that notice and order for hearing was served upon those companies and also upon the Louisiana Public Service Commission by registered mail. 2 A full hearing was conducted by the S.E.C. at which Middle South and Louisiana Power appeared, adduced evidence, and presented arguments in support of their position that they should be permitted to retain Louisiana Power's gas properties as an additional integrated public utility system under the proviso to § 11(b)(1) of the Act. The Louisiana Public Service Commission did not appear in that proceeding. On March 20, 1953, the S.E.C. issued its opinion, findings and order directing Middle South and Louisiana Power to divest themselves of all the non-electric assets of Louisiana Power 'in any appropriate manner not in contravention of the applicable provisions of the Act,' which gave them one year for compliance under the provisions of § 11(c) of the Act, 49 Stat. 821, 15 U.S.C. § 79k(c), 15 U.S.C.A. § 79k(c). No petition to review that order was ever filed, and it ceased to be subject to judicial review with the expiration of the 60 days allowed to petition for that purpose by § 24(a) of the Act, 49 Stat. 834, 15 U.S.C. § 79x(a), 15 U.S.C.A. § 79x(a), on May 19, 1953. 3 Thereafter, pursuant to § 11(c) of the Act, the S.E.C. extended the time for compliance with its order to March 20, 1955. On November 10, 1954, Louisiana Power and its newly organized wholly owned subsidiary, Louisiana Gas Service Corp., filed a joint 'application-declaration' with the S.E.C., proposing the transfer by Louisiana Power of all its non-electric properties to Louisiana Gas as a step in compliance with the divestment order of March 20, 1953, and expressing the intention of Louisiana Power to effect divestment of the common stock of Louisiana Gas within 18 months from the date the latter might begin operations. Thereupon, the S.E.C. issued a notice advising interested persons, including the Louisiana Public Service Commission, of the filing of the 'application-declaration' mentioned, and that they might request a hearing on that proposal. By telegram of December 22, 1954, the Louisiana Commission requested the S.E.C. to grant a hearing upon that 'application-declaration' and to reopen the § 11(b)(1) proceeding which had resulted in the divestment order of March 20, 1953. On December 27, 1954, it filed with the S.E.C. a formal petition accordingly, which it supplemented on January 3, 1955. Also, at the suggestion of the S.E.C., the Louisiana Commission submitted an offer of proof and a brief in support of its petition to reopen the divestment proceeding. The offer of proof did not indicate any change in conditions since the divestment order of March 20, 1953, but, rather, complained that the evidence in that proceeding had been incomplete and that the S.E.C. had acted, in part, upon an erroneous conception of the law. The S.E.C. heard oral argument upon the Louisiana Commission's petition to reopen. Thereafter, on September 13, 1955, it found that there were 'no grounds for questioning . . . (its) earlier conclusion and no changed circumstances justifying a modification' of its divestment order of March 20, 1953, and it denied the petition to reopen that proceeding. 4 The Louisiana Commission then filed a petition in the Court of Appeals to review the order of September 13, 1955, denying its petition to reopen, and also therein stated that it sought review of the divestment order of March 20, 1953. The S.E.C. moved the Court of Appeals to dismiss the petition for review upon the ground that the order of September 13, 1955, was not judicially reviewable and that the petition for review was in essence an attempt to appeal from the divestment order of March 20, 1953, long after the time allowed by law to do so had expired. The Court of Appeals held that the order of September 13, 1955, was reviewable, and it set aside that order. It also held that legal determinations made by the S.E.C. in its divestment order of March 20, 1953, were erroneous, and it, in effect, set aside that order too. 235 F.2d 167. We granted certiorari. 352 U.S. 924, 77 S.Ct. 223, 1 L.Ed.2d 160. 5 The conclusion of the Court of Appeals that the order of September 13, 1955, was subject to judicial review was rested upon the last two sentences of § 11(b) of the Act, 49 Stat. 820, 15 U.S.C. § 79k(b), 15 U.S.C.A. § 79k(b), reading: 'The Commission may be order revoke or modify any order previously made under this subsection, if, after notice and opportunity for hearing, it finds that the conditions upon which the order was predicated do not exist. Any order made under this subsection shall be subject to judicial review as provided in section 79x of this title.' It held that the Securities and Exchange Commission's order of September 13, 1955, denying the Louisiana Commission's petition to reopen the divestment proceeding was an 'order' specifically made subject to judicial review by the quoted language. 6 We take a different view. We hold that the orders made judicially reviewable by the quoted language are the directory orders mentioned in, and authorized by, subsection (b) of § 11 of the Act, and orders which may 'revoke or modify' any such order previously made under that subsection, and that the quoted language does not include an order merely denying a petition to reopen s 11(b) proceedings. It follows that the Securities and Exchange Commission's order of September 13, 1955, denying the Louisiana Commission's petition to reopen the divestment proceeding was not an order which was subject to judicial review, and the judgment of the Court of Appeals must accordingly be reversed. 7 It is so ordered. 8 Reversed. 9 Mr. Justice CLARK took no part in the consideration or decision of this case.

78

353 U.S. 325 77 S.Ct. 842 1 L.Ed.2d 862 The BALTIMORE AND OHIO RAILWAY COMPANY, Petitioner,v.Daniel T. JACKSON. No. 370. Argued March 28 and April 1, 1957. Decided May 13, 1957. Rehearing Denied June 24, 1957. See 354 U.S. 943, 77 S.Ct. 1391. Mr. Stephen Ailes, Washington, D.C., for the petitioner. Mr. Milford J. Meyer, Philadelphia, Pa., for the respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This is a suit for damages arising from an injury suffered by a section foreman of the petitioner while operating a motor track car that was towing a push truck on petitioner's tracks. It was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The sole question is whether such vehicles when used in the manner here are within the coverage of the Safety Appliance Acts.1 The petitioner contends that neither vehicle comes within the general coverage of the Acts; and, in the alternative if the vehicles are included, that they are exempted as 'four-wheel cars' under § 6 of the Acts.2 2 Both the trial court and the Court of Appeals have decided that the vehicles involved here are included within the coverage of the Safety Appliance Acts and that neither falls within any exemption contained therein. The case reaches us on certiorari, 352 U.S. 889, 77 S.Ct. 130, 1 L.Ed.2d 84. We agree with the two-court interpretation of the Acts as applied to the facts here involved. 3 The respondent was injured over five years ago. For 39 years he had been a section foreman of track maintenance for petitioner. He and the crew over which he had supervision were responsible for the maintenance and repair of a section of track between Waring and Durwood, Maryland. They used in their work a gasoline-motor-powered track car equipped with belt drive and a hand brake. The car could carry as many as 12 men and their tools. At various times a push truck or hand car was coupled by a pin to the motor track car and was towed by it to the scene of the work. The hand car weighed about 800 pounds unloaded, had a 5-ton carrying capacity, and had no brakes. Sometimes it carried a load of material and other times only equipment and tools. Each of these cars was equipped with four wheels and was capable of being removed from the rails by a crew of men. 4 On the occasion in question respondent and a crew of two men, pursuant to orders, had hauled about a ton of coal via the motor track car and hand car from Gaithersburg to the stationmaster at Washington Grove, a station near the scene of their roadbed work on that day. The coal was placed on the hand car which was pulled along the tracks by the motor car. The two vehicles also carried tools, a wheelbarrow, and other equipment, as well as the respondent and his crew. After unloading the coal they proceeded a short distance beyond the Washington Grove station to work on a section of the westbound track. There they removed the vehicles from the track and worked that section of the rails until about 4 p.m. They then replaced the vehicles on the tracks, fastened them together, and began the return trip to the yards at Gaithersburg. On approaching the Washington Grove station at a speed of from 5 to 10 miles per hour the vehicles struck a large dog and derailed, throwing the respondent into a ditch and causing his injuries. The uncontradicted evidence was that respondent applied the hand brake on the motor track car immediately upon seeing the dog and the cars skidded on wet tracks about 39 feet before the impact. Respondent further testified that the motor track car alone, without the hand car attached, could have been stopped under the same conditions within six to eight feet. 5 Respondent brought his action against the railroad claiming that (1) the petitioner was negligent in directing him to operate a motor track car and push truck without sufficient braking power, and in requiring him to pull the push truck over wet, slippery rails when the truck was not equipped with brakes, and (2) the injury was proximately caused by petitioner's noncompliance with the requirements of the Safety Appliance and Boiler Inspection Acts. The District Court ruled and instructed the jury that the provisions of the Safety Appliance Acts included within their coverage the vehicles in question. The issues in both causes of action were submitted to the jury, which returned with a verdict for respondent on 'the issues aforesaid.' The appeal in the Court of Appeals was directed only to the second cause of action concerning the applicability of the Safety Appliance Acts. That court affirmed, 98 U.S.App.D.C. 169, 233 F.2d 660, and as has already been indicated, we are faced here only with the problem of the coverage of the Safety Appliance Acts. 6 The power or train brake provisions of the Safety Appliance Acts apply to the motor track car and the coupling and brake requirements to the hand car when they are employed in the manner here involved. If used separately, though we do not pass on the question, it may well be that entirely different sections of the Acts might apply to each of the vehicles. But here the hand car was not operated by hand as was originally intended. On the contrary, it was fastened by a pin—not a coupler—to a motor track car, a self-propelled piece of equipment, and was hauled with its cargo to its destination on the tracks of petitioner. The hand car had no brakes, although the Acts specifically require 'any car' to be equipped with a hand brake.3 It was being used for hauling purposes. Furthermore, the motor track car, instead of being used solely to carry men and tools to their place of work, was used to pull or tow another car—albeit a hand car. It had no power or train brakes but was equipped with a simple hand brake designed for its individual operation. The brake was wholly insufficient for the use to which the railroad put the vehicles. 7 We believe that the controlling factor is the nature of the employment of the vehicles in the railroad's service, that is the type of operation for which they are being used. Here at the time of the injury it is admitted that petitioner was putting the motor track car to locomotive uses in pulling a hand car used to haul material, tools, and equipment. In the light of the prime purpose of the Safety Appliance Acts, i.e., 'the protection of employees and others by requiring the use of safe equipment,' Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 486, 63 S.Ct. 347, 351, 87 L.Ed. 411, when the railroad uses this type of equipment in this manner—regardless of the label it places on the vehicles—the commands of the Acts must be obeyed. The operation as conducted when the respondent was injured, with a motor track car equipped with neither power nor train brakes pulling an attached hand car with neither an automatic coupler nor hand brake, was in defiance of the requirements of the Acts. See 45 U.S.C. §§ 1—8, 45 U.S.C.A. §§ 1—8. This is not to say that these vehicles, even when used as herein described, must be equipped with devices not adaptable to their safe operation. As was said in Southern R. Co. v. Crockett, 1914, 234 U.S. 725, 34 S.Ct. 897, 58 L.Ed. 1564: 8 'We deem the true intent and meaning to be that the provisions and requirements respecting train brakes, automatic couplers, grab irons, and the height of draw-bars shall be extended to all railroad vehicles * * * so far as the respective safety devices and standards are capable of being installed upon the respective vehicles.' Id., 234 U.S. at pages 737—738, 34 S.Ct. at page 902. 9 It is said that there is no place on the vehicles in question here for a grab iron or a handhold and that power brakes might well increase the hazards of their operation. This may be true, but if these vehicles are to be used in a manner such as here, the Commission through the promulgation of standards or regulations covering such equipment should adapt the safety requirements of the Acts to the safe use of such vehicles and thus protect employees and the public from the hazards of their operation. 10 It is contended that, since the Commission has for over 60 years considered maintenance-of-way vehicles not subject to the Acts, this consistent administrative interpretation is persuasive evidence that the Congress never intended to include them within its coverage. It is true that long administrative practice is entitled to weight, Davis v. Manry, 1925, 266 U.S. 401, 405, 45 S.Ct. 163, 164, 69 L.Ed. 350, but here there has been no expressed administrative determination of the problem.4 We believe petitioner overspeaks in elevating negative action to positive administrative decision. In our view the failure of the Commission to act is not a binding administrative interpretation that Congress did not intend these cars to come within the purview of the Acts. See Shields v. Atlantic Coast Line R. Co., 1956, 350 U.S. 318, 321—322, 76 S.Ct. 386, 389, 390, 100 L.Ed. 364. 11 The fact that the Commission has not sponsored legislation rather indicates that it thought the problem too insignificant for consideration. We think the Commission expresses this view in its amicus curiae brief when it says 'the needs are for strict enforcement of sound operating rules and regulations rather than for air brakes, automatic couplers and the other devices specified in the Safety Appliance Acts.' But this is a matter of policy for the Congress to decide and it wrote into the Safety Appliance Acts that their coverage embraced 'all trains, locomotives, tenders, cars, and similar vehicles.'5 This plain language could not have been more all-inclusive. This Court has construed the language of the Act in its generic sense. In Johnson v. Southern Pacific Co., 1904, 196 U.S. 1, 25 S.Ct. 158, 49 L.Ed. 363, with reference to the meaning of the word 'car,' the Court said: 'There is nothing to indicate that any particular kind of car was meant. Tested by context, subject matter and object, 'any car' meant all kinds of cars running on the rails, including locomotives.' Id., 196 U.S. at pages 15—16, 25 S.Ct. at page 161. See also Spokane & Inland E.R. Co. v. Campbell, 1916, 241 U.S. 497, 36 S.Ct. 683, 60 L.Ed. 1125. 12 While there is a paucity of cases on the point, with none to the contrary of our holding here, as early as 1934 in Hoffman v. New York, N.H. & H.R. Co., 74 F.2d 227, the Court of Appeals for the Second Circuit held a hand car or push truck, identical with the one here involved, and a small gasoline tractor subject to the Acts. The hand car was attached to the gasoline tractor by means of a hook (though the engine had an automatic coupler on one end) and the petitioner was injured when the hook dislodged and he was pinned between the car and the locomotive. The court unanimously held that if a hand car 'is to be operated by a locomotive (which it held the gasoline tractor to be), rather than by hand, we are not inclined to depart from the literal terms of the statute and dispense with the requirement of an automatic coupler.' Id., 74 F.2d at page 232. Three years later the requirement of the Acts as to power or train brakes was held applicable to other than standard equipment in United States v. Ft. Worth & D.C.R. Co., D.C., 21 F.Supp. 916. There a trial court in the Northern District of Texas held that where a locomotive crane was 'used to haul cars * * * it is being used for the purposes for which a locomotive is used and is a locomotive * * * regardless of whatever else it might also be.' Id., at 918. In 1955 the Supreme Court of Florida unanimously held in Martin v. Johnston, Fla., 79 So.2d 419, that the same type motor track car as is involved here came within the terms of the Acts. There the motor track car was being used entirely separately and independently from any other vehicle. The Safety Acts require all cars to be equipped with 'efficient hand brakes.' The failure of the brakes was the cause of the injury. The court commented: 'There being as much reason for requiring the motor-car in question to be equipped with efficient handbrakes, to insure its safe operation when propelled under its own power, as there is for the requirement that such a car be equipped with automatic couplers, where it is to be used in connection with a train movement, we have the view that the Safety Appliance Acts are applicable and that we are not authorized to depart from the literal terms of the statute.' Id., 79 So.2d at page 420. 13 Nor do we find that § 6 of the Acts exampts these vehicles from the provisions of the Acts. Though it is true that the cars are of the four-wheel variety, they are used neither in coal trains nor as logging cars. As the Commission points out in its amicus curiae brief, the proviso of § 6 originally exempted 'trains composed of four-wheel cars or . . . locomotives used in hauling such trains,' and the legislative history shows that this provision was enacted specifically to exempt coal cars. 24 Cong.Rec. 1477. This language was incorporated in the phraseology of the present section which admittedly through error was thought to apply to the exemption of trains composed of logging cars. See H.R. Rep. No. 727, 54th Cong., 1st Sess. The legislative history of the section reveals beyond doubt that it has no application here. 14 In view of the history and purposes of the Safety Appliance Acts, and the literal language used by the Congress that they embraced 'any car'6 and 'any locomotive engine * * * hauling * * * any car,'7 together with the practical necessity of affording safety appliances to thousands of railroad maintenance employees, as well as the public, we conclude that the motor track car and hand car when used by the petitioner in the manner employed here must be equipped in accordance with the requirements of the Safety Appliance Acts. 15 Affirmed. 16 Mr. Justice BURTON, whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting. 17 In this Federal Employers' Liability Act suit, the District Court instructed the jury that the Safety Appliance Acts1 required the railroad to equip a gasoline-driven motor track car with a train brake and a push truck with a hand brake, and that the railroad was liable if its failure to furnish this equipment contributed to the accident. The correctness of this instruction presents the issue whether the Safety Appliance Acts apply to these small maintenance-of-way vehicles—the successors to the familiar handcars of years ago. The Court approves the instruction, and, in doing so, it holds that a motor car is a 'locomotive,' that a push truck is a 'car,' and that the two combined are a 'train' as those terms are used in the Safety Appliance Acts. I do not find in the language of the Acts, their background and legislative history, or in the longstanding administrative practice of the Interstate Commerce Commission justification for so holding. 18 On November 1, 1951, respondent Jackson, the foreman of a Baltimore & Ohio maintenance crew, was engaged with two of his men in railroad maintenance work near Washington Grove, Maryland. At quitting time, the three men lifted a motorized track car and a push truck onto the tracks, coupled them together by hand, and boarded the motor car for their return to the section house about one mile away. It had been raining lightly and the tracks were wet. The motor car and push truck had traveled about 195 feet when Jackson, who was operating the motor car, saw a large dog about to cross the tracks in front of the car. He threw out the clutch and applied the hand brake with both hands. The brakes grabbed, the wheels locked and the vehicles slid 'about 20 feet' on the wet tracks before striking the dog and overturning. Jackson was injured. 19 The motor track car on which Jackson and his crew were riding was a fourwheel maintenance-of-way vehicle weighing about 800 pounds. Powered by a gasoline motor and controlled with a throttle, clutch and hand brake, it was typical of the more than 60,000 vehicles of this type currently in use on American railroads to carry maintenance crews from section houses to places along the railroad where work is to be performed. The push truck was an even simpler vehicle. It consisted of four wheels, a chassis, and a flat wooden platform, and could be pushed along the tracks by hand. 20 At the time of the accident, the push truck was attached to the rear of the motor car by a simple non-automatic link and pin device, and carried no load except a few tools. Jackson testified that the use of a push truck in conjunction with a motor track car was customary; that neither vehicle carried an unusual or excessive load; that each was provided with the usual equipment of such vehicles; and that the hand brake of the motor car was in proper working order at the time of the accident. 21 The Safety Appliance Acts make it mandatory that specified equipment be used on railroad vehicles covered by the Acts. Criminal penalties are imposed for each violation.2 Civil liability in damages under the Federal Employers' Liability Act follows as a matter of course if the violation is a proximate cause of an employee's injury.3 The vehicles subject to the Acts must be equipped with such devices as power driving-wheel brakes, appliances for operating a train-brake system, automatic couplers of a standard height, sill steps, grab irons and handholds, and hand brakes. In determining whether motor cars and push trucks must be equipped with such appliances, the language of the Acts is the proper starting point. 22 The Safety Appliance Acts apply expressly to 'all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith * * *.' 32 Stat. 943, 45 U.S.C. § 8, 45 U.S.C.A. § 8. The term 'similar vehicles' shows that all vehicles are not included. Motor cars and push trucks must come within the terms 'locomotives,' 'cars,' or 'similar vehicles.' 23 The statutory context demonstrates that the crucial terms 'locomotives' and 'cars'—were used in their ordinary sense as referring to standard operating equipment rather than to small maintenance-of-way vehicles like those involved in this case. For example, § 1, 27 Stat. 531, 45 U.S.C. § 1, 45 U.S.C.A. § 1, which requires 'power driving-wheel brake(s)' and a 'train-brake system,' speaks in terms of a 'locomotive engine,' 'engineer,' 'brakesmen' and 'train.'4 A small motor car used to haul section hands and their tools to and from work would not ordinarily be called a 'locomotive engine' except in jest, nor would a motor car with a push truck attached be referred to as a 'train.' Much less would the section hand operating the motor car, who would ordinarily belong to a separate union—the Brotherhood of Maintenance of Way Employees—be referred to as an 'engineer' or his crew as 'brakemen.' This is language appropriate to vehicles and employees used in standard freight and passenger operations but not to a motor car towing a push truck. 24 Other sections indicate that the word 'car' refers to standard railroad cars. Section 2 makes it unlawful for any railroad 'to haul or permit to be hauled or used on its line any car * * * not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.' 27 Stat. 531, 45 U.S.C. § 2, 45 U.S.C.A. § 2. This section, as well as the detailed provisions of § 5 dealing with the prescribed height of drawbars on couplers, could not be applicable to cars of little more than a yard's height easily coupled by hand without danger to anyone.5 25 The background and legislative history of the three Safety Appliance Acts confirm this view. Their history reveals not only that it never was suggested that the Acts were applicable to small maintenance-of-way vehicles, but also that the stated objectives of the Acts would not be served by subjecting these vehicles to the Acts. 26 The recognized purpose of each of the Safety Appliance Acts was the protection of operating employees of railroads from the hazards involved in the movement of standard trains and cars. The first Safety Appliance Act, 27 Stat. 531, 45 U.S.C. §§ 1—7, 45 U.S.C.A. §§ 1—7, enacted in 1893, was preceded by a decade of concern, not with light maintenance equipment, but with the death toll caused by the two major hazards facing railroad trainmen: (1) the necessity for operating employees to work between freight cars in coupling them, and (2) the necessity for brakemen to operate hand brakes while standing on the tops of freight cars.6 The Interstate Commerce Commission, the railroad Brotherhoods, and other groups advocated legislation which would reduce these hazards by requiring uniform automatic couplers and power brakes on freight trains.7 Congress was concerned wholly with these hazards and the Act adopted relates entirely to them.8 27 The present significance of these specific objectives is that they do not relate to motor cars and push trucks. Unlike standard railroad cars and trains, motor cars and push trucks do not require power brakes to bring them safely to a stop, and they do not endanger the section hands who couple them by pushing them together by hand. Operated and used by maintenance workers rather than by operating employees, motor cars and push trucks move at comparatively slow speeds and present hazards quite different from those faced by trainmen on standard trains. 28 By 1900, the railroads were in substantial compliance with the original Act.9 Nevertheless, the Interstate Commerce Commission, disturbed because some locomotives and standard cars were not required to be equipped with automatic couplers, recommended broadening amendments. These recommendations called for automatic couplers for all locomotives and for 'all vehicles * * * which are ordinarily hauled or propelled by standard locomotives.'10 The second Safety Appliance Act, enacted in 1903, 32 Stat. 943, 45 U.S.C. §§ 8—10, 45 U.S.C.A. §§ 8—10, incorporated these recommendations. It extended the first Act to 'all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith * * *.' (Emphasis supplied.) Initially, the word 'vehicles' in the bill was unqualified by the word 'similar.' S.Rep.No. 1930, 57th Cong., 1st Sess. 16. However, a railroad representative objected to it on the ground that it was too broad and suggested the term 'traffic cars.' Id., at 16—17. The legislative representative of the Brotherhoods opposed the suggested substitute because it might be thought inapplicable to 'cabooses, steam shovels, snowplows, scale cars, and similar conveyances,' which are used in connection with standard equipment. Id., at 46. The result was that the word 'vehicles' was qualified by the addition of 'similar.' This indicates that the term 'similar vehicles' was used to cover special equipment, such as snowplows, used in connection with standard equipment. Maintenance-of-way vehicles have never been capable of such use. 29 The third Safety Appliance Act, 36 Stat. 298, 45 U.S.C. §§ 11 16, 45 U.S.C.A. §§ 11—16, enacted in 1910, supplemented the existing Acts so as to require additional safety appliances, but did not extend the coverage. 'Cars' were to be equipped with secure still steps and efficient hand brakes; 'cars' requiring secure ladders and running boards were to be so equipped; secure handholds or grab irons were to be installed on the roofs at the tops of such ladders; and the Commission was to designate the standards for these and certain other appliances, as well as to modify or change the standard height for drawbars. These additions grew out of recommendations made by the Commission and their history reveals an intent to secure uniform equipment on operating cars.11 Uniformity was considered to be imperative because trainmen working on trains by day and by night would operate more safely if the appliances they needed—sill steps, ladders, running boards, grab irons and the like—were uniform in character and location on all freight cars. Most of these appliances are not at all adapted to motor cars and push trucks. On these small vehicles there not only is little or no need for this equipment, but there is no suitable place to attach it. 30 The inapplicability of the Safety Appliance Acts to maintenance-of-way vehicles is confirmed by the long-standing administrative interpretation of the Interstate Commerce Commission and by numerous practical considerations. The Interstate Commerce Commission has administered these Acts for over half a century. During that time, it has, by its own statement, 'never considered the small maintenance of way vehicles subject to those acts * * *.'12 Its order of March 13, 1911, specifying the number, dimensions and location of the appliances required by the Acts, omits all mention of motor track cars and push trucks.13 Motor cars are not subjected to the inspection required of 'locomotives.' Maintenance-of-way vehicles are not considered as trains, locomotives or cars for accident reporting purposes.14 31 Despite the Commission's consistent construction of the Acts since their inceptions, the Court today states that 'there has been no expressed administrative determination * * *.' 353 U.S. 330, 77 S.Ct. 846. Not only was there no reason for the Commission to disclaim application, but its 'negative' action in declining to subject these vehicles to the Acts is impressive because the Acts impose an affirmative duty on the Commission to enforce their provisions.15 The Commission and the Department of Justice have been aware that motor cars and push trucks used by American railroads were not equipped with automatic couplers, power brakes and so on. Their failure to prosecute evidences their interpretation of the Acts. Federal Trade Commission v. Bunte Brothers, Inc., 312 U.S. 349, 351—352, 61 S.Ct. 580, 581, 582, 35 L.Ed. 881. 32 The contemporaneous and long-standing interpretation of any regulatory Act by the agency that administers it is entitled to great weight.16 Here there are considerations entitling the Interstate Commerce Commission's views to special respect. See Davis v. Manry, 266 U.S. 401, 404—405, 45 S.Ct. 163, 164, 69 L.Ed. 350. The Commission has played a predominant role in developing and perfecting the Acts, the Congress has given it broad discretionary powers in administering them. Its consistent interpretation of the Acts, known to Congress, the railroad industry and the railroad labor organizations, is persuasive evidence that the Acts never were intended to apply to motor cars and push trucks.17 33 It is also significant that the Brotherhood of Maintenance of Way Employees, whose members operate and maintain motor cars in their work, never has contended that the Safety Appliance Acts apply to these vehicles. However, the Brotherhood has been active in soliciting other legislative which it feels will add to the safety of its members.18 It has sought legislation from Congress which would require strict enforcement of sound operating rules and regulations. Although supported by the Commission, these attempts thus far have failed.19 The Brotherhood, however, has secured other safety legislation. Largely at its request, 26 States, in recent years, have adopted legislation requiring specific equipment, such as headlights, taillights, windshields, windshield wipers and canopies, on motor track cars.20 This state legislation dealing expressly with the safety requirements of motor track cars indicates that the Federal Acts have not been thought to apply to them. As to the question of preemption, see Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 209, 71 L.Ed. 432. 34 Practical considerations, relating to the safety of railroad maintenance workers who use motor cars and push trucks, support the inapplicability of the Acts. The major hazard in the use of these vehicles is the risk of their collision with trains. It is important that maintenance-of-way vehicles be so light that three or four men can lift them quickly off the tracks. In contrast, most of the safety appliances required by the Acts have little or no relation to this or other safety requirements of these small vehicles. Whether it is feasible to equip them with power brakes, automatic couplers, and the other appliances specified in the Acts is highly conjectural. Motor cars and push trucks might, in fact, be rendered less safe by the addition of such appliances, not only because of the increased weight but because of the danger of sudden stops. A railroad brake expert in this case spoke of the danger of men being thrown from their open seats on a motor car by quick stops, and the Commission, in its amicus brief, states that 'In the absence of tests showing otherwise, it would seem that power brakes on push trucks towed by a track motor car could well be about as dangerous a device to employees riding on such vehicles as one can imagine.' P. 20. According to the Commission, protection against collision with trains is better assured by strict enforcement of rules designed to give warning of train movements than by the addition of the safety appliances named in the Acts. In any event, such matters are peculiarly within its competence. 35 The Court's decision is directly opposed to the Commission's practice and opinion. It imposes onerous requirements, unrelated to safety, on a large class of vehicles never before considered subject to the Acts.21 Nothing in the language of the Acts or in their history compels a disregard of the informed judgment of that expert authority which has the responsibility of their administration and enforcement. 36 I would sustain the view of the Interstate Commerce Commission and reverse the judgment of the Court of Appeals. 1 27 Stat. 531, as amended, 45 U.S.C. §§ 1—16, 45 U.S.C.A. §§ 1—16. 2 27 Stat. 532, as amended, 29 Stat. 85, 62 Stat. 909, 45 U.S.C. § 6, 45 U.S.C.A. § 6, provides in part: 'That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this Act, shall be liable to a penalty * * *: Provided, That nothing in this Act contained shall apply to trains composed of four-wheel cars or to trains composed of eight-wheel standard logging cars where the height of such car from top of rail to center of coupling does not exceed twenty-five inches, or to locomotives used in hauling such trains when such cars or locomotives are exclusively used for the transportation of logs.' 3 36 Stat. 298, 45 U.S.C. § 11, 45 U.S.C.A. § 11, provides in part: '* * * it shall be unlawful for any common carrier subject to the provisions of this Act to haul, or permit to be hauled or used on its line any car subject to the provisions of this Act not equipped with appliances provided for in this Act, to wit: All cars must be equipped with secure sill steps and efficient hand brakes * * *.' 4 We note that in 1953 the Interstate Commerce Commission, in a proceeding to prescribe rules governing inspection of electrically operated units and multiple-unit equipment, has itself declared a 'self-propelled unit of equipment capable of moving other equipment' to be a locomotive under the Act. Ex parte No. 179, 297 I.C.C. 177, 192. While the proceeding did not involve motor track cars, the language of the Commission casts some light on that problem. The Commission pointed out that 'The language in the act is all-inclusive, and considering its purpose * * * the words 'any locomotive' as used in section 2 must be construed as intended to encompass all of the motive equipment of any carrier subject to the act. * * * Appearance clearly cannot determine the classification into which this type of equipment should be placed.' (Emphasis added.) Id., at 191—192. 5 32 Stat. 943, 45 U.S.C. § 8, 45 U.S.C.A. § 8. 6 27 Stat. 531, 45 U.S.C. § 2, 45 U.S.C.A. § 2. 7 27 Stat. 532, as amended, 45 U.S.C. § 6, 45 U.S.C.A. § 6. 1 27 Stat. 531, as amended, 29 Stat. 85, 32 Stat. 943, 36 Stat. 298, 62 Stat. 909, 45 U.S.C. §§ 1—16, 45 U.S.C.A. §§ 1—16. 2 Section 6, 27 Stat. 532, 45 U.S.C. § 6, 45 U.S.C.A. § 6; § 4, 36 Stat. 299, 45 U.S.C. § 13, 45 U.S.C.A. § 13. 3 See, eG., Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282; Jacobson v. New York, N.H. & H.R. Co., 1 Cir., 206 F.2d 153. 4 '* * * it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic * * * that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.' 27 Stat. 531, 45 U.S.C. § 1, 45 U.S.C.A. § 1. 5 The language of § 3 reinforces this conclusion. It provides that a railroad that has complied with § 1 'may lawfully refuse to receive from connecting lines of road or shippers any car not equipped sufficiently * * * with such power or train brakes as will work and readily interchange with the brakes in use on its own cars * * *.' 27 Stat. 531, 45 U.S.C. § 3, 45 U.S.C.A. § 3. It is concerned with the transfer of standard freight or passenger cars from one railroad to another and is not applicable to maintenance-of-way vehicles. 6 See S. Rep. No. 1049, 52d Cong., 1st Sess. 2—3, 5; H.R. Rep. No. 1678, 52d Cong., 1st Sess. 1, 3; 1 Sharfman, The Interstate Commerce Commission (1931), 246, n. 4. Since passenger cars, by 1893, had generally been equipped with the required appliances—train brakes and automatic couplers—they did not present the same hazards to trainmen. 7 The Commission recommended enactment of legislation in 1889 after completing a general investigation of railroad safety conditions. It continued to press for legislation until the enactment of the first Safety Appliance Act in 1893. See Interstate Commerce Commission Activities, 1887—1937 (1937), 118 120; Third Ann.Rep., I.C.C., for 1889, 44—45, 84—101; Fifth Ann.Rep., I.C.C., for 1891, 337—340; Sixth Ann.Rep., I.C.C., for 1892, 69—70. 8 The 1893 Act was entitled 'An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes.' The only provision which might be thought to be unrelated to power brakes or automatic couplers was the requirement in § 4 of 'secure grab irons or handholds in the ends and sides of each car' and this requirement was expressly stated to be 'for greater security to men in coupling and uncoupling cars.' 27 Stat. 531, 45 U.S.C. § 4, 45 U.S.C.A. § 4. 9 Fourteenth Ann.Rep., I.C.C., for 1900, 76. 10 Fifteenth Ann.Rep., I.C.C., for 1901, 68; Sixteenth Ann.Rep., I.C.C., for 1902, 61. 11 Twenty-third Ann.Rep., I.C.C., for 1909, 40—41; S.Rep.No.250, 61st Cong., 2d Sess. 2; H.R. Rep. No. 37, 61st Cong., 2d Sess. 12 'For over half a century, the Commission has administered the Safety Appliance Acts, as well as the other acts relating to railroad safety. During this period, the Commission has never considered the small maintenance of way vehicles subject to those acts, and we submit that the foregoing contemporary and legislative histories furnish a sound foundation for its view. That legislation is concerned with locomotives, cars and similar vehicles which employees were formerly required to go between to couple, or to ascend to use the hand brake. The acts are designed primarily to reduce or eliminate those hazards. They should not be construed to apply to entirely different types of equipment whose operation does not involve such risks.' Brief of Interstate Commerce Commission, as amicus curiae, 18—20. 13 This order was amended in 1943 and republished in 1946. 49 CFR, 1949, Pt. 131. 14 See I.C.C., Accident Bulletin No. 124 for 1955, 94. 15 Under § 6 of the original Safety Appliance Act, 27 Stat. 532, 45 U.S.C. § 6, 45 U.S.C.A. § 6, and §§ 5 and 6 of the third Safety Appliance Act, 36 Stat. 299, 45 U.S.C. §§ 14 and 15, 45 U.S.C.A. §§ 14, 15, the Interstate Commerce Commission has the mandatory duty of informing United States District Attorneys of violations of the Acts; these attorneys have the mandatory duty to prosecute violators; and railroads are liable for a penalty of $100 for each violation. 16 See, e.g., Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 311—315, 53 S.Ct. 350, 356, 358, 77 L.Ed. 796; State of Wisconsin v. State of Illinois, 278 U.S. 367, 413, 49 S.Ct. 163, 170, 73 L.Ed. 426. 17 The two federal court decisions relied on by the Court are distinguishable. The 18-foot gasoline tractor which was held to be a 'locomotive' in Hoffman v. New York, N.H. & H.R. Co., 2 Cir., 74 F.2d 227, was equipped with an automatic coupler, was used to haul standard railroad cars and was capable of hauling 22 freight cars loaded with cement. Such a vehicle bears little resemblance to the motor track car involved here. United States v. Fort Worth & D.C.R. Co., D.C., 21 F.Supp. 916, is even less in point. In that case it was held that a large Browning steam locomotive crane, engaged in hauling standard railroad cars, was a 'locomotive' and the combination of cars a 'train' within the meaning of the Acts. The Florida decision, Martin v. Johnston, Fla., 79 So.2d 419, lends little support because the state court appears to have been unadvised of the above-stated purpose, legislative history, and administrative interpretation of the Acts. 18 Hertel, History of the Brotherhood of Maintenance of Way Employes (1955), 212—213. 19 See H.R. Rep. No. 1558, 81st Cong., 2d Sess. 3—4; Hearings before House Subcommittee on Interstate and Foreign Commerce on H.R. 378 and H.R. 530, 81st Cong., 1st Sess. 17—54. 20 Hertel, op. cit. supra, 213. See, e.g., Mass.Acts 1952, c. 430, and 1951, c. 174; Mich.Stat.Ann., 1955 Cum.Supp. §§ 22.965, 22.966, 22.968(1), 22.968(2), Comp.Laws Laws Supp.1954, §§ 469.521, 469.522, Supp.1954, §§ 469.521, 469.522, 21 The Court also rejects the railroad's alternative contention that motor track cars and push trucks, if within the purview of the Acts, are excepted from the Acts by virtue of the proviso in § 6 exempting 'trains composed of four-wheel cars or * * * locomotives used in hauling such trains.' 27 Stat. 532, 29 Stat. 85, 45 U.S.C. § 6, 45 U.S.C.A. § 6. This proviso confirms the view expressed in this dissent that power brakes, automatic couplers, and the other specified appliances are not required of motor track cars and push trucks. The exception, on its face, applies to them as four-wheel vehicles. And, although the legislative history indicates that Congress had four-wheel coal cars primarily in mind, the proviso is not expressly limited to coal cars and is thoroughly consistent with a purpose to exempt from the Acts maintenance vehicles that are not suited to the prescribed safety appliances.

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353 U.S. 346 77 S.Ct. 828 1 L.Ed.2d 876 Shirley KREMEN, Samuel Irving Coleman and Sidney Steinberg, Petitioners,v.UNITED STATES of America. No. 162. Argued. March 6, 1957. Decided May 13, 1957. Mr. Norman Leonard, San Francisco, Cal., for the petitioners. Mr. Kevin T. Maroney, Washington, D.C., for the respondent. PER CURIAM. 1 Of petitioners' various contentions we find the one relating to the validity of the search and seizure made by agents of the Federal Bureau of Investigation dispositive of this case, and we therefore need not consider the others. 2 The indictment charged the three petitioners with relieving, comforting, and assisting one Thompson, a fugitive from justice, in violation of 18 U.S.C. § 3, 18 U.S.C.A. § 3, and with conspiring to commit that offense in violation of 18 U.S.C. § 371, 18 U.S.C.A. § 371. In addition, it charged petitioners Kremen and Coleman with harboring Steinberg, also a fugitive from justice, and with conspiring to commit that offense. Petitioners were found guilty, and on appeal their convictions were sustained, one judge dissenting. 231 F.2d 155. Because of the unusual character of the search and seizure here involved, we granted certiorari, without, however, limiting the writ. 352 U.S. 819, 77 S.Ct. 46, 1 L.Ed. 45. 3 Thompson and Steinberg had been fugitives from justice for about two years when agents of the Federal Bureau of Investigation discovered them, in the company of Kremen, Coleman and another, at a secluded cabin near the village of Twain Harte, California. After keeping the cabin under surveillance for some 24 hours, the officers arrested the three petitioners and Thompson. Thompson and Steinberg were arrested outside the cabin; Kremen and Coleman, inside. The agents possessed outstanding arrest warrants for Thompson and Steinberg, but none for Kremen and Coleman. These four individuals were searched and documents found on their persons were seized. In addition, an exhaustive search of the cabin and a seizure of its entire contents were made shortly after the arrests. The agents possessed no search warrant. The property seized from the house was taken to the F.B.I. office at San Francisco for further examination. A copy of the F.B.I.'s inventory of the property thus taken is printed in the appendix to this opinion, 353 U.S. 349, 77 S.Ct. 830. 4 The majority of the Court are agreed that objections to the validity of the search and seizure were adequately raised and preserved. The seizure of the entire contents of the house and its removal some two hundred miles away to the F.B.I. offices for the purpose of examination are beyond the sanction of any of our cases. While the evidence seized from the persons of the petitioners might have been legally admissible, the introduction against each of petitioners of some items seized in the house in the manner aforesaid rendered the guilty verdicts illegal. The convictions must therefore be reversed, with instructions to grant the petitioners a new trial. 5 Reversed. 6 Mr. Justice BURTON and Mr. Justice CLARK dissent, believing that the items of evidence offered and admitted into evidence were legally seized. They are of the opinion that the validity of a seizure is not to be tested by the quantity of items seized. Validity depends on the circumstances of the seizure as to each of the items that is offered into evidence. Furthermore, only a fragmentary part of the items listed by the Court as seized was admitted into evidence and if any items were illegally seized their effect should be governed by the rule of harmless error since there was ample evidence of guilt otherwise. 7 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT FBI INVENTORY OF PROPERTY TAKEN. Personal Property and Papers 1 Sleeping bag with tan air mattress 1 Sleeping bag case, Kelly's of Oakland 8 2 Brown canvas cover, Spiro's of San Francisco 1 Skysleeper Kit bag 1 Tan zipper shaving kit containing: 1 Hair brush 1 Tooth brush 9 1 Bar soap wrapped, Ivory, hotel size bearing name Hotel Regis, corner 11th & K Streets, Sacramento, California 1 Shoelace 2 Packages pipe cleaner 1 Pencil flashlight battery 4 Razor blades 1 Package lighter flints-Ronson 1 Spool fishing leader material 10 1 Bar soap, hotel size, wrapped, with "Pearl" on one side and "Hotel Regis" on other 11 1 Plaid covered small size bag with zipper for pillow 12 1 Pillow, cotton filled, small, white. No identifying marks 13 1 Tin drinking cup with initial "W" cut in bottom 1 Bottle 2 ounces Carters Blue Black Ink 14 1 Small box "Swingline Tot Staples," with "150" written on cover 1 Prince Albert tobacco-pocket size can 1 Key-on ring-Master Lock Co., Milwaukee 1 Calendar-Shell Oil Co., Billfold size 15 1 Digest of Angling Regulations for State of California-1953 16 1 Pair Tortoise Shell (dark brown) rimmed glasses with broken left lens 17 1 Plastic yellow folding type tobacco pouch with some tobacco and pipe cleaners 18 1 Man's metal expansion band 1/20 12K gold top-Stainless steel back 19 1 Pencil sharpener-plastic-Vest pocket size 1 Polychrome duplicating ink-pound size 1 Padlock-"Master 77"-#5926 1 Carters Rubber Cement 1 Friction tape-1 roll-slipknot 1 Rubber top-partially used 1 Pair socks-men's grey-dirty 1 Ink-Parkers Superchrome 1 Ink eraser-partially used bottle 20 1 Key-"Ilco" #1054K-by Independent Lock Co., Fitchburg, Massachusetts 1 Handkerchief-dirty 21 1 Pamphlet of "Tour"-California Hotels 2 Bottles Solution of Hydrogen Peroxide by McKesson's, N.Y. (1 small) 1 Roll cotton 1 Pair Sunglasses and leather case 1 Can Briggs pipe tobacco 22 1 Ronson cigarette lighter & cigarette case combination (empty) 1 Tin Prince Albert Pipe Tobacco 1 Tin can containing change 23 1 Jar scalp pomade, dark, by Ogelvie Sisters, N.Y. 24 1 Pocket knife, red, Victoria Switzerland Armee Suisse 25 1 Bottle Richard Hudnut Formula A-10 for men for hair and scalp treatment 2 Cans bandaids 1 Bottle Jergen's Lotion 1 Box-empty, marked Craftsman 25 2 Pair glasses, 1 light and 1 dark frames 1 Tobacco pouch, red plaid 1 Sponge, blue 2 Bottles Alka-Seltzer 26 2 Tubes toothpaste, Chlorodent (1 small & 1 large size) 1 Bottle Pepto Bismol, marked 98 1 Can Sopronol for athletes foot 1 Can Rise Shave Cream marked "59" on side 27 1 Craftsman 25 Electric Shaver and cord in red plaid zipper bag 28 12 Glass tubes with stoppers "List No. 2032 Procaine Hydrochloride 4% Epinephrine 1:50,000 Abbott Laboratories Lot 6243575" with "Cook Waite" on end of stopper 1 Mirror, two sides, for shaving 29 1 Sunbeam Electric Shaver & plastic case with cord 1 Jar 1 Bottle Williams After Shave Lotion 1 Toothbrush 1 Debutante Hand Cream 1 Bottle Squibb Mineral Oil 1 Bottle Pacquins Hand Lotion 1 Bottle brown pills-unmarked 1 Small bottle Neohelramine Hydrochloride 30 1 Bottle Eljay Aspirin with black marks "BY" on label 1 Styptic pencil in plastic case marked with label "Handy-Spot Price 10¢" 31 1 Bottle McKesson's Boric Acid Crystals-4 ozs. 2 Packs Dill's pipe cleaners 1 Pack Kent cigarettes 1 Pack Kools-open & half empty 1 Pack Camel cigarettes 5 Pipes-smoking type 1 Tube Nupercainal Ointment-empty 1 Tube Barbasol Shave Cream-empty 32 1 Pack Gillette blue blades in dispenser, 20 each razor 1 Gillette razor 33 1 Metal pipe cleaning instrument manufactured by Rogers and made in England 1 Bottle Mercurochrome 1 Jar Vaseline Jelly-white 1 Bottle 6.12 Insect Repellent 1 Bottle Calamine Lotion 1 Brush (wire) 1 Pencil "Winx" black with metal cap 1 Plastic cup, orange 1 Bottle Avon Shave Lotion 34 2 Razors, 1 Gillette-1 single edge, no name 1 Bar Palmolive soap 2 Eveready batteries for small flashlight 1 Roll fishing leader 1 Tube Boyle Zinc Oxide Ointment 1 Eveready battery size 915 AA 1 Box Bayer Aspirin 1 Tube Ipana Toothpaste 1 Tube Chloresiun Toothpaste 35 1 Fingernail clipper "La Cross" 1 Pack Blue Star Razor Blades 1 Brush, small, for shaver 1 Flashlight bulb 112 1 Plastic, brown zipper shaving kit 1 Sportsman's Guide with map 36 Maps by Edward W. Pulver & Son, copyrighters of Calif. Los Padres Nat'l Forest 37 1 Book-Oregon Hunting Regulations 1952, marked in green ink "Peter Don's Sportsman Supply, Crescent Lake, Oregon" 38 1 Map of San Francisco by SF Chamber of Commerce 39 1 Map of Twain Harte locating cabin in ink, "1.6. Cabin" with route drawn in ink 40 Pasted on bottom card of James Morrow, Real Estate Broker, Twain Harte, Calif. 41 1 Map Summit District, Stanislaus Nat'l Forest 42 2 Plastic, brown glass cases marked on top "Polaroid" 43 1 Index to topographic mapping in Calif. with pencil marks on back 1 Map of Mendocino Nat'l Forest 1 Map "Chevron Co." of Nevada 44 1 Map of Burlingame and San Mateo, marked Hotel St. Matthew 1 Index to towns, mountains, meadows, misc., and Map of Stanislaus Nat'l Forest and note in ink re: Vernon Swamp, Gravel Lakes, hiking distance, etc. and Topez Lake cut throat trout 45 1 Map of Stanislaus Nat'l Forest, Calif. 1 Monkey wrench 1 Small bottle of Halazone 1 Can used saddle soap 1 Rod varnish-small bottle 1 Ferrule cement 46 1 Metal cap-"Egg lug" 1 Ever-Ready flashlight battery 1 Small can of bouillion cubes 14 Lead sinkers 1 Spinner 3 Bobbers 1 Pocket knife-3 blade 3 Split shots containers (empty) 8 Face cloths 1 Fish hook on short wire line 2 Brown canvas quilted sleeping bag 47 1 Sleeping bag mattress-made by Wilber & Sons, 590 Howard Street, San Francisco 48 1 Cover for sleeping bag-Mfr.-Kelly's of Oakland, Calif. 49 1 Barclay play shirt-knit-green and yellow band 1 Yellow T shirt-man's type 1 Gantner, size 32, blue-swim trunks 1 Blue T shirt 1 Blue and white striped pajama bottom 1 Blue-long sleeved jersey 1 Health Gard white sweat shirt. Size 38 1 Blue men's shorts, size 36 1 Wilson Bro. size 42, men's undershirt 1 Health Gard, size 34, long underwear 1 Acetate-Nylon-gray men's shorts 1 White muslin bag 1 Grewe knitted sweater, V neck, maroon 50 2 White T shirts-Superior Brand-Medium size 1 White T shirt 1 Fruit of Loom blue men's shorts 1 Jambi-white T shirt-size 42-44 1 Ribbed T shirt-off white 1 Blue necktie-silver color feathers 1 Pair Navy blue knit gloves 4 Men's cotton handkerchiefs 1 Pair striped shorts 1 White cotton T shirt 1 Onesta T shirt-white 4 Neckties-miscellaneous colors 51 9 Pairs, men's socks 1 Brown knit sweater by "John Wanamaker" 52 1 Overseas bag-Army type, olive drab, with 3 small hooks on outside zipper-containing: 9 Handkerchiefs marked 1 Yellow T shirt "20" & "NL"(?) 1 Bathrobe-Hale's Men Store 1 Raincoat, plastic 3 Christmas cards all ident.: 53 "To Daddy from Carol" 54 "To Daddy from Carol" 55 "To Carl from Marge" 56 4 Keys on safety pin for locks on outside of bag 57 2 ea. Slaymaker 62-for locks on outside of bag 58 1 ea. Slaymaker 63-for locks on outside of bag 59 1 very small-says "Made in USA" 2 Keys loose for locks on outside of bag 1 Slaymaker 61 1 Slaymaker 63 1 Pouch, brown 1 Toothbrush 1 Bottle Roux Rinse 1051/2 light auburn 1 Bottle Petroleum Jelly-Vi Jon 1 Toothbrush & case 1 Package pencil lead 1 Pocket & desk stone 11/2 Pipes 60 1 Brush-"Solid Black, USA" 1 Lipstick, Westmore 1 Female plug 1 Imitation leather small case 1 Battery-Flashlight, Eveready 1 Pencil-Loveliners brown 1 Can Esquire Boot polish-mahogany 1 Bottle Vaseline hair tonic 1 Tube Ipana toothpaste 1 Laundry paper wrap 1 Sweater-sleeveless 1 Scarf-plaid 61 Pair brown crepe soled leather loafers (John Ward-Men's Shoes) 62 1 Blue-gray woolen sweater, 1/2 sleeve with casting fisherman knit into garment. A "Barclay Playshirt" 63 1 Purple wool imitation lambskin wrap around short coat with long sleeves-attached to coat: 1 Wooden brown doe 1 wooden faun 1 Pair knit green wool socks 1 Small ball, purple yarn 1 Roll white wrapping string 1 Roll #50 J & P Coats purple-gray thread 64 1 Army Air Forces glass case, brown, no contents 1 Pair gray knit socks, low 65 1 Sterling silver chain 1 Necklace with 3 turquoise pendants and Rhinestone backing 66 1 Brown leather belt on one pair of blue "Levi's" button fly 1 Pair blue "Levi's"-zipper fly (on side) 1 Pair white short soxs 1 Return postage envelope 67 1 Newspaper, page 16, at bottom of bag, Los Angeles Examiner, Sunday, December 16, 1951 68 Box of miscellaneous kitchen equipment as listed: 4 Knives 5 Forks 1 Pancake turner 1 Can opener 2 Metal cups 2 Pots 1 Lid 3 Pie tins 1 Frying pan 1 Can Sterno 1 Can opener 1 Beer can opener 1 Large spoon 1 Clove garlic 1 Partially filled 1/2 lb. can of coffee 1 Partially filled 1 lb. can of coffee 2 Small bags of flour 1 Gal. can of gasoline or kerosene 1 Bottle insect repellent 1 Can pepper 1 Can paprika 2 Shakers of salt 1 Can Accent 1 Can sugar 1 Package bay leaves 1 Package of paper plates 1 Roll wax paper 1 Grater 1 Pot 1 Kitchen pan lid 1 Fire tong 69 2 Folders of Forty Finest Restaurants, San Francisco Bay Area 70 1 Miracle Miroil Fold Road Map, Eastern United States by Mobilgas 1 Issue of Everybody's Restaurant Guide 1 Khaki-colored drawstring bag containing: 1 Hair comb in case 1 Pair scissors 1 Safety razor 1 Partial tube Mentholatum 1 Plastic soap dish 1 Toothbrush 1 Bottle LePage glue 1 Box gauze 1 Partial box aspirin 1 Tie clip 1 Bottle Noxzema Skin Cream 1 Part bottle Stephan's Dandruff Remover 71 1 Partly filled bottle unidentified liquid-white in color 1 Robe-white, red, gray striped 1 Air mattress, rubber, olive drab 1 Mackinaw jacket, Malemute Brand 72 2 Nylon short-sleeve sport shirts, white and tan by MacMaster, size 15-151/2 1 Topcoat-tan, soiled 1 Brown, man's overcoat 73 1 Short-sleeve sport shirt, terrycloth, faded blue with design on chest 1 Brown corduroy jacket 1 Blue single breasted man's jacket 1 Blue trousers 74 1 Green long-sleeved sport shirt, nylon, by Don Juan of California 1 Copy San Francisco "Chronicle," 8/17/53 1 Simplicity Fashion Preview 1 Magazine clipping re Steelhead fishing 75 7 Paper folders advertising "The New Harju Vertical Venetians" and all bearing statement "Manufactured by Harju Vertical Venetian Blind Co., 422 Douglas Avenue, Redwood City, California, call Emerson 8-4210" 76 1 Accordion type cardboard folder color guide of Flexalum Spring Tempered Slats with following stamped on front and back: "Harju Vertical Venetians, 422 Douglas Ave., Redwood City, California, Phone EM 8-4210" 77 1 Printed Craftsman Electric Shaver Guarantee, dated 6/26/53 78 12 White envelopes containing newspaper clippings of chess movements 43 Newspaper clippings of chess movements 79 1 Newspaper clipping captioned, "Drive Two Hours-Then Rest" 1 Yellow plastic toothbrush in case 80 1 Cash register receipt, dated 4/10 for $1.88 to Palmer's Drug Store, Hayward, California 81 1 3 x 5 Spiral brown notebook with no writing 82 1 Blue Wool knit sweater, size 40, by "Wieboldt's" 83 2 Brown canvas sleeping bags, no identification marks, with zippers on 3 sides and 1 side being faded. Both are the same 84 1 Thin mattress for sleeping bags having tag #GAL-2652 and manufactured by Wilber and Son, 590 Howard Street, San Francisco 1 1/2 plate 10 Budweiser beer cans 1 Old Taylor whiskey bottle 1 Mustard jar 1 Army napsack-empty 85 1 Army-type sleeping bag cover, contractor, Seattle Quiet Mfg. Company, stamped "Quartermaster, Seattle General Depot." 1 Dish rag 1 Air pillow in case 86 1 Sleeping bag with red air mattress, all around zipper on bottom and side 1 Metal music stand 87 1 Mandolin with pick, "Nick Lucas" 88 1 Violin, bow and case, leather, cloth package containing resin by the A.B. Rosin, and flexible cover made in England, W.E. Hill and Sons, 140 New Bond St., W. Violin bow has name "Tourte". Violin says "Copy of Antonin Stradivarius, made in Germany" 1 Langley 8' 6" fly rod 1 True Temper bait casting rod 1 Sportsman Rod 1 Cal Royal spinning rod 1 Open bag charcoal briquettes 89 1 Green metal fishing tackle box called "Union Utility Chest" containing miscellaneous fishing tackle including hooks, lures, sinkers, etc. 1 Fishing bag, cloth net 1 Green garden trowel 90 1 Small army knapsack containing additional fishing tackle, including flies, reel, salmon eggs, and miscellaneous first aid equipment, bandages, snake bite kit, etc. 2 Wood and wire coat hangers 1 Gallon can of gas 91 1 Brown fabric zipper handbag with following contents: 1 Razor set, Eversharp 1 Bottle aspirin 1 Fishing guide book 2 Decks playing cards 1 Pair scissors 1 Roll toilet paper 1 Hair comb 1 Cup 1 Plastic refrigerator bag 1 Camouflage parka (incomplete) 1 Green portable cooking stove 1 Hand axe 1 Short handle spade 1 Ocean City brown reel 1 Brown cloth zipper handbag containing: 1 Deck playing cards 1 Soap box 1 Sal King fly rod reel 1 Bache-Brown Spinster reel 1 Water bag 92 1 Shoulder pack bag with stenciled "Orlando J. Perrett, 35392439" 93 2 Fishing dip nets "Sport King" 94 1 Cardboard carton, label on end reading "Tameroff Imperial Vodka" containing: 1 Pair leather moccasins 1 Pair Army type high work shoes 1 Pair low white tennis shoes, size 81/2 95 1 Pair brown leather half boots with buckles "Wearmaster" 1 Flashlight, Wing Star brand 1 Pine cone 1 Piece cotton clothesline 1 Minnow bucket containing: 1 Papermate pen 1 Ocean City reel 1 Damaged flashlight 1 Small stapler and staples 1 Midget stapler 1 Can Revelation tobacco 1 Spring paper clip 1 Partial package rubber bands 1 Mimeograph stylus 1 Plastic refrigerator bag 1 RCA portable radio, Model BX57 96 1 Sentinel portable radio with plastic case, Model 316P, serial 29004 1 Pair black rubber overshoes 2 Windshield wiper blades 1 Metal screen 1 Duck, greasy empty tool bag 97 1 Brown tweed reversible type overcoat-safety pin in sleeve 1 Match folder 1 Pair brown cloth gloves-man's 98 1 Orlon-nylon black and white check sport shirt (Jello match folder in pocket) 99 1 Clipping-"San Jose Evening News," 8/26/53 (Inside Labor) 1 Oakland Tribune-8/26/53 1 San Jose News-8/26/53 1 Sacramento Bee-7/3/53 100 1 Cylinder Polychrome stencil duplicating ink-1 pound 1 Impres duplicating ink-1/2 pint can 101 2 Expanding envelope-School wallet with pasted ink label f. Trials-Calif. H. A. W. GR-(?) 30 Sheet unused stencil paper 1 Paper folder-initials N W 1 Paper folder-dark brown-notation #II 102 1 Broken package, approximately 450 blank Autograph Mimeo sheets 103 2 School wallets-brown-1 labeled ORE and 1 labeled MM&RM 1 Carton 81/2 x 14 mimeo sheets from N.W. Paper Co., Cloquet, Minnesota, Carleton type 104 1 Broken carton (approximately 100 sheets) same as above 1 Pack matches-advertising Sniders Donuts 2 Packages unused polychrome stencil 105 1 Unopened box Roux oil shampoo tint with red marking 150 106 2 Bottles from Palm Pharmacy, 1730 Mission St., Santa Cruz-PH 7260, #1346 Dr. Koskela 8/17/53 Mrs. (cut off) prescriptions 107 1 Bottle Tincture of Merthiolate from Twain Harte Pharmacy, ia 108 1 Pill box containing 2 small red pills and marked in ink on top: "Dienesteral .5 mg 50-145 Mrs. Kaplan on red-5 white" 109 1 Pillbox with numerous white pills on outside in ink: "Dienesteral 1 mg 50-115 Mrs. Kaplan one today, increase one daily" 110 1 Bottle from Palm Pharmacy, 1730 Mission St., Santa Cruz, #1347; Dr. Koskela 8/17/53, Mrs. (cut-off)' 111 1 Bottle Roux Oil Bleach "2 drab" 1 Bottle same shape & color but no label 112 1 White envelope with pencil writing on poker hands 2 Sanitary belts 113 1 Receipt, Krazen Auto Supply, 138 E. Santa Clara, San Jose, Total $1.44-dated June 13 114 1 Receipt, Pay Less Drug Store, Reg. #51-dated June 13, Total $2.38 115 1 Siskiyou County map, stamped distributed by Thomas Bros. 116 1 Blue wool sweater, size 40, long sleeve pullover, tag of Wieboldts in Evanston, Chicago and Oak Park 117 1 Leather men's belt, brown, with torn zipper compartment 118 1 Topographic map, California, Lodoga Quadrangle, 15-minute series 119 1 Index to maps of California by Geological Survey, Department of the Interior 120 1 Man's shirt, tan, long sleeve, button down flaps on both chest pockets, soiled, with tag in inside of neck marked "Game and Lake Sportswear, Expertly Tailored," and with the following laundry marks on inside of collar band: Q-5, HZ; 394B (the last character believed to be "B" is not clear and might be the number 1, 2, 3, or 4). Also two other laundry marks not discernible. 121 1 Blue long sleeve man's shirt, flap pockets on chest, tag inside back marked "Van Heusen, 16, 161/2 (L), Vangas, completely washable," with following laundry marks inside collar: 3941 (maybe 63941-first digit somewhat smeared); 646855-5----(faded) 122 1 Man's blue dress shirt with tan or gold stripe, bearing tag "Imperial trademark, Sanforized," with laundry marks in collar as follows: 05 W L60: Q5 123 1 Faded beige man's long sleeve sport shirt with label of Jockey "Marlboro Club (1) Washable" with following laundry marks in collar: WL 60; 394- (last digit either a "one" or a "A"); 05; 0-5; Q-5; 165; B918855 124 1 Brown man's jacket, single breasted, with inside label "Witty Bros., Craft," has the following marks: Inside breast inner pocket is tag "Witty Brothers, New York, A84630; near shoulder attached to lining of right sleeve is stapled cleaning tag 90/93371; several inches below shoulder in inside of right sleeve, written on lining are numbers 14/5. Has pipe cleaner in breast pocket and loose tobacco 125 1 Light tan corduroy man's jacket with label "Howard Sport Apparel," tag in collar marked size 40; with following marks: inside left sleeve on lining are written words "New Man § A (probably 8A); inside right sleeve on lining is number "1460"; inside in breast pocket, inner edge of lining are numbers "1832" or "1532" 126 1 Man's single-breasted blue suit coat, no label, inner lining of right sleeve contains lettering "27/99692" 127 1 Pair Men's tan or beige trousers with brown leather belt, worn and mended; left pocket has laundry mark 1/968 128 1 Pair Men's blue trousers with following marks: right pocket has laundry marks "4649" and "27/99269" and either "B-5" or or "135"; also two circular marks (believed coin marks) about size of dime with g marking in circle not discernible; inside waistband to right of zipper is the word 'HERMES' stamped four times; rear right pocket has paper tag stapled to it with number "6503" thereon 129 1 Pair Man's tan trousers with tag sewn to rear left pocket marked "Test reg. U.S. Pat. Off. Best by Test Sanforized"; right pocket contained the following items: 1 heavy black pocket knife 1 black Ace pocket comb 130 1 small metallic case with compartment on ends containing clear objects of glass or plastic 131 1 small round pink box containing two small green objects 132 1 box marked "Para-curve B & S" 133 The above items have been removed from the trousers. 134 1 Coat hanger with name of Recca Cleaners, Ph. 1015, 1045 11th St. 135 1 Hanger with markings, The Temple, BAyview 9211, 5041 Geary St., Cleaning and Dyeing 136 1 Hanger with markings, Virginia Cleaners & Dyers, 2109 Virginia St., Berkeley, Calif., phone Ashberry 1345 137 1 Hanger with markings, Hastings, San Francisco, Oakland 138 1 Hanger with markings, White House Dyeing & Cleaning Works, 174 14th St., San Francisco, Phone HEmlock 0476 139 1 "Schermer's Library of Musical Classics, Vol. 833, Pleyel Op. 48," Six "Little Duets for Violin and Piano;" stamped on front cover is "Lloyd A. Wollmer Co., Music, Burlingame, Calif." 140 1 Mobilgas Miracle Fold Road Map, Western United States 141 1 Registration holder removed from auto containing following item: 142 Automobile Insurance Service Card bearing name GILBERT BYRNES, 169 Inner Circle, Redwood City, Calif., policy #CA 377690, agent, David D. Bohannon Organization, 859 San Mateo Drive, San Mateo, Calif., 143 1 Pair men's blue trousers with suspenders attached; have red stripes in weave; right pocket has laundry mark "H" card bears name of General Casualty Company of America, First National Insurance Company of America, General Insurance Company of America, nearest office at 206 Sansome St., San Francisco 4, California 144 1 Remington Noiseless typewriter, serial #X370531 145 1 Portable Royal typewriter, serial #0-431783 146 1 Mummy-type sleeping bag with U.S. Stamped on outside of bag 1 Pair leather slippers-Cherokee 1 Pair worn plastic scuffs 1 Pair brown leather gloves 147 1 Newspaper clipping, paper unknown, begins "The-1953 date article Morse will back Democrats in "54" 1 Richfield Oil Company of California map 148 1 Shell Oil Company map of San Francisco-Bay area 149 1 Shell Oil Company directory map of Auto Courts, Hotels, Resorts and State Park Camp Sites in Northern California and Nevada 1 pkg. Dill's Best pipe cleaner 1 bag with writing paper and envelopes 150 1 Brown cloth zipper jacket, McGregor, size 42 with 1 small Howart single cell flashlight in pocket 1 Ted Trueblood's Fishing Handbook 151 1 Gray Adam hat, Executive Quality, size 7, men's 1 Tan all-weather man's hat, size 73/8 152 1 Tan zipper jacket, McGregor, size 42 with cloth bag in one pocket marked "Airex" 153 1 Cloth sweatshirt, size 38-40 "Double Play" 1 Red and black plaid fishing rod cover 154 1 Terrycloth white and red short-sleeve sweater, size medium, Gantner 155 1 Short-sleeve shirt, "Harper," medium, white and brown check with Eversharp Ball-point Pen clipped to pocket 1 Box unused carbon paper 156 1 Partial box of Eaton's Berkshire Typewriter Paper with miscellaneous envelopes 1 Chess set 157 1 Shermer's Library of Musical Classics, Vol. 848, Sevcik Op. 8, for violin 158 1 Shermer's Library of Musical Classics, Vol. 297, for two violins 159 1 Shermer's Library of Musical Classics, Vol. 230, for the violin 160 1 Book of violin music by Amsco Music Pub. House 161 1 Copy of Everybody's Favorite Album of Violin Pieces published by Amsco Music Pub. Co. 162 1 Copy of Everybody's Favorite Album of Violin Pieces, Series #6 1 Copy of Violino Principale 163 1 Spiral Warner's #4, Spiral Manuscript book 1 Nick Manoloff's Mandolin Method 164 6 Issues of "Chess Review" for months June, July, August, September, November, December, 1951 1 Copy Oregon Angling Regulations for 1952 1 Check board 1 Copy U.S. News, July 24, 1953 165 1 Copy of Hometown, The Rexall Magazine, August, 1953, bearing City of Santa Cruz, California, on back page 166 1 Thomas Bros. Map of the City and County of San Francisco and East Bay 1 Recipe box containing puppet 1 Pair argyle socks 1 Pair brown socks 1 Pair blue socks 1 Cloth money belt-empty 1 Black ring notebook 167 1 Blue denim cap 1 Pair wine-colored woolen gloves 1 Woolen stocking cap 168 1 Pair Munsingwear, size 36, long underwear 1 Long-sleeve undershirt 169 1 Pair Gantner wikies, size 36, green shorts 1 Pair blue Fruit of the Loom shorts 170 1 Jacket-tan color, Essley Functional Jacket 1 Blue cloth zipper satchel 1 Pair brown men's shoes 5 Violin strings 1 Pair hair clippers 1 Pocket knife 1 Scripto Ballpoint pen 1 Canvas men's hat 1 Plastic raincoat 171 1 Pair white shorts, size 34, Patent 2231299 1 Brown plaid shirt, Penney's Towncraft 2 Leather belts, 1 brown, one cordovan 172 1 Rust-colored tie with tag "Ward & Ward" 173 1 Blue-grey tie with tag, "Pilgrim" 174 1 Blue tie with tag, "Van Heusen, Van Trevor"-all silk 175 1 Tie with tag, "El Denver, Los Wigwam Weavers, Denver, Colo." 1 Rust tie without label 1 Pair soiled gray flannel slacks 176 1 Canvas knapsack with stenciled "J.J. MILLER" 1 Pair socks, cotton argyle 1 Handkerchief with green and brown border 1 Green handkerchief with white border 6 soiled white handkerchiefs 1 White undershirt 1 White T-shirt 177 1 Pair Healthguard medium white jockey shorts-soiled 1 Pair soiled gray slacks-men's 2 Mandolin picks 178 1 Envelope with "Mak-Ur-Own" celluloid index tabs 179 2 Maps of California-Chevron Map-points of interest and touring map 180 1 Richfield Street Guide, San Francisco Bay Area 1 Empty soiled white envelope 181 1 Nevada Map-Chevron 1 Richfield Street guide, Los Angeles 1 Map of San Jose and Santa Clara County 182 1 Blue or grey felt hat, man's size 71/8, sweatband bearing name of Dobbs Cross County, Reg. U.S. Pat. Off. and Brey's, 1062 Wilson Ave., Chicago. Inside crown has marking of Dobbs Fifth Avenue, Cross Country. Attached to felt behind sweatband is tape marked "Reg. B82459 600" 53/8 71/8 size (Oval to duplicate block) 183 1 Cream-colored Panama with wine-colored band, man's, size 7. Sweatband with markings Style-park, New York, Philadelphia and 1516 Chestnut St., Philadelphia. Innerside of crown marked 27320 (6) 14 7; innerside of sweatband is labeled: color-tan coal, style EC89, price-$10.00, 7 size. 184 1 Tan Panama hat, men's wine hat band. Sweatband bears marking Macy's Men's Store, New York. Inside of sweatband is marking 71/8 and price tag marked Macy's D 39 H 2.98. Inside of crown is stamped number 8 and "IK" 185 1 Assembled Transvision television set #615935 186 1 Brown cardboard box for "Print-O-Matic Rotary Stencil Duplicator" which contained the following: 187 1 Model 4-A Print-O-Matic duplicator, serial #2670 188 1 Used stencil on the roller of the duplicator from which a copy was run off which is also in the box 189 1 Light yellow sport-type man's shirt, laundry mark D-5, L-40 190 1 Van Heusen 15-151/2 Air Weave sport shirt, laundry mark D5W L60 D5 L40 191 1 Citadel man's gr. and white striped shirt, laundry mark D5-4 H2 192 1 McGregor long sleeve, off-white, sport shirt, Medium Large, D5L 22 41-18855 05 22 193 1 Ruggers BVD yellowish sport shirt, short sleeve, 8955 laundry mark 194 1 Brent sanforized grey and white striped man's short 151/2-32, laundry mark: WL60-L60 . D5 . D5 05 195 1 Blue, long sleeve, sport shirt, laundry mark: D5 03441 196 1 Shirt-long sleeve-John Wanamaker-Wanatex Laundry Mark-039H 0-5 05 W WL60 L60-L60 197 1 Trousers-man's-herring bone, blue-gray, laundry mark on left pocket New Man SA, right pocket 27/9969 B5 1460 6247 198 1 Blue sport shirt-short sleeves, blue and white trim 1 Light blue denim jacket 199 1 Trousers-men's-solid blue, soft finish-appear to be home sewn 1 Green handkerchief 200 1 Papers from 1950 Chevrolet, exclusive of registration 201 1 Package of papers wrapped in tissue paper and found on dining room table 202 1 Brown cardboard box for "Sperry Pancake and Waffle Mix" containing papers and found on the floor at the foot of the bed in the bedroom above the living room side of the house 203 1 Unmarked brown cardboard box bearing the numbers "1952-43" on one end which contains papers and was found on the corner table in the bedroom above the living room side of the house 204 1 Brown cardboard box for "Rancho Soup" containing papers which was found at the foot of the bed in the bedroom above the living room side of the house 205 1 Brown cardboard box for "Burgermeister Beer" containing papers which was found on the floor of the hall closet at the head of the stairs on the second floor 206 1 Brown cardboard box for "First Call Dog Food" containing papers which was found on the floor at the foot of the bed in the bedroom above the living room side of the house 207 1 Tan leather "Flex Bilt" expansion, single-handled brief case containing papers which was found on the bed in the bedroom above the living room side of the house 208 1 Brown leather suitcase with two hasps and one lock containing papers which was found in the closet of the bedroom above the living room side of the house 209 1 Tan leather suitcase with two hasps but no lock containing papers which was found on the bed in the bedroom above the living room side of the house 210 1 Brown split cowhide zipper briefcase without handles containing papers which was found on the dresser in the bedroom above the living room side of the house 211 Papers, including wallet with papers for JOSHUA NEWBERG, found on and in desk located in living room Billfold and papers for ROBERT E. NEUMAN, or NEWMAN, found in a pair of tan gaberdine trousers on a chair in the living room 212 Wallet with papers for WILLIAM GORDON and a brown leather money belt with money found in a pair of tan cotton pants on the straight-backed chair in the living room. 213 Miscellaneous papers for LEE KAPLAN and RICHARD KAPLAN found in a handbag in the possession of Defendant SHIRLEY KREMEN at the time of arrest. The handbag was returned to her 214 1 Wallet container papers for JOHN F. BRENNAN found on the person of ROBERT THOMPSON Cash and Currency 215 $28.63 From envelopes in the brown leather, "Flex Bilt" expansion briefcase 216 86.45 From envelopes in the brown leather, "Flex Bilt" expansion briefcase 217 993.75 From envelopes in the brown leather, "Flex Bilt" expansion briefcase 218 33.13 From the wallet with papers for William Gordon 219 520.00 From hidden money compartments in the leather belt on the trousers containing the wallet with papers for William Gordon 220 5.45 From the purse with papers for Lee and Richard Kaplan 221 236.28 From the wallet with papers for Robert E. Neuman or Newman 222 383.36 From the Wallet in the possession of Robert Thompson with papers for John Brennan 223 The following items were identified by Shirley Kremen as her personal property and returned to her on September 25, 1953: 224 1 RCA Victor Album-Symphonies 1 & 9, 3 records 225 1 Record Album-Capital Records by Sibelius, ••Symphony #1 E minor, Op. 39" 226 1 Remington record-"Bach Sonata" 227 1 Remington record-"Caucasian Sketches" 228 1 Columbia record-"Chansons Parisiennes" 229 1 Parade record, Operatic library series-"Aida" 230 1 Remington record-"Schumann Sonata in D Minor, Op. 121" 231 1 Remington record-"Mendelssohn Violin Concerto" 232 1 Remington record-"Prelude to the Afternoon of a Fawn" 233 1 Remington record-"Paganini Violin Concerto in D Major" 234 1 Remington record-"Sonata for Violin & Piano, C Minor" 235 1 Columbia record-"Edith Piaf Encores" 236 1 Remington record-"Op. 13 in C Minor" 237 1 Remington record-"Concerto in D Major" 238 1 Columbia record-"Beethoven Concerto in D Major" 239 1 Mercury record-"Concerto for Violin & Orchestra" 240 1 Royale record-"Brahms Violin Concerto D Major" 241 1 2-Record album by Royale-"Choral OP. 125" 242 1 Album 5 ea RCA Victor-Symphony #7 in A, serial #18G11D 1 Album, 4 records, RCA Victor-"Tschaikowsky Concerto #1 in B Flat Minor" 243 1 Album, 2 records, RCA-"Grieg Concerto in A Minor" 244 1 Album, 5 records, RCA Victor-Beethoven "Archduke Trio" 245 1 Album, 2 records, RCA Victor-Classical Symphony 246 9 Towels-various colors, cotton bath and face size-no identifying marks 247 5 Wash cloths, small, various colors, no identifying marks 248 1 Yellow bath towel made by "Cannon" 249 1 White muslin cloth (looks like dish towel)-no identifying marks 250 1 Muslin dish towel "Martex Dry-Me-Dry"-white, with red and brown stripes on sides 251 1 White torn, burned sheet, used for ironing-no identifying marks 1 Ping Pong net with 2 holders (no name) 252 1 White plastic sunglass holder-"Hinge Patents Pending" 1 Pins-package of DeLong sewing type 1 Leather case for glasses 1 Towel-face type-Cannon 1 Towel-white muslin 253 1 Plastic case of miscellaneous small items-razor, spools of thread, lipstick, paper clips, wire 254 1 Seiberling Hot Water Bottle & rubber hose 2 Jars Avon Cleansing Cream, 31/2 ozs. & 13/4 ozs. 255 1 Plastic box with hair curlers and 1 tweezers 1 Foto-Flex Camera, empty 256 1 Mirror with green frame 3"x5" approx. 1 Bottle Pinwave Pincurl Permanent in box 1 Eyelash curler 257 1 Plastic container, red, Maybelline Mascara with brush 1 Fuller hair brush 1 Card of Clinton Hooks & Eyes & Loops 258 1 Soldering iron, electric-by Harmic Mfg. Co., Grove City, Pa., No. 86, 75 Watts, 115 Volts 1 Plastic shower cap-yellow 1 Box powder 1 Comb, white 1 Deputante Powder Shampoo 1 Bottle Avon Astringent 1 Bottle Breck Shampoo 1 Tube lipstick 259 1 Bottle NTZ Antihistamine Decongestant (to relieve nasal congestion) 1 Fuller brush 1 G.E. Automatic toaster 1 Colombia 3 speed record player 1 Box of Meds-partially empty 1 Package of toliet tissue-4 rolls 1 Package napkins 1 Cotton flannel bed cover-grey 260 1 Hammer-Marion Tool Co. 8 Bath towels-various colors 1 Kleenex-full 1 Scott towels-paper 1 Crescent wrench 2 Sierra Pine soap 1 Box aspirin (4 aspirins) 5 Hand towels 7 Pillow cases 261 1 Bed sheet (small letter K sewed on; 2057 laundry mark) 3 Table cloths 1 Blanket-U.S. Navy-Med Department 1 Bed sheet-Initial K (laundry 2057 A81) 1 Bed sheet-unmarked 1 Dark blue-turtle neck-sweater, knit 1 Suitcase, black imitation leather: 262 1 Package Nylmerate Jelly (used) with directions 263 1 Red and blue polka-dot bra, self-supporting 264 1 Pair (Bronco-ettes by Mallo-Maid of California) Woman's blue denim pedal pushers 265 1 Pair white tennis shoes, canvas tops, rubber soles 266 1 Size 67/8 100% wool red baseball cap made by Gortman Hat & Cap Co., Oakland, California 1 Spangled 5" x 6X evening bag with zipper 1 Roll of "Jumbo Ripple-Tie"-blue 267 1 Pair white net mits 1 Pair white nylon evening gloves 3 Yards, 1/2" elastic, yellow 1 Pair, nylon briefs 268 1 Pair saddle shoes, rubber soles. Top white with black saddles (female) 269 1 Large size red and white beanie hat with "LEE" sewed on front 270 1 Woman's green cotton waffle weave suit (Eisenhower type jacket) 271 1 Yellow blouse, woman's Rhinestone buttons, ripple collar, 1/2 sleeves 272 1 Woman's-Mode O'Day-White deep V neck blouse, no sleeves, one catch, no buttons 273 1 "Donig" white lace type woman's blouse, no sleeves 1 Rhinestone necklace with fixed pendant 274 1 Pair Rhinestone earings, square, made by "Phyllis" 275 1 Pair star type Rhinestone earings made by "Nemo" 276 1 String of seed pearls with rubber band on end (damaged) 277 1 Gray covered jewelry box, "Phyllis Originals" 1 Pair yellow "Moc Lucks" socks 278 1 Red and white breakfast coat, wool, red buttons, red collar 1 Flannel bed sheet-gray 279 1 Damaged Parker fountain pen with silver colored metal cap and wine or brown colored plastic pen 280 1 Woman's green overcoat with gold lining; has paper cleaning tag stapled to bottom edge of lining with number "25/940" 281 1 Infant dress, size 6 mo. made in Philippines 282 The following items were identified by Shirley Kremen as her personal property and returned to her on September 25, 1953-Cont'd 1 Kerchief-black and gold 283 1 White short sleeve Bermuda knit sweater-woman's type 1 White short sleeve sweater-woman's 284 1 Sweater-yellow-short sleeve-woman's Orbacks-made in England 1 Sweater-lavender-short sleeve-woman's 1 Sweater-green-knit-short sleeve-woman's 285 1 White sweater-turtle neck V Martin Knit Wear of California- woman's 1 Light blue-woman's briefs 3 White briefs-woman's 1 Bra-Silbra strapless 2 Bras, white 1 Pants-pink-woman's 286 1 Night gown, white-Dashing Deb 1 Bathing suit, woman's-yellow, blue, white 1 Night gown, size 38, Swank Shortie 287 1 Pair gloves-white cotton, blue cuffs Pay Less Drug Store 1 Undergown-top half-woman's 1 Slip-white 1 Breakfast Coat, Truzette of California 1 Slip-black and white 1 Pair of pajamas-flannel, blue and white 1 Girdle-Slackies 1 Bra-Alloette 1 Garter belt-Olga, California 288 1 Swim suit, red and white plaid, Gantner of California 1 T-Shirt-yellow-short sleeve 1 Sweat shirt-gray cuffs 1 Pair white work gloves 1 Blouse-pink and white striped 1 Bra-pink 1 Scarf-woman's-multi-hued 1 Blouse-pink-Cara Mae 1 Blouse-jersey-pink-zipper 1 Play shirt-knit-green, dark center strip 1 Blouse-Blue and white striped 1 Pair shorts-woman's-light tan 1 Pair Pedal pushers-light blue 1 Pair shorts-woman's-blue denim 1 Pair white bobby soxs 11/2 Pair stocking protectors 1 Pair Paisley women's shorts 289 1 Pair shorts-blue denim, woman's, with belt 290 The following was returned to Attorney NORMAN LEONARD for the defendants January 26, 1954: 291 1. 1950, two-door deluxe Chevrolet, Motor #HAA786026, 1953 Calif. plates #7B86733, with right door window broken, with registration certificate and following material: A. In Glove Compartment 4 21/2 x 41/2 memo book fillers 1 pr. colored driving goggles in case 1 spoon 1 6-inch crescent wrench 1 S-shaped screw driver 1 6-inch yellow handled screw driver 1 pr. cuticle scissors 1 lead sinker B. On Front Seat 1 Plaid Indian-style blanket C. On Back Seat 292 1 yellow and brown fiber and plastic seat cushion 293 1 blue and red fiber and plastic seat cushion 2 bow ties 1 tin cup 5 wire coat hangers 1 aluminum suitcase coat hanger D. In Trunk 1 1950 Chevrolet yearbook 294 1 pamphlet entitled, "Goodhousekeeping in your car" 1 bumper jack 1 set tire chains in bag 1 pair individual tire lug chains 1 lug wrench 1 spare tire and rim 295 2. 1950 tudor Ford sedan, Motor #BORH156413, 1953 California license #3G1606, with temporary registration and the following material: A. In trunk 1 lug wrench-4 headed 2 lug wrenches-single headed 2 bumper jacks

01

353 U.S. 364 77 S.Ct. 838 1 L.Ed.2d 894 GOVERNMENT AND CIVIC EMPLOYEES ORGANIZING COMMITTEE, CIO, an Unincorporated Association, et al., Appellants,v.S. F. WINDSOR et al. No. 423. Argued April 29, 30, 1957. Decided May 13, 1957. Mr. Milton I. Shadur, Chicago, Ill., for the appellants. Mr. Gordon Madison, Montgomery, Ala., for the appellees. PER CURIAM. 1 In 1953, the Alabama Legislature enacted a statute, Ala.Laws 1953, No. 720 p. 974, which provides that any public employee who joins or participates in a 'labor union or labor organization' forfeits the 'rights, benefits, or privileges which he enjoys as a result of his public employment.' Section 1 defines a 'labor union or labor organization' to include an organization of employees whose purpose is to deal with employers concerning grievances, labor disputes, or conditions of employment. Teachers, certain employees of the State Docks Board and city and county employees, however, are exempted from the provisions of the Act. 2 Appellants are an organization composed of employees of governmental and civic agencies, and a member of the organization who is employed by a retail liquor store operated by the Alabama Alcoholic Beverage Control Board. They commenced this action in the United States District Court for the Northern District of Alabama to enjoin the enforcement of the state statute on the grounds that it abridged the freedoms of expression and association of public employees, and that the statute violated the Due Process, Privileges and Immunities, and Equal Protection Clauses of the Fourteenth Amendment. 3 The three-judge District Court, convened pursuant to 28 U.S.C. §§ 2281, 2284, 28 U.S.C.A. §§ 2281, 2284, withheld the exercise of its jurisdiction, retaining the cause 'for a reasonable time to permit the exhaustion of such State administrative and judicial remedies as may be available.' 116 F.Supp. 354, 359. We affirmed that judgment of the District Court. 347 U.S. 901, 74 S.Ct. 429, 98 L.Ed. 1061. 4 Appelant union commenced an action in the Alabama courts to obtain an 'authoritative construction' of the state statute. A bill in equity was filed in the Circuit Court of Montgomery County, Alabama, praying that the enforcement of the statute against the union or its members be enjoined, and for a declaratory judgment that the union was not a 'labor union or labor organization' within the meaning of the statute. In its complaint, the union denied that the statute applied to it or its members. None of the constitutional contentions presented in the action pending in the United States District Court were advanced in the state court action. After hearing testimony, the Circuit Court of Montgomery County denied the union's prayer for relief, holding that the statute applied to the union, its members and its activities. The Alabama Supreme Court affirmed. 262 Ala. 285, 78 So.2d 646. It held that a local union operating under the appellant's rules and constitution would be subject to the provisions of the Act. 5 The case was resubmitted to the three-judge District Court for final decree. The District Court dismissed the action with prejudice, saying that the Alabama courts have not construed the Act 'in such a manner as to render it unconstitutional, and, of course, we cannot assume that the State courts will ever so construe said statute.' 146 F.Supp. 214, 216. We noted probable jurisdiction. 352 U.S. 905, 77 S.Ct. 149, 1 L.Ed.2d 115. 6 We do not reach the constitutional issues. In an action brought to restrain the enforcement of a state statute on constitutional grounds, the federal court should retain jurisdiction until a definitive determination of local law questions is obtained from the local courts. One policy served by that practice is that of not passing on constitutional questions in situations where an authoritative interpretation of state law may avoid the constitutional issues. Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. Another policy served by that practice is the avoidance of the adjudication of abstract, hypothetical issues. Federal courts will not pass upon constitutional contentions presented in an abstract rather than in a concrete form. Rescue Army v. Municipal Court, 331 U.S. 549, 575, 584, 67 S.Ct. 1409, 1423, 1427, 91 L.Ed. 1666. The bare adjudication by the Alabama Supreme Court that the union is subject to this Act does not suffice, since that court was not asked to interpret the statute in light of the constitutional objections presented to the District Court. If appellants' freedom-of-expression and equalprotection arguments had been presented to the state court, it might have construed the statute in a different manner. Accordingly, the judgment of the District Court is vacated, and this cause is remanded to it with directions to retain jurisdiction until efforts to obtain an appropriate adjudication in the state courts have been exhausted. 7 It is so ordered. 8 Judgment vacated and cause remanded with directions. 9 Mr. Justice BLACK took no part in the consideration or decision of this case.

89

353 U.S. 360 77 S.Ct. 840 1 L.Ed.2d 889 H. T. ARNOLD, Petitioner,v.PANHANDLE AND SANTA FE RAILWAY CO. No. 240. Argued April 24, 25, 1957. Decided May 13, 1957. Rehearing Denied June 17, 1957. See 354 U.S. 927, 77 S.Ct. 1375. Mr. James O. Bean, Dallas, Tex., for petitioner. Mr. Charles L. Cobb, Lubbock, Tex., for respondent. PER CURIAM. 1 We hold that the proofs justified with reason the jury's conclusion that employer negligence played a part in producing the petitioner's injury. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 459, 1 L.Ed.2d 493; Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 459, 1 L.Ed.2d 503; Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 459, 1 L.Ed.2d 511; Shaw v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718; Deen v. Gulf, Colorado & Santa Fe R. Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Thomson v. Texas & Pacific R. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.Ed.2d 722. The jury's general verdict, that the respondent negligently contributed to the petitioner's injury, has support in the testimony of witnesses justifying the inference that the passageway as used was not a safe place for the petitioner to work while performing his assigned duties. The special issues claimed to be in conflict with this finding concerned alleged negligence only in the operation and presence of the truck on this passageway. But even if the rule announced by the Court of Civil Appeals controlled, as we see it these answers present no square conflict. The findings on these special issues do not exhaust all of the possible grounds on which the prior unsafe-place-to-work finding of the jury may have been based. Hence all of the findings in the case might well be true insofar as the record indicates. The petitioner having asserted federal rights governed by federal law, it is our duty under the Act to make certain that they are fully protected, as the Congress intended them to be. We therefore cannot accept interpretations that nullify their effectiveness, for '* * * the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143. See Dice v. Akron, Canton & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398; Brown v. Western R. Co., 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100. The judgment of the Court of Civil Appeals is reversed and the case is remanded. 2 Reversed and remanded. 3 Mr. Justice FRANKFURTER, dissenting. 4 I would dismiss the writ as improvidently granted for the reasons set forth in my dissent in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493. Insofar as review of the decision of the Texas court involves the question of an inconsistency between the general verdict and the special findings on the central issue of negligence, the inappropriateness of granting certiorari to re-examine the record is glaringly emphasized. 5 Mr. Justice HARLAN, whom Mr. Justice BURTON and Mr. Justice WHITTAKER join, dissenting. 6 As this case presents a different situation from that involved in other negligence cases which, in increasing numbers I regret to say, have been passed on by this Court during the current Term,1 I am constrained to write a few words in explanation of my dissent, beyond the views expressed in my dissenting opinion in Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 559, 77 S.Ct. 443, 478, 479, 1 L.Ed.2d 493. 7 This case involves more than the problem of the sufficiency of the evidence to support a jury verdict. Under Texas procedure, the trial court in this case required the jury to bring in a general verdict on the issue of whether the respondent had negligently failed to furnish petitioner with a safe place to work, and, if so, whether such failure was a contributing cause to the accident. The jury was also asked to make findings on special issues put to it by the court. The jury's general verdict was favorable to the petitioner, but its findings on the special issues were in favor of the respondent, and, as I see them, were wholly inconsistent with the general verdict.2 In these circumstances the state appellate court, applying Texas law, held that the general verdict must yield to the inconsistent findings on the special issues, and that the trial court should have entered judgment for the respondent. 8 I am unable to see any valid basis for this Court's action in upsetting this state judgment. Clearly, it seems to me, the Texas procedural rule which the Court of Civil Appeals applied in resolving the head-on collision in the jury's verdict did not subvert assertion of the federal rights established by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Compare Brown v. Western R. Co., 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100. Nor, in my opinion, can it be said that resolving these inconsistencies, in accordance with this local rule of practice, deprived the petitioner of any substantive right given him by the federal statute. Compare Dice v. Akron, Canton & Y.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398. Indeed, the procedural rule applied by the Texas court is identical with that which would have been applicable, in the same circumstances, had this case been tried in a federal court. See Fed.Rules Civ.Proc., rule 49(b), 28 U.S.C.A. 9 I would affirm. 1 Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S.Ct. 443, 459, 1 L.Ed.2d 493; Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 459, 1 L.Ed.2d 503; Herdman v. Pennsylvania R. Co., 352 U.S. 518, 77 S.Ct. 455, 459, 1 L.Ed.2d 508; Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 459, 1 L.Ed.2d 511; Gibson v. Phillips Petroleum Co., 352 U.S. 874, 77 S.Ct. 16, 1 L.Ed.2d 77; Johnson v. Union Pac. R. Co., 352 U.S. 957, 77 S.Ct. 359, 1 L.Ed.2d 316; Shaw v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718; Deen v. Gulf, C. & S.F.R. Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Thomson v. Texas & Pac. R. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.Ed.2d 722. 2 Petitioner, respondent's car inspector, sued to recover for injuries sustained while he was inspecting railroad cars in a passageway ten feet wide, having been struck by a truck backing into the same passageway. He alleged that the respondent had negligently failed to provide him with a safe place to work by (1) not warning petitioner of the truck; (2) not protecting petitioner while he was working in the passageway; (3) allowing the truck to be driven into the passageway; and (4) failing to see that the truck was not driven negligently. As to the special issues the jury found: (1) there was no negligence in failing to warn the petitioner of the truck; (2) there was no negligence in allowing the truck to be driven onto the passageway while the petitioner was working there; (3) there was no negligent failure on the part of the respondent to keep a proper lookout; (4) there was no negligent failure on the part of the truck driver to keep a proper lookout; (5) there was no negligence in failing to give a warning before backing up the truck; (6) there was no negligence in backing the truck into the passageway; (7) the truck did not back too close to the tracks, did not back up too fast, and was not negligently driven without adequate visibility; (8) petitioner did not move into the path of the truck 'when such movement could not be made with safety'; and (9) petitioner failed to keep a proper lookout for the truck, and this failure was a cause of the accident, though not the sole cause. I do not understand how it could be claimed that these findings were not inconsistent with the general verdict. Indeed, every specific allegation of negligence set forth in petitioner's complaint was rejected by the jury. And, as I see it, every factual basis on which a finding could be based that respondent had negligently failed to provide petitioner with a safe place to work was rejected by the jury. All that remains to show that the passageway was a dangerous spot is the fact that the accident occurred there—something which, until now, I have never supposed could be equated with negligence.

78

353 U.S. 373 77 S.Ct. 995 1 L.Ed.2d 918 Sam ACHILLI, Petitioner,v.UNITED STATES of America. Nos. 430, 834. Argued May 2, 1957. Decided May 27, 1957. Rehearing Denied June 24, 1957. See 354 U.S. 943, 77 S.Ct. 1391, 1394. Peter B. Atwood, Chicago, Ill., for the petitioner. Charles K. Rice, Washington, D.C., for the respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Petitioner was charged in a three-count indictment under § 145(b) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 145(b), with the felony of wilfully attempting to evade federal income taxes by filing a false return.1 Upon conviction, he was sentenced to concurrent two-year prison terms and was fined $2,000 on each count. The Court of Appeals for the Seventh Circuit reversed the conviction on count one, but affirmed the convictions on counts two and three. 234 F.2d 797. We granted certiorari limited to a question of general importance in the enforcement of the income tax, namely, whether petitioner could be prosecuted and sentenced under § 145(b) for an offense claimed by him to be punishable also under § 3616(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3616(a). 352 U.S. 1023, 77 S.Ct. 588, 1 L.Ed.2d 595.2 2 The threshold question is whether the conduct for which petitioner was convicted was an offense under s 3616(a). That section made it a misdemeanor for any person to deliver to the Collector 'any false or fraudulent list, return, account, or statement, with intent to defeat or evade the valuation, enumeration, or assessment intended to be made * * *' and provided maximum penalties of one year in prison and a $1,000 fine, together with the costs of prosecution. 53 Stat. 440. If the wilful filing of a false income tax return was not embraced by § 3616(a), petitioner's case falls, and discussion of other issues becomes unnecessary. 3 Unlike § 145(b), which appeared in the income tax chapter of the 1939 Code and was specifically and restrictively designed to punish evasion of that tax, § 3616(a) was placed among the Code's 'General Administrative Provisions' and was general in scope. Failure explicitly to exclude evasion of the income tax from the scope of § 3616(a) is urged as ground for its inclusion, thereby making it a misdemeanor to file a false return with intent to evade the income tax, despite the specific felony provision of § 145(b). 4 As long ago as 1926 it was the Government's position that the predecessor of § 145(b) effectively repealed § 3616(a)'s applicability to income tax evasion. See brief for the United States pp. 16—19, in United States v. Noveck, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610. To be sure, during the last five years, the Government prosecuted a small number of minor offenses, we are told less than seven per cent of the criminal income tax evasion cases involving the filing of false returns, as misdemeanors under § 3616(a). More recently, a series of cases brought the relation of § 145(b) to § 3616(a) into focus and called for an interpretative analysis of the history of these sections in order to ascertain their respective functions. And so now, for the first time, has the Government made a detailed survey of the problem of alleged overlapping between § 3616(a) and § 145(b). 5 Section 3616(a) goes back to the Act of 1798, 1 Stat. 580, 586, when excise taxes and customs duties were the main sources of federal revenue. Being general in scope, this section, as successively re-enacted, was applicable to the first federal taxes on income from 1861 to 1871, and again in 1894; there were no separate provisions for punishing income tax evasions. See, e.g., the Act of 1861, 12 Stat. 292, 309; the Act of 1894, 28 Stat. 509, 553. 6 A different story begins with the income tax legislation that followed the passage of the Sixteenth Amendment. Section II of the Revenue Act of 1913, 38 Stat. 114, 166, contained its own criminal sanctions. Section II(F) proscribed the making of a false return with intent to evade the income tax, an act that would otherwise have been punishable under what was then § 3179 of the Revised Statutes of 1874, the immediate predecessor of § 3616(a). The offense would have been a misdemeanor under either statute. But § II(F) provided a maximum fine of $2,000 while § 3179 only permitted a fine of up to $1,000. It seems clear that § II(F) displaced § 3179. Such implied repeal, pro tanto, is further demonstrated by the fact that §§ 3167, 3172, 3173 and 3176 of the Revised Statutes, related provisions in the enforcement of the revenue laws, were specifically incorporated, as modified, into § II, but § 3179 was not. Nor was it incorporated by reference; § II(L) made applicable only those administrative and general tax provisions 'not inconsistent with the provisions of this section,' and § 3179 was obviously inconsistent with § II(F). 7 The Revenue Act of 1916, 39 Stat. 756, 775, and the Act of 1917, 40 Stat. 300, 325, offer further evidence that Congress withdrew the income tax from the reach of the general provisions of § 3179. Both of those Acts imposed income taxes, proscribed the making of false returns as a misdemeanor, and punished that offense more severely than did § 3179.3 In addition to its specific prohibition of false returns, the 1917 Act made it an offense to evade or attempt to evade taxes imposed by it, thereby using for the first time language similar to that subsequently found in § 145(b). 8 In an effort to escape the effect of the scheme for punishing income tax evaders set forth in the 1913, 1916, and 1917 statutes, petitioner claims that the Revenue Act of 1918 made § 3179 again applicable to the income tax. Section 253 of Title II, the income tax title, provided in pertinent part: 9 'Any individual * * * who willfully refuses to pay or collect such (required) tax, to make such return, or to supply such information at the time or times required under this title, or who willfully attempts in any manner to defeat or evade the tax imposed by this title, shall be guilty of a misdemeanor and shall be fined not more than $10,000 or imprisoned for not more than one year, or both * * *.' 40 Stat. 1057, 1085. 10 Despite § 253's addition of the words 'in any manner' to the 'attempts' clause of the 1917 Act, petitioner contends that the failure of § 253 to single out the making of false returns with intent to evade must be attributed to a congressional determination that this particular mode of imcome tax evasion should be punished under § 3179. Plainly enough, such a reading of the Act is untenable. We cannot hold that the classic method of evading the income tax, the filing of a false return, did not constitute an attenpt 'in any manner to defeat or evade' that tax. This would empty those words of their most obvious content and would produce glaring incongruities. It would mean that Congress, having manifested its desire in the previous revenue laws to punish this offense more harshly than did § 3179, inexplicably reversed itself in an Act that heavily increased the punishment for all other forms of obstruction to the income tax. And it would mean that Congress provided a lesser penalty for the making of false returns with intent to evade than for either wilful refusal to file, which is usually considered to be a lesser offense, or refusal to file when combined with affirmative acts of evasion such as keeping a double set of books. An explanation of the omission more in harmony with the rational system of tax administration that was the congressional design is that Congress merely tried to speak economically in 1918 and, having prohibited 'attempts in any manner' to evade the income tax, found it unnecessary also to proscribe the major kind of attempt. 11 This interpretation gains further support from the Act of 1924, 43 Stat. 253, 343, which made the last significant alteration of the statutory scheme prior to the 1939 codification. Section 1017(a), subsequently § 145(a) of the Code, continued the wilful failure to make returns, supply information or pay taxes as a misdemeanor carrying a penalty of up to one year in prison and a $10,000 fine. Section 1017(b), the future § 145(b), made if a felony, with a maximum penalty of five years in prison and a $10,000 fine, to attempt 'in any manner to evade or defeat any tax imposed by this Act.' And § 1017(c), later § 3793(b) (1) of the Code, 26 U.S.C.A. § 3793(b)(1), created a new offense, which made it a felony, with a maximum penalty of five years in prison and $10,000 fine, for any person wilfully to assist in the preparation of a false return. Thus the 1924 Act, by increasing the punishment for affirmative acts of evasion, made even more pronounced one of the indicated anomalies that petitioner's view would impose. In addition, § 1017(c) requires petitioner to impute to Congress a desire to punish one who assisted in preparing a false return much more severely than one who actually made the return with intent to evade. 12 Our duty is to give coherence to what Congress has done within the bounds imposed by a fair reading of legislation. In Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, the dominant consideration in the Court's unanimous decision relating § 145(b) to § 145(a) was the avoidance of incongruities analogous to those that would result from petitioner's reading of the sections before us. The evolution of those sections makes clear that by the time the unconfined language of § 3179 became § 3616(a) of the 1939 Code, its scope had been shrunk by a series of specific enactments that had the potency of implied repeals. Due regard for appropriate statutory construction calls for such a conclusion in order to harmonize an earlier, generalized statute with later ad hoc enactments expressly directed to the collection of income taxes. 13 In view of our conclusion that § 3616(a) did not apply to evasion of the income tax, it becomes unnecessary to consider other contentions advanced by petitioner. 14 Affirmed. 15 The CHIEF JUSTICE and Mr. Justice CLARK concur in the result. 16 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 17 I do not see how we can say that Congress withdrew the income tax from the reach of § 3616(a). In the 1939 Internal Revenue Code that section was part of Subchapter B, 'Determination of Tax Liability,' which was a part of chapter 34, 'Information and Returns,' which in turn was part of Subtitle D, 'GENERAL ADMINISTRATIVE PROVISIONS.' SECTIOn 61 mADe applicable tO the income tax provisions 'All administrative special, or stamp provisions of law, including the law relating to the assessment of taxes, so far as applicable * * *.' These administrative provisions include the chapter and subtitle of which § 3616(a) is a part. And by its terms § 3616(a) applies to 'any' return. Plainly then, Congress in 1939 considered § 3616(a) an instrument for enforcing the income tax. 18 It takes mental gymnastics to bring this crime out from under § 3616(a) and to place it exclusively under § 145(b). I would not make the penal consequences of an Act turn on a construction so tenuous. I rebel against it, especially because the construction now adopted sweeps the ground out from under dozens of criminal convictions which the Government has obtained under § 3616(a). Between October 1952 and March 1957 (when the Government first suggested to this Court that § 3616(a) was inapplicable to the income tax) it invoked § 3616(a) in 175 cases of alleged income tax evasion. It chose § 3616(a), rather than § 145(b), where it appeared that the crime was a relatively minor one. Of these 175 cases, 38 remain undisposed of. Of the 133 that went to trial, 117 resulted in pleas of guilty and 9 in pleas of nolo contendere. Seven defendants went to trial, of whom 5 were acquitted and 2 convicted. Of the 128 convicted persons, 26 were sentenced to imprisonment, the rest being fined or given probation or suspended sentences. Seven of the convicted persons who were sentenced are still incarcerated. 19 Now it appears that the Government dealt unlawfully with this group of citizens. Those who were convicted on indictments might have to be resentenced. Those who were convicted on informations must be released. 20 It is no answer to say that the result is 'a break' for these defendants. From the statistics submitted to us by the Government it appears that many of these cases were so minor it is difficult to imagine a ground jury returning indictments on them. 21 I would adhere to the administrative construction that § 3616(a) applied to the income tax. Congress apparently was of that view. For when it came to the Internal Revenue Code of 1954, 26 U.S.C.A., it re-enacted § 3616(a) as § 7207, eliminating the words 'with intent to defeat or evade' which had caused the overlap with § 145(b). Congress acted, of course, prospectively. 22 The fact that Congress acted in 1954 to remove the ambiguity with which we deal today indicates that what we do is not within the judicial competence. 1 'Sec. 145. Penalties '(a) Failure of file returns, submit information, or pay tax. Any person required under this chapter to pay any tax, or required by law or regulations made under authority thereof to make a return, keep any records, or supply any information, for the purposes of the computation, assessment, or collection of any tax imposed by this chapter, who willfully fails to pay such tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than one year, or both, together with the costs of prosecution. '(b) Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.' 53 Stat. 62—63. 2 By the time certiorari was granted, petitioner's sentence had been reduced by the District Court to concurrent one-year prison terms and to a fine of $1,000 on each of the two affirmed counts. For further details of the history of the case, see 352 U.S. 916, 77 S.Ct. 214, 1 L.Ed.2d 122 and 353 U.S. 909, 77 S.Ct. 669, 1 L.Ed.2d 663. 3 The 1916 Act provided the same punishment as the Act of 1913. The 1917 Act provided, in addition to the maximum penalties set forth in § 3179, a penalty of double the tax evaded.

01

353 U.S. 382 77 S.Ct. 990 1 L.Ed.2d 924 LIBSON SHOPS, Inc., Petitioner,v.Gustave F. KOEHLER, District Director of Internal Revenue. No. 64. Argued Jan. 15, 1957. Decided May 27, 1957. Rehearing Denied June 24, 1957. See 354 U.S. 943, 77 S.Ct. 1390. Messrs. Henry C. Lowenhaupt, and Owen T. Armstrong, St. Louis, Mo., for the petitioner. Mr. John N. Stull, Washington, D.C., for the respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 The issue before us is whether, under §§ 23(s) and 122 of the Internal Revenue Code of 1939, as amended, 26 U.S.C.A. ss 23(s), 122, a corporation resulting from a merger of 17 separate incorporated businesses, which had filed separate income tax returns, may carry over and deduct the pre-merger net operating losses of three of its constituent corporations from the post-merger income attributable to the other businesses. We hold that such a carry-over and deduction is not permissible. 2 Petitioner, Libson Shops, Inc., was incorporated on January 2, 1946, under the laws of Missouri, as Libson Shops Management Corporation, to provide management services for corporations selling women's apparel at retail. Its articles of incorporation also permitted it to sell apparel. At about the same time, the same interests incorporated 16 separate corporations to sell women's apparel at retail at separate locations. Twelve were incorporated and went into business in Missouri; four in Illinois. Each of these 16 sales corporations was operated separately and filed separate income tax returns. Petitioner's sole activity was to provide management services for them. The outstanding stock of all 17 corporations was owned, directly or indirectly, by the same individuals in the same proportions. 3 On August 1, 1949, the 16 sales corporations were merged into petitioner under the laws of Missouri and Illinois. New shares of petitioner's stock were issued, pro rata, in exchange for the stock of the sales corporations. By virtue of the merger agreement, petitioner's name was changed, the amount and par value of its stock revised, and its corporate purposes expanded. Following the merger, petitioner conducted the entire business as a single enterprise. Thus, the effect of the merger was to convert 16 retail businesses and one managing agency, reporting their incomes separately, into a single enterprise filing one income tax return. 4 Prior to the merger, three of the sales corporations showed net operating losses. These were as follows: In the year following the merger, each of the retail units formerly operated by these three corporations continued to sustain a net operating loss. 5 In its income tax return for the first year after the merger, petitioner claimed a deduction of the above $22,432.76 as a carry-over of its pre-merger losses. Petitioner sought this deduction under §§ 23(s) and 122 of the Internal Revenue Code of 1939, as amended. The Commissioner of Internal Revenue disallowed it and petitioner paid the resulting tax deficiency. In due course petitioner brought this suit for a refund in the United States District Court for the Eastern District of Missouri. That court dismissed petitioner's complaint and the Court of Appeals affirmed. 229 F.2d 220. We granted certiorari to decide the questions of tax law involved. 351 U.S. 961, 76 S.Ct. 1026, 100 L.Ed. 1482. 6 Section 23(s) authorizes a 'net operating loss deduction computed under section 122.'1 Section 122 prescribes three basic rules for this calculation. Its pertinent parts provide generally (1) that a 'net operating loss' is the excess of the taxpayer's deductions over its gross income (§ 122(a)); (2) that, if the taxpayer has a net operating loss, the loss may be used as a 'net operating loss carry-back' to the two prior years (§ 122(b)(1) (A)) and, if not exhausted by that carry-back, the remainder may be used as a 'net operating loss carry-over' to the three succeeding years (§ 122(b)(2)(C)); and (3) that the aggregate of the net operating loss carry-backs and carry-overs applicable to a given taxable year is the 'net operating loss deduction' for the purposes of § 23(s) (§ 122(c)). 7 We are concerned here with a claim to carry over an operating loss to the immediately succeeding taxable year. The particular provision on which petitioner's case rests is as follows: 8 'If for any taxable year beginning after December 31, 1947, and before January 1, 1950, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-over for each of the three succeeding taxable years * * *.' (Emphasis supplied.) § 122(b)(2)(C), 64 Stat. 937, 938, 65 Stat. 505, 26 U.S.C. § 122(b)(2)(C), 26 U.S.C..A. 122(b)(2)(C). 9 The controversy centers on the meaning of 'the taxpayer.'2 The contentions of the parties require us to decide whether it can be said that petitioner, a combination of 16 sales businesses, is 'the taxpayer' having the pre-merger losses of three of those businesses. 10 In support of its denial of the carry-over, the Government argues that this statutory privilege is not available unless the corporation claiming it is the same taxable entity as that which sustained the loss. In reliance on New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348, and cases following it,3 the Government argues that separately chartered corporations are not the same taxable entity. Petitioner, on the other hand, relying on Helvering v. Metropolitan Edison Co., 306 U.S. 522, 59 S.Ct. 634, 83 L.Ed. 957, and cases following it,4 argues that a corporation resulting from a statutory merger is treated as the same taxable entity as its constituents to whose legal attributes it has succeeded by operation of state law. However, we find it unnecessary to discuss this issue since an alternative argument made by the Government is dispositive of this case. The Government contends that the carry-over privilege is not available unless there is a continuity of business enterprise. It argues that the prior year's loss can be offset against the current year's income only to the extent that this income is derived from the operation of substantially the same business which produced the loss. Only to that extent is the same 'taxpayer' involved. 10 Cir., 190 F.2d 330; Weber 10 Cir., 190 F.id 330; Weber Flour Mills Co. v. Commissioner, 10 Cir., 82 F.2d 764; Pennsylvania Co. for Insurances on Lives and Granting Annuities v. Commissioner, 3 Cir., 75 F.2d 719; Shreveport Producing & Refining Co. v. Commissioner, 5 Cir., 71 F.2d 972; Brandon Corp. v. Commissioner, 4 Cir., 71 F.2d 762. 11 The requirement of a continuity of business enterprise as applied to this case is in accord with the legislative history of the carry-over and carry-back provisions. Those provisions were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year.5 There is, however, no indication in their legislative history that these provisions were designed to permit the averaging of the pre-merger losses of one business with the post-merger income of some other business which had been operated and taxed separately before the merger. What history there is suggests that Congress primarily was concerned with the fictuating income of a single business.6 12 This distinction is recognized by the very cases on which petitioner relies. In Stanton Brewery, Inc. v. Commissioner, 2 Cir., 176 F.2d 573, 577, the Court of Appeals stressed the fact that the merging corporations there involved carried on 'essentially a continuing enterprise, entitled to all * * * benefits (of the carry-over provisions) in ameliorating otherwise harsh tax consequences of fluctuating profits or expanding business.' (Emphasis supplied.) And in Newmarket Manufacturing Co. v. United States, 1 Cir., 233 F.2d 493, 497, the court expressly distinguished the case before it from the instant case on the ground that there 'one single business' was involved in the merger, while in this case there were 'several business.'7 13 This difference is not merely a matter of form. In the Newmarket case, supra, a corporation desiring to change the state of its domicile caused the organization of a new corporation and merged into it. The new corporation sought to carry back its post-merger losses to the pre-merger income of the old corporation. But for the merger, the old corporation itself would have been entitled to a carry-back. In the present case, the 16 sales corporations, prior to the merger, chose to file separate income tax returns rather than to pool their income and losses by filing a consolidated return. Petitioner is attempting to carry over the pre-merger losses of three business units which continued to have losses after the merger. Had there been no merger, these businesses would have had no opportunity to carry over their losses. If petitioner is permitted to take a carry-over, the 16 sales businesses have acquired by merger an opportunity that they elected to forego when they chose not to file a consolidated return. 14 We do not imply that a question of tax evasion or avoidance is involved. Section 129(a) of the 1939 Code, as amended, does contain provisions which may vitiate a tax deduction that was made possible by the acquisition of corporate property for the 'principal purpose' of tax evasion or avoidance.8 And that section is inapplicable here since there was no finding that tax evasion or avoidance was the 'principal purpose' of the merger. The fact that § 129(a) is inapplicable does not mean that petitioner is automatically entitled to a carry-over. The availability of this privilege depends on the proper interpretation to be given to the carry-over provisions. We find nothing in those provisions which suggest that they should be construed to give a 'windfall' to a taxpayer who happens to have merged with other corporations. The purpose of these provisions is not to give a merged taxpayer a tax advantage over others who have not merged. We conclude that petitioner is not entitled to a carry-over since the income against which the offset is claimed was not produced by substantially the same businesses which incurred the losses.9 15 The judgment of the Court of Appeals is affirmed. 16 Affirmed. 17 Mr. Justice DOUGLAS dissents. 18 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 1 As originally added to the 1939 Code by the Revenue Act of 1939, c. 247, 53 Stat. 862, 867—868, § 122 provided for the computation and carry-over of net operating losses without expressly relating them to a given taxpayer. Section 153(a) of the Revenue Act of 1942, c. 619, 56 Stat. 798, 847—848, amended § 122(b) not only to allow carry-backs for the first time, but also to provide, as to both carry-backs and carry-overs, that it was only the net operating losses of 'the taxpayer' which could be so utilized. 2 These words have been omitted from the new provisions of the Internal Revenue Code of 1954 relating to carry-backs and carry-overs after corporate acquisitions of assets of anothr corporation. See §§ of assets of another corporation. See ss 3 E.g., Standard Paving Co. v. Commissioner, 10 Cir., 190 F.2d 330; Weber Flour Mills Co. v. Commissioner, 10 Cir., 82 F.2d 764; Pennsylvania Co. for Insurances on Lives and Granting Annuities v. Commissioner. 3 Cir., 75 F.2d 719; Shreveport Producing and Refining Co. v. Commissioner, 5 Cir. 71 F.2d 972; Brandon Corp. v. Cpmmissioner, 4 Cir., 71 F.2d 762. 4 E.g., Newmarket Manufacturing Co. v. United States, 1 Cir., 233 F.2d 493; E. & J. Gallo Winery v. Commissioner, 9 Cir., 227 F.2d 699; Stanton Brewery, Inc., v. Commissioner, 2 Cir., 176 F.2d 573; Koppers co. v. United States, 134 F.Supp. 290, 133 Ct.Cl. 22. 5 See Lewyt Corp. v. Commissioner, 349 U.S. 237, 243—244, 75 S.Ct. 736, 740—741, 99 L.Ed. 1029 (dissenting opinion); Manning v. Seeley Tube & Box Co., 338 U.S. 561, 566—567, 70 S.Ct. 386, 389, 94 L.Ed. 346; Stanton Brewery, Inc., v. Commissioner, 2 Cir., 176 F.2d 573, 574; H.R.Rep. No. 855, 76th Cong., 1st Sess. 9—10; S.Rep. No. 1631, 77th Cong., 2d Sess. 51—52. 6 The House Committee on Ways and Means, reporting on § 122 as it was originally added to the 1939 Code by the Revenue Act of 1939, c. 247, 53 Stat. 862, 867—868, stated that— 'The bill, together with the committee amendments, permits taxpayers to carry over net operating business losses for a period of 2 years. Prior to the Revenue Act of 1932, such 2-year carry-over was allowed. No net loss has ever been allowed for a greater period than 2 years. In the Revenue Act of 1932, the 2-year net loss carry-over was reduced to 1 year and in the National Industrial Recovery Act the net loss carry-over was entirely eliminated. As a result of the elimination of this carry-over, a business with alternating profit and loss is required to pay higher taxes over a period of years than a business with stable pfofits, although the average income of the two firms is equal. New enterprises and the capital-goods industries are especially subject to wide fluctuations in earnings. It is, therefore, believed that the allowance of a net operating business loss carry-over will greatly aid business and stimulate new enterprises.' (Emphasis supplied.) H.R.Rep. No. 855, 76th Cong., 1st Sess. 9. 7 Koppers Co. v. United States, 134 F.Supp. 290, 133 Ct.Cl. 22, also involves a situation in which the corporation resulting from the merger carried on essentially the same taxable enterprise as before, since the merged corporations had been filing consolidated tax returns. E. & J. Gallo Winery v. Commissioner, 9 Cir., 227 F.2d 699, is inconclusive on this point since the opinion does not disclose whether or not a continuing enterprise was involved. Cf. § 382(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 382(a) relating to the purchase of a corporation and change in its trade or business. Under circumstances there defined, that section precludes a carry-over by the same corporation, unless it continues to engage in 'substantially the same' trade or business as before the change in ownership. § 382(a)(1)(C). 8 The Revenue Act of 1943, c. 63, 58 Stat. 21, 47, by § 128, added to the 1939 Code the following section: 'Sec. 129. Acquisitions made to evade or avoid income or excess profits tax '(a) Disallowance of deduction, credit, or allowance. If (1) any person or persons acquire, on or after October 8, 1940, directly or indirectly, control of a corporation, or (2) any corporation acquires, on or after October 8, 1940, directly or indirectly, property of another corporation, not controlled, directly or indirectly, immediately prior to such acquisition, by such acquiring corporation or its stockholders, the basis of which property, in the hands of the acquiring corporation, is determined by reference to the basis in the hands of the transferor corporation, and the principal purpose for which such acquisition was made is evasion or avoidance of Federal income or excess profits tax by securing the benefit of a deduction, credit, or other allowance which such person or corporation would not otherwise enjoy, then such deduction, credit, or other allowance shall not be allowed. For the purposes of clauses (1) and (2), control means the ownership of stock possessing at least 50 per centum of the total combined voting power of all classes of stock entitled to vote or at least 50 per centum of the total value of shares of all classes of stock of the corporation.' 26 U.S.C.A. § 129(a). See H.R.Rep. No. 871, 78th Cong., 1st Sess. 24, 49—50; S.Rep. No. 627, 78th Cong., 1st Sess. 26—27, 58—61. 9 We do not pass on situations like those presented in Northway Securities Co. v. Commissioner, 23 B.T.A. 532; Alprosa Watch Corp. v. Commissioner, 11 T.C. 240; A.B. & Container Corp. v. Commissioner, 14 T.C. 842; W A G E, Inc., v. Commissioner, 19 T.C. 249. In these cases a single corporate taxpayer changed the character of its business and the taxable income of one of its enterprises was reduced by the deductions or credits of another.

1112

353 U.S. 427 77 S.Ct. 985 1 L.Ed.2d 956 Henry Ragonton RABANG, Petitioner,v.John P. BOYD, District Director, Immigration and Naturalization Service. No. 403. Argued May 1, 1957. Decided May 27, 1957. Rehearing Denied July 8, 1957. See 354 U.S. 944, 77 S.cT. 1421. Mr. John Caughlan, Seattle, Wash., for the petitioner. Mr. J. F. Bishop, Washington, D.C., for the respondent. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The petitioner, born in 1910 in the Philippine Islands, has lived in the continental United States since 1930, when he was admitted for permanent residence. In February 1951, he was convicted upon a plea of guilty of violating the federal narcotics laws. He was taken into custody in March 1951, and, after administrative proceedings, was ordered deported under the Act of February 18, 1931, as amended, which provided for the deportation of 'any alien' convicted of violating a federal narcotics law.1 2 Petitioner applied to the District Court for the Western District of Washington for a writ of habeas corpus and declaratory relief from the order of the Immigration and Naturalization Service deporting him to the Philippine Islands. The District Court denied the petitioner's application, and the Court of Appeals for the Ninth Circuit affirmed.2 We granted certiorari.3 3 The sole issue for decision is whether the petitioner is deportable as an alien within the meaning of the 1931 Act. The parties agree that the petitioner was a national of the United States at birth and when he entered the continental United States for permanent residence. Under the 1898 Treaty of Paris, Spain ceded the Philippine Islands to the United States.4 Article IX of the Treaty provided that '* * * (t)he civil rights and political status of the native inhabitants * * * shall be determined by the Congress.'5 Pursuant to that Article, the Congress declared, inter alia, in the Act of July 1, 1902, that Filipinos born in the Islands after 1899 were to '* * * be citizens of the Philippine Islands and as such entitled to the protection of the United States * * *.'6 The Filipinos, as nationals, owed an obligation of permanent allegiance to this country.7 4 Upon the proclamation of Philippine independence on July 4, 1946,8 § 14 of the Philippine Independence Act of 1934 became operative. Section 14 provided: 5 'Upon the final and complete withdrawal of American sovereignty over the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries.' 48 Stat. 464, 48 U.S.C. (1946 Ed.) § 1244, 22 U.S.C.A. § 1281a. 6 The Court of Appeals held that the petitioner lost his status as a national when the United States relinquished its sovereignty over the Islands on July 4, 1946, and that this occurred regardless of his residence in the continental United States on that date.9 7 The petitioner argues that his status as a national, acquired at birth under the Treaty and the 1902 statute, bears such close relationship to the constitutionally secured birthright of citizenship acquired by the American-born, that its divestiture should rest only upon the most explicit expression of congressional intention. In the Independence Act, the Congress granted full and complete independence to the Islands, and necessarily severed the obligation of permanent allegiance owed by Filipinos who were nationals of the United States. Anything less than the severance of the ties for all Filipinos, regardless of residence in or out of the continental United States, would not have fulfilled our longstanding national policy to grant independence to the Philippine people. See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 674—678, 692, 65 S.Ct. 870, 881—883, 89 L.Ed. 1252. Section 14 of the Independence Act in clear language applies 'to persons who were born in the Philippine Islands.' This language demonstrates, and we hold, as did the courts below, that persons born in the Islands, and who thereby were nationals of the United States became aliens on July 4, 1946, regardless of permanent residence in the continental United States on that date. 8 The petitioner contends that, because he was admitted for permanent residence at the time the Islands were a territory of the United States, he did not enter from a foreign country and therefore cannot be an alien within the purview of the 1931 Act. He relies on Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 824, 98 L.Ed. 1009, where this Court held that a Filipino admitted for permanent residence in 1930 was not deportable under § 19(a) of the Immigration Act of 1917 as an alien sentenced for certain crimes 'committed * * * after entry.' (Emphasis added.) The word 'entry' was held to be significant of a congressional purpose to limit deportation under § 19(a) to aliens arriving 'from some foreign port or place,' a description which did not fit a territory belonging to the United States. But the 1931 Act differs from the 1917 Act because it is silent as to whether 'entry' from a foreign country is a condition of deportability. By its terms, the 1931 Act applies to '* * * any alien * * * who, after * * * (February 18, 1931), shall be convicted * * *' of a federal narcotics offense. It follows that the holding in Gonzales is not applicable. 9 The petitioner argues that the requirement of 'entry,' as construed in Gonzales, was incorporated into the 1931 Act by the provision that deportation shall be accomplished 'in manner provided in sections 19 and 20' of the Immigration Act of 1917.10 We hold that the reference to the 'manner provided' in those sections draws into the 1931 Act only the procedural steps for securing deportation set forth in those sections. Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978. The Congress adopted these procedures by reference instead of spelling them out in the 1931 Act.11 10 The petitioner urges finally that the requirement of 'entry' is implicit in the 1931 Act. Citing Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905, he argues that the bounds of the power to deport aliens are circumscribed by the bounds of the power to exclude them, and that the power to exclude extends only to 'foreigners' and does not embrace Filipinos admitted from the Islands when they were a territory of the United States. It is true that Filipinos were not excludable from the country under any general statute relating to the exclusion of 'aliens.' See Gonzales v. Williams, 192 U.S. 1, 12—13, 24 S.Ct. 177, 179, 48 L.Ed. 317; Toyota v. United States, 268 U.S. 402, 411, 45 S.Ct. 563, 565, 69 L.Ed. 1016. 11 But the fallacy in the petitioner's argument is the erroneous assumption that Congress was without power to legislate the exclusion of Filipinos in the same manner as 'foreigners.' This Court has held that '* * * the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be * * *.' Downes v. Bidwell, 182 U.S. 244, 279, 21 S.Ct. 770, 784, 45 L.Ed. 1088.12 Congress not only had, but exercised, the power to exclude Filipinos in the provision of § 8(a)(1) of the Independence Act, which, for the period from 1934 to 1946, provided: 12 'For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13(c)), this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty * * *.' 48 Stat. 462, 48 U.S.C. (1934 Ed.) § 1238. 13 The 1931 Act plainly covers the situation of the petitioner, who was an alien, and who was convicted of a federal narcotics offense. Cf. United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521, 70 S.Ct. 329, 94 L.Ed. 307. We therefore conclude that the petitioner was deportable as an alien under that Act. The judgment is affirmed. 14 Affirmed. 15 Mr. Justice DOUGLAS, dissenting. 16 The act of February 18, 1931, 8 U.S.C. (1946 Ed.) § 156a, provided for the deportation of 'any alien' convicted of violating a narcotic law after the date of the Act. Petitioner is a citizen of the Philippines and is therefore an alien by virtue of the Philippine Independence Act, 48 Stat. 456, c. 84, § 8; and he was convicted of narcotics violation in 1951, which was after his status had been changed from a national to an alien. If the 1931 Act is to be read literally, the deportation of this Filipino is warranted. 17 But to read the Act literally is, I think, to miss its real import. 18 First. In 1931 the only aliens here were those who had made an 'entry' into this country. The condition of 'entry' seems, herefore, necessarily implicit in the 1931 Act. Without that condition the Act would have had no application whatsoever at the time of its passage, for at that time every 'alien' was a national of another country who had 'entered' here. While the Philippine Independence Act later made Filipinos 'aliens,' that class of 'aliens' who were resident here at the time never made an 'entry' into this country. As Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009, holds, they were nationals to whom the concept of 'entry' was inapplicable. 19 Second. The 1931 Act provides that the offending alien shall be deported 'in (the) manner' provided in §§ 19 and 20 of the 1917 Act, 8 U.S.C. (1946 Ed.) §§ 155, 156. The words 'in (the) manner' are said to refer to the means for securing deportation which, by § 19(a) of the 1917 Act, are described as 'upon the warrant of the Attorney General.' Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978, construed the language of an earlier deportation Act in that way. It held that 'in the manner provided' in that Act meant 'the means for securing deportation.' Yet it is difficult for me to say that by that ruling 'in the manner' became words of art in legislative drafting. The Bugajewitz case involved a statute with a very special legislative history. The words 'in the manner provided' had been substituted for 'as provided.' So it was apparent that Congress by the amendment had narrowed the meaning. There is no such special legislative history here. The words 'in the manner' seem to me to be synonymous in this setting with 'as provided' or 'under the conditions of.' And the condition of the 1917 Act most relevant here is a crime committed 'after entry.' No matter how the case is viewed, the 1931 Act is applicable only to aliens who had made an 'entry' in this country. 20 This Filipino came to the United States in 1930 and he has never left here. If the spirit of the 1931 Act is to be observed, he should not be lumped with all other 'aliens' who made an 'entry.' The Filipino alien, who came here while he was a national, stands in a class by himself and should remain there, until and unless Congress extends these harsh deportation measures to his class. 1 The Act of February 18, 1931, as amended, provided: '* * * (A)ny alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this Act) who, after * * * (February 18, 1931), shall be convicted for violation of or conspiracy to violate any statute of the United States or of any State, Territory, possession, or of the District of Columbia, taxing, prohibiting, or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, or any salt, derivative, or preparation of opium or coca leaves, shall be taken into custody and deported in manner provided in sections 19 and 20 of the Act of February 5, 1917, entitled 'An Act to regulate the immigration of aliens to, and the residence of aliens in, the United States." 46 Stat. 1171, as amended, 54 Stat. 673, 8 U.S.C. (1946 Ed.) § 156a, now 8 U.S.C.A. § 1251(a)(11). 2 234 F.2d 904. 3 352 U.S. 906, 77 S.Ct. 146, 1 L.Ed.2d 115. 4 30 Stat. 1754. 5 Id., at 1759. 6 32 Stat. 691, 692; compare 39 Stat. 545, 546. 7 Compare § 101 of the Nationality Act of 1940 which defines the term 'national' as follows: '(a) The term 'national' means a person owing permanent allegance to a state. '(b) The term 'national of the United States' means * * * (2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. It does not include an alien.' 54 Stat. 1137, 8 U.S.C. (1946 Ed.) § 501, now 8 U.S.C.A. § 1101(a)(21, 22). 8 Presidental Proclamation No. 2695, 60 Stat. 1352, 11 Fed.Reg. 7517, 22 U.S.C.A. § 1394 note; Presidential Proclamation No. 2696, 60 Stat. 1353, 11 Fed.Reg. 7517, 22 U.S.C.A. § 1281 note. 9 The Court of Appeals for the Ninth Circuit has consistently followed this principle. E.g., Resurreccion-Talavera v. Barber, 231 F.2d 524; Gonzales v. Barber, 207 F.2d 398, affirmed on other grounds 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009; Mangaoang v. Boyd, 205 F.2d 553; Cabebe v. Acheson, 183 F.2d 795; cf. Madrona Banez v. Boyd, 236 F.2d 934. 10 The 'manner provided' in § 19 of the Immigration Act of 1917, 39 Stat. 889, as amended, 8 U.S.C. (1946 Ed.) § 155, now 8 U.S.C.A. § 1251, was 'upon the warrant of the Attorney General.' Section 20, 39 Stat. 890, as amended, 8 U.S.C. (1946 Ed., Supp. IV) § 156, now 8 U.S.C.A. § 1253(a), related to ports to which aliens are to be deported, costs of deportation and other details. The Attorney General is required by that section to deport 'to the country specified by the alien, if it is willing to accept him into its territory.' In the administrative proceedings the petitioner specified the Philippine Islands. 11 It is not contended that the procedures specified in §§ 19 and 20 were not followed in this case. 12 See Magoon, Reports (1902), 120: 'The inhabitants of the islands acquired by the United States during the late war with Spain, not being citizens of the United States, do not possess the right of free entry into the United States. That right is appurtenant to citizenship. The rights of immigration into the United States by the inhabitants of said islands are no more than those of aliens of the same race coming from foreign lands.' Illustrative of the scope of the congressional power is the treatment afforded Puerto Ricans who were first nationals, 31 Stat. 77, 79, 48 U.S.C.A. § 733 and who later became citizens, 39 Stat. 951, 953, 8 U.S.C.A. § 1402. See also Downes v. Bidwell, 182 U.S. 244, 280, 21 S.Ct. 770, 784, 45 L.Ed. 1088, as to the status of the inhabitants of other territories acquired by the United States.

12

353 U.S. 391 77 S.Ct. 963 1 L.Ed.2d 931 Henry W. GRUNEWALD, Petitioner,v.UNITED STATES of America. Max HALPERIN, Petitioner, v. UNITED STATES of America. Daniel A. BOLICH, Petitioner, v. UNITED STATES of America. Nos. 183, 184, 186. Argued April 3 and 4, 1957. Decided May 27, 1957. [Syllabus from pages 391-392 intentionally omitted] Mr. Edward J. Bennett, New York City, for petitioner grunewald. Mr. Henry G. Singer, Brooklyn, N.Y., for petitioner Halperin. Mr. Rudolph Stand, New York City, for petitioner Bolich. Mr. John F. Davis, Washington, D.C., for the respondent in all three cases. Mr. Justice HARLAN delivered the opinion of the Court. 1 The three petitioners were convicted on Count 1 of an indictment brought under 18 U.S.C. § 371, 18 U.S.C.A. § 3711 for conspiracy to defraud the United States with reference to certain tax matters. Petitioner Halperin was also convicted on Counts 5, 6, and 7 of the same indictment, charging him with violating 18 U.S.C. § 1503, 18 U.S.C.A. § 15032 by endeavoring corruptly to influence certain witnesses before a grand jury which was investigating matters involved in the conspiracy charged in Count 1 of the indictment. Each petitioner was sentenced to five years' imprisonment and fined under Count 1. On each of Counts 5, 6, and 7, Halperin was sentenced to two years' imprisonment and a fine of $1,000, the prison sentences on these Counts and that on Count 1 to run concurrently. The Court of Appeals for the Second Circuit affirmed, with the late Judge Frank dissenting. 233 F.2d 556. We granted certiorari, 352 U.S. 866, 77 S.Ct. 91, 1 L.Ed.2d 74, in order to resolve important questions relating to (a) the statute of limitations in conspiracy prosecutions, as to which the decision below was alleged to be in conflict with this Court's decisions in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790, and Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; and (b) the use on Halperin's cross-examination of his prior claim of the Fifth Amendment's privilege against self-incrimination before a grand jury. For the reasons discussed hereafter, we conclude that these convictions must be reversed, and the petitioners granted a new trial. 2 On October 25, 1954, a grand jury returned an indictment, Count 1 of which charged petitioners and others with conspiring among themselves and with others 'to defraud the United States in the exercise of its governmental functions of administering the internal revenue laws and of detecting and prosecuting violations of the internal revenue laws free from bribery, unlawful impairment, obstruction, improper influence, dishonesty, fraud and corruption * * *.' The indictment further charged that a part of the conspiracy was an agreement to conceal the acts of the conspirators.3 Overt acts within three years of the date of the indictment were charged. Counts 5, 6, and 7 of the indictment charged petitioners with violating 18 U.S.C. § 1503, 18 U.S.C.A. § 1503, in the manner already indicated. 3 The proofs at the trial presented a sordid picture of a ring engaged in the business of 'fixing' tax fraud cases by the use of bribes and improper influence. In general outline, the petitioners' scheme, which is set forth in more detail in the Court of Appeals' opinion,4 was as follows: 4 In 1947 and 1948 two New York business firms, Patullo Modes and Gotham Beef Co., were under investigation by the Bureau of Internal Revenue for suspected fraudulent tax evasion. Through intermediaries, both firms established contact with Halperin, a New York attorney, and his associates in law practice. Halperin in turn conducted negotiations on behalf of these firms with Grunewald, an 'influential' friend in Washington, and reported that Grunewald, for a large cash fee, would undertake to prevent criminal prosecution of the taxpayers. Grunewald then used his influence with Bolich, an official in the Bureau, to obtain 'no prosecution' rulings5 in the two tax cases. These rulings were handed down in 1948 and 1949. Grunewald, through Halperin, was subsequently paid $60,000 by Gotham and $100,000 by Patullo.6 5 Subsequent activities of the conspirators were directed at concealing the irregularities in the disposition of the Patullo and Gotham cases. Bolich attempted to have the Bureau of Internal Revenue report on the Patullo case 'doctored,' and careful steps were taken to cover up the traces of the cash fees paid to Grunewald. In 1951 a congressional investigation was started by the King Committee of the House of Representatives; the conspirators felt themselves threatened and took steps to hide their traces. Thus Bolich caused the disappearance of certain records linking him to Grunewald, and the taxpayers were repeatedly warned to keep quiet. In 1952 the taxpayers and the conspirators were called before a Brooklyn grand jury. Halperin attempted to induce the taxpayers not to reveal the conspiracy, and Grunewald asked his secretary not to talk to the grand jury. These attempts at concealment were, however, in vain. The taxpayers and some of Halperin's associates revealed the entire scheme, and petitioners' indictment and conviction followed.7 6 The first question before us is whether the prosecution of these petitioners on Count 1 of the indictment was barred by the applicable three-year statute of limitations.8 7 The indictment in these cases was returned on October 25, 1954. It was therefore incumbent on the Government to prove that the conspiracy, as contemplated in the agreement as finally formulated, was still in existence on October 25, 1951, and that at least one overt act in furtherance of the conspiracy was performed after that date.9 For where substantiation of a conspiracy charge requires proof of an overt act, it must be shown both that the conspiracy still subsisted within the three years prior to the return of the indictment, and that at least one overt act in furtherance of the conspiratorial agreement was performed within that period. Hence, in both of these aspects, the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy, and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy.10 8 Petitioners, in contending that this prosecution was barred by limitations, state that the object of the conspiratorial agreement was a narrow one: to obtain 'no prosecution' rulings in the two tax cases. When these rulings were obtained, in October 1948 in the case of Gotham Beef, and in January 1949 in the case of Patullo Modes, the criminal object of the conspiracy, petitioners say, was attained and the conspirators' function ended. They argue, therefore, that the statute of limitations started running no later than January 1949, and that the prosecution was therefore barred by 1954, when the indictment was returned.11 9 The Government counters with two principal contentions: First, it urges that even if the main object of the conspiracy was to obtain decisions from the Bureau of Internal Revenue not to institute criminal tax prosecutions—decisions obtained in 1948 and 1949—the indictment alleged,12 and the proofs showed, that the conspiracy also included as a subsidiary element an agreement to conceal the conspiracy to 'fix' these tax cases, to the end that the conspirators would escape detection and punishment for their crime. Says the Government, 'from the very nature of the conspiracy * * * there had to be, and was, from the outset a conscious, deliberate, agreement to conceal * * * each and every aspect of the conspiracy * * *.' It is then argued that since the alleged conspiracy to conceal clearly continued long after the main criminal purpose of the conspiracy was accomplished, and since overt acts in furtherance of the agreement to conceal were performed well within the indictment period, the prosecution was timely. 10 Second, and alternatively, the Government contends that the central aim of the conspiracy was to obtain for these taxpayers, not merely a 'no prosecution' ruling, but absolute immunity from tax prosecution; in other words, that the objectives of the conspiracy were not attained until 1952, when the statute of limitations ran on the tax cases which these petitioners undertook to 'fix.' The argument then is that since the conspiracy did not end until 1952, and since the 1949—1952 acts of concealment may be regarded as, at least in part, in furtherance of the objective of the conspirators to immunize the taxpayers from tax prosecution, the indictment was timely. 11 For reasons hereafter given, we hold that the Government's first contention must be rejected, and that as to its second, which the Court of Appeals accepted, a new trial must be ordered. I. 12 We think that the Government's first theory—that an agreement to conceal a conspiracy can, on facts such as these, be deemed part of the conspiracy and can extend its duration for the purposes of the statute of limitations—has already been rejected by this Court in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 718, 93 L.Ed. 790, and in Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593. 13 In Krulewitch the question before the Court was whether certain hearsay declarations could be introduced against one of the conspirators. The declarations in question were made by one named in the indictment as a co-conspirator after the main object of the conspiracy (transporting a woman to Florida for immoral purposes) had been accomplished. The Government argued that the conspiracy was not ended, however, since it included an implied subsidiary conspiracy to conceal the crime after its commission, and that the declarations were therefore still in furtherance of the conspiracy and binding on co-conspirators. This Court rejected the Government's argument. It then stated: 14 'Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the (Government's) argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. 15 'We cannot accept the Government's contention. * * * The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.'13 Mr. Justice Jackson, concurring, added: 16 'I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. * * * 17 'It is difficult to see any logical limit to the 'implied conspiracy,' either as to duration or means * * *. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, (etc.). * * * 18 'Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.'14 19 The Krulewitch case was reaffirmed in Lutwak v. United States, supra. Here again the question was the admissibility of hearsay declarations of co-conspirators after the main purpose of the conspiracy had been accomplished; again the Government attempted to extend the life of the conspiracy by an alleged subsidiary conspiracy to conceal. Although in Lutwak, unlike in Krulewitch, the existence of a subsidiary conspiracy to conceal was charged in the indictment, the Court again rejected the Government's theory, holding that no such agreement to conceal had been proved or could be implied. 20 The Government urges us to distinguish Krulewitch and Lutwak on the ground that in those cases the attempt was to imply a conspiracy to conceal from the mere fact that the main conspiracy was kept secret and that overt acts of concealment occurred. In contrast, says the Government, here there was an actual agreement to conceal the conspirators, which was charged and proved to be an express part of the initial conspiracy itself. 21 We are unable to agree with the Government that, on this record, the cases before us can be distinguished on such a basis. 22 The crucial teaching of Krulewitch and Lutwak is that after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment. As was there stated, allowing such a conspiracy to conceal to be inferred or implied from mere overt acts of concealment would result in a great widening of the scope of conspiracy prosecutions, since it would extend the life of a conspiracy indefinitely. Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators. For every conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world. And again, every conspiracy will inevitably be followed by actions taken to cover the conspirators' traces. Sanctioning the Government's theory would for all practical purposes wipe out the statute of limitations in conspiracy cases, as well as extend indefinitely the time within which hearsay declarations will bind co-conspirators. 23 A reading of the record before us reveals that on the facts of this case the distinction between 'actual' and 'implied' conspiracies to conceal, as urged upon us by the Government, is no more than a verbal tour de force. True, in both Krulewitch and Lutwak there is language in the opinions stressing the fact that only an implied agreement to conceal was relied on.15 Yet when we look to the facts of the present cases, we see that the evidence from which the Government here asks us to deduce an 'actual' agreement to conceal reveals nothing beyond that adduced in prior cases. What is this evidence? First, we have the fact that from the beginning the conspirators insisted on secrecy. Thus the identities of Grunewald and Bolich were sedulously kept from the taxpayers; careful steps were taken to hide the conspiracy from an independent law firm which was also working on Patullo's tax problems; and the taxpayers were told to make sure that their books did not reflect the large cash payments made to Grunewald. Secondly, after the 'no prosecution' rulings were obtained, we have facts showing that this secrecy was still maintained. Thus, a deliberate attempt was made to make the above-mentioned independent law firm believe that it was its (quite legitimate) efforts which produced the successful ruling. Finally, we have the fact that great efforts were made to conceal the conspiracy when the danger of exposure appeared. For example, Bolich got rid of certain records showing that he had used Grunewald's hotel suite in Washington; Patullo's accountant was persuaded to lie to the grand jury concerning a check made out to an associate of the conspirators; Grunewald attempted to persuade his secretary not to talk to the grand jury; and the taxpayers were repeatedly told by Halperin and his associates to keep quiet. 24 We find in all this nothing more than what was involved in Krulewitch, that is, (1) a criminal conspiracy which is carried out in secrecy; (2) a continuation of the secrecy after the accomplishment of the crime; and (3) desperate attempts to cover up after the crime begins to come to light; and so we cannot agree that this case does not fall within the ban of those prior opinions. 25 In effect, the differentiation pressed upon us by the Government is one of words rather than of substance. In Krulewitch it was urged that a continuing agreement to conceal should be implied out of the mere fact of conspiracy, and that acts of concealment should be taken as overt acts in furtherance of that implied agreement to conceal. Today the Government merely rearranges the argument. It states that the very same acts of concealment should be used as circumstantial evidence from which it can be inferred that there was from the beginning an 'actual' agreement to conceal. As we see it, the two arguments amount to the same thing: a conspiracy to conceal is being implied from elements which will be present in virtually every conspiracy case, that is, secrecy plus overt acts of concealment.16 There is not a shred of direct evidence in this record to show anything like an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission. 26 Prior cases in this Court have repeatedly warned that we will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions.17 The important considerations of policy behind such warnings need not be again detailed. See Jackson, J., concurring in Krulewitch v. United States, supra. It is these considerations of policy which govern our holding today. As this case was tried, we have before us a typical example of a situation where the Government, faced by the bar of the three-year statute, is attempting to open the very floodgates against which Krulewitch warned. We cannot accede to the proposition that the duration of a conspiracy can be indefinitely lengthened merely because the conspiracy is kept a secret, and merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished. 27 By no means does this mean that acts of concealment can never have significance in furthering a criminal conspiracy. But a vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime. Thus the Government argues in its brief that 'in the crime of kidnapping, the acts of conspirators in hiding while waiting for ransom would clearly by planned acts of concealment which would be in aid of the conspiracy to kidnap. So here, there can be no doubt that * * * all acts of concealment, whether to hide the identity of the conspirators or the action theretofore taken, were unquestionably in furtherance of the initial conspiracy * * *.' We do not think the analogy is valid. Kidnapers in hiding, waiting for ransom, commit acts of concealment in furtherance of the objectives of the conspiracy itself, just as repainting a stolen car would be in furtherance of a conspiracy to steal; in both cases the successful accomplishment of the crime necessitates concealment.18 More closely analogous to our case would be conspiring kidnapers who cover their traces after the main conspiracy is finally ended—i.e., after they have abandoned the kidnaped person and then take care to escape detection. In the latter case, as here, the acts of covering up can by themselves indicate nothing more than that the conspirators do not wish to be apprehended—a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord. 28 We hold, therefore, that, considering the main objective of the conspiracy to have been the obtaining of 'no prosecution' rulings, prosecution was barred by the three-year statute of limitations, since no agreement to conceal the conspiracy after its accomplishment was shown or can be implied on the evidence before us to have been part of the conspiratorial agreement. II. 29 In view of how the case was submitted to the jury, we are also unable to accept the Government's second theory for avoiding the statute of limitations. This theory is (1) that the main objective of the conspiracy was not merely to obtain the initial 'no prosecution' rulings in 1948 and 1949, but to obtain final immunity for Gotham and Patullo from criminal tax prosecution; (2) that such immunity was not obtained until 1952, when the statute of limitations had run on the tax-evasion cases which the petitioners conspired to fix;19 (3) that the conspiracy therefore did not end until 1952, when this object was attained; (4) that the acts of concealment within the indictment period were overt acts in furtherance of this conspiracy; and (5) that the prosecution was thus timely.20 In short, the contention is that the agreement to conceal was to protect the taxpayers rather than the conspirators, and as such was part of the main conspiracy rather than a subsidiary appendage to it, as under the Government's first theory. 30 The Court of Appeals accepted this theory of the case in affirming these convictions. It stated: 31 'What the fixers had to sell was freedom from criminal prosecution for tax frauds. What the taxpayers bargained for was protection from a tax evasion prosecution. 32 'This conspiracy is wholly unlike the ordinary illegal scheme in that the jury may well have inferred that the official announcement that there would be no criminal prosecution of the taxpayers was merely the delivery of a substantial installment of what appellants agreed to deliver for the huge sums paid. The six-year Statute of Limitations * * * did not run in favor of the taxpayers until some time after the commission of the overt acts relied upon. In the interval there was no assurance, other than continuing efforts by Grunewald, Bolich and the others, that the whole nefarious business might not be brought to light, followed by the revocation of the decision not to criminally prosecute the taxpayers. This is a significant element in the proofs adduced by the government, as concealment of the conspiratorial acts was necessary not only to protect the conspirators from a conspiracy prosecution but also to protect the taxpayers from a tax evasion prosecution.' 233 F.2d at pages 564—565. 33 We find the legal theory of the Court of Appeals unexceptionable. If the central objective of the conspiracy was to protect the taxpayers from tax-evasion prosecutions, on which the statute of limitations did not run until 1952, and if the 1948 and 1949 'no prosecution' rulings were but an 'installment' of what the conspirators aimed to accomplish, then it is clear that the statute of limitations on the conspiracy did not begin to run until 1952, within three years of the indictment.21 34 Furthermore, we agree with the Court of Appeals that there is evidence in this record which would warrant submission of the case to the jury on the theory that the central object of the conspiracy was not attained in 1948 and 1949, but rather was to immunize the taxpayers completely from prosecution for tax evasion and thus continued into 1952. The many overt acts of concealment occurring after 1949 could easily have been motivated at least in part by the purpose of the conspirators to deliver the remaining 'installments' owing under the bargain—to wit, the safeguarding of the continued vitality of the 'no prosecution' rulings.22 Furthermore, there is evidence showing that from the beginning the aim of the scheme was not restricted to the merely provisional and necessarily precarious 'fixing' of the taxpayers' troubles which was achieved in 1948 and 1949.23 A jury might therefore fairly infer that it was part of the conspiratorial agreement that Grunewald and Bolich would make continuing efforts to safeguard the fruits of the partial victories won in 1948 and 1949 by trying to immunize the 'no prosecution' rulings from change. In other words, we think a jury could infer from this evidence that the conspirators were prepared and had agreed to engage in further frauds and bribery if necessary in order to maintain in effect the tentative rulings obtained in 1948 and 1949.24 35 If, therefore, the jury could have found that the aim of the conspiratorial agreement was to protect the taxpayers from tax prosecution, and that the overt acts occurring in the indictment period were in furtherance of that aim, we would affirm. We do not think, however, that we may safely assume that the jury so found, for we cannot agree with the Court of Appeals' holding that this theory of the case was adequately submitted to the jury. 36 The trial judge's charge on the problem of the scope and duration of the conspiracy was as follows: 37 'You will recall that the indictment states, among other things, that it was part of the conspiracy that the defendants and co-conspirators would make 'continuing efforts to avoid detection and prosecution by any governmental body, executive, ligislative, and judicial of tax frauds perpetrated by the defendants and co-conspirators through the use of any means whatsoever including but not limited to * * * the influencing, intimidating, and impeding of prospective witnesses to refrain from disclosing the true facts.' In other words, the indictment alleges that the conspiracy comprehended within it a conspiracy to conceal the true facts from investigation, should investigation thereafter eventuate. This is an important element of the first count of the indictment which you must take into consideration, inasmuch as the Statute of Limitations of the charge of criminal conspiracy is three years and unless the conspiracy was continuing to a period within three years prior to the date of the indictment, October 25, 1954, and some overt act was performed within that three-year period, the crime, if any, alleged in the first count of the indictment would be outlawed. It is the contention of the government that the conspiracy did not end when the taxpayers were advised that there would be no criminal prosecution recommended by the Special Agent's office, but that an integral part of the entire conspiracy was an agreement to conceal the acts of the conspirators and that when thereafter an investigation was started by Congress and by the Grand Jury in the Eastern District of New York, the conspirators performed overt acts in pursuance of the original conspiracy designed to conceal the true facts; and that these acts occurred within three years prior to the date of the indictment. On this issue, it will be necessary for you to determine whether, beyond a reasonable doubt, you can conclude that the conspiracy was of the nature described in the first count of the indictment and comprehended an agreement to conceal and whether some overt act took place in the period of three years prior to October 25, 1954 to carry out such purpose of the conspiracy. 38 'To determine whether certain of the alleged overt acts were in furtherance of the object of the conspiracy, you have to determine the duration of the conspiracy. Did it end when the Pattullo (sic) Modes people and the Gotham Beef people received an assurance of no prosecution from the Bureau of Internal Revenue, or was a part of the conspiracy a continuing agreement to conceal the acts done pursuant thereto? In determining whether a part of the conspiracy was an agreement to continue to conceal the illegal acts after their consummation, you may not imply that such an agreement was part of the conspiracy. You would have to find from the evidence of the acts and declarations of the co-conspirators that there was an understanding or agreement to conceal the conspiracy. If you find that such an agreement or understanding to conceal the conspiracy was not a part of the conspiracy to defraud the government, but no more than an afterthought brought to the surface when the co-conspirators were confronted with the Grand Jury and King Committee investigations, then you must find, as a matter of law, that the defendants are not guilty of the crime charged in the first count of the indictment. If you find that the evidence shows, beyond a reasonable doubt, that as a part of a conspiracy to defraud the government, there was an agreement or understanding to conceal the illegal acts and that this too was an objective or part of the conspiracy, then you may find that such understanding was a part of the conspiracy. However, you must additionally determine whether this objective of the conspiracy was known to the defendants. If this objective was known originally by only part of the conspirators but thereafter during the existence of the conspiracy, the scope of the conspiracy was extended so as to include such an agreement to conceal, and if you find that some of the defendants did not know of the expansion to include the agreement to conceal, you may not impute to them the knowledge of their co-conspirators and they could not be found guilty of the crime charged in Count One.' 39 We are constrained to agree with Judge Frank that this charge did not adequately enlighten the jury as to what they would have to find in order to conclude that the conspiracy was still alive after October 25, 1951. For the charge as given failed completely to distinguish between concealment in order to achieve the central purpose of the conspiracy (that is, the immunization of the taxpayers from tax-evasion prosecution), and concealment intended solely to cover up an already executed crime(that is, the obtaining of the 'no prosecution' rulings). The jury was never told that these overt acts of concealment could be taken as furthering the conspiracy only if the basic criminal aim of the conspiracy was not yet attained in 1949. On the charge as given, the jury might easily have concluded that the petitioners were guilty even though they found merely (1) that the central aim of the conspiracy was accomplished in 1949, and (2) that the subsequent acts of concealment were motivated exclusively by the conspirators' fear of a conspiracy prosecution. As far as we know, therefore, the present convictions were based on the impermissible theory discussed in the first part of this opinion—namely, that a subordinate agreement to conceal the conspiracy continued after the central aim of the conspiracy had been accomplished. 40 Furthermore, if the convictions were based on a finding that the overt acts of concealment were done with the single intention of protecting the conspirators' own interests, then it is irrelevant that these acts in fact happened to have the effect also of protecting the taxpayers against revocation of the 'no prosecution' rulings. For overt acts in a prosecution such as this one are meaningful only if they are within the scope of the conspiratorial agreement. If that agreement did not, expressly or impliedly, contemplate that the conspiracy would continue in its efforts to protect the taxpayers in order to immunize them from tax prosecution, then the scope of the agreement cannot be broadened retroactively by the fact that the conspirators took steps after the conspiracy which incidentally had that effect. 41 We thus find that the judge's charge left it open for the jury to convict even though they found that the acts of concealment were motivated purely by the purpose of the conspirators to cover up their already accomplished crime. And this, we think, was fatal error. For the facts in this record are equivocal. The jury might easily have concluded that the aim of the conspiracy was accomplished in 1949, and that the overt acts of concealment occurring after that date were done pursuant to the alleged conspiracy to hide the conspirators. As we have said, a conviction on such a theory could not be sustained. Under such circumstances, therefore, it was essential for the judge to charge clearly and unequivocally that on these facts the jury could not infer a continuing conspiracy to conceal the conspiracy, whether actual or implied. Further, it was incumbent on the judge to charge that in order to convict the jury would have to find that the central aim of the conspiracy was to immunize the taxpayers from tax prosecution, that this objective continued in being through 1951, and that the overt acts of concealment proved at trial were at least partly calculated to further this aim. 42 Since, under the judge's charge, the convictions on Count 1 might have rested on an impermissible ground, we conclude that they cannot stand, and the petitioners must be given a new trial as to this Count. III. 43 What we have held as to the statute of limitations disposes of the conviction of the three petitioners under Count 1, but does not touch Halperin's conviction on Counts 5, 6, and 7 for violating 18 U.S.C. § 1503, 18 U.S.C.A. § 1503.25 As to those Counts, Halperin, who took the stand in his own defense at the trial, contends (a) that the Government was improperly allowed to cross-examine him as to the assertion of his Fifth Amendment privilege before a grand jury investigating this conspiracy, before which he had been called as a witness,26 and (b) that the evidence did not justify his conviction on these Counts. For the reasons given hereafter we think that the first contention is well taken, but that the second one is untenable. 44 In 1952 Halperin was subpoenaed before a Brooklyn grand jury which was investigating corruption in the Bureau of Internal Revenue. Testimony had already been received by the grand jury from the Patullo and Gotham taxpayers, which linked Halperin with the taxfixing ring. Halperin was asked a series of questions before the grand jury, including, among others, such questions as whether he knew Max Steinberg (an employee of the Bureau of Internal Revenue and a co-defendant in the charge under Count 1); whether he knew Grunewald; whether he had held and delivered escrow money paid to Grunewald by Gotham after the 'no prosecution' ruling; and whether he had phoned Grunewald to arrange a meeting between one of his own associates and Bolich. Halperin declined to answer any of these questions, on the ground that the answers would tend to incriminate him and that the Fifth Amendment therefore entitled him not to answer. He repeatedly insisted before the grand jury that he was wholly innocent, and that he pleaded his Fifth Amendment privilege only on the advice of counsel that answers to these questions might furnish evidence which could be used against him, particularly when he was not represented by counsel and could not cross-examine witnesses before the grand jury. 45 When the Government cross-examined Halperin at the trial some of the questions which he had been asked before the grand jury were put to him.27 He answered each question in a way consistent with innocence. The Government was then allowed, over objection, to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions. Later, in his charge to the jury, the trial judge informed them that petitioner's Fifth Amendment plea could be taken only as reflecting on his credibility, and that no inference as to guilt or innocence could be drawn therefrom as to Halperin or any co-defendant.28 46 In thus allowing this cross-examination, the District Court relied on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, where this Court held that a defendant's failure to take the stand at his first trial to deny testimony as to an incriminating admission could be used on cross-examination at the second trial, where he did take the stand, to impugn the credibility of his denial of the same admission. In upholding the District Court here, the Court of Appeals likewise relied on Raffel, and also on one of its own earlier decisions.29 Halperin attacks these rulings on these principal grounds: (a) Raffel is distinguishable from the present case; (b) if Raffel permitted this cross-examination, then the trial court erred in refusing to charge, as Halperin requested, that 'an innocent man may honestly claim that his answers may tend to incriminate him'; (c) in any case Raffel has impliedly been overruled by Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704; and (d) compelling Halperin to testify before the grand jury, when he had already been marked as a putative defendant, violated his constitutional rights, so that, by analogy to the rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, his claim of privilege could in no event be used against him. We find that in the circumstances presented here Raffel is not controlling, and that this cross-examination was not permissible. 47 It is, of course, an elementary rule of evidence that prior statements may be used to impeach the credibility of a criminal defendant or an ordinary witness. But this can be done only if the judge is satisfied that the prior statements are in fact inconsistent. 3 Wigmore, Evidence, § 1040. And so the threshold question here is simply whether, in the circumstances of this case, the trial court erred in holding that Halperin's plea of the Fifth Amendment privilege before the grand jury involved such inconsistency with any of his trial testimony as to permit its use against him for impeachment purposes.30 We do not think that Raffel is properly to be read either as dispensing with the need for such preliminary scrutiny by the judge, or as establishing as a matter of law that such a prior claim of privilege with reference to a question later answered at the trial is always to be deemed to be a prior inconsistent statement, irrespective of the circumstances under which the claim of privilege was made. The issue decided in Raffel came to the Court as a certified question in quite an abstract form,31 and was really centered on the question whether a defendant who takes the stand on a second trial can continue to take advantage of the privilege asserted at the first trial. This Court held, in effect, that when a criminal defendant takes the stand, he waives his privilege completely and becomes subject to cross-examination impeaching his credibility just like any other witness: 'His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.' The Court, in Raffel, did not focus on the question whether the cross-examination there involved was in fact probative in impeaching the defendant's credibility. In other words, we may assume that under Raffel Halperin in this case was subject to cross-examination impeaching his credibility just like any other witness, and that his Fifth Amendment plea before the grand jury could not carry over any form of immunity when he voluntarily took the stand at the trial. This does not, however, solve the question whether in the particular circumstances of this case the cross-examination should have been excluded because its probative value on the issue of Halperin's credibility was so negligible as to be far outweighed by its possible impermissible impact on the jury.32 As we consider that in the circumstances of the present case, the trial court, in the exercise of a sound discretion, should have refused to permit this line of cross-examination, we are not faced with the necessity of deciding whether Raffel has been stripped of vitality by the later Johnson case, supra, or of otherwise re-examining Raffel. 48 We need not tarry long to reiterate our view that, as the two courts below held, no implication of guilt could be drawn from Halperin's invocation of his Fifth Amendment privilege before the grand jury. Recent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men. Griswold, The Fifth Amendment Today, 9—30, 53—82. 'Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.' Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511. See also Slochower v. Board of Higher Education, 350 U.S. 551, at pages 557—558, 76 S.Ct. 637, at page 641, 100 L.Ed. 692, when, at the same Term, this Court said: 'The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.' 49 When we pass to the issue of credibility, we deem it evident that Halperin's claim of the Fifth Amendment privilege before the Brooklyn grand jury in response to questions which he answered at the trial was wholly consistent with innocence. Had he answered the questions put to him before the grand jury in the same way he subsequently answered them at trial, this nevertheless would have provided the Government with incriminating evidence from his own mouth. For example, had he stated to the grand jury that he knew Grunewald, the admission would have constituted a link between him and a criminal conspiracy, and this would be true even though he was entirely innocent and even though his friendship with Grunewald was above reproach. There was, therefore, as we see it, no inconsistency between Halperin's statement to the grand jury that answering the question whether he knew Grunewald would tend to furnish incriminating evidence against him, and his subsequent testimony at trial that his acquiaintance with Grunewald was free of criminal elements. And the same thing is also true, as we see it, as to his claim of privilege with respect to the other questions asked him before the grand jury and his answers to those same questions when they were put to him at the trial. These conclusions are fortified by a number of other considerations surrounding Halperin's claim of privilege: 50 First, Halperin repeatedly insisted before the grand jury that he was innocent and that he pleaded his Fifth Amendment privilege solely on the advice of counsel. 51 Second, the Fifth Amendment claim was made before a grand jury where Halperin was a compelled, and not a voluntary, witness; where he was not represented by counsel; where he could summon no witnesses; and where he had no opportunity to cross-examine witnesses testifying against him. These factors are crucial in weighing whether a plea of the privilege is inconsistent with later exculpatory testimony on the same questions, for the nature of the tribunal which subjects the witness to questioning bears heavily on what inferences can be drawn from a plea of the Fifth Amendment. See Griswold, supra, at 62. Innocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth. 52 Finally, and most important, we cannot deem Halperin's plea of the Fifth Amendment to be inconsistent with his later testimony at the trial because of the nature of this particular grand-jury proceeding. For, when Halperin was questioned before the grand jury, he was quite evidently already considered a potential defendant. The taxpayers whose cases had been 'fixed' by the conspiratorial ring had already testified before the grand jury, and they gave there largely the same evidence as they did later, at trial. The scheme was thus in essence already revealed when Halperin was called to testify. Under these circumstances it was evident that Halperin was faced with the possibility of an early indictment, and it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself. It was thus quite consistent with innocence for him to refuse to provide evidence which could be used by the Government in building its incriminating chain. For many innocent men who know that they are about to be indicted will refuse to help create a case against themselves under circumstances where lack of counsel's assistance and lack of opportunity for cross-examination will prevent them from bringing out the exculpatory circumstances in the context of which superficially incriminating acts occurred. 53 We are not unmindful that the question whether a prior statement is sufficiently inconsistent to be allowed to go to the jury on the question of credibility is usually within the discretion of the trial judge. But where such evidentiary matter has grave constitutional overtones, as it does here, we feel justified in exercising this Court's supervisory control to pass on such a question. This is particularly so because in this case the dangers of impermissible use of this evidence far outweighed whatever advantage the Government might have derived from it if properly used. If the jury here followed the judge's instructions, namely, that the plea of the Fifth Amendment was relevant only to credibility, then the weight to be given this evidence was less than negligible, since, as we have outlined above, there was no true inconsistency involved; it could therefore hardly have affected the Government's case seriously to exclude the matter completely. On the oher hand, the danger that the jury made impermissible use of the testimony by implicitly equating the plea of the Fifth Amendment with guilt is, in light of contemporary history, far from negligible. Weighing these factors, therefore, we feel that we should draw upon our supervisory power over the administration of federal criminal justice in order to rule on the matter. Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. 54 We hold that under the circumstances of this case it was prejudicial error for the trial judge to permit cross-examination of petitioner on his plea of the Fifth Amendment privilege before the grand jury, and that Halperin must therefore be given a new trial on Counts 5, 6, and 7. 55 Finally, we find no substance to Halperin's contention that he was in effect convicted for advising, as a lawyer, some of the witnesses before the grand jury that they had a right to plead their Fifth Amendment privilege. The evidence against Halperin under these Counts was quite sufficient to make out a case for submission to the jury. 56 For the reasons given we hold that the judgments below must be reversed, and the cases remanded to the District Court for further proceedings consistent with this opinion. 57 It is so ordered. 58 Reversed and remanded. 59 Mr. Justice BLACK, wiht whom The CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join, concurring. 60 I concur in the reversal of these cases for the reasons given in the Court's opinion with one exception. 61 In No. 184, the petitioner, Halperin, appeared before a grand jury in response to a subpoena. There he declined to answer certain questions relying on the provision of the Fifth Amendment that 'No person * * * shall be compelled in any criminal case to be a witness against himself.' 62 Later, at his trial, Halperin took the stand to testify in his own behalf. On cross-examination the prosecuting attorney asked him the same questions that he had refused to answer before the grand jury. This time Halperin answered the questions; his answers tended to show that he was innocent of any wrong-doing. The Government was then permitted over objection to draw from him the fact that he had previously refused to answer these questions before the grand jury on the ground that his answers might tend to incriminate him. 63 At the conclusion of the trial the judge instructed the jury that Halperin's claim of his constitutional privilege not to be a witness against himself could be considered in determining what weight should be given to his testimony—in other words, whether Halperin was a truthful and trustworthy witness. I agree with the Court that use of this claim of constitutional privilege to reflect upon Halperin's credibility was error, but I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongrous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution. To the extent that approval of such a rule in Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, has vitality after Johnson v. United States, 318 U.S. 189, 196—199, 63 S.Ct. 549, 553—554, 87 L.Ed. 704, I think the Raffel case should be explicitly overruled. 1 This section provides: 'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.' 2 18 U.S.C. § 1503, 18 U.S.C.A. § 1503, provides, in relevant part: 'Whoever corruptly * * * endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States * * * in the discharge of his duty * * * or corruptly * * * influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.' Grunewald and Bolich were acquitted on these Counts. 3 Paragraph 7 of the indictment alleged: 'It was a part of the conspiracy that the defendants and co-conspirators would make continuing efforts to avoid detection and prosecution by any governmental body * * * of tax frauds perpetrated by the defendants and co-conspirators, through the use of any means whatsoever, including but not limited to, bribery, improper influence and corruption of government employees, the giving of false testimony, (etc.) * * *.' Paragraph 13 alleged: 'It was further a part of the conspiracy that the defendants and co-conspirators at all times would misrepresent, conceal and hide and cause to be misrepresented, concealed and hidden, the acts done pursuant to and the purposes of said conspiracy.' 4 233 F.2d, at pages 559—562. 5 A 'no prosecution' ruling is an internal decision by the investigative branch of the Bureau of Internal Revenue not to press criminal charges against a taxpayer. 6 The payments were made in cash. In order to raise the money and leave no traces, the taxpayers made unrecorded sales, the profits of which were again unreported income. Further large fees were paid to Halperin and his associates. 7 Petitioner Bolich was also convicted on Count 2 of the indictment, which charged him and two other Bureau of Internal Revenue employees with conspiracy in violation of 26 U.S.C. § 4047(e)(4), 26 U.S.C.A. § 4047(e)(4). He was sentenced to three years' imprisonment and a $5,000 fine on this Count, the prison sentence to run concurrently with the five-year sentence on Count 1. The Court of Appeals held that both Counts related to the same conspiracy, and set aside the separate fine on Count 2. 8 The governing statute was 18 U.S.C. § 3282, 18 U.S.C.A. § 3282, which provided: 'Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found * * * within three years next after such offense shall have been committed.' 9 On September 1, 1954, the statute of limitations was amended to provide for a five-year limitation period. 68 Stat. 1145, 18 U.S.C. (Supp. III) § 3282, 18 U.S.C.A. § 3282. Since the amending statute was by its terms made applicable to offenses not barred on its effective date, that is, September 1, 1954, it would seem that in fact the crucial date here is September 1, 1951, rather than October 25; in other words, if the conspiracy was still alive after September 1, it was not barred. However, the case was tried on the theory that October 25 was the crucial date, and we so treat it in this opinion. The error, of course, was favorable to the petitioners and was therefore harmless. On the other hand, since we hold that petitioners must have a new trial, the error may be corrected. 10 See, in general, Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350; McDonald v. United States, 8 Cir., 89 F.2d 128; United States v. Manton, 2 Cir., 107 F.2d 834; Cousens, Agreement as an Element in Conspiracy, 23 Va.L.Rev. 898; Sayre, Criminal Conspiracy, 35 Harv.L.Rev. 393; Note, 62 Harv.L.Rev. 276; Note, 56 Col.L.Rev. 1216. 11 In support of this theory, petitioners point to evidence showing that the administrative practice of the Bureau of Internal Revenue was that only recommendations to prosecute would be reviewed at a higher echelon, whereas a determination of no prosecution would, for all practical purposes, end the case. They also emphasize that payment to Grunewald was made under the terms of an escrow which released the money when the 'no prosecution' rulings came down. Petitioners further urge that the acts of concealment occurring after 1949 show at most that a new and separate agreement to conceal was entered into after 1949, an agreement which was not charged in the indictment. Cf. United States v. Siebricht, 2 Cir., 59 F.2d 976. In view of our disposition of the case, we need not deal with this contention. 12 See n. 3, supra. 13 336 U.S., at pages 443—444, 69 S.Ct. at page 718. 14 Id., 336 U.S. at pages 455—456, 69 S.Ct. at page 724. 15 See 336 U.S., at pages 444, 455—458, 69 S.Ct. at pages 719—725; 344 U.S., at page 616, 73 S.Ct. at page 488. 16 One might cite as an example Grunewald's attempt at influencing his secretary not to talk to the grand jury, accompanied by an offer to 'pay her expenses.' Under the Government's Krulewitch theory, the argument would have been (in Mr. Justice Jackson's words) that the 'law will impute to the confederates a continuing conspiracy to defeat justice,' and that therefore the other confederates are 'bound by another's unauthorized and unknown * * * bribery of a juror or witness.' But no different result is achieved by saying that the attempted bribe of the witness is evidence from which one can infer an 'actual' conspiracy to 'defeat justice.' In both cases the essential missing element is a showing that the act was done in furtherance of a prior criminal agreement among the conspirators. 17 Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278; Lutwak v. United States, supra; Krulewitch v. United States, supra; Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350. 18 See Rettich v. United States, 1 Cir., 84 F.2d 118; McDonald v. United States, 8 Cir., 89 F.2d 128. 19 The tax evasion cases were governed by a six-year statute of limitations, 26 U.S.C. (1940 ed.) § 3748, 26 U.S.C.A. § 3748, which began to run when the last return, pertaining to the year 1946, was filed by the taxpayers. 20 The Government also suggests a further theory under which this conspiracy could be deemed to have lasted into the indictment period. Under this theory, the central aim of the conspiracy was not specifically to 'fix' the tax troubles of Gotham and Patullo, but to engage in the continuing business of fixing any and all taxfraud cases. If this were the aim of the conspiracy, acts of concealment could have been in furtherance of this aim by enabling the ring to stay in business so that it could get new cases. Evidence supporting this theory, says the Government, is that in 1950, after the 'no prosecution' rulings in the Patullo and Gotham cases, Halperin engaged in negotiations with another firm which was in tax difficulties. Although these negotiations came to nothing, due to disagreement about the fee to be paid to the conspirators, the incident is presented as evidence that the conspirators were actively soliciting future tax clients in 1950 and were thus still 'in business.' We cannot accept this theory of the Government. The trouble is not only that the theory was never submitted to the jury, but that no overt act done to further the purpose of engaging in 'new' business was charged or proved to have occurred after October 25, 1951. If one of the purposes of the conspiracy was to engage in the business of fixing tax cases generally, it must be deemed to have been abandoned in 1951, when investigations of the petitioners started in Congress, since the 1951 and 1952 activities of the conspirators consisted merely of covering up old ventures rather than seeking new ones, and since there is no indication that there was an intent to resume operations after the investigations had ended. Indeed, upon the oral argument the Government seemed to abandon this theory. 21 The indictment was clearly sufficient to cover submission of this theory to the jury. See n. 3, supra. 22 One might cite as a typical example an incident in the record occurring in November 1949, 10 months after the 'no prosecution' ruling was handed down in the Patullo case. The Special Agent who had been working on the case wrote a final report on it, which stated that Patullo was not prosecuted solely because of Bolich's decision. This report was sent to Bolich, who thereupon called the Chief of the Conference Section and asked him to write an explanatory memorandum on the case so as to 'take a little heat off the situation.' This attempt to 'doctor' the report might easily have been motivated not only by fear for himself, but by a purpose to safeguard the 'no prosecution' ruling from change in order to maintain the immunity of the taxpayers. 23 The negotiations between Halperin and his associates and the taxpayers were never very specific as to what exactly was to be accomplished. The tenor of the discussions was that if the taxpayers would hire the mysterious 'influential' man in Washington, the matter 'would be ended,' the 'prosecution end of the case' would be avoided, the matter would be settled 'in a civil way without criminal prosecution.' In the same tenor, the accountant of Gotham Beef testified that 'nothing at all was to be paid unless the criminal prosecution had been eliminated. It was further understood that they were not at all concerned with the amount of the tax that might result by way of assessment, but it was either that they were completely successful in eliminating criminal prosecution * * * or there would be no fee at all.' In other words, there is little indication that it was the specific and narrow end of obtaining the 'no prosecution' rulings which was to be the quid pro quo. This is further buttressed by the fact that the taxpayers were well aware of the precarious nature of the 1948 and 1949 rulings; it is quite clear that they realized that this did not 'end' the danger of criminal prosecution. Thus the Patullo taxpayers were aware that the continued investigation of their books for the purposes of civil tax liability exposed them to constant danger of 'tipping the applecart.' They were warned to 'keep their mouths shut,' and a further payment of $25,000 was made for the 'boys in New York' so that no one would 'raise a fuss about the phony deal that had been put through.' Another Patullo officer testified that, after the 'no prosecution' ruling, 'we still were not at ease about the thing. We knew that we were elated over the results, but we still were worried about it. There was cooperation to take care of. We had to make this payoff for the New York boys. We were not through with it at that time. We never knew when something else was going to come up. We weren't through at all. * * * For two years after that we still weren't through with the thing.' And, referring to the payment for the 'New York boys' in 1949: '(W)e never felt too sure about anything because the civil settlement still had to be made and we knew there were people that had to go through it and pass on it and everything, and while this was going on we were told that we would have to get up some more money.' A jury could thus easily infer that the conspirators' function did not end in January 1949, and that the conspiratorial agreement contemplated further efforts to immunize the taxpayers from tax prosecution. 24 It should be mentioned that the Court of Appeals was unanimous in finding that there was sufficient evidence in the record to warrant the submission of the case to the jury on the theory that the central objectives of the conspiracy were not achieved until the statute of limitations ran on the tax-evasion charges. Judge Frank, while dissenting on the ground that the charge to the jury was inadequate in putting the case to the jury on this basis—a view which we share, see infra—agreed that under a proper charge the jury might infer that the conspiracy was still alive through 1951. See 233 F.2d, at pages 592—596. 25 See n. 2, supra. 26 Grunewald and Bolich also make this contention on their own behalf. 27 The questions were: (1) Whether petitioner held escrow money which was subsequently delivered to Grunewald; (2) whether petitioner knew Grunewald; (3) whether petitioner made a telephone call to Grunewald relative to an appointment between Bolich and one Davis, a member of the conspiracy; (4) whether petitioner had filed a power of attorney in the Glover case; (5) whether he had ever met one Oliphant, an official in the Treasury; (6) whether he knew Steinberg; (7) whether he knew Tobias, the accountant of Gotham Beef; (8) whether he had ever met Grunewald in the Munsey Building in Washington. 28 The charge as to this point was as follows: 'During the cross examination of one of the defendants, the government questioned the defendant as to his previous statements before the Brooklyn Grand Jury in which he refused to answer certain questions on the ground that answers to them might tend to incriminate him. These questions related to matters similar to those to which the defendant testified at this trial when he took the stand. No witness is required to take the stand or required to give testimony that might tend to incriminate him; but when a defendant takes the stand in his own defense at a trial, it is proper to interrogate him as to previous statements which he may have made under oath concerning the same matter, including his assertion of his constitutional privilege to refuse to testify as to those matters before a grand jury. You may use this evidence of a defendant's prior assertions of the Fifth Amendment for the sole purpose of ascertaining the weight you choose to give to his present testimony with respect to the same matters upon which he previously invoked his privilege. 'The defendant had the right of asserting the Fifth Amendment when he appeared before the Grand Jury, and I charge you that you are not to draw any inference whatsoever as to the guilt or innocence of the defendant in this case by reason of the fact that he chose to assert his unquestioned right to invoke the Fifth Amendment on that previous occasion. However, it was proper for the Government to question the defendant with respect to his previous invocation of the Fifth Amendment, but you may consider this evidence of his prior assertions of the Fifth Amendment only for the purpose of ascertaining the weight you choose to give to his present testimony with respect to the same matters upon which he previously asserted his constitutional privilege. It is not to be considered in a determination of the guilt or innocence of any co-defendant.' 29 United States v. Gottfried, 2 Cir., 165 F.2d 360, 367. 30 When the trial court first ruled that the Government could cross-examine as to petitioner's Fifth Amendment plea, it did not do so on the grounds of inconsistency reflecting on credibility. In fact the implication to be drawn from the record is that the court at that time felt that the jury might use this evidence for any purpose at all, including the drawing of inferences as to guilt or innocence. When the Government first embarked on this method of cross-examination, the judge overruled objections in these words: 'The Court: I know the Government's position. As I see it, Mr. Corbin (a defense attorney), no witness can be compelled to testify against himself. The witness is called before the grand jury and the answer was, I refuse to answer something on the ground that if I answer that question it will incriminate me. 'Mr. Corbin: Tend to incriminate. 'The Court: Or tend to incriminate. A witness can make that statement. No witness has to take the witness stand, as I understand the law and if a witness has so stated, then he could not be compelled to take the stand here, but if a witness voluntarily takes the stand and is asked in a previous proceeding did you say any testimony on this subject would incriminate you, that can be considered by the jury for such benefit or such worth as the jury may want to give it.' When the defendants asked that at the very least the use of this evidence be restricted to the question of credibility, the judge contented himself with asking for a memorandum of law on the subject. Thus, although later, in the charge to the jury, the matter was specifically restricted to the issue of credibility, there was no inquiry by the judge at the time of the initial admission of this evidence as to whether a sufficient showing of inconsistency had been made. 31 The certified question was: 'Was it error to require the defendant, Raffel, offering himself as a witness upon the second trial, to disclose that he had not testified as a witness in his own behalf upon the first trial?' 271 U.S. at page 496, 46 S.Ct. at page 567. 32 In Raffel this Court assumed that the defendant's failure to testify at the first trial could not be used as evidence of guilt in the second trial, 271 U.S. at page 497, 46 S.Ct. at page 568. The Court further stated that 'the trial judge might appropriately instruct the jury that the failure of the defendant to take the stand in his own behalf is not in itself to be taken as an admission of the truth of the testimony which he did not deny.' As already indicated, 353 U.S. 418, 77 S.Ct. 981, supra, here the trial judge refused to charge that 'an innocent man may honestly claim that his answers may tend to incriminate him.'

01

353 U.S. 547 77 S.Ct. 921 1 L.Ed.2d 1028 GENERAL ELECTRIC COMPANY, Petitioner,v.LOCAL 205, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA (U.E.). No. 276. Argued March 26, 1957. Decided June 3, 1957. Mr. Warren F. Farr, Boston, Mass., for the petitioner. Mr. Allan R. Rosenberg, Boston, Mass., for the respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This is a companion case to No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912. Respondent-union and petitioner-employer entered into a collective bargaining agreement governing the hours of work, rates of pay, and working conditions in a Massachusetts plant owned by petitioner. The agreement provided a procedure for the settlement of employee grievances, a procedure having four steps. It also provided that, when the four steps had been exhausted, either party could, with exceptions not material here, submit the grievance to arbitration. 2 The respondent filed written grievances, one asking higher pay for an employee and another complaining that an employee had been wrongfully discharged. Both complaints were carried through the four steps. The union, being dissatisfied, asked for arbitration. The employer refused. The union brought suit in the District Court to compel arbitration of the grievance disputes. The District Court dismissed the bill, being of the view that the relief sought was barred by the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq. 129 F.Supp. 665. The Court of Appeals reversed, 233 F.2d 85. It first held that the Norris-LaGuardia Act did not bar enforcement of the arbitration agreement. It then held that while § 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a) gave the District Court jurisdiction of the cause, it supplied no body of substantive law to enforce an arbitration agreement governing grievances. But it found such a basis in the United States Arbitration Act, which it held applicable to these collective bargaining agreements. It accordingly reversed the District Court judgment and remanded the cause to that court for further proceedings. 3 We affirm that judgment and remand the cause to the District Court. We follow in part a different path than the Court of Appeals, though we reach the same result. As indicated in our opinion in No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, supra, we think that § 301(a) furnishes a body of federal substantive law for the enforcement of collective bargaining agreements in industries in commerce or affecting commerce and that the Norris-LaGuardia Act does not bar the issuance of an injunction to enforce the obligation to arbitrate grievance disputes. 4 Affirmed. 5 Mr. Justice BURTON, whom Mr. Justice HARLAN joins, concurs in the result in this case for the reasons set forth in his concurrence in No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 459, 77 S.Ct. 919. 6 Mr. Justice BLACK took no part in the consideration or decision of this case. 7 Mr. Justice FRANKFURTER dissenting. For dissenting opinion see 353 U.S. 448, 77 S.Ct. 923.

67

353 U.S. 692 77 S.Ct. 1025 1 L.Ed.2d 1127 John F. MULCAHEY, District Director of Immigration and Naturalization Service, Detroit District, Petitioner,v.Guiseppe CATALANOTTE. No. 435. Argued March 27, 1957. Decided June 3, 1957. Rehearing Denied June 24, 1957. See 354 U.S. 943, 77 S.Ct. 1391. Mr. Roger D. Fisher, Washington, D.C., for the petitioner. Mr. Louis M. Hopping, Detroit, Mich., for the respondent. Mr. Justice WHITTAKER delivered the opinion of the Court. 1 This is a companion case to Lehmann v. United States ex rel. Carson, 353 U.S. 685, 77 S.Ct. 1022, and presents similar questions. Respondent, an alien who entered the United States in 1920 for permanent residence, was convicted in 1925 of a federal offense relating to illicit traffic in narcotic drugs.1 At that time there was no statute making that offense a ground for deportation. He was taken into custody in May, 1953, and, after administrative proceedings, was ordered deported under § 241(a)(11) and (d) of the Immigration and Nationality Act of 1952,2 which provides, inter alia, for the deportation of any alien '* * * who at any time has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs * * *.'3 2 Respondent petitioned the District Court for the Eastern District of Michigan for a writ of habeas corpus. The District Court, after hearing, denied the petition. The Court of Appeals reversed, Petition of Catalanotte, 6 Cir., 236 F.2d 955, holding principally on the basis of its earlier decision in United States v. Kershner, 6 Cir., 228 F.2d 142, this day reversed by us, sub nom. Lehmann v. United States ex rel. Carson, 353 U.S. 685, 77 S.Ct. 1022, that inasmuch as respondent's conviction in 1925 of illicit traffic in narcotic drugs was not a ground for deportation prior to the Immigration and Nationality Act of 1952, respondent had a 'status' of nondeportability which was preserved to him by the savings clause in § 405(a) of that Act.4 We granted certiorari, 352 U.S. 915, 77 S.Ct. 215, 1 L.Ed.2d 121. 3 As we have said in Lehmann v. United States ex rel. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1024, § 405(a) by its own terms does not apply to situations 'otherwise specifically provided' for in the Act. Section 241(a)(11) and § 241(d) specifically provide for the deportation of an alien notwithstanding that the offense for which he is being deported occurred prior to the 1952 Act. Section 241(a)(11) makes an alien deportable if he has 'at any time' been convicted of illicit traffic in narcotic drugs. And § 241(d) makes § 241(a) (11) applicable to all aliens covered thereby 'notwithstanding * * * that the facts * * * occurred prior to the date of enactment of this Act.' It seems to us indisputable, therefore, that Congress was legislating retrospectively, as it may do,5 to cover offenses of the kind here involved. The case is, therefore, 'otherwise specifically provided' for within the meaning of § 405(a). The Court of Appeals was in error in holding to the contrary, and its judgment is reversed. 4 Reversed. 5 Mr. Justice Black and Mr. Justice Douglas dissent. 6 For dissenting opinion, see 353 U.S. 690, 77 S.Ct. 1025. 1 The sale of a quantity of cocaine hydrochloride and possession and purchase of 385 grains thereof. 2 66 Stat. 204, 8 U.S.C. § 1251, 8 U.S.C.A. § 1251. 3 Section 241(a)(11) and (d) of the Immigration and Nationality Act of 1952 provides, in pertinent part, as follows: '(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who— '(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs * * * '(d) Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding * * * (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to the date of enactment of this Act.' 4 66 Stat. 280, 8 U.S.C. § 1101, Note, 8 U.S.C.A. § 1101 note. Section 405, so far as here material, provides 'Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect * * * any status * * * existing, at the time this Act shall take effect * * *.' 5 Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978; Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549; United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521, 70 S.Ct. 329, 64 L.Ed. 307; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107.

12

353 U.S. 553 77 S.Ct. 1037 1 L.Ed.2d 1034 STATE OF CALIFORNIA, Petitioner,v.Harry TAYLOR, Peter A. Calus, James W. Brewster, et al. No. 385. Argued April 2, 1957. Decided June 3, 1957. Mr. Herbert E. Wenig, Asst. Atty. Gen. of California, San Francisco, Cal., for petitioner. Mr. Burke Williamson, Chicago, Ill., for respondents. Mr. Justice BURTON delivered the opinion of the Court. 1 The question presented here is whether the Railway Labor Act of May 20, 1926, 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., 45 U.S.C.A. § 151 et seq., applies to the State Belt Railroad, a common carrier owned and operated by the State of California and engaged in interstate commerce. For the reasons hereafter stated, we hold that it does. 2 The operations of the State Belt Railroad have been described by this Court in Sherman v. United States, 282 U.S. 25, 51 S.Ct. 41, 75 L.Ed. 143; United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567; and State of California v. Latimer, 305 U.S. 255, 59 S.Ct. 166, 83 L.Ed. 159. It parallels the San Francisco waterfront, serves wharves and industrial plants, and connects with car ferries, steamship docks and three interstate railroads. It is a common carrier engaged in interstate commerce and files tariffs with the Interstate Commerce Commission. 3 For over 65 years, the Belt Railroad has been owned by the State of California. It is operated by the Board of State Harbor Commissioners for San Francisco Harbor, composed of three Commissioners appointed by the Governor. Its employees number from 125 to 255 and are appointed in accordance with the civil service laws of the State. These laws prescribe procedures for hirings, promotions, layoffs and dismissals, and authorize the State Personnel Board to fix rates of pay and overtime.1 4 On September 1, 1942, the Board of State Harbor Commissioners entered into a collective-bargaining agreement with the Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Railroad Trainmen as the representatives of the Belt Railroad's operating employees. This agreement established procedures for promotions, layoffs and dismissals. It also fixed rates of pay and overtime. Those procedures and rates differed from their counterparts under the state civil service laws. 5 The collective-bargaining agreement conformed to the Railway Labor Act and was observed by the parties at least until January 1948. At that time, a successor Harbor Board instituted litigation in the state courts of California in which it contended that the Railway Labor Act had no application to the Belt Railroad, and that the wages and working conditions of the Railroad's employees were governed by the State's civil service laws rather than by the agreement. This contention was rejected by a local trial court and by the California District Court of Appeal. State of California v. Brotherhood of Railroad Trainmen, Cal.App., 222 P.2d 27. It was, however, accepted by the Supreme Court of California, with one justice dissenting, 37 Cal.2d 412, 422, 232 P.2d 857, 864, certiorari denied 342 U.S. 876, 72 S.Ct. 166, 96 L.Ed. 658. 6 Shortly thereafter, five employees of the Belt Railroad instituted the present action in the United States District Court for the Northern District of Illinois against the ten members of the National Railroad Adjustment Board, First Division, and its executive secretary. The employees alleged that they had filed with the First Division, pursuant to § 3, First (i), of the Railway Labor Act, claims relating to their classifications, extra pay and seniority rights under the agreement. They charged that the five carrier members of the Division had refused to consider these claims on the ground that the Board was without jurisdiction, because, under the above decision of the Supreme Court of California, the Belt Railroad was not subject to the Railway Labor Act. The employees alleged that this refusal created an impasse in the ten-member Division and they sought a court order requiring action on their claims. The United States, answering on behalf of the First Division and its executive secretary, supported the complaint and prayer for relief. The carrier members, answering through their own attorneys, opposed the complaint, as did the present petitioner, the State of California, which intervened as a party defendant. 7 The District Court granted California's motion for summary judgment and dismissed the complaint. 132 F.Supp. 356. The Court of Appeals reversed. 233 F.2d 251. It held that the Railway Labor Act applied to the Belt Railroad, and remanded the cause to the District Court with directions to enter a decree granting the relief sought. We granted certiorari to resolve the conflict between the United States Court of Appeals and the California Supreme Court as to the applicability of the Railway Labor Act to a railroad owned and operated by a State. 352 U.S. 940, 77 S.Ct. 261, 1 L.Ed. 236.2 We invited the Solicitor General to file a brief as amicus curiae and, in doing so, he urged that the Railway Labor Act was applicable to the State Belt Railroad. 8 The Railway Labor Act of 1926, 44 Stat. 577, evolved from legislative experimentation beginning in 1888.3 The evolution of this railroad labor code was marked by a continuing attempt to bring about self-adjustment of disputes between rail carriers and their employees To this end, specialized machinery of mediation and arbitration was established. The 1926 Act—unique in that it had been agreed upon by the majority of the railroads and their employees4—incorporated practically every device previously used in settling disputes between carriers and their employees. These included (1) conferences between the parties; (2) appeal to a Board of Adjustment; (3) recourse to the permanent Board of Mediation; (4) submission of the controversy to a temporary Board of Arbitration; and (5) the establishment of an Emergency Board of Investigation appointed by the President. 9 Dissatisfaction with the operation of this legislation led to its 1934 amendments. 48 Stat. 1185.5 One of the most significant changes was the creation of the National Railroad Adjustment Board composed of equal numbers of carrier representatives and representatives of unions national in scope. The Board was divided into four divisions, each with jurisdiction over particular crafts or classes and their disputes. § 3. This arrangement made available a National Board to settle disputes in case the carrier and its employees could not agree upon a system, group or regional board. The National Board was given jurisdiction over 'minor disputes,' meaning those involving the interpretation of a collective-bargaining agreements in a particular set of facts. Either party to such a dispute could bring the other before the Board in what was, in fact, compulsory arbitration. Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. Provisions were made for the enforcement of a Board order against a carrier in a United States District Court. § 3, First (p). 10 Section 2, Fourth, of the 1934 amendments insured to railroad employees the right to organize their own unions and the right of a majority of any craft or class of employees to select the representative of that craft or class. Section 2, Ninth, authorized the newly created National Mediation Board to hold representation elections and to certify the representative with which the carrier must deal. Section 2, Fourth, provided that the employees shall have the right to bargain collectively through representatives of their own choosing. On numerous occasions, this Court has recognized that the Railway Labor Act protects and promotes collective bargaining. Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 548—549, 553, 57 S.Ct. 592, 599 600, 602, 81 L.Ed. 789; Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 300, 302, 64 S.Ct. 95, 97, 88 L.Ed. 61; Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 346—347, 64 S.Ct. 582, 585, 88 L.Ed. 788; Steele v. Louisville & N.R. Co., 323 U.S. 192, 202, 65 S.Ct. 226, 232, 89 L.Ed. 173; Railway Employes' Dept. v. Hanson, 351 U.S. 225, 233, 235, 76 S.Ct. 714, 718, 719, 100 L.Ed. 1112.6 11 If the Railway Labor Act applies to the Belt Railroad, then the carrier's employees can invoke its machinery established for adjustment of labor controversies, and the National Railway Adjustment Board has jurisdiction over respondents' claims. Moreover, the Act's policy of protecting collective bargaining comes into conflict with the rule of California law that state employees have no right to bargain collectively with the State concerning terms and conditions of employment which are fixed by the State's civil service laws.7 This state civil service relationship is the antithesis of that established by collectively bargained contracts throughout the railroad industry. '(E)ffective collective bargaining has been generally conceded to include the right of the representatives of the unit to be consulted and to bargain about the exceptional as well as the routine rates, rules, and working conditions.' Order of Railroad Telegraphers v. Railway Express Agency, Inc., supra, 321 U.S. at page 347, 64 S.Ct. at page 585. If the Federal Act applies to the Belt Railroad, then the policy of the State must give way.8 12 '* * * a State may not prohibit the exercise of rights which the federal Acts protect. Thus, in Hill v. State of Florida, 325 U.S. 538, 65 S.Ct. 1373, 1375, 89 L.Ed. 1782, the State enjoined a labor union from functioning until it had complied with certain statutory requirements. The injunction was invalidated on the ground that the Wagner Act included a 'federally established right to collective bargaining' with which the injunction conflicted.' Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 474, 75 S.Ct. 480, 484, 99 L.Ed. 546. 13 Under the Railway Labor Act, not only would the employees of the Belt Railroad have a federally protected right to bargain collectively with their employer, but the terms of the collective-bargaining agreement that they have negotiated with the Belt Railroad would take precedence over conflicting provisions of the state civil service laws.9 In Railway Employes' Dept. v. Hanson, 351 U.S. 225, 232, 76 S.Ct. 714, 718, 100 L.Ed. 1112, involving § 2, Eleventh, of the Railway Labor Act, which permits the negotiation of union-shop agreements notwithstanding any law of any State, we stated that 'A union agreement made pursuant to the Railway Labor Act has, therefore, the imprimature of the federal law upon it and, by force of the Supremacy Clause of Article VI of the Constitution, could not be made illegal nor vitiated by any provision of the laws of a State.' 14 We turn now to the applicability of the Railway Labor Act to the Belt Railroad. Section 1, First, of that Act defines generally the carriers to which it applies as 'any carrier by railroad, subject to the Interstate Commerce Act * * *.' (Emphasis supplied.) The Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 1(1), 49 U.S.C.A. § 1(1), applies to all common carriers by railroad engaged in interstate transportation. The Belt Railroad concededly is a common carrier engaged in interstate transportation. It files its tariffs with the Interstate Commerce Commission, and the Commission has treated it and other state-owned interstate rail carriers as subject to its jurisdiction. See California Canneries Co. v. Southern Pacific Co., 51 I.C.C. 500, 502—503; United States v. Belt Line R. Co., 56 I.C.C. 121; Texas State Railroad, 34 I.C.C.Val.R. 276. Finally, this Court has recognized that practice. United States v. State of California, 297 U.S. 175, 186, 56 S.Ct. 421, 425, 80 L.Ed. 567. See also, New Orleans V. Texas & P.R. Co., 5 Cir., 195 F.2d 887, 889. 15 With the exception of the Supreme Court of California's holding in State of California v. Brotherhood of Railroad Trainmen, 37 Cal.2d 412, 232 P.2d 857, federal statutes regulating interstate railroads, or their employees, have consistently been held to apply to publicly owned or operated railroads. Yet none of these statutes referred specifically to public railroads as being within their coverage. In United States v. State of California, supra, the United States sought to recover a statutory penalty for the State's operation of this Belt Railroad in violation of the Safety Appliance Act, 27 Stat. 531—532, as amended, 45 U.S.C. §§ 2, 6, 45 U.S.C.A. §§ 2, 6. That Act applied to 'any common carrier engaged in interstate commerce by railroad * * *.' (Emphasis supplied.) The State contended there, as it does here, that the Act was inapplicable to the Belt Railroad because a federal statute is presumed not to restrict a constituent sovereign State unless it expressly so provides. This Court said that this presumption 'is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt, but it dost not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated.' 297 U.S. at page 186, 56 S.Ct. at page 425. See also State of California v. United States, 320 U.S. 577, 585—586, 64 S.Ct. 352, 356, 88 L.Ed. 322; Case v. Bowles, 327 U.S. 92, 98—100, 66 S.Ct. 438, 441—442, 90 L.Ed. 552. The Court then held unequivocally that the Safety Appliance Act was applicable to the Belt Railroad. 'We can perceive no reason for extending it (the presumption) so as to exempt a business carried on by a state from the otherwise applicable provisions of an act of Congress, allembracing in scope and national in its purpose, which is as capable of being obstructed by state as by individual action.' 297 U.S. at page 186, 56 S.Ct. at page 425. 16 Likewise, three courts have ruled that the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51, 45 U.S.C.A. § 51, the coverage of which corresponded to that of the Safety Appliance Act, was applicable to public railroads. Mathewes v. Port Utilities Commission, D.C.E.D.S.C., 32 F.2d 913; Higginbotham v. Public Belt Railroad Commission, 192 La. 525, 188 So. 395 (Sup.Ct.La.); Maurice v. State, 43 Cal.App.2d 270, 110 P.2d 706 (Cal.Dist.Ct. of App.) (involving the Belt Railroad now before us). Similarly, a Federal Court of Appeals has held that the Carriers Taxing Act of 1937, 50 Stat. 435, as amended, 45 U.S.C. (1946 ed.) § 261 (a companion measure of the Railroad Retirement Act of 1937, 50 Stat. 307, as amended, 45 U.S.C. § 228a, 45 U.S.C.A. § 228a), the coverage of which was identical with that of the Railway Labor Act, was applicable to this Belt Railroad. State of California v. Anglim, 9 Cir., 129 F.2d 455. At least two federal courts have taken the position that the Railway Labor Act is applicable to railroads owned or operated by the public. National Council of Ry. Patrolmen's Unions, A.F. of L. v. Sealy, 56 F.Supp. 720, 722—723, affirmed 152 F.2d 500, 502; New Orleans Public Belt R. Commission v. Ward, 5 Cir., 195 F.2d 829; and see the opinion of the Attorney General of California, n. 9, supra. 17 Nothing in the legislative history of the Railway Labor Act indicates that it should be treated differently from the above-mentioned railway statutes, insofar as its applicability to a state-owned railroad is concerned. Congress apparently did not discuss the applicability of the Railway Labor Act to a state-owned railroad. This omission is readily explainable in view of the limited operations of publicly owned railroads. We are told by the parties that there are today 30 publicly owned railroads, all of which are switching or terminal roads, and only 11 of which are operated directly by the public. The fact that Congress chose to phrase the coverage of the Act in all-embracing terms indicates that state railroads were included within it. In fact, the consistent congressional pattern in railway legislation which preceded the Railway Labor Act was to employ all-inclusive language of coverage with no suggestion that state-owned railroads were not included.10 18 The State contends that doubts are created about congressional intent to make the Railway Labor Act applicable to state-owned railroads by the fact that in certain other federal statutes governing employer-employee relationships, Congress has expressly exempted employees of the United States or of a State.11 We believe, however, that this argument cuts the other way. When Congress wished to exclude state employees, it expressly so provided. Its failure to do likewise in the Railway Labor Act indicates a purpose not to exclude state employees.12 19 The Railway Labor Act is essentially an instrument of industry-wide government. See Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 749, 751, 65 S.Ct. 1282, 1302, 1303, 89 L.Ed. 1886 (dissenting opinion). The railroad world for which the Act was designed has been described as 'a state within a state. Its population of some three million, if we include the families of workers, has its own customs and its own vocabulary, and lives according to rules of its own making. * * * This state within a state has enjoyed a high degree of internal peace for two generations; despite the divergent interests of its component parts, the reign of law has been firmly established.' Garrison, The National Railroad Adjustment Board; A Unique Administrative Agency, 46 Yale L.J. 567, 568—569 (1937). Congress has not only carved this singular industry out of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. § 182, 29 U.S.C.A. § 182, but it has provided, by the Railway Labor Act, techniques peculiar to that industry. An extended period of congressional experimentation in the field of railway labor legislation resulted in the Railway Labor Act and produced its machinery for conciliation, mediation, arbitration and adjustments of disputes. A primary purpose of this machinery of railway government is 'To avoid any interruption to commerce or to the operation of any carrier engaged therein * * *.' 48 Stat. 1186 (§ 2), 45 U.S.C. § 151a, 45 U.S.C.A. § 151a. See Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 242, 70 S.Ct. 577, 578, 94 L.Ed. 795. Like the Safety Appliance Act, the Railway Labor Act is 'all-embracing in scope and national in its purpose, which is as capable of being obstructed by state as by individual action.' United States v. State of California, 297 U.S. 175, 186, 56 S.Ct. 421, 425, 80 L.Ed. 567. The fact that, under state law, the employees of the Belt Railroad may have no legal right to strike13 reduces, but does not eliminate, the possibility of a work stoppage. It was to meet such a possibility that the Act's 'reign of law' was established. A terminal railroad facility like the Belt Railroad is a vital link in the national transportation system. Its continuous operation is important to the national flow of commerce. 20 The fact that the Act's application will supersede state civil service laws which conflict with its policy of promoting collective bargaining does not detract from the conclusion that Congress intended it to apply to any common carrier by railroad engaged in interstate transportation, whether or not owned or operated by a State. The principal unions in the railroad industry are national in scope, and their officials are intimately acquainted with the problems, traditions and conditions of the railroad industry. Bargaining collectively with these officials has often taken on a national flavor,14 and agreements are uniformly negotiated for an entire railroad system. '(B) reakdowns in collective bargaining will typically affect a region or the entire nation.' Lecht, Experience under Railway Labor Legislation (1955), 4. It is by no means unreasonable to assume that Congress, aware of these characteristics of labor relations in the interconnected system which comprises our national railroad industry, intended that collective bargaining, as fostered and protected by the Railway Labor Act, should apply to all railroads. Congress no doubt concluded that a uniform method of dealing with the labor problems of the railroad industry would tend to eliminate inequities, and would promote a desirable mobility within the railroad labor force.15 21 Finally, the State suggests that Congress has no constitutional power to interfere with the 'sovereign right' of a State to control its employment relationships on a state-owned railroad engaged in interstate commerce. In United States v. State of California, supra, this Court said that the State, although acting in its sovereign capacity in operating this Belt Railroad, necessarily so acted 'in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government.' 297 U.S. at page 184, 56 S.Ct. at page 424. 'California, by engaging in interstate commerce by rail, has subjected itself to the commerce power, and is liable for a violation of the Safety Appliance Act, as are other carriers * * *.' Id., 297 U.S. at page 185, 56 S.Ct. at page 424. That principle is no less applicable here. If California, by engaging in interstate commerce by rail, subjects itself to the commerce power so that Congress can make it conform to federal safety requirements, it also has subjected itself to that power so that Congress can regulate its employment relationships. See also, State of California v. United States, 320 U.S. 577, 586, 64 S.Ct. 352, 356, 88 L.Ed. 322; cf. Railway Employes' Dept. v. Hanson, 351 U.S. 225, 233—238, 76 S.Ct. 714, 718—721, 100 L.Ed. 1112.16 22 The judgment of the Court of Appeals accordingly is affirmed. 23 Affirmed. 24 The CHIEF JUSTICE took no part in the consideration or decision of this case 1 See West's Cal.Ann.Codes, Constitution, Art. XXIV; West's Cal.Ann.Codes, Government, § 18000 et seq. 2 Petitioner expressly excluded from the questions presented by its petition for certiorari the following issues involved in the decision of the Court of Appeals: whether the adjudication in the state courts was res judicata in the federal courts, whether the collective-bargaining agreement had been approved by the Department of Finance of the State and, therefore, met the requirements of California law in that respect, and whether the California Personnel Board, rather than the National Railroad Adjustment Board, had jurisdiction over respondents' claims. In its briefs before the Court, California suggests that the collective-bargaining agreement is invalid because the Board of the State Harbor Commissioners lacked authority to negotiate the contract, some of the terms of which are in conflict with the state civil service laws. The Court of Appeals, however, held that this contention had been waived because it was not briefed there by the State and not mentioned in the State's oral argument. We, accordingly, do not recognize this contention here. The same argument was rejected by the California District Court of Appeal in the earlier state court litigation, State v. Brotherhood of Railroad Trainmen, 222 P.2d 27, 31—33, and the Supreme Court of California apparently did not reject that position of the appellate court, 37 Cal.2d 412, 421—422, 232 P.2d 857, 863—864. Thus, even if the State's present suggestion were before us, we would feel constrained to accept the ruling of the District Court of Appeal. 3 Act of 1888, 25 Stat. 501; Erdman Act of 1898, 30 Stat. 424; Newlands Act of 1913, 38 Stat. 103; Adamson Act of 1916, 39 Stat. 721, see Wilson v. New, 243 U.S. 332, 37 S.Ct. 298, 61 L.Ed. 755; General Order No. 8, February 21, 1918, signed by W. G. McAdoo, Director General of Railroads (formulating the Federal Government's labor policy after it took over the railroads in December 1917), Hines, War History of American Railroads (1928), 304—305, see also, p. 155 et seq.; Title III of the Transportation Act of 1920, 41 Stat. 469. 4 See S.Rep. No. 606, 69th Cong., 1st Sess. 2; 67 Cong.Rec. 463. 5 The purposes of the Act were stated as follows: 'Sec. 2. * * * (1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; (2) to forbid any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the right of employees to join a labor organization; (3) to provide for the complete independence of carriers and of employees in the matter of self-organization to carry out the purposes of this Act; (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' 48 Stat. 1186—1187. 6 Another significant amendment to the Railway Labor Act came in 1951 when Congress authorized union-shop agreements, notwithstanding any state law. § 2, Eleventh, 64 Stat. 1238. See Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714. 7 Nutter v. City of Santa Monica, 74 Cal.App.2d 292, 168 P.2d 741; City of Los Angeles v. Los Angeles Building & Construction Trades Council, 94 Cal.App.2d 36, 210 P.2d 305; State of California v. Brotherhood of Railroad Trainmen, 37 Cal.2d 412, 417—418, 232 P.2d 857, 861. 8 For cases upholding the supremacy of federal statutes relating to railroads in interstate commerce, see Napier v. Atlantic C.L.R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (Boiler Inspection Act, 45 U.S.C.A. § 22 et seq.); Southern R. Co. v. Railroad Commission of Indiana, 236 U.S. 439, 35 S.Ct. 304, 59 L.Ed. 661 (Safety Appliance Act); Erie R. Co. v. People of State of New York, 233 U.S. 671, 34 S.Ct. 756, 58 L.Ed. 1149 (Hours of Service Act, 45 U.S.C.A. § 61 et seq.); Second Employers' Liability Cases (Mondou v. New York, N.H. & H.R. Co.) 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (Employers' Liability Act). Cf. Terminal Railroad Ass'n of St. Louis v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 63 S.Ct. 420, 87 L.Ed. 571, to the effect that the Railway Labor Act did not preclude a State from establishing minimum health and safety regulations in the interests of railway employees. That case did not concern a conflict between federally protected collective bargaining and inconsistent state laws. 9 On October 30, 1944, the Attorney General of California rendered an opinion in which he concluded that the State Belt Railroad was subject to the Railway Labor Act, that the Board of Harbor Commissioners must bargain collectively with the Railroad's employees, and that the terms of the existing collective-bargaining agreement supersede conflicting provisions of the state civil service laws. 4 Op.Atty.Gen.Cal. (1944) 300 306; Rhyne, Labor Unions and Municipal Employe Law (1946), 247 251. See also, Long Island R. Co. v. Department of Labor, 256 N.Y. 498, 515—517, 177 N.E. 17, 23—24. 10 Although the coverage of the Act of 1888, 25 Stat. 501, the Erdman Act of 1898, 30 Stat. 424, and the Newlands Act of 1913, 38 Stat. 103, was not related to the Interstate Commerce Act, those Acts by their terms applied to any carriers by railroad engaged in interstate transportation. The cross-reference to the Interstate Commerce Act, found in the Railway Labor Act, came with the Adamson Act of 1916, 39 Stat. 721, and was carried forward to Title III of the Transportation Act of 1920, 41 Stat. 469. A House Committee reporting on the bill which was to become Title III of the Transportation Act stated that 'Section 300 defines the term 'carrier' so that disputes of the railroads and express and sleeping-car companies, engaged in interstate commerce, are subject to the provisions of the title.' (Emphasis supplied.) H.R.Rep. No. 456, 66th Cong., 1st Sess. 24. 11 The statutes cited are the National Labor Relations Act of 1935, 49 Stat. 449, as amended by the Labor Management Relations Act of 1947, 61 Stat. 137, 29 U.S.C. § 152(2), 29 U.S.C.A. § 152(2); the War Labor Disputes Act of 1943, 57 Stat. 164, 50 U.S.C.App. (1946 ed.) § 1502(d); the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. § 203(d), 29 U.S.C.A. § 203(d), and the re-employment provisions of the Universal Military Training and Service Act, 62 Stat. 614—615, 50 U.S.C.App. § 459(b), 50 U.S.C.A.Appendix, § 459(b). 12 When Congress desired to make exceptions to the broad coverage of the Railway Labor Act, it expressly stated that intent in a proviso to the Act's definition of the term 'carrier': 'Section 1. * * * 'First. * * * Provided, however, That the term 'carrier' shall not include any street, interurban, or suburban electric railway, unless such railway is operating as a part of a general steam-railroad system of transportation, but shall not exclude any part of the general steam-railroad system of transportation now or hereafter operated by any other motive power. The Interstate Commerce Commission is authorized and directed upon request of the Mediation Board or upon complaint of any party interested to determine after hearing whether any line operated by electric power falls within the terms of this proviso. The term 'carrier' shall not include any company by reason of its being engaged in the mining of coal, the supplying of coal to a carrier where delivery is not beyond the mine tipple, and the operation of equipment or facilities therefor, or in any of sach activities.' 48 Stat. 1185—1186, 54 Stat. 785—786, 45 U.S.C. § 151, First, 45 U.S.C.A. § 151. First. In United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, this Court ruled that the general term 'employer,' as used in the restrictive provisions of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. § 101, and § 20 of the Clayton Act, 38 Stat. 738, 29 U.S.C.A. § 52, did not include the Federal Government, and that an injunction could issue in a federal court to prevent a union and its officers from precipitating a strike in the bituminous coal mines which, at the time, were being operated by the Government. That case is not a guide here since the statutes there involved differ widely in history and purpose from the Railway Labor Act. See Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 39—42, 77 S.Ct. 635, 639—641, 1 L.Ed.2d 622. 13 See the Los Angeles Building & Construction Trades Council case, n. 7, supra. 14 Lecht, Experience under Railway Labor Legislation (1955), 4, 70—71, 158, 161, 167—168, 177, 192, 209, 225, 233. 15 Congress clearly had considerations such as these in mind in 1951 when it authorized union-shop agreements, notwithstanding any state law. See n. 6, supra. The House Committee on Interstate and Foreign Commerce stated that— 'It will be noted that the proposed paragraph eleventh would authorize agreements notwithstanding the laws of any State. For the following reasons, among others, it is the view of the committee that if, as a matter of national policy, such agreements are to be permitted in the railroad and airline industries it would be wholly impracticable and unworkable for the various States to regulate such agreements. Railroads and airlines are direct instrumentalities of interstate commerce; the Railway Labor Act requires collective bargaining on a system-wide basis; agreements are uniformly negotiated for an entire railroad system and regulate the rates of pay, rules of working conditions of employees in many States; the duties of many employees require the constant crossing of State lines; many seniority districts under labor agreements, extend across State lines, and in the exercise of their seniority rights employees are frequently required to move from one State to another.' H.R.Rep. No. 2811, 81st Cong., 2d Sess. 5. 16 The contention of the State that the Eleventh Amendment to the Constitution of the United States would bar an employee of the Belt Railroad from enforcing an award by the National Railroad Adjustment Board in a suit against the State in a United States District Court under § 3, First (p), of the Act is not before us under the facts of this case.

78

353 U.S. 569 77 S.Ct. 1027 1 L.Ed.2d 1045 Chester E. JACKSON, Petitioner,v.John C. TAYLOR, Acting Warden. No. 619. Argued April 30, 1957. Decided June 3, 1957. Rehearing Denied July 8, 1957. See 354 U.S. 944, 77 S.Ct. 1421. Mr. Urban P. Van Susteren, Appleton, Wis., for the petitioner. Mr. Ralph S. Spritzer, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This is a habeas corpus proceeding in which petitioner, a soldier, attacks the validity of a sentence of 20 years he is now serving as the result of his conviction by an Army court-martial of the offense of attempted rape. While serving in the United States Army in Korea, he was found guilty by a general court-martial of the separate offenses of premeditated murder and attempted rape of a Korean woman. He was given an aggregate sentence1 of life imprisonment for both offenses. The Army board of review found 'incorrect in law and fact' the court-martial finding of guilty on the murder charge, but it approved the guilty finding for attempted rape. As to the sentence, the board found 'that only so much of the approved sentence as provides for dishonorable discharge, total forfeitures, and confinement at hard labor for 20 years is correct in law and fact.' As so modified, it approved the sentence. United States v. Fowler, 2 C.M.R. 336. The petitioner makes no attack on his original conviction on the attempted rape charge and its affirmance by the board. But he attacks the sentence of the board alleging that 'the action of the Review Board in reserving twenty (20) years of the life sentence imposed by the Court-Martial for the crime of murder, even though it had reserved and set aside the conviction, was null and void.' The District Court denied the writ and discharged the rule to show cause, Jackson v. Humphrey, 135 F.Supp. 776, holding that the board of review on reversing the murder conviction, properly modified the sentence and was not required to order a new trial or to remand the case for resentencing by the general court-martial. The Court of Appeals, in a unanimous opinion, affirmed. Jackson v. Taylor, 3 Cir., 234 F.2d 611, 612. It held that the board of review upon affirming the attempted rape conviction was authorized to 'affirm * * * such part or amount of the sentence, as it finds correct,' citing Article 66(c) of the Uniform Code of Military Justice, 64 Stat. 128, 50 U.S.C. § 653(c), 50 U.S.C.A. § 653(c). We believe the sentence must stand. 2 Petitioner was tried with two other soldiers and each was convicted of the same offenses, premeditated murder and attempted rape. Each was also sentenced to life imprisonment. The record of the trial was then forwarded to the convening authority where the convictions and sentences were approved. In accordance with military procedure, the record was then forwarded with the convening authority's approval to a board of review in the office of the Judge Advocate General of the Army. That board, as already stated, found the murder convictions unsupported by the record and set them aside, but sustained the convictions for attempted rape and modified the sentences. The soldiers then sought further review by petition before the United States Court of Military Appeals. No question regarding the authority of the review board to modify the sentences was raised and the petition was denied without opinion. United States v. Fowler, 1 U.S.C.M.A. 713. The soldiers, having started to serve their sentences, were held in different prisons. Each filed a writ of habeas corpus in the district in which he was imprisoned and each raised the same issue of the authority of the board of review to sentence in the manner described. A conflict between the Circuits has resulted2 and we granted certiorari, limited to the gross sentence question, not only to resolve this conflict but to settle an important question in the administration of the Uniform Code. 352 U.S. 940, 77 S.Ct. 266, 1 L.Ed.2d 236. 3 Petitioner claims no deprivation of constitutional rights. He argues only that under military law the board of review should have ordered either a rehearing or that he be released because it was without authority to impose the 20-year sentence. 4 The review board derives its power from Article 66 of the Uniform Code of Military Justice, 64 Stat. 128, 50 U.S.C. § 653, 50 U.S.C.A. § 653(c).3 We are concerned more particularly with subsection (c) of that section. It provides: 5 '(c) In a case referred to it, the board of review shall act only with respect to the findings and sentence as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.' 6 Here the board relied on its power to 'affirm * * * such part or amount of the sentence, as it finds correct * * *.' Petitioner argues, however, that the 20-year sentence was not a 'part or amount' of the sentence imposed by the court-martial. He supports this by reference to the action of the law officer of the court-martial who, after the findings of guilt were returned, advised its members in open court of the punishment it might impose. In view of the finding on the murder charge, he told the court-martial it had only two alternatives, a death sentence or life imprisonment. Art. of War 92, 62 Stat. 640.* He made no reference to the punishment for attempted rape, the maximum for which is 20 years. Since the court-martial was required to impose a single sentence covering both of the guilty findings,4 it entered a life sentence. Petitioner claims there was no sentence on the attempted rape conviction and, therefore, the entry of a 20-year sentence thereon by the board was an entirely new and independent imposition which was beyond its power. He bases this conclusion wholly on deduction. He contends that since the law officer advised the court-martial only as to the punishment for murder it follows that it did not sentence him on the attempted rape charge. But why should the officer go through the useless motion of instructing on the attempted rape when the court-martial by law was required to impose a sentence of death or life imprisonment? The sentence could have been no heavier unless it were death. What possible good would it have done for the court-martial, if it had been authorized, to add 20 or any other number of years onto a life sentence? In addition to the fact that the Uniform Code authorizes no such sentence we should not construe the Act of Congress to require the doing of a useless act. 7 But, the petitioner says, simple arithmetic shows that no sentence was imposed on the attempted rape finding. He reasons that the offense of premeditated murder carries a minimum punishment of life imprisonment, the exact sentence he received. The sentence therefore included no punishment covering the attempted rape finding he claims. It is true that the sentence was not broken down as to offenses. That is not permitted. However, the petitioner in his analysis overlooks entirely the requirement of military law that only the entry of a single gross sentence for both of the offenses is permitted. This Court has approved this practice. Carter v. McClaughry, 1902, 183 U.S. 365, 393, 22 S.Ct. 181, 192, 46 L.Ed. 236. See also McDonald v. Lee, 5 Cir., 1954, 217 F.2d 619, 622; Winthrop, Military Law and Precedents (2d ed. 1920), 404. The sentence here was a gross sentence. It covered both the convictions. What the petitioner would have us do is to strike down this long practice, not only approved over the years by the Congress but by our cases. This we cannot do. 8 The question remains whether the board had the authority to modify the life sentence to 20 years after the murder conviction was set aside. Reviewing authorities have broad powers under military law.5 Unlike a civilian trial in most jurisdictions, the initial sentence under military law is imposed by the members of the court-martial. Otherwise the court-martial performs functions more like those of a jury than a court. It is composed of laymen. See Art. 25 of the Uniform Code, 64 Stat. 116, 50 U.S.C. § 589, 50 U.S.C.A. § 589. The powers of review, modification, and sentence-adjustment under the Uniform Code rest elsewhere than on this body of laymen. 9 Review of a court-martial conviction is first provided by the convening authority—the commanding officer who directed that the case be tried before a court-martial. He is empowered to reduce a sentence though he cannot increase it. He can weigh facts, determine credibility of witnesses, disapprove findings of guilt which he believes erroneous in law or fact, and determine sentence appropriateness without regard to what the court-martial might have done had it considered only the approved findings. Art. 64 of the Uniform Code, 64 Stat. 128, 50 U.S.C. § 651, 50 U.S.C.A. § 651. He has other broad powers. See Manual for Courts-Martial, United States (1951), c. 17. Here the convening authority approved the action of the court-martial. 10 The next stage of review is that with which we are particularly concerned. It is conducted by the board of review composed of legally-trained officers.6 Such boards first received statutory ecognition in 1920. Art. of War 50 1/2, 41 Stat. 797 799.** At that time Congress gave them power to review, with the Judge Advocate General, records for legal sufficiency. By 1949 this power was increased to weigh facts, though, as petitioner argues, these boards still did not have power to determine sentence appropriateness. Art. of War 50(g), 62 Stat. 637.*** Such power was, however, given to the Judge Advocate General and a Judicial Council.7 11 Against this background of broad powers of review under military law, Congress began the drafting of the new Uniform Code of Military Justice. Their work culminated, so far as we are here concerned, with Article 66(c), supra. Petitioner finds the language of this section ambiguous and argues that any ambiguity must be resolved in favor of the accused. That would be true if there were ambiguity in the section. But the words are clear. The board may 'affirm * * * such part or amount of the setence, as it finds correct * * *.' That is precisely what the review board did here. It affirmed such part, 20 years, of the sentence, life imprisonment, as it found correct in fact and law for the offense of attempted rape. Were the words themselves unclear, the teachings from the legislative history of the section would compel the same result. 12 The Uniform Code was drafted by a committee chairmanned by Professor Edmund M. Morgan, Jr. In testifying before the Senate Subcommittee which considered the bill, Professor Morgan stated with reference to the review board that it now 13 'has very extensive powers. It may review law, facts, and practically, sentences; because the provisions stipulate that the board of review shall affirm only so much of the sentence as it finds to be justified by the whole record. It gives the board of review * * * the power to review facts, law and sentence * * *.' Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess. 42. 14 Military officials opposed giving the review boards power to alter sentences Id., at 262, 285. The Subcommittee nevertheless decided the boards should have that power. Id., at 311. The Committee Report to the Senate augments the conclusion that the boards of review were to have the power to alter sentences.8 A study of the legislative history of the Code in the House of Representatives leads to the same conclusion. See H.R.Rep. No. 491, 81st Cong., 1st Sess. 31; 95 Cong.Rec. 5729. Article 66 was enacted in the language approved by the committees. It is manifest then that it was the intent of Congress that a board of review should exercise just such authority as was exercised here.9 15 Boards of review have been altering sentences from the inception of the Code provision. These alterations have been attacked but have found approval in the courts as is shown by the list of cases collected in the opinion of Judge Hastie in the Court of Appeals. 234 F.2d, at page 614, note 3. Petitioner objects, however, that the board of review should not have imposed the maximum sentence for attempted rape because the court-martial might have imposed a lesser sentence had it considered the matter initially. But this is an objection that might properly be addressed to Congress. It has laid down the military law and it can take it away or restrict it. The Congress could have required a court-martial to enter a sentence on each separate offense just as is done in the civilian courts. The board of review would then know the attitude of the court-martial as to punishment on each of its findings of guilt. But this the Congress did not do. The argument, therefore, falls since it is based on pure conjecture. No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well. Likewise the apportionment of the sentence that the court-martial intended as between the offenses would be pure speculation.10 But because of the gross sentence procedure in military law we need not concern ourselves with these problems. Military law provides that one aggregate sentence must be imposed and the board of review may modify that sentence in the manner it finds appropriate. To say in this case that a gross sentence was not imposed is to shut one's eyes to the realities of military law and custom. 16 Finally the petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure and the petitioner points to none.11 The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone. See United States v. Keith, 1 U.S.C.M.A. 442, 451, 4 C.M.R. 34, 43 (1952). Even petitioner admits that it would now, six years after the trial, be impractical to attempt to reconvene the court-martial that decided the case originally. A court-martial has neither continuity nor situs and often sits to hear only a single case. Because of the nature of military service, the members of a court-martial may be scattered throughout the world within a short time after a trial is concluded. Recognizing the impossibility of remand to the same court-martial, petitioner suggests as an alternative that the case should be remanded for a rehearing before a new court-martial.12 He admits that it would now be impractical for such a new court-martial to hear all of the evidence, and that the court would have to make its sentence determination on the basis of what it could learn from reading the record. Such a procedure would merely substitute one group of nonparticipants in the original trial for another. Congress thought the board of review could modify sentences when appropriate more expeditiously, more intelligently, and more fairly. Acting on a national basis the board of review can correct disparities in sentences and through its legally-trained personnel determine more appropriately the proper disposition to be made of the cases. Congress must have known of the problems inherent in rehearing and review proceedings for the procedures were adopted largely from prior law. It is not for us to question the judgment of the Congress in selecting the process it chose. 17 Affirmed. 18 Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting. 19 I am unable to see how the action of the Board of Review can fairly be characterized as other than an original imposition of sentence by the Board for the offense of attempted rape. The Uniform Code of Military Justice grants no power to the Board to impose original sentences. 64 Stat. 128, 50 U.S.C. § 653, 50 U.S.C.A. § 653. That power is reserved exclusively to the court-martial. There was, therefore, no valid gross sentence embracing attempted rape upon which the Board's power to remit an excessive portion could operate. I subscribe to what Judge Major said in the similar case of De Coster v. Madigan, 7 Cir., 1955, 223 F.2d 906, 909—910, in which De Coster was allowed habeas corpus and ordered discharged: 20 '* * * While the court-martial obviously had jurisdiction of plaintiff and the offenses with which he was charged, it did not fully and fairly deal with him. The Law Officer instructed the court-martial that the minimum sentence which could be imposed on the murder charge was life imprisonment. But the Law Officer gave no instructions as to the punishment which could be imposed on the attempted rape charge. The court-martial found plaintiff guilty of both murder and attempted rape, but its sentence was life-imprisonment, the minimum sentence for the murder charge alone. Of course, any suggestion that the court-martial should have sentenced plaintiff for a term of life plus twenty years would be ridiculous, but equally so is the assertion that the court-martial did or intended to impose any part of its sentence for attempted rape. It lacked even the necessary instructions upon which such award of punishment would have to be based. Imposition of sentence by the proper authority is an essential step in administration of criminal justice. Here, under the statute, only the court-martial was authorized to take this step; it failed to do so.' 1 The Manual for Courts-Martial, United States (1951), App. 8, at 521, specifically provides, inter alia: 'The court will adjudge a single sentence for all the offenses of which the accused was found guilty.' This sentence is known as an 'aggregate' or 'gross' sentence. A court-martial may not impose separate sentences for each finding of guilt, but may impose only a single, unitary sentence covering all of the guilty findings in their entirety, no matter how many such findings there may be. 2 Carl De Coster, one of the codefendants with petitioner, was released on an order of the Court of Appeals for the Seventh Circuit. See De Coster v. Madigan, 1955, 223 F.2d 906. The other codefendant, Harriel Fowler, was denied release by the Court of Appeals for the Fifth Circuit. See Wilkinson v. Fowler, 1956, 234 F.2d 615. While no petition was filed in the De Coster case, we granted certiorari in both the petitioner's and Fowler's cases. 3 Since this action was filed this section has been revised and recodified as 70A Stat. 59, 10 U.S.C. (Supp. IV) § 866, 10 U.S.C.A. § 866. The changes in language are not pertinent to this case. Other sections of the Uniform Code are cited in the form and source in which they appeared during the course of this litigation. The Uniform Code now appears in 70A Stat. 36—78, 10 U.S.C. (Sup. IV) §§ 801—934, 10 U.S.C.A. §§ 801—934. * Now 50 U.S.C.A. §§ 712, 714. 4 See note 1, supra. 5 For a detailed analysis and history of review powers under military law see Fratcher, Appellate Review in American Military Law, 14 Mo.L.Rev. 15 (1949). 6 Art. 66(a) of the Uniform Code, 64 Stat. 128, 50 U.S.C. § 653(a), 50 U.S.C.A. § 653(a) provides: '(a) The Judge Advocate General of each of the armed forces shall constitute in his office one or more boards of review, each composed of not less than three officers or civilians, each of whom shall be a member of the bar of a Federal court or of the highest court of a State of the United States.' ** Now 50 U.S.C.A. § 653. 7 See Art. of War 51(a), 62 Stat. 638, and Art. of War 49, 62 Stat. 635, now 50 U.S.C.A. § 661 and § 653. *** Now 50 U.S.C.A. § 653(c). 8 'The Board of Review shall affirm a finding of guilty of an offense or a lesser included offense * * * if it determines that the finding conforms to the weight of the evidence and that there has been no error of law which materially prejudices the substantial rights of the accused. * * * The Board may set aside, on the basis of the record, any part of a sentence, either because it is illegal or because it is inappropriate. It is contemplated that this power will be exercised to establish uniformity of sentences throughout the armed forces.' S.Rep. No. 486, 81st Cong., 1st Sess. 28. 9 Commentators have recognized this power of sentence review since the enactment of the Code. See, e.g., Currioer and of the Code. See, e.g., Currier and Armed Services, 6 Vand.L.Rev. 241 (1953). 'The greatest single change brought about in the powers and duties of the boards of review by the Uniform Code of Military Justice is the power of the board to affirm only so much of the sentence in a given case as it finds appropriate.' Id., at 242. See also 65 Yale L.J. 413. 10 Petitioner complains that the 20-year sentence for attempted rape was excessive. He argues that because the court-martial gave him the minimum sentence for premeditated murder, it would not have given the maximum sentence for attempted rape. We need not speculate on what the court-martial would have done, nor will we interfere with the discretion exercised by the board of review. It held that in the 'vicious circumstances of this case,' 20 years was an appropriate sentence. Furthermore, since the sentence was legally imposed, its severity is not reviewable on habeas corpus in the civil courts. Carter v. McClaughry, 1902, 183 U.S. 365, 401, 22 S.Ct. 181, 195, 46 L.Ed. 236. 11 The United States Court of Military Appeals in United States v. Field, 5 U.S.C.M.A. 379, 18 C.M.R. 3 (1955), hesitatingly suggested in dictum that a convening authority might return a case to a court-martial solely for the purpose of a reassessment of sentence on the findings of guilt affirmed by him. The court indicated that such a practice would be unlikely for 'obvious and compelling reasons of a practical character.' Id., at 385, 18 C.M.R., at 9. It explicitly refused to express an opinion concerning the desirability of the practice. There, of course, was no suggestion that the practice was mandatory for the convening authority has, just as has the board of review, the power to modify a sentence to make it appropriate. See also United States v. Voorhees, 4 U.S.C.M.A. 509, 543, 16 C.M.R. 83, 117 (1954). 12 It is well to point out that the Uniform Code permits the convening authority under limited circumstances to return a case for 'reconsideration and revision' to a court-martial composed of 'only * * * the members of the court who participated in the findings and sentence.' See Art. 62 of the Uniform Code, 64 Stat. 127, 50 U.S.C. § 649, 50 U.S.C.A. § 649, and Manual for Courts-Martial, United States (1951), at 130. This would be impossible after the passage of time in nearly every case since the original court-martial could not be reassembled. On the other hand, if resentencing is a limited type of rehearing, the Uniform Code requires the rehearing to 'take place before a court-martial composed of members not members of the court-martial which first heard the case.' (Emphasis added.) Art. 63 of the Uniform Code, 64 Stat. 127, 50 U.S.C. § 650, 50 U.S.C.A. § 650. Such a court-martial would be no more capable—if as capable—as a board of review.

12

353 U.S. 586 77 S.Ct. 872 1 L.Ed.2d 1057 UNITED STATES of America, Appellant,v.E. I. DU PONT DE NEMOURS AND COMPANY et al. No. 3. Argued Nov. 14, 15, 1956. Decided June 3, 1957. Mr. [Syllabus from pages 586-587 intentionally omitted] Mr. John F. Davis, Washington, D.C., for the appellant. Mr. Hugh B. Cox, Washington, D.C., for the appellee E. I. du Pont de Nemours and Co. Mr. Robert L. Stern, Chicago, Ill., for the appellee General Motors Corporation. Mr. Justice BRENNAN delivered the opinion of the Court. 1 This is a direct appeal under § 2 of the Expediting Act1 from a judgment of the District Court for the Northern District of Illinois,2 dismissing the Government's action brought in 1949 under § 15 of the Clayton Act.3 The complaint alleged a violation of § 7 of the Act4 resulting from the purchase by E. I. du Pont de Nemours and Company in 1917—1919 of a 23% stock interest in General Motors Corporation. This appeal is from the dismissal of the action as to du Pont, General Motors and the corporate holders of large amounts of du Pont stock, Christiana Securities Corporation and Delaware Realty & Investment Company.5 2 The primary issue is whether du Pont's commanding position as General Motors' supplier of automotive finishes and fabrics was achieved on competitive merit alone, or because its acquisition of the General Motors' stock, and the consequent close intercompany relationship, led to the insulation of most of the General Motors' market from free competition, with the resultant likelihood, at the time of suit, of the creation of a monopoly of a line of commerce. 3 The first paragraph of § 7, pertinent here, provides: 4 'That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.'6 5 Section 7 is designed to arrest in its incipiency not only the substantial lessening of competition from the acquisition by one corporation of the whole or any part of the stock of a competing corporation, but also to arrest in their incipiency restraints or monopolies in a relevant market which, as a reasonable probability, appear at the time of suit likely to result from the acquisition by one corporation of all or any part of the stock of any other corporation. The section is violated whether or not actual restraints or monopolies, or the substantial lessening of competition, have occurred or are intended. Acquisitions solely for investment are excepted, but only if, and so long as, the stock is not used by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. 6 We are met at the threshold with the argument that § 7, before its amendment in 1950, applied only to an acquisition of the stock of a competing corporation, and not to an acquisition by a supplier corporation of the stock of a customer corporation—in other words, that the statute applied only to horizontal and not to vertical acquisitions. This is the first case presenting the question in this Court. International Shoe Co. v. Federal Trade Comm., 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431, and Thatcher Mfg. Co. v. Federal Trade Comm., 272 U.S. 554, 47 S.Ct. 175, 71 L.Ed. 405, involved corporate acquisitions of stock of competitors. 7 During the 35 years before this action was brought, the Government did not invoke § 7 against vertical acquisitions. The Federal Trade Commission has said that the section did not apply to vertical acquisitions. See F.T.C., Report on Corporate Mergers and Acquisitions, 168 (1955), H.R.Doc.No. 169, 84th Cong., 1st Sess. Also, the House Committee considering the 1950 revision of § 7 stated that '* * * it has been thought by some that this legislation (the 1914 Act) applies only to the so-called horizontal mergers. * * *' H.R.Rep. No. 1191, 81st Cong., 1st Sess. 11. The House Report adds, however, that the 1950 amendment was purposed '* * * to make it clear that the bill applies to all types of mergers and acquisitions, vertical and conglomerate as well as horizontal * * *.' (Emphasis added.) 8 This Court has the duty to reconcile administrative interpretations with the broad antitrust policies laid down by Congress. Cf. Automatic Canteen Co. of America v. Federal Trade Comm., 346 U.S. 61, 74, 73 S.Ct. 1017, 1024, 97 L.Ed. 1454. The failure of the Commission to act is not a binding administrative interpretation that Congress did not intend vertical acquisitions to come within the purview of the Act. Accord, Baltimore & Ohio R. Co. v. Jackson, 353 U.S. 325, 331, 77 S.Ct. 842. 9 The first paragraph of § 7, written in the disjunctive, plainly is framed to reach not only the corporate acquisition of stock of a competing corporation, where the effect may be substantially to lessen competition between them, but also the corporate acquisition of stock of any corporation, competitor or not, where the effect may be either (1) to restrain commerce in any section or community, or (2) tend to create a monopoly of any line of commerce. The amended complaint does not allege that the effect of du Pont's acquisition may be to restrain commerce in any section or community but alleges that the effect was '* * * to tend to create a monopoly in particular lines of commerce * * *.' 10 Section 7 contains a second paragraph dealing with a holding company's acquisition of stock in two or more corporations.7 Much of the legislative history of the section deals with the alleged holding company evil.8 This history does not aid in interpretation because our concern here is with the first paragraph of the section. There is, however, pertinent legislative history which does aid and support our construction. 11 Senator Chilton, one of the Senate Managers of the bill, explained that the House conferees insisted that to prohibit just the acquisitions where the effect was 'substantially' to lessen competition would not accomplish the designed aim of the statute, because 'a corporation might acquire the stock of another corporation, and there would be no lessening of competition, but the tendency might be to create monopoly or to restrain trade or commerce.' 'Therefore,' said Senator Chilton, 'there was added * * * the following: 'Or to restrain such commerce in any section or community or tend to create a monopoly of any line of commerce."9 This construction of the section, as embracing three separate and distinct effects of a stock acquisition, has also been recognized by a number of federal courts.10 12 We hold that any acquisition by one corporation of all or any part of the stock of another corporation, competitor or not, is within the reach of the section whenever the reasonable likelihood appears that the acquisition will result in a restraint of commerce or in the creation of a monopoly of any line of commerce. Thus, although du Pont and General Motors are not competitors, a violation of the section has occurred if, as a result of the acquisition, there was at the time of suit a reasonable likelihood of a monopoly of any line of commerce. Judge Maris correctly stated in Transamerica Corp. v. Board of Governors, 3 Cir., 206 F.2d 163, 169: 13 'A monopoly involves the power to * * * exclude competition when the monopolist desires to do so. Obviously, under Section 7 it was not necessary * * * to find that * * * (the defendant) has actually achieved monopoly power but merely that the stock acquisitions under attack have brought it measurably closer to that end. For it is the purpose of the Clayton Act to nip monopoly in the bud. Since by definition monopoly involves the power to eliminate competition a lessening of competition is clearly relevant in the determination of the existence of a tendency to monopolize. Accordingly in order to determine the existence of a tendency to monopoly in * * * any * * * line of business the area or areas of existing effective competition in which monopoly power might be exercised must first be determined * * *.' 14 Appellees argue that there exists no basis for a finding of a probable restraint or monopoly within the meaning of § 7 because the total General Motors market for finishes and fabrics constituted only a negligible percentage of the total market for these materials for all uses, including automotive uses. It is stated in the General Motors brief that in 1947 du Pont's finish sales to General Motors constituted 3.5% of all sales of finishes to industrial users, and that its fabrics sales to General Motors comprised 1.6% of the total market for the type of fabric used by the automobile industry. 15 Determination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition 'within the area of effective competition.'11 Substantiality can be determined only in terms of the market affected. The record shows that automotive finishes and fabrics have sufficient peculiar characteristics and uses to constitute them products sufficiently distinct from all other finishes and fabrics12 to make them a 'line of commerce' within the meaning of the Clayton Act. Cf. Van Camp & Sons Co. v. American Can Co., 278 U.S. 245, 49 S.Ct. 112, 13 L.Ed. 311.13 Thus, the bounds of the relevant market for the purposes of this case are not coextensive with the total market for finishes and fabrics, but are coextensive with the automobile industry, the relevant market for automotive finishes and fabrics.14 16 The market affected must be substantial. Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 357, 42 S.Ct. 360, 362, 66 L.Ed. 653. Moreover, in order to establish a violation of § 7 the Government must prove a likelihood that competition may be 'foreclosed in a substantial share of * * * (that market).'15 Both requirements are satisfied in this case. The substantiality of a relevant market comprising the automobile industry is undisputed. The substantiality of General Motors' share of that market is fully established in the evidence. 17 General Motors is the colossus of the giant automobile industry. It accounts annually for upwards of two fifths of the total sales of automotive vehicles in the nation.16 In 1955 General Motors ranked first in sales and second in assets among all United States industrial corporations17 and became the first corporation to earn over a billion dollars in annual net income.18 In 1947 General Motors' total purchases of all products from du Pont were $26,628,274, of which $18,938,229 (71%) represented purchases from du Pont's Finishes Division. Of the latter amount purchases of 'Duco'19 and the thinner used to apply 'Duco' totaled $12,224,798 (65%), and 'Dulix'20 purchases totaled $3,179,225. Purchases by General Motors of du Pont fabrics in 1948 amounted to $3,700,000, making it the largest account of du Pont's Fabrics Division. Expressed in percentages, du Pont supplied 67% of General Motors' requirements for finishes in 1946 and 68% in 1947.21 In fabrics du Pont supplied 52.3% of requirements in 1946, and 38.5% in 1947.22 Because General Motors accounts for almost one-half of the automobile industry's annual sales, its requirements for automotive finishes and fabrics must represent approximately one-half of the relevant market for these materials. Because the record clearly shows that quantitatively and percentagewise du Pont supplies the largest part of General Motors' requirements, we must conclude that du Pont has a substantial share of the relevant market. 18 The appellees argue that the Government could not maintain this action in 1949 because § 7 is applicable only to the acquisition of stock and not to the holding or subsequent use of the stock. This argument misconceives the objective toward which § 7 is directed. The Clayton Act was intended to supplement the Sherman Act.23 Its aim was primarily to arrest apprehended consequences of inter corporate relationships before those relationships could work their evil, which may be at or any time after the acquisition, depending upon the circumstances of the particular case. The Senate declared the objective of the Clayton Act to be as follows: 19 '* * * Broadly stated, the bill, in its treatment of unlawful restraints and monopolies, seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the Act of July 2, 1890 (the Sherman Act), or other existing anti-trust acts, and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency and before consummation. * * *' S.Rep. No. 698, 63d Cong., 2d Sess. 1. (Emphasis added.) 20 'Incipiency' in this context denotes not the time the stock was acquired, but any time when the acquisition threatens to ripen into a prohibited effect. See Transamerica Corp. v. Board of Governors, 3 Cir., 206 F.2d 163, 166. To accomplish the congressional aim, the Government may proceed at any time that an acquisition may be said with reasonable probability to contain a threat that it may lead to a restraint of commerce or tend to create a monopoly of a line of commerce.24 Even when the purchase is solely for investment, the plain language of § 7 contemplates an action at any time the stock is used to bring about, or in attempting to bring about, the substantial lessening of competition.25 21 Prior cases under § 7 were brought at or near the time of acquisition. See, e.g., International Shoe Co. v. Federal Trade Comm., 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431; V. Vivaudou, Inc., v. Federal Trade Comm., 2 Cir., 54 F.2d 273; Federal Trade Comm. v. Thatcher Mfg. Co., 3 Cir., 5 F.2d 615, reversed in part on another ground, 272 U.S. 554, 47 S.Ct. 175, 71 L.Ed. 405; United States v. Republic Steel Corp., D.C., 11 F.Supp. 117; In re Vanadium-Alloys Steel Co., 18 F.T.C. 194. None of these cases holds, or even suggests, that the Government is foreclosed from bringing the action at any time when a threat of the prohibited effects is evident. 22 Related to this argument is the District Court's conclusion that 30 years of nonrestraint negated 'any reasonable probability of such a restraint' at the time of the suit.26 While it is, of course, true that proof of a mere possibility of a prohibited restraint or tendency to monopoly will not establish the statutory requirement that the effect of an acquisition 'may be' such restraint or tendency,27 the basic facts found by the District Court demonstrate the error of its conclusion.28 23 The du Pont Company's commanding position as a General Motors supplier was not achieved until shortly after its purchase of a sizable block of General Motors stock in 1917.29 At that time its production for the automobile industry and its sales to General Motors were relatively insignificant. General Motors then produced only about 11% of the total automobile production and its requirements, while relatively substantial, were far short of the proportions they assumed as it forged ahead to its present place in the industry. 24 At least 10 years before the stock acquisition, the du Pont Company, for over a century the manufacturer of military and commercial explosives, had decided to expand its business into other fields. It foresaw the loss of its market for explosives after the United States Army and Navy decided in 1908 to construct and operate their own plants. Nitrocellulose, a nitrated cotton, was the principal raw material used in du Pont's manufacture of smokeless powder. A search for outlets for this raw material uncovered requirements in the manufacture of lacquers, celluloid, artificial leather and artificial silk. The first step taken was the du Pont purchase in 1910 of the Fabrikoid Company, then the largest manufacturer of artificial leather, reconstituted as the du Pont Fabrikoid Company in 1913. 25 The expansion program was barely started, however, when World War I intervened. The du Pont Company suddenly found itself engulfed with orders for military explosives from foreign nations later to be allies of the United States in the war, and it had to increase its capacity and plant facilities from 700,000 to 37,000,000 pounds per month at a cost exceeding $200,000,000. Profits accumulated and ultimately amounted to $232,000,000. The need to find postwar uses for its expanded facilities and organization now being greater than ever, du Pont continued its expansion program during the war years, setting aside $90,000,000 for the purpose. In September 1915, du Pont bought the Arlington Works, one of the Nation's two largest celluloid companies. In June 1916, the Fairfield Rubber Company, producers of rubber-coated fabrics for automobile and carriage tops, was taken over by du Pont Fabrikoid. In March 1917, purchase was made of Harrison Brothers and Company, manufacturers of paint, varnish, acids and certain inorganic chemicals used in paint manufacture. Shortly afterwards, Harrison absorbed Beckton Chemical Company, a color manufacturer, and, also in 1917, the Bridgeport Wood Finishing Company, a varnish manufacturer. 26 Thus, before the first block of General Motors stock was acquired, du Pont was seeking markets not only for its nitrocellulose, but also for the artificial leather, celluloid, rubber-coated goods, and paints and varnishes in demand by automobile companies. In that connection, the trial court expressly found that '* * * reports and other documents written at or near the time of the investment show what du Pont's representatives were well aware that General Motors was a large consumer of products of the kind offered by du Pont,' and that John J. Raskob, du Pont's treasurer and the principal promoter of theinvestment, 'for one, thought that du Pont would ultimately get all that business * * *.'30 27 The Company's interest in buying into General Motors was stimulated by Raskob and Pierre S. du Pont, then du Pont's president, who acquired personal holdings of General Motors stock in 1914. General Motors was organized six years earlier by William C. Durant to acquire previously independent automobile manufacturing companies—Buick, Cadillac, Oakland and Oldmobile. Durant later brought in Chevrolet, organized by him when he was temporarily out of power, during 1910—1915, and a bankers' group controlled General Motors. In 1915, when Durant and the bankers deadlocked on the choice of a Board of Directors, they resolved the deadlock by an agreement under which Pierre S. du Pont was named Chairman of the General Motors Board, and Pierre S. du Pont, Raskob and two nominees of Mr. du Pont were named neutral directors. By 1916, Durant settled his differences with the bankers and resumed the presidency and his controlling position in General Motors. He prevailed upon Pierre S. du Pont and Raskob to continue their interest in General Motors' affairs, which both did as members of the Finance Committee, working closely with Durant in matters of finances and operations and plans for future expansion. Durant persistently urged both men and the 'Wilmington people, as he called it,'31 to buy more stock in General Motors. 28 Finally, Raskob broached to Pierre S. du Pont the proposal that part of the fund earmarked for du Pont expansion be used in the purchase of General Motors stock. At this time about $50,000,000 of the $90,000,000 fund was still in hand. Raskob foresaw the success of the automobile industry and the opportunity for great profit in a substantial purchase of General Motors stock. On December 19, 1917, Raskob submitted a Treasurer's Report to the du Pont Finance Committee recommending a purchase of General Motors stock in the amount of $25,000,000. That report makes clear that more than just a profitable investment was contemplated. A major consideration was that an expanding General Motors would provide a substantial market needed by the burgeoning du Pont organization. Raskob's summary of reasons in support of the purchase includes this statement: 'Our interest in the General Motors Company will undoubtedly secure for us the entire Fabrikoid, Pyralin (celluloid), paint and varnish business of those companies, which is a substantial factor.' (Emphasis added.)32 29 This thought, that the purchase would result in du Pont's obtaining a new and substantial market, was echoed in the Company's 1917 and 1918 annual reports to stockholders. In the 1917 report appears: 'Though this is a new line of activity, it is one of great promise and one that seems to be well suited to the character of our organization. The motor companies are very large consumers of our Fabrikoid and Pyralin as well as paints and varnishes.' (Emphasis added.) The 1918 report says: 'The consumption of paints, varnishes and fabrikoid in the manufacture of automobiles gives another common interest.' 30 This background of the acquisition, particularly the plain implications of the contemporaneous documents, destroys any basis for a conclusion that the purchase was made 'solely for investment.' Moreover, immediately after the acquisition, du Pont's influence growing out of it was brought to bear within General Motors to achieve primacy for du Pont as General Motors' supplier of automotive fabrics and finishes. 31 Two years were to pass before du Pont's total purchases of General Motors stock brought its percentage to 23% of the outstanding stock and its aggregate outlay to $49,000,000. During that period, du Pont and Durant worked under an arrangement giving du Pont primary responsibility for finances and Durant the responsibility for operations. But J. A. Haskell, du Pont's former sales manager and vice-president, became the General Motors vice-president in charge of the operations committee. The trial judge said that Haskell '* * * was willing to undertake the responsibility of keeping du Pont informed of General Motors affairs during Durant's regime * * *.'33 32 Haskell frankly and openly set about gaining the maximum share of the General Motors market for du Pont. In a contemporaneous 1918 document, he reveals his intention to 'pave the way for perhaps a more general adoption of our material,' and that he was thinking 'how best to get cooperation (from the several General Motors Divisions) whereby makers of such of the low priced cars as it would seem possible and wise to get transferred will be put in the frame of mind necessary for its adoption (du Pont's artificial leather).' 33 Haskell set up lines of communication within General Motors to be in a position to know at all times what du Pont products and what products of du Pont competitors were being used. It is not pure imagination to suppose that such surveillance from that source made an impressive impact upon purchasing officials. It would be understandably difficult for them not to interpret it as meaning that a preference was to be given to du Pont products. Haskell also actively pushed the program to substitute Fabrikoid artificial leathers for genuine leather and sponsored use of du Pont's Pyralin sheeting through a liaison arrangement set up between himself and the du Pont sales organization. 34 Thus sprung from the barrier, du Pont quickly swept into a commanding lead over its competitors, who were never afterwards in serious contention. Indeed, General Motors' then principal paint supplier, Flint Varnish and Chemical Works, early in 1918 saw the handwriting on the wall. The Flint president came to Durant asking to be bought out, telling Durant, as the trial judge found, that he 'knew du Pont had bought a substantial interest in General Motors and was interested in the paint industry; that * * * (he) felt he would lose a valuable customer, General Motors.'34 The du Pont Company bought the Flint Works and later dissolved it. 35 In less than four years, by August 1921, Lammot du Pont, then a du Pont vice-president and later Chairman of the Board of General Motors, in response to a query from Pierre S. du Pont, then Chairman of the Board of both du Pont and General Motors, 'whether General Motors was taking its entire requirements of du Pont products from du Pont,' was able to reply that four of General Motors' eight operating divisions bought from du Pont their entire requirements of paints and varnishes, five their entire requirements of Fabrikoid, four their entire requirements of rubber cloth, and seven their entire requirements of Pyralin and celluloid. Lammot du Pont quoted du Pont's sales department as feeling that 'the condition is improving and that eventually satisfactory conditions will be established in every branch, but they wouldn't mind seeing things going a little faster.' Pierre S. du Pont responded that 'with the change of management at Cadillac, Oakland and Olds (Cadillac was taking very little paints and varnishes, and Oakland but 50%; Olds was taking only part of its requirements for fabrikoid), I believe that you should be able to sell substantially all of the paint, varnish and fabrikoid products needed.' He also suggested that 'a drive should be made for the Fisher Body business. Is there any reason why they have not dealt with us?' 36 Fisher Body was stubbornly resistant to du Pont sales pressure. General Motors, in 1920, during Durant's time, acquired 60% stock control of Fisher Body Company. However, a voting trust was established giving the Fisher brothers broad powers of management. They insisted on running their own show and for years withstood efforts of high-ranking du Pont and General Motors executives to get them to switch to du Pont from their accustomed sources of supply. Even after General Motors obtained 100% stock control in 1926, the Fisher brothers retained sufficient power to hold out. By 1947 and 1948, however, Fisher resistance had collapsed, and the proportions of its requirements supplied by du Pont compared favorably with the purchases by other General Motors Divisions. 37 In 1926, the du Pont officials felt that too much General Motors business was going to its competitors. When Pierre S. du Pont and Raskob expressed surprise, Lammot du Pont gave them a breakdown, by dollar amounts, of the purchases made from du Pont's competitors. This breakdown showed, however, that only Fisher Body of the General Motors divisions was obtaining any substantial proportion of its requirements from du Pont's competitors. 38 Competitors did obtain higher percentages of the General Motors business in later years, although never high enough at any time substantially to affect the dollar amount of du Pont's sales. Indeed, it appears likely that General Motors probably turned to outside sources of supply at least in part because its requirements outstripped du Pont's production, when General Motors' proportion of total automobile sales grew greater and the company took its place as the sales leader of the automobile industry. For example, an undisputed Government exhibit shows that General Motors took 93% of du Pont's automobile Duco production in 1941 and 83% in 1947. 39 The fact that sticks out in this voluminous record is that the bulk of du Pont's production has always supplied the largest part of the requirements of the one customer in the automobile industry connected to du Pont by a stock interest. The inference is overwhelming that du Pont's commanding position was promoted by its stock interest and was not gained solely on competitive merit. 40 We agree with the trial court that considerations of price, quality and service were not overlooked by either du Pont or General Motors. Pride in its products and its high financial stake in General Motors' success would naturally lead du Pont to try to supply the best. But the wisdom of this business judgment cannot obscure the fact, plainly revealed by the record, that du Pont purposely employed its stock to pry open the General Motors market to entrench itself as the primary supplier of General Motors' requirements for automotive finishes and fabrics.35 41 Similarly, the fact that all concerned in high executive posts in both companies acted honorably and fairly, each in the honest conviction that his actions were in the best interests of his own company and without any design to overreach anyone, including du Pont's competitors, does not defeat the Government's right to relief. It is not requisite to the proof of a violation of § 7 to show that restraint or monopoly was intended. 42 The statutory policy of fostering free competition is obviously furthered when no supplier has an advantage over his competitors from an acquisition of his customer's stock likely to have the effects condemned by the statute. We repeat, that the test of a violation of § 7 is whether, at the time of suit, there is a reasonable probability that the acquisition is likely to result in the condemned restraints. The conclusion upon this record is inescapable that such likelihood was proved as to this acquisition. The fire that was kindled in 1917 continues to smolder. It burned briskly to forge the ties that bind the General Motors market to du Pont, and if it has quieted down, it remains hot, and, from past performance, is likely at any time to blaze and make the fusion complete.36 43 The judgment must therefore be reversed and the cause remanded to the District Court for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute. The District Courts, in the framing of equitable decrees, are clothed 'with large discretion to model their judgments to fit the exigencies of the particular case.' International Salt Co. v. United States, 332 U.S. 392, 400—401, 68 S.Ct. 12, 17, 92 L.Ed. 20. 44 The motion of the appellees Christiana Securities Company and Delaware Realty and Investment Company for dismissal of the appeal as to them is denied. It seems appropriate that they be retained as parties pending determination by the District Court of the relief to be granted. 45 It is so ordered. 46 Judgment reversed and cause remanded with directions. 47 Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 48 Mr. Justice BURTON, whom Mr. Justice FRANKFURTER joins, dissenting. 49 In June 1949, the United States brought this civil action in the United States District Court for the Northern District of Illinois under § 4 of the Sherman Act and § 15 of the Clayton Act to enjoin alleged violations of §§ 1 and 2 of the Sherman Act, and § 7 of the Clayton Act.* The amended complaint, insofar as pertinent to the issues here, alleged that du Pont and General Motors have been engaged, since 1915, in a combination and conspiracy to restrain and monopolize interstate trade, and that du Pont's acquisition of General Motors' stock had the effect of restraining trade and tending to create a monopoly. In brief it was alleged that, by means of the relationship between du Pont and General Motors, du Pont intended to obtain, and did obtain, an illegal preference over its competitors in the sale to General Motors of its products, and a further illegal preference in the development of chemical discoveries made by General Motors. Appellees denied the charges. 50 The trial of these issues took nearly seven months. The District Court heard 52 witnesses, including most of the principal actors, and received over 2,000 exhibits. The evidence contained in the 8,283-page transcript of record covers in minute and intimate detail the facts bearing on the Government's charge that du Pont, by coercion, agreement, control or influence, had interfered unlawfully with General Motors' purchasing and manufacturing policies. On the basis of this evidence, the District Court found that the Government had failed to prove its case and, specifically, that (a) du Pont did not control General Motors, (b) there had been 'no limitation or restraint upon General Motors' freedom to deal freely and fully with competitors of du Pont' or upon its 'freedom * * * to deal with its chemical discoveries,' and (c) after 30 years in which no such restraint had resulted, there was no 'basis for a finding that there is or has been any reasonable probability of such a restraint within the meaning of the Clayton Act.' 126 F.Supp. 235, 335. 51 The Government's basic contention in this Court is that du Pont violated §§ 1 and 2 of the Sherman Act in that, by means of its alleged control of General Motors, it obtained an unlawful preference with respect to General Motors' purchases of materials. In the closing pages of its brief, and for a few minutes in its oral argument, the Government added the assertion that du Pont had violated § 7 of the Clayton Act in that its stock interest in General Motors 'has been used to channel General Motors' purchases to du Pont.' 52 This Court, ignoring the Sherman Act issues which have been the focal point of eight years of litigation, now holds that du Pont's acquisition of a 23% stock interest in General Motors during the years 1917—1919 violates § 7 of the Clayton Act because 'at the time of suit (in 1949) there (was) a reasonable probability that the acquisition (was) likely to result in the condemned restraints.' 353 U.S. 607, 77 S.Ct. 883. In reaching this conclusion, the Court holds (1) that § 7 of the Clayton Act applies to vertical as well as horizontal stock acquisitions; (2) that in determining whether the effect of the stock acquisition is such as to constitute a restraint within § 7, the time chosen by the Government in bringing the action is controlling rather than the time of the acquisition itself; and (3) that § 7 is violated when, at the time of suit, there is a reasonable probability that the stock acquisition is likely to result in the foreclosure of competitors of the acquiring corporation from a substantial share of the relevant market. 53 In applying these principles to this case, the Court purports to accept the carefully documented findings of fact of the District Court. Actually, it overturns numerous well-supported findings of the District Court by now concluding that du Pont did not purchase General Motors' stock solely for investment; that du Pont's stock interest resulted in practical or working control of General Motors; that du Pont has used or might use this 'control' to secure preferences in supplying General Motors with automobile finishes and fabrics; that the relevant market includes only automobile finishes and fabrics; and that there was, even at the time of suit in 1949, a reasonable probability that du Pont's competitors might be foreclosed from a substantial share of this relevant market. 54 The Court's decision is far reaching. Although § 7 of the Clayton Act was enacted in 1914—over 40 years ago—this is the first case in which the United States or the Federal Trade Commission has sought to apply it to a vertical integration.1 Likewise, this appears to be the first case in which it ever has been argued that § 7 is applicable to a stock acquisition which took place many years before.2 The Court, in accepting both of these contentions, disregards the language and purpose of the statute, 40 years of administrative practice, and all the precedents except one District Court decision. The sweeping character of the Court's pronouncement is further evident from the fact that to make its case the Court requires no showing of any misuse of a stock interest—either at the time of acquisition or subsequently—to gain preferential treatment from the acquired corporation. All that is required, if this case is to be our guide, is that some court in some future year be persuaded that a 'reasonable probability' then exists that an advantage over competitors in a narrowly construed market may be obtained as a result of the stock interest. Thus, over 40 years after the enactment of the Clayton Act, it now becomes apparent for the first time that § 7 has been a sleeping giant all along. Every corporation which has acquired a stock interest in another corporation after the enactment of the Clayton Act in 1914, and which has had business dealings with that corporation is exposed, retroactively, to the bite of the newly discovered teeth of § 7. 55 For the reasons given below, I believe that the Court has erred in (1) applying s 7 to a vertical acquisition; (2) holding that the time chosen by the Government in bringing the action is controlling rather than the time of the stock acquisition itself; and (3) concluding, in disregard of the findings of fact of the trial court, that the facts of this case fall within its theory of illegality. I. 56 Section 7 of the Clayton Act, quoted in full in the Appendix, 353 U.S. 655, 656, 77 S.Ct. 909, does not make unlawful all intercorporate acquisitions and mergers.3 It does not apply to acquisitions of physical assets.4 It applies only to certain acquisitions of stock, and even then with important exceptions. The first paragraph of § 7, which is the statutory provision primarily involved in this case, provides— 57 'That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.' 38 Stat. 731—732, 15 U.S.C. (1946 ed.) § 18, 15 U.S.C.A. § 18. 58 This paragraph makes unlawful only those intercorporate stock acquisitions which may result in any of three effects: (1) substantially lessen competition between the acquiring the acquired corporations; (2) restrain commerce in any section or community; or (3) tend to create a monopoly of any line of commerce. The Government concedes that General Motors and du Pont have never been in competition with each other. Since the substantially lessen competition clause applies only to acquisitions involving competing corporations (generally referred to as horizontal acquisitions), that clause concededly is not applicable to this case. The questions before us are whether the other unlawful effects, namely, restraint of commerce in any section or community and tendency to create a monopoly of any line of commerce, are applicable to this case, and, if so, whether the 1917—1919 acquisition of General Motors' stock by du Pont resulted or may result in either of those unlawful effects. 59 Section 7 never has been authoritatively interpreted as prohibiting the acquisition of stock in a corporation that is not engaged in the same line of business as the acquiring corporation. Although the language of the Act is ambiguous, the relevant legislative history, administrative practice, and judicial interpretation support the conclusion that § 7 does not apply to vertical acquisitions. 60 The report of the House Committee on the Judiciary, presented by Representative Clayton, stated emphatically that the provisions relating to stock acquisitions by corporations, which originally appeared as § 8 of the bill, were intended to eliminate the evils of holding companies. H.R. Rep. No. 627, 63d Cong., 2d Sess. 17. Although a 'holding company' was defined as 'a company that holds the stock of another company or companies,' the one 'evil' referred to was that a holding company 'is a means of holding under one control the competing companies whose stocks it has thus acquired.' (Emphasis supplied.) Ibid. Two minority statements appended to the House Report evidence a similar understanding that the provisions of the bill were limited to competing corporations. Id., Pt. 2, p. 6; Pt. 3, p. 8. The substance of the House Report was adopted by the Senate Committee on the Judiciary in its report on the bill. S.Rep. No. 698, 63d Cong., 2d Sess. 13, 43, 46. 61 The extensive debates on the bill in each House of Congress contain many detailed discussions of the provisions relating to intercorporate stock acquisitions. These discussions are devoid of any suggestion that the provisions were to apply to vertical acquisitions.5 On the contrary, these provisions of the bill were repeatedly described as prohibiting the acquisition of stock of competing companies.6 The one specific reference to a vertical acquisition during the entire debate on these provisions ended with a flat statement by Senator Reed to the effect that the bill as then written (containing the tendency toward monopoly clause but not the restraint of commerce clause) would not prevent a steel manufacturing corporation from acquiring stock in an ore producing corporation, a classic type of vertical integration.7 A reading of the legislative history of the bill leaves the distinct impression that intercorporate relationships between buyers and sellers which resulted in non-competitive preferences were intended to be dealt with exclusively by the provision forbidding interlocking directorates (§ 8 of the Clayton Act, 15 U.S.C.A. § 19), if not covered by the specific prohibitions of certain price discriminations (§ 2, 15 U.S.C.A. § 13), and of certain exclusive selling or leasing contracts (§ 3, 15 U.S.C.A. § 14).8 62 Forty years of administrative practice provide additional support for this view. Neither the Department of Justice nor the Federal Trade Commission, the two principal enforcing agencies, has brought any action under old § 7 (other than the instant case) that has not involved a stock acquisition in allegedly competing corporations. The Federal Trade Commission repeatedly has declared its understanding that § 7, prior to its amendment in 1950, applied only to competing corporations.9 In a recent report it stated without qualification: 63 'While the 1914 act applied solely to horizontal mergers, the 1950 act applies not only to horizontal acquisitions but to vertical and conglomerate acquisitions which might substantially lessen competition or tend to create a monopoly.' F.T.C. Report on Corporate Mergers and Acquisitions (May 1955), 168, H.R.Doc.No. 169, 84th Cong., 1st Sess. 64 Beginning in 1927, the Federal Trade Commission included in its annual recommendations to Congress a request that § 7 be amended to remedy its inadequacies. This result was achieved in 1950. 64 Stat. 1125, 15 U.S.C. § 18, 15 U.S.C.A. § 18. As the Court recognizes in its opinion, 353 U.S. 590, 77 S.Ct. 875, one of the reasons for amending § 7 in 1950 was, in the words of the House Report on the amendments, 'to make is clear that the bill applies to all types of mergers and acquisitions, vertical and conglomerate as well as horizontal * * *.' H.R.Rep.No. 1191, 81st Cong., 1st Sess. 11. Forty years of established administrative practice, acquiesced in and recognized by Congress, is persuasive evidence of the proper scope of § 7. Federal Trade Commission v. Bunte Bros., Inc., 312 U.S. 349, 351—352, 61 S.Ct. 580, 581, 582, 85 L.Ed. 881. 65 The cases cited by the Court, with the one exception of Ozdoba (Ronald Fabrics Co.) v. Verney Brunswick Mills, Inc., D.C.S.D.N.Y.1946, 152 F.Supp. 136,10 do not support the Court's conclusion that § 7 applies to a vertical acquisition. In Aluminum Co. of America v. Federal Trade Commission, 3 Cir., 1922, 284 F. 401, the Aluminum Company, which previously had had a monopoly of all sheet aluminum produced in the United States, acquired control through an intermediary corporation of a competing sheet aluminum company established in 1916. A divestiture order of the Federal Trade Commission was upheld, the court holding that the stock acquisition substantially lessened competition and tended to create a monopoly of the sheet aluminum business. In United States v. New England Fish Exchange, D.C.Mass.1919, 258 F. 732, two holding companies which had acquired the stock of virtually all the wholesale fish dealers trading on the New England Fish Exchange, which handled about 95% of all the ground fish sold in interstate commerce in the United States, were held to have violated the provisions of § 7. Each of these cases was concerned with the acquisition of directly competing corporations—not vertical acquisitions. Statements in the opinions, not essential to the decisions, merely stand for the proposition that the restraint and monopoly clauses of § 7 are not entirely synonymous with the substantially lessen competition clause. 66 Assuming that the three unlawful effects mentioned in § 7 are not entirely synonymous with each other,11 such an assumption does not require the conclusion that § 7 was intended to apply to vertical acquisitions as well as to horizontal acquisitions. Corporations engaged in the same business activity in different areas do not necessarily 'compete' with each other so that their combination would substantially lessen competition between them, even though their combination might result in a restraint of commerce or a tendency toward monopoly violative of § 7. Such a possibility was presented in Trans-america Corp. v. Board of Governors, 3 Cir., 1953, 206 F.2d 163, where a banking corporation through a series of transactions acquired stock in 48 local banking corporations, most of which were located in communities in which no other bank was acquired. A divestiture order of the Board was reversed on the ground that the Board had not proved that the acquisitions of these banks in five western States either substantially lessened competition or tended to create a monopoly. 67 Finally, this Court has twice construed old § 7 as applying only to stock acquisitions involving competing corporations. In International Shoe Co. v. Federal Trade Commission, 1930, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431, the Court held that the acquisition of the fifth largest shoe manufacturing company by the largest shoe manufacturer did not violate either the substantially lessen competition clause or the restraint of commerce clause of § 7 because the pre-existing competition between the two corporations was insubstantial, and because the acquired corporation was in a precarious financial condition. Substantial pre-existing competition was said to be a requisite for violation of either clause of § 7. 280 U.S. at pages 298, 303, 50 S.Ct. at pages 91, 93. An even more direct holding is found in Thatcher Mfg. Co. v. Federal Trade Commission, 1926, 272 U.S. 554, 47 S.Ct. 175, 71 L.Ed. 405, where this Court affirmed that portion of the lower court's decree which had allowed Thatcher, a milk bottle manufacturer, to retain the assets of Woodbury, a bottle manufacturer specializing in condiment and whiskey bottles, on the ground that the acquisition did not violate any of the three clauses of § 7 since Thatcher was not in competition with Woodbury. 272 U.S. at page 560, 47 S.Ct. at page 178, affirming in part and reversing in part Federal Trade Commission v. Thatcher Mfg. Co., 3 Cir., 1925, 5 F.2d 615. These holdings apparently will be overruled sub silentio by today's decision. 68 The legislative history, administrative practice, and judicial interpretation of § 7 provide the perspective in which the Government's present assertion that § 7 applies to vertical acquisitions should be viewed. Seen as a whole, they offer convincing evidence that § 7, properly construed, has reference only to horizontal acquisitions. I would so hold. However, even if the opposite view be accepted, the foregoing views of the enforcing agencies and the courts are material to a proper consideration of the other issues which must then be reached. II. 69 In this case the Government is challenging, in 1949, a stock acquisition that took place in 1917—1919. The Court, without advancing reasons to support its conclusion, holds that in determining whether the effect of the stock acquisition is such as to violate § 7, the time chosen by the Government in bringing its suit is controlling rather than the time of the acquisition of the stock. This seems to me to ignore the language and structure of § 7, the purpose of the Clayton Act, and all existing administrative and judicial precedents. 70 The first paragraph of § 7 provides that 'no corporation * * * shall acquire * * * the stock * * * of another corporation * * * where the effect of such acquisition may be * * *.' Yet the Court construes this provision as if it read 'no corporation * * * shall acquire or continue to hold * * * the stock * * * of another corporation * * * whenever it shall appear that the effect of such acquisition or continued holding may be * * *.' Continued holding, to be sure, is a prerequisite to any action under § 7 because, if the stock is no longer held, the violation has been purged and there is nothing to divest.12 But the fact of continued holding does not allow the Government to dispense with the necessity of proving that the stock was unlawfully acquired. The offense described by § 7 is the acquisition, not the holding or the use, of stock. When the acquisition has been made, the offense, if any, is complete. The statutory language is unequivocal. It makes the test the probable effect of the acquisition at the time of the actual acquisition, and not at some later date to be arbitrarily chosen by the Government in bringing suit. 71 The distinction carefully made in the several paragraphs of § 7 between an unlawful acquisition and an unlawful use of stock reinforces this conclusion. The first paragraph of § 7, which speaks only in terms of acquisition of stock, is concerned solely with the purchase of stock in 'another corporation.' It is the only provision that is applicable in this case. The second paragraph, which expressly prohibits both acquisition and use, is concerned with stock purchases in 'two or more corporations.' Concededly, it is not applicable here. When Congress chose to make unlawful the use of stock subsequent to its acquisition, it did so in specific terms. The omission of the phrase 'or the use of such stock by the voting or granting of proxies or otherwise,' contained in the second paragraph of § 7, from the first paragraph of the section was not inadvertent. The phrase therefore cannot be read into the first paragraph of § 7.13 72 The Clayton Act was not intended to replace the Sherman Act in remedying actual restraints and monopolies. Its purpose was to supplement the Sherman Act by checking anticompetitive tendencies in their incipiency, before they reached the point at which the Sherman Act comes into play. This purpose was well stated in the Senate Report on the bill: 73 'Broadly stated, the bill, in its treatment of unlawful restraints and monopolies, seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the act of July 2, 1890, or other existing antitrust acts, and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency and before consummation.' S.Rep.No. 698, 63d Cong., 2d Sess. 1. 74 This purpose places emphasis on the probable anticompetitive effects of transactions or occurrences viewed as of the date of their occurrence. The determination required by the Act is one of predicting the probable outcome of a particular transaction, here an acquisition of stock in another corporation. If, at the time of the stock acquisition, a potential threat to competition is apparent, the acquisition is unlawful under § 7. If, on the other hand, a potential threat to competition is not then apparent, an antitrust violation is not involved unless subsequent use of the stock constitutes a restraint of trade prohibited by the Sherman Act.14 75 The Court ignores the all-important lawfulness or unlawfulness of the stock acquisition at or about the time it occurred, and limits its attention to the probable anticompetitive effects of the continued holding of the stock at the time of suit, some 30 years later. The result is to subject a good-faith stock acquisition, lawful when made, to the hazard that the continued holding of the stock may make the acquisition illegal through unforeseen developments. Such a view is not supported by the statutory language and violates elementary principles of fairness. Suits brought under the Clayton Act are not subject to any statute of limitations, and it is doubtful whether the doctrine of laches applies as against the Government. The result is that unexpected and unforeseeable developments occurring long after a stock acquisition can be used to challenge the legality of continued holding of the stock. In such an action, the Government need only prove that probable rather than actual anticompetitive effects exist as of the time of suit. The Government may thus set aside a transaction which was entirely lawful when made, merely by showing that it would have been unlawful had it occurred at the time of suit, many years later. The growth of the acquired corporation, a fortuitous decline in the number of its competitors, or the achievement of control by an accidental diffusion of other stock may result, under this test, in rendering the driginally lawful acquisition unlawful ab initio. Strikingly enough, all of these factors are involved in this case.15 76 The Court's holding is unfair to the individuals who entered into transactions on the assumption, justified by the language of § 7, that their actions would be judged by the facts available to them at the time they made their decision. 77 'The prohibition (of § 7) is addressed to parties who contemplate engaging in merger transactions and is meant, in the first instance, to guide them in deciding upon a course of action. The only standard they are capable of applying is one addressed to the circumstances viewed as of the date of the proposed transaction. Since this is the standard which the parties must apply in deciding whether to undertake a transaction, it seems reasonable to conclude that it is the standard which enforcement agencies should apply in deciding whether the transaction violates the statute.' Neal, The Clayton Act and the Transamerica Case, 5 Stan.L.Rev. 179, 220—221. 78 The Court cites no authority in support of its new interpretation of this 40-year-old statute. On the other hand, examination of the dozen or more cases brought under § 7 reveals that in every case the inquiry heretofore has centered on the probable anticompetitive effects of the stock acquisition at or near the time it was made.16 See, e.g., International Shoe Co. v. Federal Trade Commission, 1930, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431; Transamerica Corp. v. Board of Governors, 3 Cir., 1953, 206 F.2d 163; V. Vivaudou, Inc., v. Federal Trade Commission, 2 Cir., 1931, 54 F.2d 273; Federal Trade Commission v. Thatcher Mfg. Co., 3 Cir., 1925, 5 F.2d 615, reversed in part on another ground, 272 U.S. 554, 47 S.Ct. 175, 71 L.Ed. 405; United States v. Republic Steel Corp., D.C.N.D.Ohio 1935, 11 F.Supp. 117; In re Vanadium-Alloys Steel Co., 18 F.T.C. 194 (1934). The conclusion thus seems inescapable that the unlawfulness of a stock acquisition under the first paragraph of § 7 properly turns on the potential threat to competition created by the acquisition of the stock at the time of its acquisition and not by its subsequent use. 79 That the time of acquisition is controlling does not mean that the Government is unable to bring an action if it fails to proceed within a few years of the stock acquisition. It means only that if the Government chooses to bring its action many years later, it must prove what § 7 plainly requires—that the acquisition threatened competition when made. 80 Nor does it mean that evidence of subsequent events is necessarily irrelevant. Evidence that anticompetitive effects have occurred since the acquisition, and that these effects are traceable to the original acquisition rather than to other factors, may support an inference that such effects were 'reasonably probable' at the time of acquisition. The element of causation is the necessary link with the past. However, if events subsequent to the acquisition indicate that no anticompetitive effects have occurred, that evidence may support an inference that an unlawful potential did not exist at the time of acquisition. Evidence as to what happened after the acquisition is relevant to the extent that it bears on the central question whether, at the time of the acquisition, there was a reasonable probability of a threat to competition. 81 I agree with the Court that § 7 does not require findings and conclusions of actual anticompetitive effects. Unlike the Sherman Act, § 7 merely requires proof of a reasonable probability of a substantial lessening of competition, restraint of commerce, or tendency toward monopoly. International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431; Transamerica Corp. v. Board of Governors, 3 Cir., 206 F.2d 163. When a vertical acquisition is involved, its legality thus turns on whether there is a reasonable probability that it will foreclose competition from a substantial share of the market, either by significantly restricting access to needed supplies or by significantly limiting the market for any product. See Report of the Attorney General's National Committee to Study the Antitrust Laws (1955) 122—127. The determination of such probable economic consequences requires study of the markets affected, of the companies involved in relation to those markets, and of the probable immediate and future effects on competition. A mere showing that a substantial dollar volume of sales is involved cannot suffice. As the Court says, 'The market affected must be substantial,' 353 U.S. 595, 77 S.Ct. 878 and 'Substantiality can be determined only in terms of the market affected,' 353 U.S. 593, 77 S.Ct. 877. Section 7 thus requires a case-by-case analysis of the relevant economic factors. 82 However, when, as here, the Government brings a proceeding nearly 30 years after a stock purchase, it must prove that the acquisition was unlawful when made (i.e., that there was a reasonable probability at that time that du Pont's competitors would be foreclosed from a substantial share of the relevant market), and also that the effect of the acquisition continued to be harmful to competition at the time suit was brought. Illegality at the time of acquisition is required by the first paragraph of § 7; continuing illegality is a prerequisite for obtaining equitable relief. See United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303; United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978; United States v. South Buffalo R. Co., 333 U.S. 771, 774, 68 S.Ct. 868, 870, 92 L.Ed. 1077. This is particularly true under § 7 since it is a prophylactic measure designed to prevent stock acquisitions which probably will have a deleterious effect on competition. Proof that competition has not in fact been harmed during a long period following a stock acquisition itself indicates that a restraint in the future is unlikely. In such a case, the actual effect of the acquisition largely supplants the conjecture as to its probable effects which otherwise must be relied upon. 83 In this case, the District Court found that the challenged acquisition, which took place 'over thirty years ago,' had not resulted in any restraint of trade 'In those many intervening years * * *.' The District Court properly concluded that, when there had been no restraint for 30 years, 'there is not * * * any basis for a finding that there is * * * any reasonable probability of such a restraint within the meaning of the Clayton Act.' 126 F.Supp. at page 335. If the evidence supports the District Court's conclusion that there has been no restraint for 30 years, the judgment below must be affirmed. III. 84 The remaining issues are factual: (1) whether the record establishes the existence of a reasonable probability that du Pont's competitors will be foreclosed from securing General Motors' trade, and (2) whether the record establishes that such foreclosure, if probable, involves a substantial share of the relevant market and significantly limits the competitive opportunities of others trading in that market. In discussing these factual issues, I meet the Court on its own ground, that is, I assume that the old § 7 applies to vertical acquisitions, and that the potential threat at the time of suit is controlling. Even on that basis the record does not support the Court's conclusion that § 7 was violated by this 1917—1919 stock acquisition. 85 A. Foreclosure of Competitors. 86 This is not a case where a supplier corporation has merged with its customer corporation with the result that the supplier's competitors are automatically and completely foreclosed from the customer's trade.17 In this case, the only connection between du Pont, the supplier, and General Motors, the customer, is du Pont's 23% stock interest in General Motors. A conclusion that such a stock interest automatically forecloses du Pont's competitors from selling to General Motors would be without justification. Whether a foreclosure has occurred in the past or is probable in the future is a question of fact turning on the evidence in the record. 87 The Court, at the outset of its opinion, states that the primary issue is whether du Pont's position as a substantial supplier to General Motors 'was achieved on competitive merit alone,' or resulted from du Pont's stock interest in General Motors. 358 U.S. 588, 589, 77 S.Ct. 875. In resolving this issue, the Court states that the 'basic facts' are not in dispute and hence that it is unnecessary to set aside the findings of fact of the District Court as clearly erroneous. See Fed.Rules Civ.Proc., 52(a). The basic facts are said to be that du Pont had no standing as a General Motors' supplier before the stock purchases of 1917 1919, that it gained a 'commanding position' after the stock purchases, and that certain items of evidence in this gigantic record tend to indicate that du Pont hoped to get and actually did get a preference in General Motors' trade. From these alleged facts the Court draws the conclusion that du Pont has misused its 23% stock interest in General Motors 'to entrench itself as the primary supplier of General Motors' requirements for automotive finishes and fabrics.' 353 U.S. 606, 77 S.Ct. 884. 'The inference is overwhelming,' the Court concludes, 'that du Pont's commanding position was promoted by its stock interest and was not gained solely on competitive merit.' 353 U.S. 605, 77 S.Ct. 883. With these words, the Court overturns the District Court's unequivocal findings to the effect that du Pont was a principal supplier to General Motors prior to the 1917—1919 stock purchases, that du Pont maintained this position in the years following the stock purchases, and that for the entire 30-year period preceding the suit, General Motors' purchases of du Pont's products were based solely on the competitive merits of those products. The evidence supporting these findings of the District Court may be summarized as follows: 88 Du Pont is primarily a manufacturer of chemicals and chemical products. Thousands of its products could be used by General Motors in manufacturing automobiles, appliances and machinery. Despite du Pont's sales efforts over a period of 40 years, General Motors buys many of the commodities produced by du Pont from du Pont's competitors.18 The Court, ignoring the many products which General Motors declines to buy from du Pont or which it buys only in small quantities, concentrates on the few products which du Pont has sold in large volume to General Motors for many years—paints and fabrics. Before examining the history of those large-volume purchases, it is essential to understand where and by whom purchasing decisions within General Motors have been made. 89 For many years, General Motors has been organized into some 30 operating divisions, each of which has final authority to make, and does make, its own purchasing decisions. This decentralized management system places full responsibility for purchasing decisions on the officers of the respective divisions. To speak of 'selling to General Motors' is, therefore, misleading. A prospective supplier, instead of selling to General Motors, sells to Chevrolet, or Frigidaire, or Ternstedt, or Delco Light, as divisions. Moreover, when there are several plants within a division, each plant frequently has its own purchasing agent and presents separate selling job. 90 The record discloses that each division buys independently, that the pattern of buying varies greatly from one division to another, and that within each division purchases from du Pont have fluctuated greatly in response to price, quality, service and other competitive considerations. For example, Oldsmobile is the only division which buys antifreeze from du Pont and one of the two car divisions which does not finish its cars with Duco. Buick alone buys du Pont motor enamel, and Cadillac alone uses du Pont's copper electroplating exclusively. Thus the alleged nefarious influence arising from du Pont's stock interest apparently affects the Oldsmobile anti freeze buyer, but not the Oldsmobile paint buyer; the paint buyers at Chevrolet, Buick and Pontiac, but not the antifreeze or electroplating buyers; and the electroplating buyer at Cadillac, but not the Cadillac paint buyer. 91 1. Paints.—Du Pont, for many years, has had marked success in the manufacture and sale of paints, varnishes, lacquers and related products.19 In 1939, it produced 9.5% of the total dollar value of all finishes produced in the United States and, in 1947, 8.1%. In recent years, approximately three-fourths of du Pont's total sales to General Motors have consisted of industrial finishes.20 Although du Pont has been General Motors' principal supplier of paint for many years, General Motors continues to buy about 30% of its paint requirements from competitors of du Pont.21 Moreover, the sales of paint from du Pont to General Motors do not bulk large in the respective total sales and purchases of either company. In 1948, du Pont's finish sales to General Motors were only 3% of its total sales of all products; they were an infinitesimal percentage of General Motors' total purchases. 92 Two products account for a high proportion of these finish sales to General Motors: 'Duco,' a nitrocellulose lacquer invented and patented by du Pont, and 'Dulux,' a synthetic resin enamel developed by du Pont.22 However, Duco and Dulux did not come into commercial use until 1924 and 1931, respectively, and du Pont's position as a principal manufacturer of finishes was attained much earlier. 93 Du Pont first assumed a leading position in the automotive finish field with its acquisition, in 1918, of a majority of the stock of the Flint Varnish & Color Works at Flint, Michigan. At that time, and for some years before, Flint supplied the finishes used on all General Motors' cars except Cadillac, and also for many other automobile companies. Du Pont's acquisition of General Motors' stock in 1917—1919 did not influence the General Motors' divisions in purchasing from Flint. In 1921, Flint lost one-half of the Oakland business and, in 1923, a substantial portion of the business at Buick, Oakland and Oldsmobile. 126 F.Supp. at page 288. 94 The invention and development of Duco in the early 1920's represented a significant technological advance. Automobiles previously had been finished by applying numerous coats of varnish. The finishing process took from 12 to 33 days, and the storage space and working capital tied up in otherwise completed cars were immense. The life expectancy of varnish finishes was less than a year. In December 1921, General Motors created a Paint and Enamel Committee which contacted numerous paint manufacturers in an attempt to find a quicker drying and more durable finish. 95 Meanwhile, du Pont had been doing pioneering work in nitrocellulose lacquers. In 1920, a du Pont employee invented a quick drying and durable lacquer which contained a large amount of film-forming solids. This patented finish, named Duco, was submitted to the General Motors Paint and Enamel Committee in 1922 to be tested along with finishes of other manufacturers. After two years of testing and improvement, the Paint and Enamel Committee became satisfied that Duco was far superior to any other product or any other method of finishing automobiles then available. 96 The gradual adoption of Duco by some of the General Motors' car divisions, viewed in conjunction with its proved superiority as an auto finish, illustrates the independent buying of each division and demonstrates that Duco made its way on its own merits. Oakland (now Pontiac) first adopted Duco for use on its open cars in 1924. The new finish was an immense success and was used on all Oakland cars the following year. Buick and Chevrolet adopted Duco in 1925, but Cadillac, which had offered it as an optional finish in 1925, did not abandon varnish for Duco until 1926.23 97 From the beginning, General Motors continued to look for competitive materials. Letters were sent to other manufacturers urging them to submit samples of their pyroxylin paint for testing Unitl 1927, none of the competing lacquers was comparable in quality to Duco. But the strenuous efforts by General Motors to develop competitive sources of lacquer eventually worked a substantial change in the du Pont position. Oldsmobile and Cadillac switched to a competitor, Rinshed-Mason, in 1927, and have continued to buy almost exclusively from that company ever since. Chevrolet, Buick and Pontiac continued to buy Duco, partly because of better service from nearby du Pont plants, and partly because repeated testing failed to disclose any lacquer superior to Duco. 98 Finally, the success of Duco has never been confined to the General Motors' car divisions. In 1924 and 1925, nearly all car manufacturers abandoned varnish for Duco. By the end of 1925, all cars, except Ford and Cadillac, were using Duco. Nash, Hudson, Studebaker, Packard and Willys have bought, and still buy, Duco in substantial amounts from du Pont. Chrysler bought Duco in large volume until the early 1930's when, in pursuance of a policy to obtain suppliers to whom it would be the most important customer, it concentrated its purchases on one company, Pittsburgh Plate Glass. Ford has chosen to make a large part of its own requirements. During the 1920's, when Ford was losing its leadership in the low-priced field to Chevrolet, it continued to finish its cars in Black Japan. Mr. Ford is reported to have said, 'Paint them any color, as long as they are black.' Finally, in the 1930's, Ford was forced to shift to a synthetic enamel finish of its own manufacture. During this transition period, du Pont sold Ford a substantial amount of finishes. In 1935, Ford was making half and buying half from du Pont; by 1937, Ford was making three-fourths and buying one-fourth from du Pont. In 1938, Henry Ford 'issued instructions that the Ford Motor Company was not to purchase any more material from the du Pont company.' From that time until Henry Ford II became active in Ford management, purchases from du Pont practically ceased. Since then, Ford has purchased finishes from du Pont in very substantial amounts. 99 General Motors has continued to test paints on thousands of cars annually. Du Pont has retained its position as primary lacquer supplier to several General Motors' divisions because these divisions have felt that Duco best fits their needs. Kettering, who was a leader in General Motors' research activities and who had been active in the testing and development of pyroxylin lacquers, testified that 'one of the reasons' why General Motors' cars had a higher resale value than comparable cars 'in a used car lot' 'is the paint.' 100 As the District Court found, 'In view of all the evidence of record, the only reasonable conclusion is that du Pont has continued to sell Duco in substantial quantities to General Motors only because General Motors believes such purchases best fif its needs.' (Emphasis supplied.) 126 F.Supp. at page 296. 101 The second largest item which General Motors buys from du Pont in Dulux, a synthetic enamel finish used on refrigerators and other appliances. Prior to the development of Dulux, Duco was widely used as a finish for refrigerators. However, in 1927, Duco began to be replaced by porcelain, particularly at Frigidaire, a General Motors' appliance division. In 1930 and 1931, in collaboration with General Electric, du Pont developed Dulux, a greatly superior and cheaper product. Since its development, Dulux has been used exclusively by all the major manufacturers of refrigerators and other appliances—General Electric, Westinghouse, Crosley, and many others—except Frigidaire, which continues to finish part of its refrigerators with porcelain. Disinterested witnesses testified as to the superior quality and service which has led them to continue to buy Dulux.24 The District Court did not err in concluding that Dulux— 102 'is apparently an ideal refrigerator finish and is widely used by a number of major manufacturers other than General Motors. Several representatives of competitive refrigerator manufacturers testified that they purchased 100% of their requirements from du Pont. There is no evidence that General Motors purchased from du Pont for any reason other than those that prompted its competitors to buy Dulux from du Pont—excellence of product, fair price and continuing quality of service.' (Emphasis supplied.) 126 F.Supp. at page 296. 103 The Court fails to note that du Pont's efforts to sell paints other than Duco and Dulux to General Motors have met with considerably less success. Du Pont does sell substantial amounts of automotive undercoats to Chevrolet and Buick but it has failed, despite continued sales efforts, to change the preference of Fisher Body, the largest purchaser of undercoats, for a competitor's undercoat. The successes and failures of other du Pont finish products at various General Motors' divisions emphasize the independent buying of each division and negate the notion that influence or coercion is responsible for what purchases do occur. Frigidaire uses large quantities of black finishing and machine varnish, but has not bought these products from du Pont since 1926. At A. C. Spark Plug Division, located in Flint, Michigan, where du Pont has a finishes plant, du Pont has been consistently successful in selling a substantial volume of the finishes used by that division. Delco-Remy Division, however, purchases most of its requirements of insulating varnish from du Pont's competitors. The Electromotive Division prefers a competitive lacquer for the interior finish of its locomotives, but uses Duco on the exterior because the railroads, most of which use Duco for the exterior of the balance of the train, specify that finish. At Guide Lamp Division, du Pont developed and still supplies a finish for the inside of headlight reflectors, but a competitor developed, and has kept, that division's substantial primer business. At the Inland Division, which produces steering wheels, du Pont had some of the business at one time, but has been completely supplanted by a competitor offering better service. 104 The du Pont experience at the Packard Electric Division, which uses large quantities of high and low tension cable lacquer, is illstrative. Until 1932, Packard Electric was a separate company wholly unrelated to General Motors, and du Pont was a principal supplier of low tension lacquer and the sole supplier of black high tension lacquer. Now, as a division of General Motors, Packard Electric purchases it entire requirements of high tension lacquer from du Pont competitors, and produces its own low tension lacquer from film scrap bought from du Pont competitors. 105 The District Court did not err in concluding, on the basis of this evidence, that du Pont's success in selling General Motors a substantial portion of its paint requirements was due to the superior quality of Duco and Dulux and to du Pont's continuing research and outstanding service, and that 'du Pont's position was at all times a matter of sales effort and keeping General Motors satisfied. There is no evidence that General Motors or any Division of General Motors was ever prevented by du Pont from using a finish manufactured by one of du Pont's competitors; nor is there any evidence that General Motors has suffered competitively from its substantial use of Duco.' (Emphasis supplied.) 126 F.Supp. at page 296. 106 2. Fabrics.—The principal fabrics which du Pont has sold to General Motors are imitation leather (du Pont's 'Fabrikoid' and 'Fabrilite') and top material for open cars and convertibles (du Pont's 'Pontop,' 'Everbright' and 'Teal').25 Its sales of these materials to General Motors in 1947 totaled $3,369,000, or about 38.5% of General Motors' total purchases of such materials. In earlier years, before closed cars with all metal tops came to predominate, these materials constituted a larger proportion of the total fabrics used in an automobile than they do today. By 1946 they averaged, part from the top material for convertibles, only about 1.6 yards, costing about $2.22 per car. They are used principally for seat tops and backs, kick pads, rear shelves, etc. Du Pont does not manufacture the cotton and wool products of which most of the unholstery is composed. 107 Du Pont entered the manufacture of coated fabrics in 1910, when it purchased the Fabrikoid Company of Newburgh, New York. 'Artificial leather,' as it was then known, was of poor quality and had very limited areas of acceptance. As du Pont succeeded in improving both its quality and appearance, its use rapidly broadened. By mid-1913, du Pont Fabrikoid, a pyroxylin-coated fabric, had been accepted by the automobile industry for upholstery and interior trim. Three years later, in 1916, almost every automobile company was a purchaser of Fabrikoid, and a contemporary du Pont estimate in that year stated that 60% of all cars produced in the United States would be equipped with Fabrikoid. In that same year, du Pont rounded out its line of fabrics by acquiring the Fairfield Rubber Company, a manufacturer of rubber-coated fabrics. Du Pont thus had achieved, before it purchased its General Motors' stock, a leading position in the automotive fabric field. Before 1917, it was supplying substantially all of the coated fabrics requirements at Chevrolet and Oldsmobile, about half of the requirements at Buick, and about a third of the requirements at Oakland. At the Cadillac division, du Pont supplied all of the coated fabrics for interior trim but none of the top material. 126 F.Supp. at pages 296—297. 108 Although there have been variations from year to year and from one car division to another in response to competitive considerations, du Pont generally has maintained its pre-1917 position as the principal supplier of coated and combined fabrics to General Motors. In 1926, General Motors purchased about 55.5% of these fabrics from du Pont, largely because Chevrolet switched entirely to du Pont after an unfortunate experience with competitive products during the preceding year. By 1930, the proportion had declined to about 31.5%, and du Pont was selling more fabrics to Ford than to General Motors. At the time of suit, du Pont's share had increased to 38.5%, the remainder being supplied by du Pont's competitors. 109 In addition to the mass of evidence supporting the District Court's finding that 'such purchases of fabrics as the General Motors divisions have made from du Pont from time to time were based upon each division's exercise of its business judgment and are not the result of du Pont domination' (emphasis supplied), 126 F.Supp. at page 301, the record clearly indicates that du Pont's fabrics can and have made their way in the automotive industry on their merits. Prior to the early 1920's, du Pont was the principal supplier of coated fabrics to all three of the then major producers—Ford, Willys-Overland and General Motors. After Ford and Willys began to produce their own coated fabrics they still turned to du Pont for much of what they could not produce. Chrysler purchased substantial amounts from du Pont until, in the early 1930's, it embarked on its policy of one principal supplier for each product and chose Textileather, a du Pont competitor. Du Pont has continued to be Ford's largest supplier for the material which it does not manufacture for itself. Du Pont likewise has supplied, over the years, a considerable part of the coated and combined fabrics of most of the smaller automobile companies. 110 The District Court did not err in concluding that 'Du Pont, the record shows, has maintained its position as the principal fabric supplier to General Motors through its early leadership in the field and by concentrating upon satisfactorily meeting General Motors' changing requirements as to quality, service and delivery.' (Emphasis supplied.) 126 F.Supp. at page 301. 111 3. Other Products.—The Court concludes only that du Pont has been given an unlawful preference with respect to paints and fabrics. By limiting the issue to these products, it eliminates from deserved consideration those products which General Motors does not buy in large quantities or proportions from du Pont.26 Yet the logic of the Court's argument—that the stock relationship between du Pont and General Motors inevitably has or will result in a preference for du Pont products—requires consideration of the total commercial relations between the two companies. Du Pont 'influence,' if there were any, would be expected to apply to all products which du Pont makes and which General Motors buys. 112 However, the evidence shows that du Pont has attempted to sell to the various General Motors' divisions a wide range of products in addition to paint and fabrics, and that it has succeeded in doing so only when these divisions, exercising their own independent business judgment, have decided on the basis of quality, service and price that their economic interests would best be served by purchasing from du Pont. Six such groups of products were considered in detail by the District Court: plastics, brake fluid, casehardening materials, electroplating materials, safety glass, and synthetic rubber and rubber chemicals. 126 F.Supp. at pages 319—324. A few examples drawn from the findings will suffice. 113 Du Pont's sales to General Motors of celluloid (du Pont's 'Pyralin'), used as windows in the side curtains of early automobiles, initially declined in 1918 after the stock purchase, and only revived when an improved product was adopted by all the large auto manufacturers. Instead of purchasing brake fluid and safety glass from du Pont, General Motors embarked, during the 1930's, on its own production of these substantial items. With respect to casehardening materials, General Motors has purchased less than half of its requirements from du Pont, while other auto manufacturers have purchased amounts larger in proportion and quantity. Although du Pont's new electroplating processes were widely adopted in the automobile and other industries in the 1930's only Cadillac has used du Pont's processes exclusively, Oldsmobile and Pontiac have used it occasionally, and Chevrolet and Buick never have used it except for brief periods. Neoprene, a synthetic rubber developed by du Pont, has been used to a much greater extent by Chrysler and Ford than by General Motors. Chrysler also uses, and helped develop, du Pont's synthetic rubber adhesive for brake linings, but the General Morors' divisions prefer a more expensive type of synthetic rubber. 114 The record supports the conclusion of the District Court: 115 'All of the evidence bearing upon du Pont's efforts to sell these various miscellaneous products to General Motors supports a finding that the latter bought or refused to buy solely in accordance with the dictates of its own purchasing judgment. There is no evidence that General Motors was constrained to favor, or buy, a product solely because it was offered by du Pont. On the other hand, the record discloses numerous instances in which General Motors rejected du Pont's products in favor of those of one of its competitors. The variety of situations and circumstances in which such rejections occurred satisfies the Court that there was no limitation whatsoever upon General Motors' freedom to buy or to refuse to buy from du Pont as it pleased.' (Emphasis supplied.) 126 F.Supp. at page 324. 116 Evidence Relied on by the Court.—The Court, disregarding the mass of evidence supporting the District Court's conclusion that General Motors purchased du Pont paint and fabrics solely because of their competitive merit, relies for its contrary conclusion on passages drawn from several documents written during the years 1918—1926, and on the logical fallacy that because du Pont over a long period supplied a substantial portion of General Motors' requirements of paint and fabrics, its position must have been obtained by misuse of its stock interest rather than competitive considerations. 117 The isolated instances of alleged pressure or intent to obtain noncompetitive preferences are four: (1) the Raskob report of December 1917; (2) several letters of J. A. Haskell, written during 1918—1920; (3) certain reports and letters of Pierre and Lammot du Pont during 1921—1924; and (4) a 1926 letter of John L. Pratt. Passages drawn from these 1918—1926 documents do not justify the conclusion reached by the Court. Each of them is a matter of disputed significance which cannot be evaluated without passing on the motivation and intent of the author. Each failed to achieve its specific object. Read in the context of the situations to which they were addressed, each is entirely consistent with the finding of the District Court that, although du Pont was trying to get as much General Motors' business as it could, there was no restriction on General Motors' freedom to buy as it chose, and that General Motors' buyers did not regard themselves as in any way limited.27 Moreover, even if isolated paragraphs in these documents, taken from their context, are given some significance, and the other evidence relating to the period from 1918 to 1926 is entirely ignored, all of the evidence after 1926 affirmatively establishes without essential contradiction that du Port did not use its stock interest to receive any preferential treatment from General Motors. 118 Nor can present illegality be presumed from the bare fact that du Pont has continued to make substantial sales of several products to General Motors.28 In the first place, the record affirmatively shows that the new products which du Pont has sold to General Motors since 1926 have made their way, at General Motors as elsewhere, on their merits. Sales of Duco, Dulux, Fabrilite and Teal are not attributable in any way to dealings in the earlier period. Secondly, the Court's presumption is based on the fact that du Pont does not sell to all other automobile manufacturers in the same proportion as it does to General Motors. But there is no reason why it should—the Government has not shown that sellers normally sell to all members of an industry in the same proportion. In any event, the record fully explains the disproportion. Since 1930, du Pont's sales to other members of the industry have proportionately declined, largely because Ford has chosen to make the major share of its requirements of paint and fabrics, and because Chrysler has followed the policy of selecting a single supplier to whom it can be the most important customer. The fact is that du Pont has continued to sell in substantial amounts to the smaller members of the automobile industry. The growth in the dominance of General Motors, Ford and Chrysler—companies which together account for more than 85% of automobile production—when combined with the policies adopted by Ford and Chrysler, adequately explains why du Pont sells a larger proportion of paint and fabrics to General Motors than it does to the industry as a whole. 119 It is true that § 7 of the Clayton Act does not require proof of actual anticompetitive effects or proof of an intent to restrain trade. But these matters become crucial when the Court rests its conclusion that du Pont's stock interest violates the Act on evidence relating solely to an alleged du Pont intent to obtain a noncompetitive preference from General Motors, and on a finding that such a preference was actually secured through the unlawful use of du Pont's stock interest. Preference and intent are also relevant because the Government has brought this case 30 years after the event. If no actual restraint has occurred during this long period, the probability of a restraint in the future is indeed slight. Especially is this so when the only change in recent years has been in the direction of diminishing du Pont's participation in General Motors' affairs. 120 Rule 52(a) Governs This Case.—The foregoing summary of the evidence relating to General Motors' purchases of paint and fabrics from du Pont, comparatively brief as it is, reveals that a multitude of factual issues underlie this case. The occurrence of events, the reasons why these events took place, and the motives of the men who participated in them are drawn in question. The issue of credibility is of great importance. The District Judge had the opportunity to observe the demeanor of the witnesses and to judge their credibility at first hand. Thus, this case is a proper one for the application of the principle embodied in Rule 52(a) of the Federal Rules of Civil Procedure: 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' United States v. Oregon State Medical Society, 343 U.S. 326, 330—332, 339, 72 S.Ct. 690, 694—695, 698, 96 L.Ed. 978; United States v. Yellow Cab Co., 338 U.S. 338, 341—342, 70 S.Ct. 177, 179, 94 L.Ed. 150. 121 This is not a situation in which oral testimony is contradicted by contemporaneous documents. See United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. In this case, the findings of the District Court are supported both by contemporaneous documents and by oral testimony. For example, General Motors' search for a better automotive finish, the superiority of the product developed by du Pont, and General Motors' continuous efforts to secure an equally good lacquer from other sources are all proved by letters and reports written in the early 1920's as well as by the oral testimony of many witnesses. Similarly, contemporaneous exhibits prove that General Motors purchased fabrics from du Pont because of the superiority of du Pont products, and that on other occasions it turned to competing suppliers even though du Pont's product was just as good. Appellate review of detailed findings based on substantial oral testimony and corroborative documents must be limited to setting aside those that are clearly erroneous. The careful and detailed findings of fact of the District Court in this case cannot be so labeled.29 B. Relevant Market. 122 Finally, even assuming the correctness of the Court's conclusion that du Pont's competitors have been or will be foreclosed from General Motors' paint and fabric trade, it is still necessary to resolve one more issue in favor of the Government in order to reverse the District Court. It is necessary to hold that the Government proved that this foreclosure involves a substantial share of the relevant market and that it significantly limits the competitive opportunities of others trading in that market.30 123 The relevant market is the 'area of effective competition' within which the defendants operate. Standard Oil Co. of California v. United States, 337 U.S. 293, 299—300, note 5, 69 S.Ct. 1051, 1055, 93 L.Ed. 1371. '(T)he problem of defining a market turns on discovering patterns of trade which are followed in practice.' United States v. United Shoe Machinery Corp., D.C., 110 F.Supp. 295, 303, affirmed per curiam, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910. 'Determination of the competitive market for commodities depends on how different from one another are the offered commodities in character or use, how far buyers will go to substitute one commodity for another.' United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264. This determination is primarily one of fact. 124 The Court holds that the relevant market in this case is the automotive market for finishes and fabrics, and not the total industrial market for these products. The Court reaches that conclusion because in its view 'automotive finishes and fabrics have sufficient peculiar characteristics and uses to constitute them products sufficiently distinct from all other finishes and fabrics * * *.' 353 U.S. 593, 594, 77 S.Ct. 877. We are not told what these 'peculiar characteristics' are. Nothing is said about finishes other than that Duco represented an important contribution to the process of manufacturing automobiles. Nothing is said about fabrics other than that sales to the automobile industry are made by means of bids rather than fixed price schedules. Dulux is included in the 'automobile' market even though it is used on refrigerators and other appliances, but not on automobiles. So are other finishes and fabrics used on diesel locomotives, engines, parts, appliances and other products which General Motors manufactures. Arbitrary conclusions are not an adequate substitute for analysis of the pertinent facts contained in the record. 125 The record does not show that the fabrics and finishes used in the manufacture of automobiles have peculiar characteristics differentiating them from the finishes and fabrics used in other industries. What evidence there is in the record affirmatively indicates the contrary. The sales of the four products principally involved in this case—Duco, Dulux, imitation leather, and coated fabrics—support this conclusion. 126 Duco was first marketed not to General Motors, but to the auto refinishing trade and to manufacturers of furniture, brush handles and pencils. In 1927, 44% of du Pont's sales of colored Duco, and 51.5% of its total sales, were to purchasers other than auto manufacturers. Although the record does not disclose exact figures for all years, it does show that a substantial portion of du Pont's sales of Duco have continued to be for nonautomotive uses.31 127 It is also significant that Duco was a patented product. Prior to the expiration of the patent in 1944, only five years before this suit was brought, du Pont issued over i50 licenses—to all that applied—covering its patented process. If Duco is to be treated as a separate market solely because of its initial superiority, du Pont is being penalized rather than rewarded for contributing to technological advance. 128 Dulux has never been used in the manufacture of automobiles. It replaced Duco and other lacquers as a finish on refrigerators, washers, dryers, and other appliances, and continues to have wide use on metallic objects requiring a durable finish. Yet the Court includes it as a finish having the unspecified but 'peculiar characteristics' distinctive of 'automotive finishes.' 353 U.S. 593, 77 S.Ct. 877. 129 In 1947, when du Pont's sales of Duco and Dulux to General Motors totaled about $15,400,000, the total national market for paints and finishes was $1,248,000,000, of which about $552,000,000 was for varnishes, lacquers, enamels, japans, thinners and dopes, the kinds of finishes sold primarily to industrial users.32 There is no evidence in this record establishing that these industrial finishes are not competitive with Duco and Dulux. There is considerable evidence that many of them are. It is probable that du Pont's total sales of finishes to General Motors in 1947 constituted less than 3.5% of all sales of industrial finishes. 130 The record also shows that the types of fabrics used for automobile trim and convertible tops—imitation leather and coated fabrics—are used in the manufacture of innumerable products, such as luggage, furniture, railroad upholstery, books, brief cases, baby carriages, hassocks, bicycle saddles, sporting goods, footwear, belts and table mats. In 1947, General Motors purchased about $9,454,000 of imitation leather and coated fabrics. Of this amount, $3,639,000 was purchased from du Pont (38.5%) and $5,815,000 from over 50 du Pont competitors. Since du Pont produced about 10% of the national market for these products in 1946, 1947 and 1948, and since only 20% of its sales were to the automobile industry, the du Pont sales to the automobile industry constituted only about 2% of the total market. This Court ignores the record by treating this small fraction of the total market as a market of distinct products. 131 It will not do merely to stress the large size of these two corporations. The figures as to their total sales— $793,000,000 for du Pont and $3,815,000,000 for General Motors in 1947—do not fairly reflect the volume of commerce involved in this case. The commerce involved here is about $19,000,000 of industrial finishes and about $3,700,000 of certain industrial fabrics—less than 3.5% of the national market for industrial finishes, and only about 1.6% of the national market for these fabrics. The Clayton Act is not violated unless the stock acquisition substantially threatens the competitive opportunities available to others. International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431; Transamerica Corp. v. Board of Governors, 3 Cir., 206 F.2d 163; V. Vivaudou, Inc., v. Federal Trade Commission, 2 Cir., 54 F.2d 273. The effect on the market for the product, not that on the transactions of the acquired company, is controlling. Fargo Glass & Paint Co. v. Globe American Corp., 7 Cir., 201 F.2d 534.33 132 The Court might be justified in holding that products sold to the automotive industry constitute the relevant market in the case of products such as carburetors or tires which are sold primarily to automobile manufacturers. But the sale of Duco, Dulux, imitation leather, and coated fabrics is not so limited. 133 The burden was on the Government to prove that a substantial share of the relevant market would, in all probability, be affected by du Pont's 23% stock interest in General Motors. The Government proved only that du Pont's sales of finishes and fabrics to General Motors were large in volume, and that General Motors was the leading manufacturer of automobiles during the later years covered by the record. The Government did not show that the identical products were not used on a large scale for many other purposes in many other industries. Nor did the Government show that the automobile industry in general, or General Motors in particular, comprised a large or substantial share of the total market. What evidence there is in the record affirmatively indicates that the products involved do have wide use in many industries, and that an insubstantial portion of this total market would be affected even if an unlawful preference existed or were probable. 134 For the reasons stated, I conclude that § 7 of the Clayton Act, prior to its amendment in 1950, did not apply to vertical acquisitions; that the Government failed to prove that there was a reasonable probability at the time of the stock acquisition (1917 1919) of a restraint of commerce or a tendency toward monopoly; and that, in any event, the District Court was not clearly in error in concluding that the Government failed to prove that du Pont's competitors have been or may be foreclosed from a substantial share of the relevant market. Accordingly, I would affirm the judgment of the District Court. 135 Appendix to Mr. Justice Burton's Dissent. 136 'Sec. 7. That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce. 137 'No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effect of such acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition between such corporations, or any of them, whose stock or other share capital is so acquired, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce. 138 'This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. Nor shall anything contained in this section prevent a corporation engaged in commerce from causing the formation of subsidiary corporations for the actual carrying on of their immediate lawful business, or the natural and legitimate branches or extensions thereof, or from owning and holding all or a part of the stock of such subsidiary corporations, when the effect of such formation is not to substantially lessen competition. 139 'Nor shall anything herein contained be construed to prohibit any common carrier subject to the laws to regulate commerce from aiding in the construction of branches or short lines so located as to become feeders to the main line of the company so aiding in such construction or from acquiring or owning all or any part of the stock of such branch lines, nor to prevent any such common carrier from acquiring and owning all or any part of the stock of a branch or short line constructed by an independent company where there is no substantial competition between the company owning the branch line so constructed and the company owning the main line acquiring the property or an interest therein, nor to prevent such common carrier from extending any of its lines through the medium of the acquisition of stock or otherwise of any other such common carrier where there is no substantial competition between the company extending its lines and the company whose stock, property, or an interest therein is so acquired. 140 'Nothing contained in this section shall be held to affect or impair any right heretofore legally acquired: Provided, That nothing in this section shall be held or construed to authorize or make lawful anything heretofore prohibited or made illegal by the antitrust laws, nor to exempt any person from the penal provisions thereof or the civil remedies therein provided.' 38 Stat. 731—732, 15 U.S.C. (1946 ed.) § 18, 15 U.S.C.A. § 18. 1 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29. The Court noted probable jurisdiction. 350 U.S. 815, 76 S.Ct. 61, 100 L.Ed. 729. 2 126 F.Supp. 235. 3 38 Stat. 736, 15 U.S.C. (1946 ed.) § 25, 15 U.S.C.A. § 25. 4 This action is governed by the Clayton Act as it was before the 1950 amendments, which by their terms are inapplicable to acquisitions prior to 1950. 64 Stat. 1125, 15 U.S.C. § 18, 15 U.S.C.A. § 18. 5 The amended complaint also alleged violation of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, as amended, 50 Stat. 693, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2. In view of our determination of the case, we are not deciding the Government's appeal from the dismissal of the action under the Sherman Act. 6 38 Stat. 731, 15 U.S.C. (1946 ed.) § 18, 15 U.S.C.A. § 18. 7 This paragraph provides: 'No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effect of such acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition between such corporations, or any of them, whose stock or other share capital is so acquired, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.' 38 Stat. 731, 15 U.S.C. (1946 ed.) § 18, 15 U.S.C.A. § 18. 8 See, e.g., S.Rep. No. 698, 63d Cong., 2d Sess. 13; H.R.Rep. No. 627, 63d Cong., 2d Sess. 17. 9 51 Cong.Rec. 16002. 10 Aluminum Co. of America v. Federal Trade Comm., 3 Cir., 284 F. 401; Ozdoba (Ronald Fabrics Co.) v. Verney Brunswick Mills, Inc., D.C., 152 F.Supp. 136; United States v. New England Fish Exchange, D.C., 258 F. 732; cf. Transamerica Corp. v. Board of Governors, 3 Cir., 206 F.2d 163; Sidney Morris & Co. v. National Ass'n of Stationers, 7 Cir., 40 F.2d 620, 625. 11 Standard Oil Co. of California v. United States, 337 U.S. 293, 299, note 5, 69 S.Ct. 1051, 1055, 93 L.Ed. 1371. Section 3 of the Act, with which the Court was concerned in Standard Oil, makes unlawful certain agreements '* * * where the effect * * * may be to substantially lessen competition or tend to create a monopoly in any line of commerce.' 38 Stat. 731, 15 U.S.C. (1946 ed.) § 14, 15 U.S.C.A. § 14. (Emphasis added.) 12 For example, the following is said as to finishes in the du Pont brief: 'The largest single finish item which du Pont sells to General Motors is a low viscosity nitrocellulose lacquer, discovered and patented by du Pont and for which its trademark is 'Duco'. * * * 'The invention and development of 'Duco' represented a truly significant advance in the art of paint making and in the production of automobiles; without 'Duco' mass production of automobiles would not have been possible. 'By the early 1920's the need for better finishing materials for automobiles had become urgent * * *. The varnish method then used in finishing automobiles was described in detail at the trial by automobile pioneers * * *. Finishing an automobile with varnish required an intolerably long time—up to 3 or 4 weeks—to apply the numerous coats needed. When the finish was complete, its longest life expectancy was less than a year, and often it began to peel off before the car was delivered * * *.' Du Pont's Director of Sales since 1944, Nickowitz, testified as to fabrics sold to automobile manufacturers as follows: 'Q. Now, over the years, isn't it true that speaking generally du Pont has followed the policy in selling its fabrics to the automobile field of undercutting its competitors in price? You don't try to sell it on a lower price than that quoted by any other competitor, do you? 'A. Well, we don't know. We go in and we bid based on our costs. Now, in the automotive industry, we have a different situation than you do in the furniture trade, for example, where you have an established price. 'You see, in the automobile industry, each manufacturer uses a different construction. They all have their own peculiar ideas of what they want about these fabrics. Some want dyed backs, and some want different finishes, so you don't have any standard prices in the automobile industry.' (Emphasis added.) And see extended discussions in the opinion of the trial court, as to finishes, 126 F.Supp. at pages 288—292, as to fabrics, 126 F.Supp. at pages 296—300. 13 'The phrase ('in any line of commerce') is comprehensive and means that if the forbidden effect or tendency is produced in one out of all the various lines of commerce, the words 'in any line of commerce' literally are satisfied.' 278 U.S. at page 253, 49 S.Ct. at page 113. 14 The General Motors brief states: 'If the market for these products were solely or mainly the General Motors Corporation, or the automobile industry as a whole, General Motors' volume and present share of the automobile industry might constitute a market large enough for the Government to rely on.' 15 Standard Oil Co. of California v. United States, 337 U.S. 293, at page 314, 69 S.Ct. 1051, at page 1062. 16 Moody's Industrials lists General Motors' proportion of the industry: Percent Percent 1938....... 42+. 1947 38.5 1939....... 42+. 1948 38.8 1940...... 45.6. 1949 42.7 1941...... 45.3. 1950 45.6 1942.... W.W.II. 1951 41.8 1943.... W.W.II. 1952 40.3 1944.... W.W.II. 1953 44.7 1945.... W.W.II. 1954 49.9 1946...... 36.3. 1955 48.8 17 Fortune Directory of the 500 Largest U.S. Industrial Corporations, July 1956, p. 2. 18 N.Y. Times, Feb. 3, 1956, p. 1, col. 3. 19 A finish developed specially by du Pont and General Motors for use as an automotive finish. 20 A synthetic enamel developed by du Pont which is used on refrigerators, also manufactured by General Motors. 21 126 F.Supp. at page 295. 22 Id., 126 F.Supp. at pages 300—301. 23 Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 42 S.Ct. 360, 66 L.Ed. 653. 24 Cf. Corn Products Refining Co. v. Federal Trade Comm., 324 U.S. 726, 738, 65 S.Ct. 961, 967, 89 L.Ed. 1320. 25 Section 7 provides, in pertinent part: 'This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition * * *.' 38 Stat. 731, 15 U.S.C. (1946 ed.) § 18, 15 U.S.C.A. § 18. 26 126 F.Supp. at page 335. 27 Standard Fashion Co. v. Magrane-Houston Houston Co., 258 U.S. 346, at pages 356—357, 42 S.Ct. 360, at page 362. 28 There is no significant dispute as to the basic facts pertinent to the decision. We are thus not confronted here with the provision of Fed.Rules Civ.Proc., 52(a), 28 U.S.C.A., that findings of fact shall not be set aside unless clearly erroneous. 29 Before 1917, du Pont supplied General Motors with coated fabrics. 126 F.Supp. at page 297. 30 126 F.Supp. at page 243. 31 126 F.Supp. at page 241. 32 126 F.Supp. at page 241. 33 126 F.Supp. at page 245. 34 126 F.Supp. at page 267. 35 The du Pont policy is well epitomized in a 1926 letter written by a former du Pont employee, J. L. Pratt, when a General Motors vice-president and member of the Executive Committee, to the general manager of a General Motors Division: 'I am glad to know that your manufacturing, chemical and purchasing divisions feel they would be in better hands possibly by dealing with du Pont than with local companies. From a business standpoint no doubt your organization would be influenced to give the business, under equal conditions, to the local concerns. However, I think when General Motors divisions recognize the sacrifice that the du Pont Company made in 1920 and 1921, to keep General Motors Corporation from being put in a very bad light publicly—the du Pont Company going to the extent of borrowing $35,000,000 on its notes when the company was entirely free of debt, in order to prevent a large amount of General Motors stock being thrown on the open market—they should give weight to this which in my mind more than over-balances consideration of local conditions. In other words, I feel that where conditions are equal from the standpoint of quality, service and price, the du Pont Company should have the major share of General Motors divisions' business on those items that the du Pont Company can take on the basis of quality, service and price. If it is possible to use the product from more than one company I do not think it advisable to give any one company all of the business, as I think it is desirable to always keep a competitive situation, otherwise any supplier is liable to grow slack in seeing that you have the best service and price possible. 'I have expressed my own personal sentiments in this letter to you in order that you might have my point of view, but I do not wish to influence your organization in any way that would be against your own good judgment, keeping in mind that above all the prime consideration is to do the best thing for Delco-Light Company, and that considerations in regard to the du Pont Company or other concerns are secondary, and I am sure this is your feeling.' 36 The potency of the influence of du Pont's 23% stock interest is greater today because of the diffusion of the remaining shares which, in 1947, were held by 436,510 stockholders; 92% owned no more than 100 shares each, and 60% owned no more than 25 shares each. 126 F.Supp. at page 244. * 15 U.S.C.A. §§ 4, 25, 1, 2, 18. 1 Ozdoba (Ronald Fabrics Co.) v. Verney Brunswick Mills, Inc., D.C.S.D.N.Y.1946, 152 F.Supp. 136, discussed infra, note 10, was a private action for treble damages. 2 Transamerica Corp. v. Board of Governors, 3 Cir., 1953, 206 F.2d 163, involved a series of stock acquisitions over many years, some of which took place at about the time of suit. 3 Section 7 of the Clayton Act, 38 Stat. 731, 15 U.S.C. (1946 ed.) § 18, 15 U.S.C.A. § 18, was amended in 1950 so as to broaden its application, 64 Stat. 1125, 15 U.S.C. § 18, 15 U.S.C.A. § 18. The amendments, by their terms, were inapplicable to acquisitions made before 1950. Thus this case is governed by the original language of § 7 and not by § 7, as amended. 4 One of the earliest rulings of the Federal Trade Commission was that § 7 did not prohibit asset acquisitions. 1 F.T.C. 541—542. The primary purpose of the 1950 amendments was to bring asset acquisitions within § 7. Proponents of the 1950 amendments asserted on several occasions that the omission of asset acquisitions in the original Clayton Act had been inadvertent. See, e.g., 96 Cong.Rec. 16443. However, the legislative history of the Clayton Act demonstrates that the purpose of § 7 was to prevent the formation of holding companies and certain evils peculiar to stock acquisitions, particularly the secrecy of ownership. See 51 Cong.Rec. 9073, 14254, 14316, 14420, 14456; H.R.Rep. No. 627, 63d Cong., 2d Sess. 17; S.Rep. No. 698, 63d Cong., 2d Sess. 13. 5 The remarks of Senator Chilton relied on by the majority, 353 U.S. 591, 77 S.Ct. 876, do not indicate that he thought that § 7 was applicable to vertical acquisitions. His statements indicate merely that he thought that the restraint and monopoly clauses of § 7 were not entirely synonymous with the substantially lessen competition clause. 6 See, e.g., 51 Cong.Rec. 9270—9271 (Representative Carlin); id., at 9554 (Representative Barkley); id., at 14254—14255 (Senator Cummins); id., at 14313 (Senator Reed); id., at 15856 15861 (Senator Walsh); id., at 15940 (Senator Nelson); id., at 16001 (Senator Chilton); id., at 16320 (Representative Floyd). 7 51 Cong.Rec. 14455. Senator Reed had offered an amendment to the first paragraph of § 7 which would have prevented a corporation from acquiring stock in another corporation engaged in the same line of business. This was an attempt to stiffen the bill in order to relieve the Government from proving that competition had been substantially lessened by the acquisition, an element of proof which he, Senator Cummins, and others thought would be quite difficult. See 51 Cong.Rec. 14254—14255, 14419—14420. Senator Chilton asked Senator Reed whether his amendment would prevent a corporation engaged in the manufacture of steel from acquiring stock in a corporation engaged in the production of iron ore. Senator Reed replied that his amendment would not bar such an acquisition, but that neither would the bill as written: 'But I call the Senator's attention to the fact that if the illustration he uses would not be covered by the language of my amendment it certainly would not be covered by the language I seek to amend. His argument would go as much against that, and even more than against my amendment. I do not claim that this will stop everything. I claim that it will be a long step in that direction.' Id., at 14455. No one disputed Senator Reed's interpretation of § 7. 8 See, e.g., the statement by Representative Carlin, one of the managers of the bill in the House, to the effect that the interlocking directorate provision contained in § 8 would prevent a director of a corporation which supplied railroads with materials from becoming a railroad director and, in effect, 'buy(ing) supplies from himself.' 51 Cong.Rec. 9272. 9 See, e.g., F.T.C., Ann.Rep. for Fiscal Year 1929, 6—7, 60, where the Commission stated that it could take no corrective action under the Clayton Act against large consolidations in the food industry 'even though the consolidation was effected through the acquisition or exchange of capital stock,' because 'most of these consolidations and acquisitions were of corporations engaged in the distribution of allied but noncompetitive products.' See also, F.T.C., Ann.Rep. for Fiscal Year 1927, 13—15; Statement by General Counsel Kelley in Hearings before a Subcommittee of the Senate Committee on the Judiciary on H.R. 2734, 81st Cong., 1st and 2d Sess. 37; Report of the Federal Trade Commission on Interlocking Directorates, H.R.Doc. No. 652, 81st Cong., 2d Sess. 1. 10 In the Ronald Fabrics case, a rayon converter alleged that a competing corporation had restrained commerce by acquiring control of a source of supply of rayon. The District Court held that this allegation stated a cause of action under § 7 of the Clayton Act. 11 A minority in the Senate, led by Senators Cummins and Walsh, sought to strike out the 'tend to create a monopoly' language of § 7. 51 Cong.Rec. 14314—14316, 14319, 14459—14461. They argued that this language was superfluous because the creation of monopoly always substantially lessened competition, and because the Sherman Act contained similar languge, and that there was a danger that the language would be considered as an implied repeal of the Sherman Act. The failure of these efforts to eliminate the tendency toward monopoly clause (the restraint of commerce clause had not been added to § 7 at this time) indicates that the tendency toward monopoly clause was not intended to be limited to situations already encompassed by the substantially lessen competition clause. Similarly, the remarks of Senator Chilton, quoted by the Court from 51 Cong.Rec. 16002, 353 U.S. 591, 592, 77 S.Ct. 876, indicate that he thought the tendency toward monopoly and restraint of commerce clauses added something. But I find no evidence that what they did add included vertical acquisitions. 12 Federal Trade Commission v. Western Meat Co., 272 U.S. 554, 561, 47 S.Ct. 175, 178, 71 L.Ed. 405. 13 It might be argued that the mention of subsequent misuse in the third paragraph of § 7, the investment proviso, enlarges the substantive content of the first paragraph of § 7. This paragraph provides that 'This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition.' But the mention of use in this paragraph has the effect of limiting the exception it contains, i.e., the exception for stock purchased 'solely for investment.' This exception is lost if the stock is subsequently misused. But the exception contained in this paragraph does not come into play unless the acquisition first comes within the substantive prohibition of the first two paragraphs of § 7. This limitation on the exception cannot expand the substantive prohibition to which the exception applies. 14 It may be that § 7 is inapplicable when the Government fails to bring suit within a reasonable period after the consummation of the stock acquisition. If so, the 30 years here involved would exceed a reasonable period of incipiency. Even though § 7 of the Clayton Act, under this theory, would be inapplicable, any alleged restraint could be dealt with under the Sherman Act. 15 The Court apparently concedes that du Pont's stock acquisition in General Motors was lawful when made because 'its sales to General Motors were relatively insignificant' at that time and because 'General Motors then produced only about 11% of the total automobile production * * *.' 353 U.S. 599, 77 S.Ct. 880. Throughout, the Court stresses the growth in size of General Motors. 353 U.S. 595, 596, 599, 77 S.Ct. 878, 879, 880. The decline in the number of automobile manufacturers is not mentioned, but is well known. And the Court states that diffusion of General Motors' stock through the years has increased 'The potency of the influence of du Pont's 23% stock interest * * *.' 353 U.S. 607, 77 S.Ct. 884, note 36. 16 Except in this case, the enforcing agencies appear never to have brought an action under § 7 more than four years after the date of the acquisition. Consequently, the precise problem raised here has not been directly adjudicated. Nevertheless, the cases cited in the text spell out the proof required for a violation of § 7, and thus have an important bearing on this problem. 17 Cf. United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533, holding that even the exclusion of competition resulting from complete vertical integration does not violate the Sherman Act unless competition in a substantial portion of a market is restrained. 18 The following table compares General Motors' purchases, in 1947, of several products from du Pont with its purchases of the same products from competitors of du Pont. Purchases Percent of Purchases from Total General purchases from competitors of Motors' from Type of product du Pont du Pont purchases du Pont Finishes $18,724,000 $8,635,000 $27,359,000 68.4 Fabrics (imitation leather and coated fabrics) 3,639,000 5,815,000 9,454,000 38.5 Adhesives 12,000 3,056,000 3,068,000 .4 Chemicals: Anodes 2,000 1,206,000 1,208,000 .2 Solvents 439,000 3,183,000 3,622,000 12.1 $22,816,000 $21,895,000 $44,711,000 51.0 19 The following table compares du Pont's total sales of industrial finishes in recent years with its sales of the same finishes to General Motors: Sales to General Motors Sales to General Total finish Motors Year Other sales as percent Duco finishes Total of total sales 1938. $4,569,604 $1,625,625 $6,195,229 $31,357,134 19.8 1939. 6,312,005 2,448,844 8,760,849 38,514,763 22.7 1940. 8,876,970 2,850,091 11,727,061 44,974,778 26.1 1941. 9,768,119 3,757,389 13,525,508 61,204,127 22.1 1946. 6,911,596 3,518,256 10,429,852 75,117,079 13.9 1947. 12,224,798 6,713,431 18,938,229 105,266,655 18.0 The years 1942 through 1945 are omitted from all tables because of the suspension of automobile production during the war. 20 In 1947, a typical year, General Motors' total purchases of all products from du Pont were $26,628,274. Of this amount, $18,938,229, or 71% of the total, was finishes. 21 In 1947, over 400 paint manufacturers other than du Pont sold finishes to General Motors. The total amount they sold was $8,635,000, 31.6% of General Motors' requirements. Twenty-five companies, other than du Pont, each sold amounts of finishes to General Motors in excess of $30,000 in that year; one company sold as much as $3,205,000. 22 In 1947, General Motors' purchases of industrial finishes from du Pont, by type of finish, were as follows: Duco.............. $12,224,798. 65% Dulux............... 3,179,225. 17 All Others.......... 3,534,206. 18 ----------- ---- 18,938,229 100% Thus, Duco and Dulux comprised 82% of du Pont's funish sales to General Motors in that year. 23 Du Pont initially sold more Duco to other auto manufacturers than it did to General Motors. In 1926, du Pont's sales of colored Duco were distributed as follows: to General Motors, 19%; to other auto manufacturers, 33%; to all others, 48%. The primary market for clear Duco has always been the furniture industry. 24 For example, Van Derau, a Westinghouse executive, testified that his company bought its entire requirements of refrigerator finishes from du Pont because of du Pont's quality and service: 'Now, another factor—and I think I can say this without it being harmful to any other suppliers—du Pont has the finest trained technical group at their beck and call, at the beck and call of the users of the materials, of anybody in the business and we have had several times, when we have had a little problem, and I am thinking of one in particular where we were going to find it very difficult to keep in production until the trouble would be overcome, which I called from Pittsburgh to the Chicago office, and the next morning one of the men of du Pont was on the job, and within a very few hours they had materials coming in from their Toledo plant that kept us in production. 'You cannot laugh off that kind of service. They have been simply excellent, and I don't know how you could say, any better.' 25 The following table compares du Pont's total sales of industrial fabrics, primarily imitation leather and coated fabrics, in several recent years, with the sales of those same products to General Motors: G M sales Sales to Sales to as percent Year G M others Total sales of total sales 1938. $446,375. $6,647,112 $7,093,469 6.6 1939. 803,854. 7,775,778 8,579,632 9.4 1940. 1,285,280. 7,780,105 9,065,385 14.2 1941. 1,773,079. 13,093,469 14,866,548 11.9 1946. 2,083,166. 14,170,639 16,253,805 12.8 1947. 3,639,316. 16,723,610 20,362,926 17.9 26 The following table compares the dollar amount, in 1947, of du Pont's total sales of the products of its various departments with the amount sold by it to General Motors: Sales to Du Pont sales General Type of product to General Total du Motors, as Motors Pont sales percent of total sales Finishes. $18,938,229. $105,266,655 18.0 Fabrics.... 3,639,316. 20,362,926 17.9 Ammonia.... 1,742,416. 50,320,207 3.5 Grasselli Chemicals. 1,024,320 74,212,311 1.4 Electrochemicals. 1,019,272. 47,687,843 2.1 Plastics..... 105,422. 34,828,026 0.3 Organic Chemicals. 83,254. 94,632,256 0.1 Rayon......... 45,616. 250,467,514 (*) Explosives.... 26,032. 58,875,482 (*) Pigments....... 3,530. 31,496,024 (*) Photo Products... 867. 25,699,756 (*) $26,628,274 $793,849,000 3.4 * Less than 0.1%. 27 Because the Court quotes fully from, and appears to place special weight on, the 1926 letter of J. L. Pratt, a brief discussion of it is appropriate by way of illustration. 353 U.S. 606, 607, 77 S.Ct. 884, note 35. The letter only purports to be an expression of Pratt's personal views—he makes it clear in the last paragraph that he is expressing his own opinions and not General Motors' policy. It has, therefore, comparatively little bearing on du Pont's intent. Moreover, it is significant that Pratt's attitude toward du Pont was based not on the stock relationship, but on the fact that du Pont saved General Motors from financial disaster in 1920. His views, apparently, would have been the same whether or not du Pont owned stock in General Motors. In any event, all that Pratt says is that, in making purchases, General Motors should 'always keep a competitive situation,' and 'the prime consideration is to do the best thing for Delco-Light Company * * *.' (Pratt was writing to the general manager of Delco, a General Motors' division.) An examination of the circumstances in which this letter was written disposes of any notion that it expressed a policy that General Motors should prefer du Pont's products when they were equal in quality, service and price. The circumstances were these: Delco Light was buying paint from a competitor of du Pont. When the competitor failed to solve a paint problem which confronted Delco, it called on du Pont for help. However, although du Pont solved the problem and abtained one order for paint, Delco asked du Pont to withhold delivery so that the competitor could be given another opportunity to retain the business. Understandingly, Elms of the du Pont Paint Department was somewhat piqued by this, and he wrote a personal letter to his friend Pratt asking for his assistance. Pratt's letter to the general manager of Delco was the result. Despite the fact that the du Pont product was offered at a lower price and the fact that the technical staff at Delco thought the du Pont product superior, Delco nevertheless continued to buy from the competitor. Du pont never did receive the business to which the correspondence related. Judged by either its content or its result, the Pratt letter is a poor example of an alleged du Pont policy of 'purposely employ(ing) its stock to pry open the General Motors market * * *.' 353 U.S. 606, 77 S.Ct. 884. 28 The Court, without referring to any supporting evidence, ventures the conjecture that 'General Motors probably turned to outside sources of supply at least in part because its requirements outstripped du Pont's production * * *.' 353 U.S. 605, 77 S.Ct. 883. As I read the record, du Pont was actively soliciting more business from General Motors and others throughout the period covered in this suit. I find no hint that du Pont was surfeited with business and unable to fill General Motors' orders. 29 The Court also overturns the District Court's express finding that du Pont purchased General Motors' stock solely for investment. The Court does this on the basis of an alleged du Pont purpose to secure a noncompetitive preference which the Court finds expressed in the Raskob letter and in certain statements in du Pont's 1917 and 1918 reports to its stockholders. These documents, however, are not inconsistent with the District Court's finding of an investment purpose. The District Court said: 'Raskob's report, the testimony of Pierre S. and Irenee du Pont and all the circumstances leading up to du Pont's acquisition of this substantial interest in General Motors, as shown by the record, establish that the acquisition was essentially an investment. Its motivation was the profitable employment of a large part of the surplus which du Pont had available and uncommitted to expansion of its own business. 'Raskob's reports and other documents written at or near the time of the investment show that du Pont's representatives were well aware that General Motors was a large consumer of products of the kind offered by du Pont. Raskob, for one, thought that du Pont would ultimately get all that business, but there is no evidence that Raskob expected to secure General Motors trade by imposing any limitation upon its freedom to buy from suppliers of its choice. Other documents also establish du Pont's continued interest in selling to General Motors—even to the extent of the latter's entire requirements—but they similarly make no suggestion that the desired result was to be achieved by limiting General Motors purchasing freedom. On the contrary, a number of them explicitly recognized that General Motors trade could only be secured on a competitive basis.' 126 F.Supp. at pages 242, 243. Whether any stock purchase is an investment turns largely on the intent of the purchaser. Pennsylvania R. Co. v. Interstate Commerce Commission, 3 Cir., 66 F.2d 37, affirmed by an equally divided court, 291 U.S. 651, 54 S.Ct. 559, 78 L.Ed. 1045. In this case, since the District Court's finding with reference to that intent is unequivocal and not clearly erroneous, the stock acquisition falls within the proviso, stated in the third paragraph of § 7, expressly excepting acquisitions made 'solely for investment.' 30 The District Court did not reach this question since it found that there was no reasonable probability of any foreclosure of du Pont's competitors by reason of du Pont's 23% stock interest in General Motors. Consequently, there are no findings of fact dealing with the relevant market. Also, the record appears deficient on such crucial questions as the characteristics of the products, the uses to which they are put, the extent to which they are interchangeable with competitors' products, and so on. For these reasons, I believe the Court in any event should remand the case to the District Court to give the District Judge, who is more familiar with the record than we can be, an opportunity to review the record, and entertain argument with respect to the substantiality of the share of the relevant market affected by the foreclosure which the Court finds to exist. By declining to remand, the Court necessitates a scrutiny here of this huge record for a determination of an essentially factual question not passed on by the District Court, and not thoroughly briefed or argued by the parties. 31 The Court states that 'General Motors took 93% of du Pont's automobile Duco production in 1941 and 83% in 1947.' 353 U.S. 605, 77 S.Ct. 883. These figures are of little significance. Not only do they omit the crucial sales—those made outside the automobile industry—but they give a misleading impression with respect to du Pont's sales to the automobile industry. As previously stated, Ford chose to make its own requirements after about 1935 and Chrysler desired to concentrate its purchases on one supplier. Under these figures, after eliminating Ford and Chrysler, and deducting du Pont's sales to General Motors, du Pont must have supplied nearly half of the entire requirements of all remaining auto manufacturers in 1941 and an even larger portion in 1947. The record does not contain complete figures on the amount of Duco sold outside the automobile industry. However, there are figures for selected years. In 1927, for example, 51.5% of all Duco sales were to other than automobile manufacturers (1,166,220 gallons, out of a total of 2,263,000 gallons). In 1948, du Pont's gross sales to purchasers other than General Motors of the same kinds of finishes bought by General Motors amounted to about $97,000,000; its sales to General Motors in the same year were $21,000,000, or 21.7% of the total. The record reveals that General Motors' purchases of finishes from du Pont have ranged, in recent years, from 14% to 26% of du Pont's sales of such finishes to all customers. The conclusion seems clear that du Pont's finishes have found wide acceptance in innumerable industries and that du Pont is not dependent on General Motors for a captive paint market. 32 U.S. Department of Commerce, Bureau of the Census, II Census of Manufactures: 1947, Statistics by Industry, 414—415. There were 1,291 establishments manufacturing these products. Du Pont's total sales were 8.1% of the industry. 33 In the Fargo case, Maytag, an appliance manufacturer, acquired a 40% stock interest in, and contracted to purchase the entire output of, Globe, a gas range manufacturer. A Globe dealer, who lost his source of supply as a result of the transaction, brought a treble damage action alleging, inter alia, that the stock acquisition violated § 7 of the Clayton Act. The evidence showed that there were about 70 manufacturers of gas ranges, and that Globe was about eighteenth in size, selling a little less than 2% of the national market (about $5,000,000 a year). The Court of Appeals for the Seventh Circuit held that the stock acquisition did not violate § 7 because the plaintiff had other readily available sources of supply. The acquisition of an outlet is governed by similar principles. In either case, the question is whether competitors may be substantially limited in their competitive opportunities. Assuming that du Pont had purchased General Motors outright, and thus commanded an outlet consuming about 4% of the national market for industrial finishes and about 2% of the national market for industrial fabrics, it seems unlikely that du Pont's paint and fabric competitors would be substantially limited in selling their products, when 96% and 98%, respectively, of the national market would remain open to them.

78

353 U.S. 448 77 S.Ct. 923 1 L.Ed.2d 972 TEXTILE WORKERS UNION OF AMERICA, Petitioner,v. LINCOLN MILLS OF ALABAMA. GOODALL-SANFORD, Inc., Petitioner, v. UNITED TEXTILE WORKERS OF AMERICA, A.F.L. LOCAL 1802, and United Textile Workers of America, A.F.L. GENERAL ELECTRIC COMPANY, Petitioner, v. LOCAL 205, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA (U.E.). Nos. 211, 262 and 276. Supreme Court of the United States June 3, 1957 Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner-union entered into a collective bargaining agreement in 1953 with respondent-employer, the agreement to run one year and from year to year thereafter, unless terminated on specified notices. The agreement provided that there would be no strikes or work stoppages and that grievances would be handled pursuant to a specified procedure. The last step in the grievance procedure—a step that could be taken by either party—was arbitration. 2 This controversy involves several grievances that concern work loads and work assignments. The grievances were processed through the various steps in the grievance procedure and were finally denied by the employer. The union requested arbitration, and the employer refused. Thereupon the union brought this suit in the District Court to compel arbitration. 3 The District Court concluded that it had jurisdiction and ordered the employer to comply with the grievance arbitration provisions of the collective bargaining agreement. The Court of Appeals reversed by a divided vote. 230 F.2d 81. It held that, although the District Court had jurisdiction to entertain the suit, the court had no authority founded either in federal or state law to grant the relief. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem and the contrariety of views in the courts. 352 U.S. 821, 77 S.Ct. 54, 1 L.Ed.2d 46. 4 The starting point of our inquiry is § 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. § 185, 29 U.S.C.A. § 185, which provides: 5 '(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 6 '(b) Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.' 7 There has been considerable litigation involving § 301 and courts have construed it differently. There is one view that § 301(a) merely gives federal district courts jurisdiction in controversies that involve labor organizations in industries affecting commerce, without regard to diversity of citizenship or the amount in controversy.1 Under that view § 301(a) would not be the source of substantive law; it would neither supply federal law to resolve these controversies nor turn the federal judges to state law for answers to the questions. Other courts—the overwhelming number of them—hold that § 301(a) is more than jurisdictional2—that it authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements and includes within that federal law specific performance of promises to arbitrate grievances under collective bargaining agreements. Perhaps the leading decision representing that point of view is the one rendered by Judge Wyzanski in Textile Workers Union of America (C.I.O.) v. American Thread Co., D.C., 113 F.Supp. 137. That is our construction of § 301(a), which means that the agreement to arbitrate grievance disputes, contained in this collective bargaining agreement, should be specifically enforced. 8 From the face of the Act it is apparent that § 301(a) and § 301(b) supplement one another. Section 301(b) makes it possible for a labor organization, representing employees in an industry affecting commerce, to sue and be sued as an entity in the federal courts. Section 301(b) in other words provides the procedural remedy lacking at common law. Section 301(a) certainly does something more than that. Plainly, it supplies the basis upon which the federal district courts may take jurisdiction and apply the procedural rule of § 301(b). The question is whether § 301(a) is more than jurisdictional. 9 The legislative history of § 301 is somewhat cloudy and confusing. But there are a few shafts of light that illuminate our problem. 10 The bills, as they passed the House and the Senate, contained provisions which would have made the failure to abide by an agreement to arbitrate an unfair labor practice. S.Rep. No. 105, 80th Cong., 1st Sess., pp. 20—21, 23; H.R.Rep. No. 245, 80th Cong., 1st Sess., p. 21.3 This feature of the law was dropped in Conference. As the Conference Report stated, 'Once parties have made a collective bargaining contract, the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.' H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., p. 42. 11 Both the Senate and the House took pains to provide for 'the usual processes of the law' by provisions which were the substantial equivalent of § 301(a) in its present form. Both the Senate Report and the House Report indicate a primary concern that unions as well as employees should be bound to collective bargaining contracts. But there was also a broader concern—a concern with a procedure for making such agreements enforceable in the courts by either party. At one point the Senate Report, supra, p. 15, states, 'We feel that the aggrieved party should also have a right of action in the Federal courts. Such a policy is completely in accord with the purpose of the Wagner Act which the Supreme Court declared was 'to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made * * *." 12 Congress was also interested in promoting collective bargaining that ended with agreements not to strike.4 The Senate Report, supra, p. 16 states: 13 'If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract. 14 'Consequently, to encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements affecting interstate commerce should be enforceable in the Federal courts. Our amendment would provide for suits by unions as legal entities and against unions as legal entities in the Federal courts in disputes affecting commerce.' 15 Thus collective bargaining contracts were made 'equally binding and enforceable on both parties.' Id., p. 15. As stated in the House Report, supra, p. 6, the new provision 'makes labor organizations equally responsible with employers for contract violations and provides for suit by either against the other in the United States district courts.' To repeat, the Senate Report, supra, p. 17, summed up the philosophy of § 301 as follows: 'Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace.' Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor oganizations and that industrial peace can be best obtained only in that way. 16 To be sure, there is a great medley of ideas reflected in the hearings, reports, and debates on this Act. Yet, to repeat, the entire tenor of the history indicates that the agreement to arbitrate grievance disputes was considered as quid pro quo of a no-strike agreement. And when in the House the debate narrowed to the question whether § 301 was more than jurisdictional, it became abundantly clear that the purpose of the section was to provide the necessary legal remedies. Section 302 of the House bill,5 the substantial equivalent of the present § 301, was being described by Mr. Hartley, the sponsor of the bill in the House: 17 'Mr. Barden. Mr. Chairman, I take this time for the purpose of asking the Chairman a question, and in asking the question I want it understood that it is intended to make a part of the record that may hereafter be referred to as history of the legislation. 18 'It is my understanding that section 302, the section dealing with equal responsibility under collective bargaining contracts in strike actions and proceedings in district courts contemplates not only the ordinary lawsuits for damages but also such other remedial proceedings, both legal and equitable, as might be appropriate in the circumstances; in other words, proceedings could, for example, be brought by the employers, the labor organizations, or interested individual employees under the Declaratory Judgments Act in order to secure declarations from the Court of legal rights under the contract. 19 'Mr. Hartley. The interpretation the gentleman has just given of that section is absolutely correct.' 93 Cong.Rec. 3656 3657. 20 It seems, therefore, clear to us that Congress adopted a policy which placed sanctions behind agreements to arbitrate grievance disputes,6 by implication rejecting the common-law rule, discussed in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582, against enforcement of executory agreements to arbitrate.7 We would undercut the Act and defeat its policy if we read § 301 narrowly as only conferring jurisdiction over labor organizations. 21 The question then is, what is the substantive law to be applied in suits under § 301(a)? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. See Mendelsohn, Enforceability of Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167. The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. dates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313. Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 485, 87 L.Ed. 640. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. See Board of Commissioners of Jackson County v. United States, supra, 308 U.S. at pages 351—352, 60 S.Ct. at pages 288—289. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights. 22 It is not uncommon for federal courts to fashion federal law where federal rights are concerned. See Clearfield Trust Co. v. United States, 318 U.S. 363, 366—367, 63 S.Ct. 573, 574—575, 87 L.Ed. 838; National Metropolitan Bank v. United States, 323 U.S. 454, 65 S.Ct. 354, 89 L.Ed. 383. Congress has indicated by § 301(a) the purpose to follow that course here. There is no constitutional difficulty. Article III, § 2, extends the judicial power to cases 'arising under * * * the Laws of the United States * * *.' The power of Congress to regulate these labor-management controversies under the Commerce Clause is plain. Houston East & West Texas R. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341; National Labor Relations Board v. Jones & Laughlin Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893. A case or controversy arising under § 301(a) is, therefore, one within the purview of judicial power as defined in Article III. 23 The question remains whether jurisdiction to compel arbitration of grievance disputes is withdrawn by the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101 at seq., 29 U.S.C.A. § 101 et seq. Section 7 of that Act prescribes stiff procedural requirements for issuing an injunction in a labor dispute. The kinds of acts which had given rise to abuse of the power to enjoin are listed in § 4. The failure to arbitrate was not a part and parcel of the abuses against which the Act was aimed. Section 8 of the Norris-LaGuardia Act does, indeed, indicate a congressional policy toward settlement of labor disputes by arbitration, for it denies injunctive relief to any person who has failed to make 'every reasonable effort' to settle the dispute by negotiation, mediation, or 'voluntary arbitration.' Though a literal reading might bring the dispute within the terms of the Act (see Cox, Grievance Arbitration in the Federal Courts, 67 Harv.L.Rev. 591, 602—604), we see no justification in policy for restricting § 301(a) to damage suits, leaving specific performance of a contract to arbitrate grievance disputes to the inapposite8 procedural requirements of that Act. Moreover, we held in Virginia R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789, and in Graham v. Brotherhood of Firemen, 338 U.S. 232, 237, 70 S.Ct. 14, 17, 94 L.Ed. 22 that the Norris-LaGuardia Act does not deprive federal courts of jurisdiction to compel compliance with the mandates of the Railway Labor Act, 45 U.S.C.A. § 151 et seq. The mandates there involved concerned racial discrimination. Yet those decisions were not based on any peculiarities of the Railway Labor Act. We followed the same course in Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785, which was governed by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. There an injunction was sought against racial discrimination in application of a collective bargaining agreement; and we allowed the injunction to issue. The congressional policy in favor of the enforcement of agreements to arbitrate grievance disputes being clear,9 there is no reason to submit them to the requirements of § 7 of the Norris-LaGuardia Act. 24 A question of mootness was raised on oral argument. It appears that since the date of the decision in the Court of Appeals respondent has terminated its operations and has contracted to sell its mill properties. All work in the mill ceased in March, 1957. Some of the grievances, however, ask for back pay for increased work loads; and the collective bargaining agreement provides that 'the Board of Arbitration shall have the right to adjust compensation retroactive to the date of the change.' Insofar as the grievances sought restoration of workloads and job assignments, the case is, of course, moot. But to the extent that they sought a monetary award, the case is a continuing controversy. 25 The judgment of the Court of Appeals is reversed and the cause is remanded to that court for proceedings in conformity with this opinion. 26 Reversed. 27 Mr. Justice BLACK took no part in the consideration or decision of this case. 28 Mr. Justice BURTON, whom Mr. Justice HARLAN joins, concurring in the result. 29 This suit was brought in a United States District Court under § 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. § 185, 29 U.S.C.A. § 185, seeking specific enforcement of the arbitration provisions of a collective-bargaining contract. The District Court had jurisdiction over the action since it involved an obligation running to a union—a union controversy—and not uniquely personal rights of employees sought to be enforced by a union. Cf. Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510. Having jurisdiction over the suit, the court was not powerless to fashion an appropriate federal remedy. The power to decree specific performance of a collectively bargained agreement to arbitrate finds its source in § 301 itself,1 and in a Federal District Court's inherent equitable powers, nurtured by a congressional policy to encourage and enforce labor arbitration in industries affecting commerce.2 30 I do not subscribe to the conclusion of the Court that the substantive law to be applied in a suit under § 301 is federal law. At the same time, I agree with Judge Magruder in International Brotherhood v. W. L. Mead, Inc., 1 Cir., 230 F.2d 576, that some federal rights may necessarily be involved in a § 301 case, and hence that the constitutionality of § 301 can be upheld as a congressional grant to Federal District Courts of what has been called 'protective jurisdiction.' 31 Mr. Justice FRANKFURTER dissenting. For dissenting opinion see 353 U.S. 448, 77 S.Ct. 923. 32 The Court has avoided the difficult problems raised by § 301 of the Taft-Hartley Act, 61 Stat. 156, 29 U.S.C. § 185, 29 U.S.C.A. s 185,1 by attributing to the section an occult content. This plainly procedural section is transmuted into a mandate to the federal courts to fashion a whole body of substantive federal law appropriate for the complicated and touchy problems raised by collective bargaining. I have set forth in my opinion in Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp. the detailed reasons why I believe that § 301 cannot be so construed, even if constitutional questions cannot be avoided. 348 U.S. 437, 441—449, 452—459, 75 S.Ct. 489, 490—494, 496—500, 99 L.Ed. 510. But the Court has a 'clear' and contrary conclusion emerge from the 'somewhat,' to say the least, 'cloudy and confusing legislative history.' This is more than can be fairly asked even from the alchemy of construction. Since the Court relies on a few isolated statements in the legislative history which do not support its conclusion, however favoringly read, I have deemed in necessary to set forth in an appendix the entire relevant legislative history of the Taft-Hartley Act and its predecessor, the Case Bill. This legislative history reinforces the natural meaning of the statute as an exclusively procedural provision, affording, that is, an accessible federal forum for suits on agreements between labor organizations and employers, but not enacting federal law for such suits. See also Wollett and Wllington, Federalism and Breach of the Labor Agreement, 7 Stan.L.Rev. 445. 33 I have also set forth in my opinion in the Westinghouse case an outline of the vast problems that the Court's present decision creates by bringing into conflict state law and federal law, state courts and federal courts. 348 U.S. at pages 454—455, 75 S.Ct. at pages 497—498; see also Judge Wyzanski's opinion in Textile Workers Union of America (C.I.O.) v. American Thread Co., D.C., 113 F.Supp. 137, 140. These problems are not rendered non-existent by disregard of them. It should also be noted that whatever may be a union's ad hoc benefit in a particular case, the meaning of collective bargaining for labor does not remotely derive from reliance on the sanction of litigation in the courts. Restrictions made by legislation like the Clayton Act of 1914, 38 Stat. 738, §§ 20, 22, 29 U.S.C.A. § 52, 18 U.S.C.A. § 402, and the Norris-LaGuardia Act of 1932, 47 Stat. 70, 29 U.S.C.A. § 101 et seq., upon the use of familiar remedies theretofore available in the federal courts, reflected deep fears of the labor movement of the use of such remedies against labor. But a union, like any other combatant engaged in a particular fight, is ready to make an ally of an old enemy, and so we also find unions resorting to the otherwise much excoriated labor injunction. Such intermittent yielding to expediency does not change the fact that judicial intervention is ill-suited to the special characteristics of the arbitration process in labor disputes; nor are the conditions for its effective functioning thereby altered. 34 'The arbitration is an integral part of the system of self-government. And the system is designed to aid management in its quest for efficiency, to assist union leadership in its participation in the enterprise, and to secure justice for the employees. it is a means of making collective bargaining work and thus preserving private enterprise in a free government. When it works fairly well, it does not need the sanction of the law of contracts or the law of arbitration. It is only when the system breaks down completely that the courts' aid in these respects is invoked. But the courts cannot, by occasional sporadic decision, restore the parties' continuing relationship; and their intervention in such cases may seriously affect the going systems of self-government. When their autonomous system breaks down, might not the parties better be left to the usual methods for adjustment of labor disputes rather than to court actions on the contract or on the arbitration award?' Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999, 1024. 35 These reflections summarized the vast and extraordinarily successful experience of Dean Harry Shulman as labor arbitrator, especially as umpire under the collective-bargaining contract between the Ford Motor Co. and the UAW—CIO. (See his Opinions of the Umpire, Ford Motor Co. and UAW—CIO, 1943—1946, and the review by E. Merrick Dodd in 60 Harv.L.Rev. 486.) Arbitration agreements are for specific terms, generally much shorter than the time required for adjudication of a contested lawsuit through the available stages of trial and appeal. Renegotiation of agreements cannot await the outcome of such litigation; nor can the parties' continuing relation await it. Cases under § 301 will probably present unusual rather than representative situations. A 'rule' derived from them is more likely to discombobulate than to compose. A 'uniform corpus' cannot be expected to evolve, certainly not within a time to serve its assumed function. 36 The prickly and extensive problems that the supposed grant would create further counsel against a finding that the grant was made. They present hazardous opportunities for friction in the regulation of contracts between employers and unions. They involve the division of power between State and Nation, between state courts and federal courts, including the effective functioning of this Court. Wisdom suggests self-restraint in undertaking to solve these problems unless the Court is clearly directed to do so. Section 301 is not such a direction. The legislative history contains no suggestion that these problems were considered; the terms of the section do not present them. 37 One word more remains to be said. The earliest declaration of unconstitutionality of an act of Congress—by the Justices on circuit—involved a refusal by the Justices to perform a function imposed upon them by Congress because of the non-judicial nature of that function. Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436. Since then, the Court has many times declared legislation unconstitutional because it imposed on the Court powers or functions that were regarded as outside the scope of the 'judicial power' lodged in the Court by the Constitution. See, e.g., Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60; United States v. Ferreira, 13 How. 40, 14 L.Ed. 42; Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Keller v. Potomac Electric Power Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731. 38 One may fairly generalize from these instances that the Court has deemed itself peculiarly qualified, with due regard to the contrary judgment of Congress, to determine what is meet and fit for the exercise of 'judicial power' as authorized by the Constitution. Solicitude and respect for the confines of 'judicial power,' and the difficult problem of marking those confines, apply equally in construing precisely what duties Congress has cast upon the federal courts, especially when, as in this case, the most that can be said in support of finding a congressional desire to impose these 'legislative' duties on the federal courts is that Congress did not mention the problem in the statute and that, insofar as purpose may be gathered from congressional reports and debates, they leave us in the dark. 39 The Court, however, sees no problem of 'judicial power' in casting upon the federal courts, with no guides except 'judicial inventiveness,' the task of applying a whole industrial code that is as yet in the bosom of the jidiciary. There are severe limits on 'judicial inventiveness' even for the most imaginative judges. The law is not a 'brooding omnipresence in the sky,' (Mr. Justice Holmes, dissenting, in Southern Pacific Co. v. Jensen, 244 U.S. 205, 222, 37 S.Ct. 524, 531, 61 L.Ed. 1086), and it cannot be drawn from there like nitrogen from the air. These problems created by the Court's interpretation of § 301 cannot 'be solved by resort to the established canons of construction that enable a court to look through awkward or clumsy expression, or language wanting in precision, to the intent of the legislature. For the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the legislature meant one thing rather than another * * *.' Connally v. General Construction Co., 269 U.S. 385, 394, 46 S.Ct. 126, 128, 70 L.Ed. 322. But the Court makes § 301 a mountain instead of a molehill and, by giving an example of 'judicial inventiveness,' it thereby solves all the constitutional problems that would otherwise have to be faced. 40 Even on the Court's attribution to § 301 of a direction to the federal courts to fashion, out of bits and pieces elsewhere to be gathered, a federal common law of labor contracts, it still does not follow that Congress has enacted that an agreement to arbitrate industrial differences be specifically enforceable in the federal courts. On the contrary, the body of relevant federal law precludes such enforcement of arbitration clauses in collective-bargaining agreements. 41 Prior to 1925, the doctrine that executory agreements to arbitrate any kind of dispute would not be specifically enforced still held sway in the federal courts. See, e.g., Judge Hough's opinion in United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., D.C., 222 F. 1006; Judge Mack's opinion in Atlantic Fruit Co. v. Red Cross Line, D.C., 276 F. 319; and Mr. Justice Brandeis' opinion in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 125, 44 S.Ct. 274, 276, 277, 68 L.Ed. 582. Legislation was deemed necessary to assure such power to the federal courts. In 1925, Congress passed the United States Arbitration Act, 9 U.S.C. § 1 et seq., 9 U.S.C.A. § 1 et seq., making executory agreements to arbitrate specifically enforceable in the federal courts, but explicitly excluding 'contracts of employment' of workers engaged in interstate commerce from its scope. Naturally enough, I find rejection, though not explicit, of the availability of the Federal Arbitration Act to enforce arbitration clauses in collective-bargaining agreements in the silent treatment given that Act by the Court's opinion. If an Act that authorizes the federal courts to enforce arbitration provisions in contracts generally, but specifically denies authority to decree that remedy for 'contracts of employment,' were available, the Court would hardly spin such power out of the empty darkness of § 301. I would make this rejection explicit, recognizing that when Congress passed legislation to enable arbitration agreements to be enforced by the federal courts, it saw fit to exclude this remedy with respect to labor contracts. See Amalgamated Association, etc. v. Pennsylvania Greyhound Lines, 3 Cir., 192 F.2d 310; United Electrical, Radio & Machine Workers of America v. Miller Metal Products, Inc., 4 Cir., 215 F.2d 221; Lincoln Mills of Alabama v. Textile Workers Union, 5 Cir., 230 F.2d 81; United Steelworkers of America, C.I.O. v. Galland-Henning Mfg. Co., 7 Cir., 241 F.2d 323; and the legislative history set forth by the parties in the present cases. Congress heeded the resistance of organized labor, uncompromisingly led in its hostility to this measure by Andrew Furuseth, president of the International Seamen's Union and most powerful voice expressing labor's fear of the use of this remedy against it.2 42 Even though the Court glaringly ignores the Arbitration Act, it does at least recognize the common-law rule against enforcement of executory agreements to arbitrate. It nevertheless enforces the arbitration clause in the collective-bargaining agreements in these cases. It does so because it finds that Congress 'by implication' rejected the common-law rule. I would add that the Court, in thus deriving power from the unrevealing words of the Taft-Hartley Act, has also found that Congress 'by implication' repealed its own statutory exemption of collective-bargaining agreements in the Arbitration Act, an exemption made as we have seen for well-defined reasons of policy. 43 The Court of Appeals for the First Circuit, which reached the conclusion that arbitration clauses in collective-bargaining agreements were enforceable under the Arbitration Act, nevertheless found that such clauses would not have been enforceable by virtue of § 301: 44 'A number of courts have held that § 301 itself is a legislative authorization for decrees of specific performance of arbitration agreements. * * * We think that is reading too much into the very general language of § 301. The terms and legislative history of § 301 sufficiently demonstrate, in our view, that it was not intended either to create any new remedies or to deny applicable existing remedies. See H.R.Rep.No.245, 80th Cong., 1st Sess. 46 (1947); H.R.Rep.No.510 (Conference Report), 80th Cong., 1st Sess. 42 (1947); 93 Cong.Rec. 3734, 6540 (daily ed. 1947). Arbitration was scarcely mentioned at all in the legislative history. Furthermore, the same practical consideration that militates against judicial overruling of the common law doctrine applies against interpreting § 301 to give that effect. The most that could be read into it would be that it authorizes equitable remedies in general, including decrees for specific performance of an arbitration agreement. Lacking are the procedural specifications needed for administration of the power to compel arbitration. * * * Thus it seems to us that a firmer statutory basis than § 301 should be found to justify departure from the judicially formulated doctrines with reference to arbitration agreements.' Local 205, United Electrical, Radio and Mach. Workers of America (UE) v. General Electric Co., 233 F.2d 85, 96—97. 45 I would put the conclusion even more strongly because, contrary to the view of the Court of Appeals for the First Circuit, the rule that is departed from 'by implication' had not only been 'judicially formulated' but had purposefully been congressionally formulated in the Arbitration Act of 1925. And it is being departed from on the tenuous basis of the legislative history of § 301, for which the utmost that can be claimed is that insofar as there was any expectation at all, it was only that conventional remedies, including equitable remedies, would be available. But of course, as we have seen, 'equitable remedies' in the federal courts had traditionally excluded specific performance of arbitration clauses, except as explicitly provided by the 1925 Act. Thus, even assuming that § 301 contains directions for some federal substantive law of labor contracts, I see no justification for translating the vague expectation concerning the remedies to be applied into an overruling of previous federal common law and, more particularly, into the repeal of the previous congressional exemption of collective-bargaining agreements from the class of agreements in which arbitration clauses were to be enforced. 46 The second ground of my dissent from the Court's action is more fundamental.3 Since I do not agree with the Court's conclusion that federal substantive law is to govern in actions under § 301, I am forced to consider the serious constitutional question that was adumbrated in the Westinghouse case, 348 U.S. at 449—452, 75 S.Ct. 494—496, the constitutionality of a grant of jurisdiction to federal courts over contracts that came into being entirely by virtue of state substantive law, a jurisdiction not based on diversity of citizenship, yet one in which a federal court would, as in diversity cases, act in effect merely as another court of the State in which it sits. The scope of allowable federal judicial power that this grant must satisfy is constitutionally described as 'Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' Art. III, § 2. While interpretive decisions are legion under general statutory grants of jurisdiction strikingly similar to this constitutional wording, it is generally recognized that the full constitutional power has not been exhausted by these statutes. See, e.g., Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 160; Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 405, n. 47; Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob., 216, 224—225. 47 Almost without exception, decisions under the general statutory grants have tested jurisdiction in terms of the presence, as an integral part of plaintiff's cause of action, of an issue calling for interpretation or application of federal law. E.g., Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. Although it has sometimes been suggested that the 'cause of action' must derive from federal law, see American Well Works Co. v. Layne and Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987, it has been found sufficient that some aspect of federal law is essential to plaintiff's success. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577. The litigation-provoking problem has been the degree to which federal law must be in the forefront of the case and not collateral, peripheral or remote. 48 In a few exceptional cases, arising under special jurisdictional grants, the criteria by which the prominence of the federal question is measured against constitutional requirements have been found satisfied under circumstances suggesting a variant theory of the nature of these requirements. The first, and the leading case in the field, is Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204. There, Chief Justice Marshall sustained federal jurisdiction in a situation—hypothetical in the case before him but presented by the companion case of Bank of United States v. Planters' Bank, 9 Wheat. 904, 6 L.Ed. 244—involving suit by a federally incorporated bank upon a contract. Despite the assumption that the cause of action and the interpretation of the contract would be governed by state law, the case was found to 'arise under the laws of the United States' because the propriety and scope of a federally granted authority to enter into contracts and to litigate might well be challenged. This reasoning was subsequently applied to sustain jurisdiction in actions against federally chartered railroad corporations. Pacific Railroad Removal Cases (Union Pac. Ry. Co. v. Myers), 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319. The traditional interpretation of this series of cases is that federal jurisdiction under the 'arising' clause of the Constitution, though limited to cases involving potential federal questions, has such flexibility that Congress may confer it whenever there exists in the background some federal proposition that might be challenged, despite the remoteness of the likelihood of actual presentation of such a federal question.4 49 The views expressed in Osborn and the Pacific Railroad Removal Cases were severely restricted in construing general grants of jurisdiction. But the Court later sustained this jurisdictional section of the Bankruptcy Act of 1898: 50 'The United States district courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants.' § 23, sub. a, as amended, 44 Stat. 664, 11 U.S.C.A. § 46, sub. a. 51 Under this provision the trustee could pursue in a federal court a private cause of action arising under and wholly governed by state law. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433; Williams v. Austrian, 331 U.S. 642, 67 S.Ct. 1443, 91 L.Ed. 1718 (Chandler Act of 1938, 52 Stat. 840, 11 U.S.C.A. § 1 et seq.). To be sure, the cases did not discuss the basis of jurisdiction. It has been suggested that they merely represent an extension of the approach of the Osborn case; the trustee's right to sue might be challenged on obviously federal grounds—absence of bankruptcy or irregularity of the trustee's appointment or of the bankruptcy proceedings. National Mutual Ins. Co. of Dist. of Col. v. Tidewater Transfer Co., 337 U.S. 582, 611—613, 69 S.Ct. 1173, 1187—1188, 93 L.Ed. 1556 (Rutledge, J., concurring). So viewed, this type of litigation implicates a potential federal question. 52 Apparently relying on the extent to which the bankruptcy cases involve only remotely a federal question, Mr. Justice Jackson concluded in National Mutual Insurance Co. of Dist. of Col. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556, that Congress may confer jurisdiction on the District Courts as incidental to its powers under Article I. No attempt was made to reconcile this view with the restrictions of Article III; a majority of the Court recognized that Article III defined the bounds of valid jurisdictional legislation and rejected the notion that jurisdictional grants can go outside these limits. 53 With this background, many theories have been proposed to sustain the constitutional validity of § 301. In Textile Workers Union of America (C.I.O.) v. American Thread Co., D.C., 113 F.Supp. 137, 140, Judge Wyzanski suggested, among other possibilities, that § 301 might be read as containing a direction that controversies affecting interstate commerce should be governed by federal law incorporating state law by reference, and that such controversies would then arise under a valid federal law as required by Article III. Whatever may be said of the assumption regarding the validity of federal jurisdiction under an affirmative declaration by Congress that state law should be applied as federal law by federal courts to contract disputes affecting commerce, we cannot argumentatively legislate for Congress when Congress has failed to legislate. To do so disrespects legislative responsibility and disregards judicial limitations. 54 Another theory, relying on Osborn and the bankruptcy cases, has been proposed which would achieve results similar to those attainable under Mr. Justice Jackson's view, but which purports to respect the 'arising' clause of Article III. See Hart and Wechsler, The Federal Courts and the Federal System, pp. 744—747; Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 224—225; International Brotherhood of Teamsters, etc. v. W. L. Mead, Inc., 1 Cir., 230 F.2d 576. Called 'protective jurisdiction,' the suggestion is that in any case for which Congress has the constitutional power to prescribe federal rules of decision and thus confer 'true' federal question jurisdiction, it may, without so doing, enact a jurisdictional statute, which will provide a federal forum for the application of state statute and decisional law. Analysis of the 'protective jurisdiction' theory might also be attempted in terms of the language of Article III—construing 'laws' to include jurisdictional statutes where Congress could have legislated substantively in a field. This is but another way of saying that because Congress could have legislated substantively and thereby could give rise to litigation under a statute of the United States, it can provide a federal forum for statecreated rights although it chose not to adopt state law as federal law or to originate federal rights. 55 Surely the truly technical restrictions of Article III are not met or respected by a beguiling phrase that the greater power here must necessarily include the lesser. In the compromise of federal and state interests leading to distribution of jealously guarded judicial power in a federal system, see 13 Cornell L.Q. 499, it is obvious that very different considerations apply to cases involving questions of federal law and those turning solely on state law. It may be that the ambiguity of the phrase 'arising under the laws of the United States' leaves room for more than traditional theory could accommodate. But, under the theory of 'protective jurisdiction,' the 'arising under' jurisdiction of the federal courts would be vastly extended. For example, every contract or tort arising out of a contract affecting commerce might be a potential cause of action in the federal courts, even though only state law was involved in the decision of the case. At least in Osborn and the bankruptcy cases, a substantive federal law was present somewhere in the background. See 353 U.S. 470—472, 77 S.Ct. 928, 929, supra, and 353 U.S. 480—484, 77 S.Ct. 933—936, infra. But this theory rests on the supposition that Congress could enact substantive federal law to govern the particular case. It was not held in those cases, nor is it clear, that federal law could be held to govern the transactions of all persons who subsequently become bankrupt, or of all suits of a Bank of the United States. See Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.Rev. 157, 189. 56 'Protective jurisdiction,' once the label is discarded, cannot be justified under any view of the allowable scope to be given to Article III. 'Protective jurisdiction' is a misused label for the statute we are here considering. That rubric is properly descriptive of safeguarding some of the indisputable, staple business of the federal courts. It is a radiation of an existing jurisdiction. See Adams v. United States ex rel. McCann, 371 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; 28 U.S.C. § 2283, 28 U.S.C.A. § 2283. 'Protective jurisdiction' cannot generate an independent source for adjudication outside of the Article III sanctions and what Congress has defined. The theory must have as its sole justification a belief in the inadequacy of state tribunals in determining state law. The Constitution reflects such a belief in the specific situation within which the Diversity Clause was confined. The intention to remedy such supposed defects was exhausted in this provision of Article III.5 That this 'protective' theory was not adopted by Chief Justice Marshall at a time when conditions might have presented more substantial justification strongly suggests its lack of constitutional merit. Moreover, Congress in its consideration of § 301 nowhere suggested dissatisfaction with the ability of state courts to administer state law properly. Its concern was to provide access to the federal courts for easier enforcement of state-created rights. 57 Another theory also relies on Osborn and the bankruptcy cases as an implicit recognition of the propriety of the exercise of some sort of 'protective jurisdiction' by the federal courts. Mishkin, op. cit. supra, 53 Col.L.Rev. 157, 184 et seq. Professor Mishkin tends to view the assertion of such a jurisdiction, in the absence of any exercise of substantive powers, as irreconcilable with the 'arising' clause since the case would then arise only under the jurisdictional statute itself, and he is reluctant to find a constitutional basis for the grant of power outside Article III. Professor Mishkin also notes that the only purpose of such a statute would be to insure impartiality to some litigant, an objection inconsistent with Article III's recognition of 'protective jurisdiction' only in the specified situation of diverse citizenship. But where Congress has 'an articulated and active federal policy regulating a field, the 'arising under' clause of Article III apparently permits the conferring of jurisdiction on the national courts of all cases in the area including those substantively governed by state law.' Id., at 192. In such cases, the protection being offered is not to the suitor, as in diversity cases, but to the 'congressional legislative program.' Thus he supports § 301: 'even though the rules governing collective bargaining agreements continue to be state-fashioned, nonetheless the mode of their application and enforcement may play a very substantial part in the labor-management relations of interstate industry and commerce—an area in which the national government has labored long and hard.' Id., at 196. 58 Insofar as state law governs the case, Professor Mishkin's theory is quite similar to that advanced by Professors Hart and Wechsler and followed by the Court of Appeals for the First Circuit: The substantive power of Congress, although not exercised to govern the particular 'case,' gives 'arising under' jurisdiction to the federal courts despite governing state law. The second 'protective jurisdiction' theory has the dubious advantage of limiting incursions on state judicial power to situations in which the State's feelings may have been tempered by early substantive federal invasions. 59 Professor Mishkin's theory of 'protective jurisdiction' may find more constitutional justification if there is not merely an 'articulated and active' congressional policy regulating the labor field but also federal rights existing in the interstices of actions under § 301. See Wollett and Wellington, Federalism and Breach of the Labor Agreement, 7 Stan.L.Rev. 445, 475—479. Therefore, before resting on an interpretation of § 301 that would compel a declaration of unconstitutionality, we must, as was stated in Westinghouse, defer to the strong presumption even as to such technical matters as federal jurisdiction—that Congress legislated in accordance with the Constitution. The difficult nature of the problem of construction to be faced if some federal rights are sought was set forth in Westinghouse, where the constitutional questions were involved only in their bearing on the construction of the statute. Now that the constitutional questions themselves must be faced, the nature of the problem bears repeating. 60 Legislation must, if possible, be given a meaning that will enable it to survive. This rule of constitutional adjudication is normally invoked to narrow what would otherwise be the natural but constitutionally dubious scope of the language. E.g., United States v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836; United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. Here the endeavor of some lower courts and of this Court has resulted in adding to the section substantive congressional regulation even though Congress saw fit not to exercise such power or to give the courts any concrete guidance for defining such regulation. 61 To be sure, the full scope of a substantive regulation is frequently in dispute and must await authoritative determination by courts. Congress declares its purpose imperfectly or partially, and compatible judicial construction completes it. But in this case we start with a provision that is wholly jurisdictional and as such bristles with constitutional problems under Article III. To avoid them, interpolation of substantive regulation has been proposed. From what materials are we to draw a determination that § 301 is something other than what it declares itself? Is the Court justified in creating all the difficult problems of choice within a sphere of delicate policy without any direction from Congress and merely for the sake of giving effect to a provision that seems to deal with a different subject? The somewhat Delphic wisdom of Mr. Justice Cardozo, speaking for the whole Court, pulls us here in the opposite direction: 'We think the light is so strong as to flood whatever places in the statute might otherwise be dark. Courts have striven mightily at times to canalize construction along the path of safety. * * * When a statute is reasonably susceptible of two interpretations, they have preferred the meaning that preserves to the meaning that destroys. * * * 'But avoidance of a defficulty will not be pressed to the point of disingenuous evasion.' * * * 'Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power." Hopkins Federal Savings & Loan Ass'n v. Cleary, 296 U.S. 315, 334—335, 56 S.Ct. 235, 239—240, 90 L.Ed. 251. 62 Assuming, however, that we would be justified in pouring substantive content into a merely procedural vehicle, what elements of federal law could reasonably be put into the provisions of § 301? The suggestion that the section permits the federal courts to work out, without more, a federal code governing collective-bargaining contracts must, for reasons that have already been stated, be rejected. Likewise the suggestion that § 301 may be viewed as a congressional authorization to the federal courts to work out a concept of the nature of the collective-bargaining contract, leaving detailed questions of interpretation to state law. See 348 U.S. at pages 455—459, 75 S.Ct. at pages 498—500. 63 Nor will Congress' objective be furthered by an attempt to limit the grant of a federal forum to certain types of actions between unions and employers. It would be difficult to find any basis for, or principles of, selection, either in the terms of § 301 or in considerations relevant to promotion of stability in labor relations. It is true that a fair reading of § 301 in the context of its enactment shows that the suit that Congress primarily contemplated was the suit against a union for strike in violation of contract. From this it might be possible to imply a federal right to bring an action for damages based on such an event. In the interest of mutuality, so close to the heart of Congress, we might in turn find a federal right in the union to sue for a lockout in violation of contract. But neither federal right would be involved in the present cases. Moreover, it bears repetition that Congress chose not to make this the basis of federal law, i.e., it chose not to make such conduct an unfair labor practice. 64 There is a point, however, at which the search may be ended with less misgiving regarding the propriety of judicial infusion of substantive provisions into § 301. The contribution of federal law might consist in postulating the right of a union, despite its amorphous status as an unincorporated association, to enter into binding collective-bargaining contracts with an employer. The federal courts might also give sanction to this right by refusing to comply with any state law that does not admit that collective bargaining may result in an enforceable contract. It is hard to see what serious federal-state conflicts could arise under this view. At most, a state court might dismiss the action, while a federal court would entertain it. Moreover, such a function of federal law is closely related to the removal of the procedural barriers to suit. Section 301 would be futile if the union's status as a contracting party were not recognized. The statement in § 301(b) that the acts of the agents of the union are to be regarded as binding upon the union may be used in support of this conclusion. This provision, not confined in its application to suits in the District Court under § 301(a), was primarily directed to responsibility of the union for its agents' actions in authorizing strikes or committing torts. It can be construed, however, as applicable to the formation of a contract. So applied, it would imply that a union must be regarded as contractually bound by the acts of its agents, which in turn presupposes that the union is capable of contract relations. 65 Of course, the possibility of a State's law being counter to such a limited federal proposition is hypothetical, and to base an assertion of federal law on such a possibility, one never considered by Congress, is an artifice. And were a State ever to adopt a contrary attitude, its reasons for so doing might be such that Congress would not be willing to disregard them. But these difficulties are inherent in any attempt to expand § 301 substantively to meet constitutional requirements. 66 Even if this limited federal 'right' were read into § 301, a serious constitutional question would still be present. It does elevate the situation to one closely analogous to that presented in Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204.6 Section 301 would, under this view, imply that a union is to be viewed as a juristic entity for purposes of acquiring contract rights under a collective-bargaining agreement, and that it has the right to enter into such a contract and to sue upon it. This was all that was immediately and expressly involved in the Osborn case, although the historical setting was vastly different and the juristic entity in that case was completely the creature of federal law, one engaged in carrying out essential governmental functions. Most of these special considerations had disappeared, however, at the time and in the circumstances of the decision of the Pacific Railroad Removal Cases (Union Pac. R. Co. v. Myers), 115 U.S. 1, see page 11, 5 S.Ct. 1113, page 1117, 29 L.Ed. 319, supra. There is force in the view that regards the latter as a 'sport' and finds that the Court has so viewed it. See Mishkin, 53 Col.L.Rev., at 160, n. 24, citing Gully v. First National Bank, 299 U.S. 109, 113—114, 57 S.Ct. 96, 98, 81 L.Ed. 70 ('Only recently we said after full consideration that the doctrine of the charter cases was to be treated as exceptional, though within their special field there was no thought to disturb them.'), and People of Puerto Rico v. Russell & Co., 288 U.S. 476, 485, 53 S.Ct. 447, 450, 77 L.Ed. 903; see also Mr. Justice Holmes, in Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 214—215, 41 S.Ct. 243, 250, 65 L.Ed. 577 (dissenting opinion). The question is whether we should now so consider it and refuse to apply its holding to the present situation. 67 I believe that we should not extend the precedents of Osborn and the Pacific Railroad Removal Cases to this case even though there be some elements of analytical similarity. Osborn, the foundation for the Removal Cases, appears to have been based on premises that today, viewed in the light of the jurisdictional philosophy of Gully v. First National Bank, supra, are subject to criticism. The basic premise was that every case in which a federal question might arise must be capable of being commenced in the federal courts, and when so commenced it might, because jurisdiction must be judged as the outset, be concluded there despite the fact that the federal question was never raised. Marshall's holding was undoubtedly influenced by his fear that the bank might suffer hostile treatment in the state courts that could not be remedied by an appeal on an isolated federal question. There is nothing in Article III that affirmatively supports the view that original jurisdiction over cases involving federal questions must extend to every case in which there is the potentiality of appellate jurisdiction. We also have become familiar with removal procedures that could be adapted to alleviate any remaining fears by providing for removal to a federal court whenever a federal question was raised. In view of these developments, we would not be justified in perpetuating a principle that permits assertion of original federal jurisdiction on the remote possibility of presentation of a federal question. Indeed, Congress, by largely withdrawing the jurisdiction that the Pacific Railroad Removal Cases recognized, and this Court, by refusing to perpetuate it under general grants of jurisdiction, see Gully v. First National Bank, supra, have already done much to recognize the changed atmosphere. 68 Analysis of the bankruptcy power also reveals a superficial analogy to § 301. The trustee enforces a cause of action acquired under state law by the bankrupt. Federal law merely provides for the appointment of the trustee, vests the cause of action in him, and confers jurisdiction on the federal courts. Section 301 similarly takes the rights and liabilities which under state law are vested distributively in the individual members of a union and vests them in the union for purposes of actions in federal courts, wherein the unions are authorized to sue and be sued as an entity. While the authority of the trustee depends on the existence of a bankrupt and on the propriety of the proceedings leading to the trustee's appointment, both of which depend on federal law, there are similar federal propositions that may be essential to an action under § 301. Thus, the validity of the contract may in any case be challenged on the ground that the labor organization negotiating it was not the representative of the employees concerned, a question that has been held to be federal, La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463, or on the ground that subsequent change in the representative status of the union has affected the continued validity of the agreement. Perhaps also the qualifications imposed on a union's right to utilize the facilities of the National Labor Relations Board, dependent on the filing of non-Communist affidavits required by § 9(h), 29 U.S.C.A. § 159(h), and the information and reports required by § 9(f) and (g), might be read as restrictions on the right of the union to sue under § 301, again providing a federal basis for challenge to the union's authority. Consequently, were the bankruptcy cases to be viewed as dependent solely on the background existence of federal questions, there would be little analytical basis for distinguishing actions under § 301. But the bankruptcy decisions may be justified by the scope of the bankruptcy power, which may be deemed to sweep within its scope interests analytically outside the 'federal question' category, but sufficiently related to the main purpose of bankruptcy to call for comprehensive treatment. See National Mutual Ins. Co. of Dist. of Col. v. Tidewater Transfer Co., 337 U.S. 582, 652, Note 3, 69 S.Ct. 1173, 1198, 93 L.Ed. 1556 (concurring in part, dissenting in part). Also, although a particular suit may be brought by a trustee in a district other than the one in which the principal proceedings are pending, if all the suits by the trustee, even though in many federal courts, are regarded as one litigation for the collection and apportionment of the bankrupt's property, a particular suit by the trustee, under state law, to recover a specific piece of property might be analogized to the ancillary or pendent jurisdiction cases in which, in the disposition of a cause of action, federal courts may pass on state grounds for recovery that are joined to federal grounds. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Siler v. Louisville & Nashville, R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753; but see Mishkin, 53 Col.L.Rev., at 194, n. 161. 69 If there is in the phrase 'arising under the laws of the United States' leeway for expansion of our concepts of jurisdiction, the history or Article III suggests that the area is not great and that it will require the presence of some substantial federal interest, one of greater weight and dignity than questionable doubt concerning the effectiveness of state procedure. The bankruptcy cases might possibly be viewed as such an expansion. But even so, not merely convenient judicial administration but the whole purpose of the congressional legislative program—conservation and equitable distribution of the bankrupt's estate in carrying out the constitutional power over bankruptcy—required the availability of federal jurisdiction to avoid expense and delay. Nothing pertaining to § 301 suggests vesting the federal courts with sweeping power under the Commerce Clause comparable to that vested in the federal courts under the bankruptcy power. 70 In the wise distribution of governmental powers, this Court cannot do what a President sometimes does in returning a bill to Congress. We cannot return this provision to Congress and respectfully request that body to face the responsibility placed upon it by the Constitution to define the jurisdiction of the lower courts with some particularity and not to leave these courts at large. Confronted as I am, I regretfully have no choice. For all the reasons elaborated in this dissent, even reading into § 301 the limited federal rights consistent with the purposes of that section, I am impelled to the view that it is unconstitutional in cases such as the present ones where it provides the sole basis for exercise of jurisdiction by the federal courts.7 Appendix—Legislative History. 71 I. The Case Bill (H.R. 4908, 79th Cong., 2d Sess.) 72 (The Federal Mediation Act of 1946.) A. Legislative history in the House: 73 1. Hearings before the Committee on Labor on H.R. 4908, 79th Cong., 1st Sess.: 74 a. H.R. 4908, as considered by committee, provided for fact-finding boards. It had no provision concerning suits on collective-bargaining contracts. 75 b. During these hearings, there was, however, some concern with breach of such contracts. Despite the filing of two memoranda detailing the problems of enforcement of agreements against a union (pp. 89, 96) there was no elucidation of the problem. The prevalence of violation was noted and the desire to do something to promote enforceability expressed. (Pp. 15, 27, 28, 38, 41, 68, 73, 84, 88, 97, 101, 113.) 76 2. The House Report contained no comment on the problem. (H.R.Rep. No. 1493, 79th Cong., 2d Sess.) 77 3. The bill, as introduced on the House floor (92 Cong.Rec. 765): 78 'Sec. 10. Binding effect of collective-bargaining contracts: All collective-bargaining contracts shall be mutually and equally binding and enforceable either at law or in equity against each of the parties thereto, any other law to the contrary notwithstanding. In the event of a breach of any such contract or of any agreement contained in such contract by either party thereto, then, in addition to any other remedy or remedies existing either in law or equity, a suit for damages for such breach or for injunctive relief in equity may be maintained by the other party or parties in any United States district court having jurisdiction of the parties. If the defendant against whom action is sought to be commenced and maintained is a labor organization, such action may be filed in the United States district court of any district wherein any officer of such labor organization resides or may be found.' 4. House debate: 79 a. General comment on the desirability of mutual enforceability of contracts: 92 Cong.Rec. 662, 668, 677, 679, 684, 686, 753, 767. 80 b. Representative Francis Case's only comments were not pertinent. Id., at 680, 765. 81 c. Representative Vorys, in offering corrective amendments to Section 10, stated: 82 'We do create, if there is any doubt about its present existence, an action for damages for breach of contract against a labor organization or an employer, which means that either party, the labor organization or the employer, may have the benefit of a trial by jury in any such action. 83 '* * * Since we are attempting to create no new right in the equity side, there is no reason to refer to the equity side * * *. 84 '* * * It will take away any particular benefits or advantages of one party or the other that now exist under other laws which keep the obligations from being equal and mutual; will not give any new rights by way of injunction to either party but will specifically provide for an action at law for damages to enforce any act of violation of the contracts.' (Id., at 853.) d. Representative Thom, opposing Section 10 as an incursion on States' rights, appears to have been the only member to have felt that collective bargaining contracts already were enforceable in state and federal courts. Id., at 847. 85 5. As it finally passed the House, Section 10 read: 86 'Sec. 10. Binding effect of collective-bargaining contracts: All collective-bargaining contracts shall be mutually and equally binding and enforceable against each of the parties thereto, any other law to the contrary notwithstanding. In the event of a breach of any such contract or of any agreement contained in such contract by either party thereto, then, in addition to any other remedy or remedies existing, a suit for damages for such breach may be maintained by the other party or parties in any State or United States district court having jurisdiction of the parties.' B. Legislative history in the Senate: 87 1. Hearings before Senate Committee on Education and Labor on S. 1661: 88 a. Hearings were held on a companion bill to the fact-finding bill on which House hearings were held. The Case bill had not yet passed the House. 89 b. As in the House, however, concern was expressed over a general impression that unions were not subject to suits for damages for breach of contract to the same extent as employers. (Pp. 138, 168, 354, 383, 400, 554, 623, 662, 740.) For the first time, however, oral testimony directed the legislators to the primary source of the problem. This testimony, with a supporting memorandum, indicated that the problem lay in the status of the union as an unincorporated association. This memorandum, however, also pointed out that in some jurisdictions the union was viewed as acting as agent of the individual employees in negotiating the collective agreement, and thus was not viewed as having, even in theory, any rights or obligations on the contract. (P. 411.) 90 2. Hearings before a Subcommittee of the Senate Committee on Education and Labor on H.R. 4908 (as it had passed the House): 91 a. 'Mr. Case. Section 10, opening the miscellaneous provisions of the bill, is very brief, and I would like to read it because I think it speaks for itself. 92 'It almost would seem unnecessary to say that contracts entered into between two parties call for mutual obligations and mutual observance. That is implicit in all contracts, whether expressed or not, by statutory provisions saying they are equally binding and enforceable; but because of some interpretations or some theories that they are not binding where labor organizations are involved, I thought in harmony with what the President said here—recognizing a practical situation for which we have to find methods not only of peaceful negotiation but also of insuring that the contracts once made must be lived up to—we should have a section in the bill on that subject. 93 'This section was modified somewhat in the consideration in the House. Originally I think we had in a provision authorizing restraining orders, but that was eliminated * * * with the consent of myself and others who had been studying the bill, with the thought that this possibly met the situation by authorizing a suit for damages for breach of contract. 94 'Senator Taft. Mr. Case, there are one or two minor questions on that. It says: 95 "All collective-bargaining contracts shall be * * * enforceable by a suit in a State or a United States district, court having jurisdiction of the parties.' 96 'Would you intend to give jurisdiction to the United States district court in purely local collective-bargaining contracts not dealing with interstate commerce? Ought not that be limited in some way? 97 'Mr. Case. That may be. There are other places in the bill where we worked in, first of all, a declaration of public interest, and my thought there was that resting on the general welfare clause, it was clearly within the authority of Congress where substantial public interest was involved to take cognizance— 98 'Senator Taft * * * I would think that probably the jurisdiction of the United States court should be confined to the type of dispute which is interstate in character and under the jurisdiction of the National Labor Relations Board. 99 'Mr. Case. I certainly would have no objection to a clarification on that point. * * * 100 'Of course, the Senator is aware of the fact that the interpretation of the Supreme Court recently, on the subject of interstate commerce, has been so broad that anything which affects interstate commerce, which is technically interstate commerce has been ruled to be interstate commerce. 101 'Senator Taft. On the other hand, there is still a field of intrastate commerce. It doesn't destroy it, although it goes a long way. 102 'Mr. Case. As far as I am concerned, I would be glad to protect that vanishing field of intrastate commerce, and if the Senators wanted to clarify that I would have no objection. 103 'Senator Taft. The other question relating to that section which occurs to me is the effect of this 'binding and enforceable,' as related to the incorporation of unions. As I understand it, a collective-bargaining agreement is already mutually and equally binding and enforceable. I can't think of any circumstance where it would not be. But the problem seems to be a practical problem, in many States, of successfully suing a union which is not incorporated. I don't take it that this section would change the requirements in a State, we will say, to make every member of the union a party. It doesn't really meet that particular difficulty, which seems to be the chief difficulty in enforcing collective-bargaining agreements. 104 'Mr. Case. I think that what this would do would be to make the officers of a collective-bargaining agent suable. I do not think it would extend to individual members of the union, because the language is that the contract is made 'mutually and equally binding and enforceable against each of the parties thereto' and under the Wagner Act the party to the contract is the recognized bargaining agent. 105 'Senator Taft. No; the recognized bargaining agent is the union, not the officers of the union; it is the union, and the union is usually an unincorporated association. The point I was trying to make is that if you want to sue an unincorporated association in many States it is almost impossible to get them into court, because they have requirements that you have to serve every member, and you can't reach them, you can't find them in many cases. So the whole thing is delayed, and it is a long and tedious problem, if it can be done at all. In some States that is not so. You can sue an unincorporated association by serving the officers. But we have before us a bill from Senator Byrd requiring that unions be incorporated for the purpose of carrying out, as I see it, the same purpose you have here, at least partially, and I just wondered whether this really was effective to meet the actual difficulty today in enforcing collective-bargaining agreements. 106 'Mr. Case. Well, the intent of it is to make it possible to bring the action against the union in the common name of the association. 107 'Senator Taft. I don't say it doesn't have that effect, but I don't think it does. I don't think that 'other law to the contrary notwithstanding' would affect the method by which you had to bring a suit against an unincorporated association. 108 'Senator Ball. Would that make it possible to sue the union as an entity in the Federal court by simply serving the officers? 109 'Senator Taft. I don't think so, unless you said so. You might conceivably say so. 110 'Senator Ball. Then the other question is: Could we, in effect, waive State laws and make the same provision apply in State courts? 111 'Senator Taft. No: I don't think you can. But this would authorize suit to be brought in the Federal court and I thought that should be confined to interstate cases. 112 'Mr. Case. Following the procedure probably, however, of the law of the State in which the action was brought. 113 'Senator Taft. I don't know; that is a complicated question, as you know, in a Federal court as to when you have to comply with the State law and when you do not. 114 'Mr. Case. The Senator is probably more familiar than I with what is called the Second Coronado case. I am not familiar with the details of it, but as I have read references to it I think there the Supreme Court held that an injunction could be obtained against a union as such where the United States was the party. Now of course, this section doesn't carry any injunctive procedure; but there, at least, the Supreme Court seemed to recognize that a union might be made the object of an action as an association without reaching the individual members. 115 'Senator Taft. This would carry to a civil injunction process if it were one generally usable under laws of equity, I think, when you say it is binding and enforceable; whatever the equitable remedies might be in that State, or might be considered proper by the court, could be used. 116 'Senator Smith. I would like to ask Mr. Case one question on section 10. I have difficulty in seeing how that changes what the situation would be if it just wasn't in there at all. I don't quite see why we need to put that in this bill. 117 'Let me say first that I have not studied this carefully, so I am raising the question as it comes to me. 118 'Mr. Case. The intent primarily was to meet the technical legal difficulty that at the present time the union isn't suable or actionable as an association unless it is incorporated, and to avoid the necessity of joining all members of the union as parties. 119 'Senator Taft. I would suggest if that is your purpose it ought to say so in so many words. 120 'Mr. Case. I appreciate the Senator's suggestion. 121 'Senator Smith. That was my difficulty. It didn't seem to me it did make that clear, if that is the intent.' (Pp. 8—11.) 122 b. The technical, procedural nature of the problem was also stressed in testimony of some other witnesses. See pp. 175—179; 198—200; 248—249. 123 c. Other less discerning discussion: pp. 34, 47, 48, 110, 125, 129, 135, 144, 148, 157, 225, 237, 240, 266, 371, 372, 378, 385, 409. 124 3. Senate Report (No. 1177, 79th Cong., 2d Sess.): 125 a. Majority: 126 'Your committee has also considered and rejected section 10 of H.R. 4908, as passed by the House, which would explicitly declare that all collective-bargaining contracts shall be mutually binding and enforceable by the parties thereto. In the first place, this proposal appears to be based upon a misapprehension as to the legal responsibility of the parties under such contracts. Collective-bargaining agreements are at present legally enforceable in the courts, and in the Federal courts, if jurisdiction is otherwise established according to applicable law, unions may be sued in their own names under the doctrine of the first Coronado case (United Mine Workers v. Coronado Coal Company, 259 U.S. 344, (42 S.Ct. 570, 66 L.Ed. 975)). Legally, therefore, the proposed provision is unnecessary. Practically, it presents serious dangers. By offering easy access to the courts in cases where a breach of a collective-bargaining agreement is alleged, it would act as an inducement to litigate every alleged grievance, and would result in a flood of litigation making the courts again the battlefield for industrial disputes, increasing rather than eliminating the acrimony and conflict between the parties. In addition, your committee wishes to point out the fallacy of a widely held notion that breaches of contract are most often committed by labor organizations and employees. On the contrary, most breaches of contract are by employers. As has been elsewhere stated at greater length in this report your committee feels that labor disputes should be settled by conference, negotiation, and compromise, and not by the use of mandatory judicial processes. * * *' (Pp. 8—9.) 127 b. Minority (Senators Ball, Taft, and H. Alexander Smith): 128 'Amendment No. 3 (the minority proposal) would make unions suable as legal entities in the Federal courts for violation of contract, with liability limited to union assets and not enforceable against individual members or their property. A subsection would provide that where individual employees participated in a 'wildcat' strike in violation of contract, not sanctioned or approved by the union, the union itself would not be liable but such employees would lose their legal status as employees under the Wagner Act, leaving the employer free to discharge them or not. While collective-bargaining agreements theoretically are legally enforceable contracts, as a practical matter, because of the many obstacles to suits against unions imposed by most States, they are actually binding on only one party, the employer. The minority believes this provision, imposing equal responsibility on both parties to such contracts, is absolutely essential to the stability of labor relations. The only argument so far advanced against it is that some employers might embarrass unions by suits for enforcement of contract. This hardly is a valid ground for continuing to regard such contracts as one-way arrangements, wherein one party receives benefits and assumes no binding obligations whatsoever.' (Pp. 3—4.) 129 'Text of Amendment No. 3 130 'Amend H.R. 4908 by inserting at the proper place the following new section: 131 "Sec.—. (a) Suits for violation of a contract concluded as the result of collective bargaining between an employer and a labor organization if such contract affects commerce as defined in this Act may be brought in any district court of the United States having jurisdiction of the parties. 132 "(b) Any labor organization whose activities affect commerce as defined in this Act shall be bound by the acts of its duly authorized agents acting within the scope of their authority from the said labor organization and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. 133 "(c) For the purposes of this section district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. The service of summons, subpena or other legal process upon such officer or agent shall constitute service upon the labor organization. 134 "(d) Any employee who participates in a strike or other stoppage of work in violation of an existing collective-bargaining agreement, if such strike or stoppage is not ratified or approved by the labor organization party to such agreement and having exclusive bargaining rights for such employee, shall lose his status as an employee of the employer party to such agreement for the purposes of sections 8, 9, and 10 of the National Labor Relations Act: Provided, That such loss of status for such employee shall cease if and when he is reemployed by such employer.' 135 'The purpose of this amendment is simple: to make collective-bargaining contracts equally binding and enforceable on both parties to them. The courts have held that the purpose of the Wagner Act was— 136 "to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made.' (H. J. Heinz Co., (v. N.L.R.B.), 311 U.S. 514 (,61 S.Ct. 320, 85 L.Ed. 309)—1941.) 137 'But neither the Wagner Act nor any other Federal statute makes labor unions legally responsible for carrying out their agreements. 138 'The laws of many States make it difficult to sue effectively and to recover a judgment against an unincorporated labor union. It is difficult to reach the funds of a union to satisfy a judgment against it. In some States it is necessary to serve all the members before an action can be maintained against the union. This is an almost impossible process (see testimony of Raymond S. Smethurst before committee, February 25, 1946). Despite these practical difficulties in the collection of a judgment against a union, the National Labor Relations Board has held it an unfair labor practice for an employer to insist that a union incorporate or post a bond to establish some sort of legal responsibility under a collective agreement. 139 'President Truman, in opening the management-labor conference in November 1945, took cognizance of this condition. He said very plainly that collective agreements should be mutually binding on both parties to the contract: 140 "We shall have to find methods not only of peaceful negotiation of labor contracts, but also of insuring industrial peace for the lifetime of such contracts. Contracts once made must be lived up to and should be changed only in the manner agreed upon by the parties. If we expect confidence in agreements made, there must be responsibility and integrity on both sides in carrying them out.' 141 'If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The main reason for an employer to sign a collective labor agreement is to assure uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to enter into an agreement. 142 'Consequently, to encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements dealing with interstate commerce should be enforceable in the Federal courts. Our amendment would provide for suits by unions as legal entities and against unions as legal entitles in the Federal courts in disputes affecting commerce (as defined by sec. 2(a)(1) of this act). 143 'The amendment specifically provides that only the assets of the union can be attached to satisfy a money judgment against it. The property of the individual members of the organization would become absolutely free from any liability under such a judgment. Thus the members of the union would secure all the advantages of limited liability without incorporation of the union. 144 'The proposed amendment relative to union liability specifically provides that a labor organization would be bound by the acts of its authorized agents only. Thus a labor organization would not be liable for damages arising as a result of an unauthorized strike carried on in violation of a contract. If a union or an officer thereof did not authorize the strike or participate in it, or support it, or subsequently approve it, no liability would be imposed on the union as a consequence of the work stoppage. To protect the employer against work stoppages in violation of an agreement but not approved by the union, employees who take part in such strikes would lose their status as employees under sections 8, 9, and 10 of the National Labor Relations Act. The employer could refuse to rehire them after the strike. Besides providing a remedy for the employer for irresponsible interruptions of production, such a provision would tend to strengthen sound union discipline. 145 'The initial obstacle in enforcing the terms of a collective agreement against a union which has breached its provisions is the difficulty of subjecting the union to process. The great majority of labor unions are unincorporated associations and at common law voluntary associations are not suable as such (Wilson v. Airline Coal Company, 215 Iowa 855 (246 N.W. 753); Iron Molders' Union (No. 125 of Milwaukee, Wis.) v. Allis-Chalmers Company, 7 (Cir.), 166 F. 45). As a consequence the rule in all jurisdictions, in the absence of statute, is that unincorporated labor unions cannot be sued in their common name (Grant v. Carpenters' District Council, 322 Pa. 62 (185 A. 273)). Accordingly, the difficulty or impossibility of enforcing the terms of a collective agreement in a suit at law against a union arises from the fact that each individual member of the union must be named and made a party to the suit. 146 'Some States have enacted statutes which subject unincorporated associations to the jurisdiction of law courts. These statutes are by no means uniform; some pertain to fraternal societies, welfare organizations, associations doing business, etc., and in some States the courts have excluded labor unions from their application. 147 'On the other hand, some States, including California and Montana, have construed statutes permitting common name suits against associations doing business to apply to labor unions (Armstrong v. Superior Court, 173 Cal. 341 (159 P. 1176); Vance v. McGinley, 39 Mont. 46 (101 P. 247)). Similarly, but more restrictive, in a considerable number of States the action is permitted against the union or representatives in proceedings in which the plaintiff could have maintained such an action against all the associates. Such States include Alabama, California, Connecticut, Delaware, Maryland, Montana, Nevada, New Jersey, New York, Rhode Island, South Carolina, and Vermont. 148 'In at least one jurisdiction, the District of Columbia, the liberal view is held that unincorporated labor unions may be sued as legal entities, even in the absence of statute (Busby v. Elec. Util. Emp. Union, U.S. Court of Appeals for the District of Columbia, No. 8548, January 22, 1945 (79 U.S.App.D.C. 336, 147 F.2d 865)). 149 'In the Federal Courts, whether an unincorporated union can be sued depends upon the procedural rules of the State in which the action is brought (Busby v. Elec. Uth. Empl. Union, U.S. Supreme Court, 89 Law.Adv.Op. 108, December 4, 1944 (323 U.S. 72, 65 S.Ct. 142)). 150 'The Norris-LaGuardia Act has insulated labor unions, in the field of injunctions, against liability for breach of contract. It has been held by a Federal court that strikes, picketing, or boycotting, when carried on in breach of a collective agreement, involve a 'labor dispute' under the act so as to make the activity not enjoyable (sic) without a showing of the requirements which condition the issuance of an injunction under the act (Wilson & Co. v. Birl, 105 F.2d 948, C.C.A. 3). 151 'A great number of States have enacted anti-injunction statutes modeled after the Norris-LaGuardia Act, and the courts of many of these jurisdictions have held that a strike in violation of a collective agreement is a 'labor dispute' and cannot be enjoined (The Nevins (Inc.), v. Kasmach, 279 N.Y. 323 (18 N.E.2d 294); Bulkin v. Sacks, 31 Pa. D & C 501). 152 'There are no Federal laws giving either an employer or even the Government itself any right of action against a union for any breach of contract. Thus there is no 'substantive right' to enforce, in order to make the union suable as such in Federal courts. 153 'Even where unions are suable, the union funds may not be reached for payment of damages, and any judgments or decrees rendered against the association as an entity may be unenforceable. (See Aalco Laundry (& Cleaning) Co. v. Laundry Linen Union, 115 S.W.2d 89 Mo.App.) However, only where statutes provide for recognition of the legal status of associations do association funds become subject to judgments (Deeney v. Hotel & Apt. Clerks' Union (57 Cal.App.2d Supp. 1023) 134 P.2d 328 (1943), California). 154 'Financial statutory liability of associations is provided for by some States, among which are Alabama, California, Colorado, Connecticut, Delaware, New Jersey, North Dakota, and South Carolina. Even in these States, however, whether labor unions are included within the definition of 'association' is a matter of local judicial interpretation. 155 'It is apparent that until all jurisdictions, and particularly the Federal Government, authorize actions against labor unions as legal entities, there will not be the mutual responsibility necessary to vitalize collective-bargaining agreements. The Congress has protected the right of workers to organize. It has passed laws to encourage and promote collective bargaining. 156 'Statutory recognition of the collective agreement as a valid, binding and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace. 157 'It has been argued that the result of making collective agreements enforceable against unions would be that they would no longer consent to the inclusion of a no-strike clause in a contract. 158 'This argument is not supported by the record in the few States which have enacted their own laws in an effort to secure some measure of union responsibility for breaches of contract. Four States—Minnesota, Colorado, Wisconsin, and California—have thus far enacted such laws and, so far as can be learned, no-strike clauses have been continued about as before. 159 'In any event, it is certainly a point to be bargained over and any union with the status of 'representative' under the NLRA which has bargained in good faith with an employer should have no reluctance in including a no-strike clause if it intends to live up to the terms of the contract. The improvement that would result in the stability of industrial relations is, of course, obvious.' (Pp. 10—14.) 4. Senate debate: 160 a. Senator Taft: 161 'Mr. President, this amendment is the third and last of the amendments which attempt to strengthen the collective-bargaining process. I do not know of anything for which there has been greater demand than recognition that labor unions shall be responsible on their collective-bargaining contracts exactly as the employer is responsible. The United States Supreme Court has said that the purpose of the Wagner Act was: 162 "To compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made.' 163 'I quote from President Truman's address to the Management-Labor Conference in November 1945: 164 "We shall have to find methods not only of peaceful negotiation of labor contracts, but also of insuring industrial peace for the lifetime of such contracts.' 165 'I quote still further from President Truman's address: 166 "Contracts once made must be lived up to and should be changed only in the manner agreed upon by the parties. If we expect confidence in agreements made, there must be responsibility and integrity on both sides in carrying them out.' 167 'A bill was introduced, as I recall, by the Senator from Virginia (Mr. Byrd) to require all labor unions to incorporate. We found that to be awkward, and we thought it unnecessary. All we provide in the amendment is that voluntary associations shall in effect be suable as if they were corporations, and suable in the Federal courts if the contract involves interstate commerce and therefore involves a Federal question. As a matter of fact, labor unions in theory are responsible for their contracts. At times they have been sued, including actions for tort. In the Danbury Hatters case (208 U.S. 274, 28 S.Ct. 301) it will be remembered a judgment was obtained, and because it was a voluntary association, the houses of all the various members were levied upon and taken in satisfaction of the judgment. We do not want to perpetuate such a condition. Therefore, we provide very simply that a labor union may be sued as if it were a corporation, and if it is sued, then the funds of the labor organization and its assets are responsible for the judgment, but the funds and the assets of the individual members are not liable on such a judgment. In other words, we think in subsection (a) and in subsection (b) we have fairly stated the proposition. 168 'Let me finish discussing subsection (c) first. It simply provides how labor unions may be sued, how they may be served, and provides the machinery by which the suit may be brought. The difficulty with respect to unincorporated associations is that under most State laws they are very difficult to sue. In theory, they are suable, but as a practical matter there are many States in which it is almost impossible to sue them. It is necessary to make practically every member of the labor organization a party to the suit. Various other kinds of restrictions and difficulties exist which, as a practical matter, in a large part of the United States makes it absolutely impossible to sue a labor union.' (92 Cong.Rec. 5705.) 'What good is a collective-bargaining agreement if people are not bound by it? If there is a collective-bargaining agreement and the men are bound by it, they ought to carry it out. If the union wants to carry it out, and some of the men say, 'We will not do it,' they ought to be liable. This provision applies only if the action of the individual is a violation of the collective-bargaining agreement.' (Id., at 5706.) 169 b. Senator Ball: 170 'The pending amendment very simply seeks to establish for unions the same responsibility for carrying out their contracts that now apply to employers. * * * 171 'Mr. President, it is the contention of some of the opponents of this amendment that unions are now suable in State courts. A lawyer on my staff looked up a number of recent decisions. Several of them show that in Kentucky, West Virginia, in Massachusetts, and in Illinois, all of which are important industrial States, unions cannot be sued as legal entities. * * * 172 'Mr. President, it seems to me that equal responsibility by both parties to a contract is a principle which the Senate should apply in the field of labor relations. I hope the amendment will be adopted.' (Id., at 5722.) 173 c. Senator Murray, opposing the measure, argued, among other things, that labor unions are peculiar in that they are unincorporated associations, that state rules regarding them are the same for all unincorporated associations, and that it would be unjust to subject the union to different rules in the federal courts. The following quotations, relied upon by those seeking to find federal substantive law in Section 301, must be viewed in the context of this procedural discussion: 174 'By their proposal, the minority members of the committee proposing this amendment would create a completely new Federal right in the United States courts. It would not create this new right as against all unincorporated associations, but it would set up a new and special court right against unions. 175 'To realize the full implication of this matter, it should be remembered that the courts of the United States, as distinguished from the courts of each of the several States, operate under a very longstanding set of laws defining their jurisdiction. It is not possible to bring each and any case into the United States courts. * * * The Federal courts were created solely for the purpose of handling special matters which are appropriately in the jurisdiction of a Federal agency. Thus, suits involving rights of a citizen under Federal statute may go to a Federal court. Suits involving citizens of more than one State may go to a Federal court under appropriate circumstances. 176 'What is the state of the law today with respect to the right to bring a suit in a Federal court for violation of a collective-bargaining agreement? The law in such a situation is identical with that affecting all individuals, corporations, or associations. Where there is diversity of citizenship—plaintiffs and defendants from different States—action may be brought in the Federal courts Where rights under a Federal statute are involved, the matter may be brought to a Federal court. In short, where, under general law a matter appropriate for Federal jurisdiction is involved, suits under labor contracts, as under any other type of contract, may be brought in the Federal courts. 177 'The Senators making the present proposal are not satisfied with this, however. Their proposal would take labor agreements out of the category of normal State court operations, and would make them at all times and under all circumstances a matter for the Federal courts. The proposal would create a new and special Federal right to enforce in the Federal courts the terms in a labor agreement.' (Id., at 5708.) 178 'Continuing my discussion of the amendment, I wish to say that the first issue is not whether a collective-bargaining agreement may be enforced in court. Collective-bargaining agreements are as enforceable in the courts as any other kind of agreement under the law today. The first question is whether collective-vargaining agreements, unlike any other agreements, are to be thrown into the Federal courts and made the subject of Federal court jurisdiction.' (Id., at 5720.) 179 d. Senator Magnuson, opposing the amendment before it was actually introduced, went into detailed consideration of the amendment, which he described as one to 'create a right of action, under Federal statute, for breach of a collective-bargaining agreement.' He asserted that such agreements were already fully binding legally on both parties, and that the difficulty was in the union's status as an unincorporated association. He defended the necessity for the restrictive rules regarding suits against such associations, and emphasized the modification of the rule in many states designed to facilitate suits against unions. Then: 180 'The minority views of the Senate Labor Committee in urging the adoption of the amendment, correctly assert that the Federal courts must follow the laws of the States in suits on collective-bargaining agreements when a Federal statute is not involved. The minority views however, give an incorrect picture of the laws of the various States on the question. At the present time, fully three-fourths of the States permit suits to be brought against unincorporated associations in their own names. In other words, at least three-fourths of the States allow a suit to be brought against any employee or any group of employees for the violation of a collective-bargaining agreement. 181 'The comparative freedom of courts of equity also make (sic) it possible for them to limit recoveries to funds or property belonging to the associations as a condition for permitting this type of suit. Senators, in view of this progress made by the States, I see no reason why it is necessary for the Federal Government to invade the realm of the States to such an extent as to furnish them laws governing suits for breaches of purely private contracts. The law governing private contracts has traditionally been a matter for State control, and we should not lightly violate this separation of functions under the guise of controlling interstate commerce. 182 'Mr. President, the minority views picture a dark future for a party who wishes to enforce an agreement with a labor union. Actually the picture given is quite misleading. For instance, it says that an employer or even the Government has no Federal right of action to enforce a collective bargaining agreement. 183 'Of course, the amendment of the Senator from Minnesota would allow a Federal right of action to enforce a collective-bargaining agreement. All of us who are lawyers know that a party who enters into an ordinary private contract has practically no Federal right of action to have the contract enforced. 184 '* * * Under the amendment of the Senator from Minnesota a contract would be enforceable only in Federal courts, and would, therefore, violate a long-time cardinal principle of law, namely, that all contracts are enforceable, if at all, in State courts. 185 'Mr. President, there is another point regarding the pending amendment which I should like to mention. The amendment under discussion is designed to make it easier for employers to bring suit against labor unions. Do the Members of the Senate realize that it is almost impossible for a labor union to sue an employer for breach of contract? Collective-bargaining agreements are generally construed either as contracts between the employer and the employees or contracts for the benefit of the employees. In either case injured employees must usually sue for themselves. A union may not bring suit because it has no interest in the matter. Furthermore, even though its disability to sue as an unincorporated association has now largely been removed, it still has the same difficulties bringing suit as an employer does in bringing it into court as a defendant. If the Senate is going to confer special privileges on one side, it probably should also adopt an amendment which would confer the same privileges on the other side. 186 'Mr. Ball. * * * The Senator is complaining that unions have difficulty in suing employers for violations of contract. This amendment would cure that situation. 187 'Mr. Magnuson. I do not so understand it. Perhaps I have not read the amendment too carefully, or perhaps the language has been changed. 188 'Mr. Ball. The language of the amendment is 'may sue or be sued." (Id., at 5412—5415). 189 e. Senator Magnuson's belief that the section was intended to exclude State court jurisdiction was disposed of later by Senator Ferguson, answering Senator Murray's similar assumption. (Id., at 5708.) These incorrect assumptions by Senator Magnuson do much to explain his belief that a federal 'right of action' was granted by § 10. Moreover, his discourse occurred prior to Senator Taft's explanation of the purpose of the amendment. 190 5. Senator Taft's amendment was incorporated in the bill by the Senate without substantial alteration. 92 Cong.Rec. 5723. See I.D., infra. C. House debates: 191 1. The House accepted the Senate version of § 10 without requesting a conference. 2. Representative Case: 192 'All this section on suability does is to carry out the same purpose we had in the House bill, when we provided for making contracts actually binding upon both parties to it. It has been found that while a few States permit suing on a labor contract, many States do not. Unless you have some such provision as this in Federal law, collective-bargaining contracts will not be good, in the words of the President, 'for the lifetime of such contracts.' 193 'So the Senate very carefully and properly drafted this provision in the way they did, to insure that 'contracts,' again in the words of President Truman, 'once made must be lived up to' and 'changed only in the manner agreed upon by the parties.' 194 'Individual members of a union are not made liable for any money judgment, I might point out, but only the union as an entity. * * *' (92 Cong.Rec. 5930—5931.) 3. Representative Slaughter: 195 'The second point in the bill provides for mutuality of contracts. Who is there in this body or in any labor union or among any group of right-minded men and women who would say that both parties to a contract are not mutually liable * * * 196 'An employer is liable for his contracts and should be, and, by the same token, so should the employee.' (Id., at 5942.) 4. Representative Springer: 197 '* * * It does, however, contain the provision that after collective bargaining and the meeting of the minds upon a contract, agreeable to both parties, that for the duration of that contract, so agreed upon, both parties are bound by the terms and provisions of that contract. 198 'Of course, that is merely the law under which every American is guided. The sanctity of contracts must remain inviolate, and all parties to a contract fully agreed upon, * * * must be bound by the terms and provisions contained therein. * * * it would be an assurance that labor would carry out its contractual obligations under the provisions of the contracts made and entered into. * * *' (Id., at 5944.) 5. Representative Robsion: 199 '* * * It also provides for suits by labor organizations for damages done to them by management for violation of contract and the right of action is given to the employer against the labor union for damages sustained by the breach of a contract between the employer and the union. * * * When a contract is once entered into the aggrieved party should have the right of action against the party at fault. * * *' (Id., at 5939.) D. The bill, as passed by both Houses: 200 'Sec. 10. (a) Suits for violation of a contract concluded as the result of collective bargaining between an employer and a labor organization if such contract affects commerce as defind in this Act may be brought in any district court of the United States having jurisdiction of the parties. 201 '(b) Any labor organization whose activities affect commerce as defined in this Act shall be bound by the acts of its duly authorized agents acting within the scope of their authority from the said labor organization and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. 202 '(c) For the purposes of this section district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. The service of summons, subpena, or other legal process upon such officer or agent shall constitute service upon the labor organization. 203 '(d) Any employee who participates in a strike or other interference with the performance of an existing collective bargaining agreement, in violation of such agreement, if such strike or interference is not ratified or approved by the labor organization party to such agreement and having exclusive bargaining rights for such employee, shall lose his status as an employee of the employer party to such agreement for the purposes of sections 8, 9, and 10 of the National Labor Relations Act: Provided, That such loss of status for such employee shall cease if and when he is reemployed by such employer.' 204 E. Veto message (H.R.Doc. No. 651, 79th Cong., 2d Sess.): 205 'Section 10: 206 'I am in accord with the principle that it is fair and right to hold a labor union responsible for a violation of its contract. However, this legislation goes much further than that. This section, taken in conjunction with the next section, largely repeals the Norris-LaGuardia Act and changes a long-established congressional policy. 207 'I am sure that, without repealing the Norris-LaGuardia Act, * * * a sound and effective means of enforcing labor's responsibility can be found.' II. THE TAFT-HARTLEY ACT. A. Legislative history in the House: 208 1. Hearings before Committee on Education and Labor on H.R. 8, 725, 880, 1095, and 1096, 80th Cong., 1st Sess.: 209 a. Among the bills under consideration, only H.R. 725 contained a section concerning federal jurisdiction touching breach of contract. It provided: 210 'Equal Responsibility and Liability 211 'Sec. 305. (a) Suits for violations of contracts between an employer and a labor organization if such contracts affect commerce as defined in this Act may be brought by either party in any district court of the United States having jurisdiction of the parties. 212 '(b) Any labor organization whose activities affect commerce as defined in this Act shall be bound by the acts of its duly authorized agents acting within the scope of their authority from the said labor organization, and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. 213 '(c) For the purposes of this section, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. The service of summons, subpena, or other legal process upon such officer or agent shall constitute service upon the labor organization.' 214 b. Discussion of the problem of contract responsibility was frequent, but almost exclusively in general terms of the existence of a problem and the desirability of having collective agreements enforceable against the union as well as the employer. See pp. 4, 34—36, 90—91, 125, 135, 227, 229, 406, 533, 547, 558—559, 569—570, 582, 590—591, 593, 673, 1007—1008, 1074, 1088, 1218, 1804, 1891, 2292, 2345, 2368, 2530, 2532, 2631, 2695. 215 c. The only considered analysis of the problem, and the remedy proposed, occurred in the testimony of Secretary of Labor Schwellenbach: 216 'Suits By and Against Labor Organizations 217 'H.R. 267, section 305 of H.R. 725, section 4 of H.R. 1430, and section 2 of H.J.Res. 43, refer to suits by and against labor organizations. 218 'Few subjects are so widely discussed and so little understood as this one. I agree that labor unions should be subject to suit. The general idea seems to be that labor unions are not subject to suit because they are labor unions. Such a concept has no basis in law. 219 'In some States labor unions are not suable in their common names because they are unincorporated associations. 220 'As a matter of fact, there are only 13 States where unincorporated associations cannot be sued in their common name in an action at law for breach of contract or tortious conduct. * * * 'Since the adoption of the Federal Rules of Civil Procedure, there are 35 States where they can sue or be sued in the Federal courts. Rule 17(b) of those rules provides in part (reading): 221 "* * * capacity to sue or be sued shall be determined by the law of the State in which the district court is held; except that a partnership or other unincorporated association, which has no such capacity by the law of such State, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States.' 222 'Since the field of necessary legislative action is so narrow, I see no reason why the gates of the Federal courts should be opened so wide as to invite litigation, as would be done by the bills listed above. 223 'I have three suggestions to make concerning these bills. 224 'Second, I do not see why it is necessary in this field to abandon the diversity of citizenship requirement. In fact, I doubt that it can be abandoned constitutionally. The Constitution, as you know, limits suits in the Federal courts to cases arising under the Constitution and the laws of the United States or involving diversity of citizenship. 225 'I grappled with the question of what the meaning of 'arising under the laws of the United States' was a good many times and I make no categorical statement as to whether or not under this proposed legislation the courts would hold that suits so started would arise under the laws of the United States. 226 'However, the general concept always has been in private litigation that a necessary prerequisite to Federal jurisdiction is diversity of citizenship.' (Pp. 3016—3017.) 2. The bill, as reported from committee (H.R. 3020): 227 'Equal Responsibility and Liability 228 'Sec. 302. (a) Any action for or proceeding involving a violation of an agreement between an employer and a labor organization or other representative of employees may be brought by either party in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, if such agreement affects commerce, or the court otherwise has jurisdiction of the cause. 229 '(b) Any labor organization whose activities affect commerce shall be bound by the acts of its agents, and may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. 230 '(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. 231 '(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization. 232 '(e) In actions and proceedings involving violations of agreements between an employer and a labor organization or other representative of employees, the provisions of the Act of March 23, 1932, entitled 'An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity and for other purposes,' shall not have any application in respect of either party.' 233 3. House Report (No. 245, 80th Cong., 1st Sess.): 234 a. Majority: 235 'It makes labor organizations equally responsible with employers for contract violations and provides for suit by either against the other in the United States district courts.' (P. 6.) 236 'Section 302 deals in improved form with another subject which was included in last year's Case bill. It provides that actions and proceedings involving violations of contracts between employers and labor organizations may be brought by either party in any district court of the United States * * *. 237 'When labor organizations make contracts with employers, such organizations should be subject to the same judicial remedies and processes in respect of proceedings involving violations of such contracts as those applicable to all other citizens. Labor organizations cannot justifiably ask to be treated as responsible contracting parties unless they are willing to assume the responsibility of such contracts to the same extent as the other party must assume his. Public opinion polls in evidence before the committee show that nearly 75 percent of the union members themselves concur in this view. For this reason, not only does the section, as heretofore pointed out, make the labor organization equally suable, but it also makes the Norris-LaGuardia Act inapplicable * * *. Among other things, this change makes applicable in such cases as these the rules of evidence that apply in suits involving all other citizens.' (Pp. 45—46.) 238 b. Minority: 239 'Section 302 of title III has the dual purpose first of giving the Federal courts jurisdiction, without regard to the amount in controversy, to entertain actions involving violations of collective bargaining agreements affecting commerce or where the court otherwise has jurisdiction of the cause; and, second, of providing for suit against labor organizations whose activities affect commerce, with judgment enforceable only against the union assets. In any such suits the union would be bound by the acts of its agents and the courts would have the power to grant injunctive relief regardless of the provisions of the Norris-LaGuardia Act. 240 'The question of amenability of unions to suit has been the subject of much misunderstanding. Unions have never been exempt from suit because they are labor unions. It has only been difficult to reach union assets because unions are unincorporated associations. And even here, these difficulties have been removed in the great majority of States. Actually, there are only 13 States where union funds cannot be easily reached under laws in effect permitting satisfaction of judgments from the central funds of the union. * * * Of the remaining 35 States, there are 10 which by statute permit the union assets to be reached by representative suits in any type of action and there are 25 which permit suits against unions in the common name of the union, in some cases with liability attaching not only to the union funds, but also to the assets of every individual member of the union. 241 'This bill would seek to open the Federal courts generally to suits by and against labor organizations. Since the adoption of the Federal Rules of Civil Procedure, however, the Federal courts have already been authorized to entertain suits by and against labor organizations in the 35 States which already permit effective recovery against union funds. Rule 17(b) of those rules provides in part as follows: 242 "* * * The capacity of an individual, other than one acting in a representative (sic), to sue or be sued shall be determined by the law of his domicile. * * * In all other cases capacity to sue or be sued shall be determined by the law of the State in which the district court is held; except that a partnership or other unincorporated association, which has no such capacity by the law of such State, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States.' 243 'It is concluded, therefore, that there now exists only a very narrow field for necessary Federal legislative action. There is perceived very little reason why the Federal courts should now be opened to so wide a degree, inviting litigation, when rules presently in existence effectively permit suit and may, in the sound discretion of the United States Supreme Court, be broadened even further to permit suit regardless of State procedural laws and without the necessity of further legislation. 244 'The question of conferring upon Federal courts broad power to entertain suits for violation of union agreements regardless of the amount involved and apparently in complete disregard of the constitutional requirement of diversity of citizenship is fraught with grave issues of policy and legality. It would appear particularly unwise to abandon in this field the present requirement of the $3,000 amount in controversy as a prerequisite to Federal jurisdiction. It is feared that the result would be to involve the Federal courts, already overburdened, with a great mass of petty litigation over amounts less than $3,000, easily capable of being adjudicated effectively by the more numerous State courts. This type of action would undoubtedly invite the return of conditions in the Federal Courts during prohibition days, when they bogged down in litigation ordinarily handled by the average police court. 245 'As to legality, the bill would apparently give the Federal courts jurisdiction of disputes over union agreements affecting commerce regardless of diversity of citizenship of the parties. The Constitution limits suits in the Federal courts to cases arising under the Constitution and laws of the United States or involving diversity of citizenship (Constitution, art. 3, sec. 2). The bill apparently attempts to found jurisdiction upon the Constitution and laws of the United States by the use of the words 'if such agreement affects commerce.' There would be involved here, however, no substantive right under the laws of the United States or under the Constitution. Actually substantive legal questions as to a contract dispute would be decided in accordance with applicable State law. The United States Supreme Court has held that the fact that the circumstances involve engaging in interstate commerce will not permit the Federal courts to assume jurisdiction where there is no diversity of citizenship (In Re Metropolitan Railway Receivership, 208 U.S. 90, 28 S.Ct. 219, 52 L.Ed. 403.) It is therefore concluded that this aspect of the bill constitutes an approach which is of doubtful legality and certainly is both hasty and unwise. 246 'It is noted that the bill makes an effort to secure union responsibility for the acts of its agents. Very general language is used. It is submitted, however, that, instead, care should be used in determining what are acts of duly authorized agents acting within the scope of their authority. * * *' (Pp. 108—110.) 4. House debates: 247 a. Representative Hartley: 248 'It makes labor organizations equally responsible with employers for contract violations and provides for suit by either against the other in the United States district courts.' (93 Cong.Rec. 3424.) 249 b. Both Mr. Hartley and Mr. Case agreed to the following statement by Representative Barden: 250 'It is my understanding that section 302, the section dealing with equal responsibility under collective bargaining contracts in strike actions and proceedings in district courts contemplates not only the ordinary lawsuits for damages but also such other remedial proceedings, both legal and equitable, as might be appropriate in the circumstances; in other words, proceedings could, for example, be brought by the employers, the labor organizations, or interested individual employees under the Declaratory Judgments Act in order to secure declarations from the Court of legal rights under the contract.' (Id., at 3656.) 251 c. No other member of the committee made a statement with regard to the section. Nor did any other member cast any light upon the section. Only casual references to it appear. (Pp. 3529, 3531, 3666.) 252 5. The bill passed the House in the same form as introduced. B. Legislative history in the Senate: 253 1. Hearings before Committee on Labor and Public Welfare on S. 55 and S.J.Res. 22, 80th Cong., 1st Sess.: 254 a. S. 55, under consideration, was introduced by Senators Ball, Taft and Smith, and contained as Section 203: 255 'Suits By and Against Labor Organizations 256 'Sec. 203. (a) Suits for violation of contracts concluded as the result of collective bargaining between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act may be brought in any district court of the United States having jurisdiction of the parties. 257 '(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act shall be bound by the acts of its duly authorized agents acting within the scope of their authority from the said labor organization and may sue or be sued in its common name in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. 258 '(c) For the purposes of this section district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. The service of summons, subpena, or other legal process upon such officer or agent shall constitute service upon the labor organization. 259 '(d) Any employee who participates in a strike or other interference with the performance of an existing collective-bargaining agreement, in violation of such agreement, if such strike or interference is not ratified or approved by the labor organization party to such agreement and having exclusive bargaining rights for such employee, shall lose his status as an employee of the employer party to such agreement for the purposes of sections 8, 9, and 10 of the National Labor Relations Act: Provided, That such loss of status for such employee shall cease if and when he is reemployed by such employer.' 260 b. Again, there was considerable general discussion regarding the necessity for making unions responsible for their agreements. (Pp. 389, 635, 780, 965, 1227, 1321, 1422, 1493, 1617, 1656, 1817, 2019, 2349, 2371.) 261 c. The unions, in testimony and filed statements, unanimously opposed the section. One of the points constantly made was that the belief that state law did not regard them as responsible on their contracts was erroneous. (Pp. 1042, 1154, 1391, 1534, 1547, 2295.) The procedural nature of the problem was, however, seldom made explicit. (Pp. 689, 1798, 2011.) 262 d. Again the most significant testimony occurred when Secretary of Labor Schwellenbach appeared as a witness: 263 'Secretary Schwellenbach. * * * Suits by and against labor organizations: This is a subject upon which there is much discussion and about which there is very little widespread information. The general concept is that labor unions are exempt from suits because they are labor unions. There is no legal basis for this conclusion. They are exempt from suits because they are unincorporated associations. Actually there are only 13 States in the Union where unincorporated associations are not subject to suits. * * * 264 'Since the adoption of the Federal Rules of Civil Procedure, there are 35 States where they can sue or be sued, in the Federal courts. 265 'Since the field of necessary legislative action is so narrow, I see no reason why the gates of the Federal courts should be opened so wide as to invite litigation, as is done by this proposed section. Speaking as a lawyer and former member of the Federal judiciary, I have an objection to the abandonment in this field of the requirement of the $3,000 amount in controversy as a prerequisite to Federal jurisdiction. This is a right which has been jealously guarded by the Congress and by the Federal courts. To have them cluttered up with a great mass of petty litigation involving amounts less than $3,000 would bring them back to the position which they occupied during prohibition days when they became just a little bit above the level of the average police court insofar as criminal work was concerned. 266 'I do not see why it is necessary in this field to abandon the diversity of citizenship requirement. In fact I doubt that it can be abandoned constitutionally. The Constitution, as you know, limits suits in the Federal courts to cases arising under the Constitution and the laws of the United States or involving diversity of citizenship. 267 'I grappled with the question of what the meaning of 'arising under the laws of the United States' was a good many times and I make no categorical statement as to whether or not under this proposal (sic) legislation the courts would hold that suits so started would arise under the laws of the United States. However, the general concept always has been in private litigation that a necessary prerequisite to Federal jurisdiction is diversity of citizenship. In addition to that, care should be used in determining what are acts of duly authorized agents operating within the scope of their authority. To that extent a distinction must be made between labor unions and other organizations. The question was fully discussed, studied, and argued by the Congress at the time of the passage of the Norris-LaGuardia Act and the language there used limited the liability of the organization to those 'unlawful acts of individual officers, members or agents,' where there is 'clear proof of actual participation in or actual authorization of such acts or of ratification of such acts after actual knowledge thereof.' With few exceptions I have found that the officers of international unions were just as anxious to prevent the breaking of contracts as were the employers. I found that the officers of local unions by and large were much more anxious to prevent breaking of contracts than some small groups within the union. I respectfully suggest that the language of the Norris-LaGuardia Act should be inserted in the provision of this section. 268 'The Chairman (Senator Taft). Mr. Secretary, of course, the basis for the jurisdiction is the Federal law—in other words, we are saying that all matters of collective—bargaining contracts shall be made in certain ways; that both parties shall be compelled to negotiate them, and they furnish the solution for the difficulty, which is an interstate commerce difficulty. I don't quite see why suits regarding such collective-bargaining contracts, when made, are not properly the subject of Federal law arising under the laws of the United States, therefore subject properly to the jurisdiction of the Federal courts. I don't understand how we can cover the whole subject, as we do, in Federal laws, and then say, when you come down to suing about it, that the Federal court has no jurisdiction. I don't understand that. 269 'Secretary Schwellenbach. I am not contending that the Federal court should not have jurisdiction. My two objections are that you should not clutter up the Federal courts with small suits, and— 270 'The Chairman. I should not think there would be many suits against unions for violating collective-bargaining contracts. I think that would be only a club in a closet. It would be an awkward suit. Many unions would not have any funds to collect, and I should think that any suit brought would certainly involve more than $3,000. It doesn't seem to me that this would bring any great deluge of litigation upon the Federal courts. 271 'Secretary Schwellenbach. I am testifying as a former Federal judge with a desire to protect the courts from a large volume of small matters. 272 'Senator Ellender. What limitation would you make? 273 'Secretary Schwellenbach. You should have the same requirements for jurisdiction in reference to these suits, $3,000 the amount in controversy, and diversity of citizenship. They have got the right to go into the State courts, you know, in 35 of the 48 States. 274 'Senator Ball. Aren't there some pretty important industrial States among those 13, though, where they cannot go into the State courts, such as Massachusetts and Virginia, Rhode Island? 275 'Senator Donnell. Don't have out Illinois and Missouri. (Laughter.) 276 'Secretary Schwellenbach. I am not going to get into that one. 277 'Senator Pepper. Mr. Secretary, in any of these 13 States that you have mentioned, where an unincorporated association is not suable, if those States were to provide that they are suable, under the Federal rules they would be suable in the Federal courts. So in those cases the matter would be up to the State to determine whether the Federal courts should have jurisdiction or not, and whether they would be suable in the State courts or not. 278 'Secretary Schwellenbach. I am not objecting to the provision, except I don't like the idea. 279 'Senator Pepper. That is the fact, isn't it? 280 'Secretary Schwellenbach. Yes. 281 'Senator Pepper. Now, in the second place I get the intimation from your statement that you made the decision (sic), which I was not quite sure the chairman recognized or agreed to, namely, that there was a difference between intrusting a right that exists under the Federal law or Federal Constitution, for which there could be redress in the Federal court, and the attempt of Congress merely to provide a Federal forum, Federal procedure, for the determination of the substantive rights which might be enforced by State law? Isn't that a distinction that you meant to suggest? 282 'Secretary Schwellenbach. When I was on the bench I suppose I tried half a dozen or 10 cases involving the question of whether or not there was jurisdiction, because they arose under the Federal statute, and they are tough, very tough, very hard to distinguish. And I am not making any categorical statement. 283 'Senator Pepper. I mean to suggest this distinction: If Congress should provide a forum— 284 'Secretary Schwellenbach. That is what this proposes to do; provide a Federal forum for suits against labor. 285 'Senator Pepper. For violation of substantive rights. If Congress were to lay down rules of damages in cases within congressional jurisdiction—that is, involving interstate commerce if Congress were to lay down the obligations of the parties and prescribe the rules and measure of damages, and so forth, for the violation of those obligations, then a suit for the enforcement of the penalty provided, or for the redress allowed, might properly be brought in the Federal courts, but what seems to be the intention here is to transfer to the Federal courts suits for breach of contract, the contracts being entered into under local law, and redress in all but 13 States being available now under local law.' (Pp. 56—58.) 2. The bill as reported: 286 'Suits By and Against Labor Organizations 287 'Sec. 301. (a) Suits for violation of contracts concluded as the result of collective bargaining between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 288 '(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act may sue or be sued in its common name in the courts of the United States: Provided, That any money judgment against such labor organization shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets. 289 '(c) For the purposes of this section district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. The service of legal process upon such officer or agent shall constitute service upon the labor organization, and make such organization a party to the suit.' 3. Senate Report (No. 105, 80th Cong., 1st Sess.): 290 a. Majority: 291 'Enforcement of Contract Responsibilities 292 'The committee bill makes collective-bargaining contracts equally binding and enforceable on both parties. In the judgment of the committee, breaches of collective agreement have become so numerous that it is not sufficient to allow the parties to invoke the processes of the National Labor Relations Board when such breaches occur (as the bill proposes to do in title I). We feel that the aggrieved party should also have a right of action in the Federal courts. Such a policy is completely in accord with the purpose of the Wagner Act which the Supreme Court declared was 'to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made' (H. J. Heinz Co. (v. N.L.R.B.), 311 U.S. 514 (61 S.Ct. 320, 85 L.Ed. 309)). 293 'The laws of many States make it difficult to sue effectively and to recover a judgment against an unincorporated labor union. It is difficult to reach the funds of a union to satisfy a judgment against it. In some States it is necessary to serve all the members before an action can be maintained against the union. This is an almost impossible process. Despite these practical difficulties in the collection of a judgment against a union, the National Labor Relations Board has held it an unfair labor practice for an employer to insist that a union incorporate or post a bond to establish some sort of legal responsibility under a collective agreement. 294 'President Truman, in opening the management-labor conference in November 1945, took cognizance of this condition. He said very plainly that collective agreements should be mutually binding on both parties to the contract: 295 "We shall have to find methods not only of peaceful negotiations of labor contracts, but also of insuring industrial peace for the lifetime of such contracts. Contracts once made must be lived up to and should be changed only in the manner agreed upon by the parties. If we expect confidence in agreements made, there must be responsibility and integrity on both sides in carrying them out.' 296 'If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract. 297 'Consequently, to encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements affecting interstate commerce should be enforceable in the Federal courts. Our amendment would provide for suits by unions as legal entities and against unions as legal entities in the Federal courts in disputes affecting commerce. 298 'The amendment specifically provides that only the assets of the union can be attached to satisfy a money judgment against it; the property of the individual members of the organization would not be subject to any liability under such a judgment. Thus the members of the union would secure all the advantages of limited liability without incorporation of the union. 299 'The initial obstacle in enforcing the terms of a collective agreement against a union which has breached its provisions is the difficulty of subjecting the union to process. The great majority of labor unions are unincorporated associations. At common law voluntary associations are not suable as such (Wilson v. Airline Coal Company, 215 Iowa 855 (246 N.W. 753); Iron Molders' Union (No. 125 of Milwaukee, Wis.) v. Allis-Chalmers Company, C.C.A.7, 166 F. 45). As a consequence the rule in most jurisdictions, in the absence of statute, is that unincorporated labor unions cannot be sued in their common name (Grant v. Carpenters' District Council, 322 Pa. 62, 185 A. 273). Accordingly, the difficulty or impossibility of enforcing the terms of a collective agreement in a suit at law against a union arises from the fact that each individual member of the union must be named and made a party to the suit. 300 'Some States have enacted statutes which subject unincorporated associations to the jurisdiction of law courts. These statutes are by no means uniform; some pertain to fraternal societies, welfare organizations, associations doing business, etc., and in some States the courts have excluded labor unions from their application. 301 'On the other hand, some States, including California and Montana, have construed statutes permitting common name suits against associations doing business to apply to labor unions (Armstrong v. Superior Court, 173 Cal. 341 (159 P. 1176); Vance v. McGinley, 39 Mont. 46 (101 P. 247)). Similarly, but more restrictive, in a considerable number of States the action is permitted against the union or representatives (sic) in proceedings in which the plaintiff could have maintained such an action against all the associates. * * * 302 'In at least one jurisdiction, the District of Columbia, the liberal view is held that unincorporated labor unions may be sued as legal entities, even in the absence of statute (Busby v. Elec. Util. Emp. Union, U.S. Court of Appeals for the District of Columbia, No. 8548, Jan. 22, 1945 (79 U.S.App.D.C. 336, 147 F.2d 865)). 303 'In the Federal courts, whether an unincorporated union can be sued depends upon the procedural rules of the State in which the action is brought (Busby v. Elec. Util. Empl. Union, U.S. Supreme Court, 89 Law.Adv.Op. 108, Dec. 4, 1944 (323 U.S. 72, 65 S.Ct. 142, 89 L.Ed. 78)). 304 'The Norris-LaGuardia Act has insulated labor unions, in the field of injunctions, against liability for breach of contract. It has been held by a Federal court that strikes, picketing, or boycotting, when carried on in breach of a collective agreement, involve a 'labor dispute' under the act so as to make the activity not enjoyable (sic) without a showing of the requirements which condition the issuance of an injunction under the act (Wilson & Co. v. Birl, 105 F.2d 948, C.C.A.3). 305 'A great number of States have enacted anti-injunction statutes modeled after the Norris-LaGuardia Act, and the courts of many of these jurisdictions have held that a strike in violation of a collective agreement is a 'labor dispute' and cannot be enjoined ((The) Nevins (Inc.) v. Kasmach, 279 N.Y. 323 (18 N.E.2d 294); Bulkin v. Sacks, 31 Pa., D and C 501). 306 'There are no Federal laws giving either an employer or even the Government itself any right of action against a union for any breach of contract. Thus there is no 'substantive right' to enforce, in order to make the union suable as such in Federal courts. 307 'Even where unions are suable, the union funds may not be reached for payment of damages and any judgments or decrees rendered against the association as an entity may be unenforceable. (See Aalco Laundry (& Cleaning) Co. v. Laundry Linen Union, Mo.App., 115 S.W.2d 89.) However, only where statutes provide for recognition of the legal status of associations do association funds become subject to judgments (Deeney v. Hotel & Apt. Clerks' Union (57 Cal.App.2d Supp. 1023), 134 P.2d 328 (1943), California). 308 'Financial statutory liability of associations is provided for by some States, among which are Alabama, California, Colorado, Connecticut, Delaware, New Jersey, North Dakota, and South Carolina. Even in these States, however, whether labor unions are included within the definition of 'association' is a matter of local judicial interpretation. 309 'It is apparent that until all jurisdictions, and particularly the Federal Government, authorize actions against labor unions as legel entities, there will not be the mutual responsibility necessary to vitalize collective-bargaining agreements. The Congress has protected the right of workers to organize. It has passed laws to encourage and promote collective bargaining. 310 'Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace. 311 'It has been argued that the result of making collective agreements enforceable against unions would be that they would no longer consent to the inclusion of a no-strike clause in a contract. 312 'This argument is not supported by the record in the few States which have enacted their own laws in an effort to secure some measure of union responsibility for breaches of contract. Four States—Minnesota, Colorado, Wisconsin, and California—have thus far enacted such laws and, so far as can be learned, no-strike clauses have been continued about as before. 313 'In any event, it is certainly a point to be bargained over and any union with the status of 'representative' under the NLRA which has bargained in good faith with an employer should have no reluctance in including a no-strike clause if it intends to live up to the terms of the contract. The improvement that would result in the stability of industrial relations is, of course, obvious.' (Pp. 15—18.) 314 'Section 301 is the only section contained in (Title III). It relates to suits by and against labor organizations for breach of collective bargaining agreements and should be read in connection with the provisions of section 8 of Title I also dealing with breach of contracts. The legal effect of this section has been described at some length in the main body of the report, supra.' (P. 30.) 315 b. Minority: 316 'Finally, sections 8(a)(6) and 8(b)(5) together with section 301 would give rise to a conflict of jurisdiction between the National Labor Relations Board and the United States district courts. This latter section permits suits in the United States district courts for violations of collective-bargaining agreements. Parties to such agreements thus have the choice of bringing their action before the Board or the United States district courts. Obviously, the necessity for uniform decisions in such matters and the avoidance of conflicting decisional rules by judicial bodies make this legislative scheme wholly undesirable. 317 '(1) Suits for violation of collective-bargaining agreements 318 'The Federal courts have always had jurisdiction to entertain suits for breach of collective-bargaining contracts and have awarded money damages where the amount in controversy fulfills the present $3,000 requirement and diversity of citizenship exists. Nederlandsche Amerikaansche Stoomvaart Maatschappij v. Stevedores and Longshoremen's Benevolent Society ((D.C.), 1920), 265 F. 397. It is apparent from the language of section 301 that no change is made in the application of State law for this purpose. The section states that— 319 "suits for violation of contracts concluded * * * in an industry affecting commerce * * * may be brought in any district court of the United States * * *.' 320 'Every district court would still be required to look to State substantive law to determine the question of violation. This section does not, therefore, create a new cause of action but merely makes the existing remedy available to more persons by removing the requirements of amount in controversy and of diversity of citizenship where interstate commerce is affected. 321 '* * * the Federal courts would be made an available tribunal for every petty cause of action between citizens of the same State, and, undoubtedly in many instances, residents of the same community, with application by the Federal judge of exactly the same principles of law which would govern the controversy if it were brought before a State judge in the more numerous State courts. 322 'Added to these practical objections are serious questions concerning the legality of abandoning the diversity-of-citizenship requirement. The Constitution limits suits in the Federal courts, inter alia, to cases arising under the Constitution and laws of the United States or involving diversity of citizenship (Constitution, art. iii, sec. 2). 323 'Reflection upon these practical and legal objections to this phase of the bill lead to the conclusion that very little useful purpose would be served by making Federal courts more broadly available for the adjudication of disputes under collective-bargaining agreements. The only advantage, if indeed it may be called an advantage, is to give many disputing parties an otherwise unavailable opportunity to choose a Federal forum rather than a State forum. The substantive law governing the settlement of the dispute would not be changed in the least no matter which forum were chosen. It is our conviction that the added burdens upon the Federal courts and the doubtful legality of this measure constitute an extravagant price to pay for a needless indulgence benefiting litigants whose remedies are now as adequate in the State courts as they would be in the Federal courts.' (Pp. 13—14.) 4. Senate debates: 324 a. Senator Taft: 325 'Mr. President, title III of the bill, on page 53, makes unions suable in the Federal courts for violation of contract. As a matter of law unions, of course, are liable in theory on their contracts today, but as a practical matter it is difficult to sue them. They are not incorporated; they have many members; in some States all the members must be served; it is difficult to know who is to be served. But the pending bill provides they can be sued as if they were corporations and if a judgment is found against the labor organization, even though it is an unincorporated association, the liability is on the labor union and the labor-union funds, and it is not on the individual members of the union, where it has fallen in some famous cases to the great financial distress of the individual members of labor unions.' (93 Cong.Rec. 3839.) 326 'What is the purpose of Title III? The purpose of title III is to give the employer and the employee the right to go to the Federal courts to bring a suit to enforce the terms of a collective-bargaining agreement—exactly the same subject matter which is contained in titles I and II. It is impossible to separate them.' (Id., at 4141.) 327 'Finally, we have a provision in title III for bringing a lawsuit for breach of contract. Breach of what kind of contract? Breach of contract for collective bargaining.' (Id., at 4262.) 328 'The Senator from Oregon, when speaking about paragraph (5) (§ 8(b)(5)) on page 16, stated clearly that for the purpose of enforcing the collective-bargaining agreement we were duplicating the two remedies, one by lawsuits in court for violation of an agreement and the other by making the violation of the agreement an unfair labor practice. I do not think that is a legitimate objection to such an amendment.' (Id., at 4437.) b. Senator Ball: 329 'Fourth, we give to employers the right to sue a union in interstate commerce, in a Federal court, for violation of contract. It does not go beyond that. As a matter of law, I think they have that right, now, but because unions are voluntary associations, the common law in a great many States requires service on every member of the union, which is very difficult; and, if a judgment is rendered, it holds every member liable for the judgment. 330 'The pending measure, by providing that the union may sue and be sued as a legal entity, for a violation of contract, and that liability for damages will lie against union assets only, will prevent a repetition of the Danbury Hatters case, in which many members lost their homes because of a judgment rendered against the union which also ran against individual members of the union.' (Id., at 5014.) 331 c. Senator Smith: 332 'I now come to title III, which is very brief, and merely provides for suits by and against labor organizations, and requires that labor organizations, as well as employers, shall be responsible for carrying out contracts legally entered into as the result of collective bargaining. That is all title III does. I cannot conceive of any sound reason why a party to a contract should not be responsible for the fulfillment of the contract; it is outside my comprehension how anyone can take such a position. 333 'I have heard it argued that it is a terrible thing to make labor unions responsible for carrying out their contracts, but I have a quotation here, if I can find it, from Mr. Justice Brandeis, who was the greatest friend of labor in the Federal judicial field. He said the greatest thing labor could do would be to recognize its responsibility. This is a quotation from an address delivered by him before the Economic Club of Boston on December 4, 1902: 334 "The unions should take the position squarely that they are amenable to law, prepared to take the consequences if they transgress, and thus show that they are in full sympathy with the spirit of our people, whose political system rests upon the proposition that this is a government of law, and not of men.' 335 'I cannot see how anyone can take issue with so clear-cut a statement as that, or can take issue with the provisions of title III, which simply carry out the idea, by providing that whichever side is guilty of violating a contract solemnly entered into shall be responsible for damages resulting from such violation. 336 'All that has been done in title III of the pending bill is to state, in terms, the very principle that Mr. Brandeis lays down as a precept to be followed by unions who desire to be respected in the community.' (Id., at 4281—4282.) 337 d. Senator O'Daniel: 338 'I believe that labor unions should be made responsible under the laws with which other citizens must comply. I do not think anyone is justified in giving labor unions legal immunity when they practice coercion, or when they seek to exercise the secondary boycott, or when they engage in violence, or when they seek to evade their responsibility for damages with which they may rightly be charged. There is no reason on earth why we should allow labor unions special exemption from laws with which all other citizens must comply.' (Id., at 4758.) e. Senator Murray read, word for word with minor exceptions, the material contained in the Senate minority report, quoted above (II. B. 3. b.), which stressed the fact that Federal courts would be required to look to state law, and that a serious constitutional problem would be involved. (Id., at 4033.) At a later point, in connection with a substitute bill proposed by the minority, he said: 339 'We of the minority do not see the wisdom of permitting suits in the Federal courts concerning the violation of collective bargaining agreements regardless of the amount involved or of the constitutional requirement of diversity of citizenship. It is clear that the Federal courts are already open to these suits where the present Federal requirements are met, and we object to burdening them with a host of petty litigation not heretofore countenanced in any way. The State courts are adequate for the purposes of these petty suits. We have nonetheless found that there is a present inability of Federal courts to permit union assets to be reached easily in the few States where the application of State procedural laws prevent suits against unincorporated associations. For this reason section 601 would grant jurisdiction in otherwise justiciable contract actions where suit is brought by or against a union in its common name.' (Id., at 4906.) 340 f. Senator Thomas: 341 'Or consider the provisions which open the Federal courts to damage suits for breach of collective-bargaining agreements. Not content with the unfair labor practice provisions relative to breaches of collective-bargaining agreements, the authors of S. 1126 now propose to give the Government two bites at the cherry. It must be remembered that these provisions do not, in fact, give a remedy where none previously existed, although some care has been taken to create the impression that they do. What these provisions really do is to invite the Federal district courts to police the parties in their adherence to their collective-bargaining agreements by dispensing with the sensible statutory requirement of a jurisdictional amount of $3,000 and the constitutional requirement of diversity of citizenship. I am firmly convinced that this is a vain effort, because I am sure that the suits contemplated by these provisions will not be regarded by the courts as presented any Federal question. * * *' (Id., at 4768.) 342 g. Senator Morse: 343 'One procedure is found in the title which permits, of course, suits by employers against unions for breach of contract. That is subject to a great deal of criticism on the part of unions. I do not think the criticism is well founded, because in my opinion, when union officials sign a labor contract, their signature ought to be given the same sanctity and the same effect as the signature of an employer. So I am going along with the proposal for legislation which permits suits for breach of contract against unions. I think a careful reading by labor leaders of the particular proposal contained in the bill will dispel their minds of many of the exaggerated fears they seem to entertain. But, be that as it may, I think it is only fair and proper that when unions damage the property rights of employers or third parties as the result of breaches of contract, they should be held responsible for the obligation they took unto themselves when they signed the contract.' (Id., at 4207.) h. Other references to the section are of little importance here. (Id., at 3838, 4030, 4148, 4209, 4358, 4986, 5007, and 6454.) 344 5. Section 301 remained unchanged in the bill as it passed the Senate. 345 c. Conference Report (H.R.Rep. No. 510, 80th Cong., 1st Sess.): 346 1. The Conference's revised Section 301 was that presently in force. 2. The Report stated: 347 'Suits By and Against Labor Organizations 348 'Section 302 of the House bill and section 301 of the Senate amendment contained provisions relating to suits by and against labor organizations in the courts of the United States. The conference agreement follows in general the provisions of the House bill with changes therein hereafter noted. 349 'Section 302(a) of the House bill provided that any action for or proceeding involving a violation of a contract between an employer and a labor organization might be brought by either party in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, if such contract affected commerce, or the court otherwise had jurisdiction. Under the Senate amendment the jurisdictional test was whether the employer was in an industry affecting commerce or whether the labor organization represented employees in such an industry. This test contained in the Senate amendment is also contained in the conference agreement, rather than the test in the House bill, which required that the 'contract affect commerce.' 350 'Section 302(b) of the House bill provided that any labor organization whose activities affected commerce should be bound by the acts of its agents and might sue or be sued as an entity in the courts of the United States. Any money judgment in such a suit was to be enforceable only against the organization as an entity and against its assets and not against any individual member or his assets. The conference agreement follows these provisions of the House bill except that this subsection is made applicable to labor organizations which represent employees in an industry affecting commerce and to employers whose activities affect commerce, as later defined. It is further provided that both the employer and the labor organization are to be bound by the acts of their agents. This subsection and the succeeding subsections of section 301 of the conference agreement (as was the case in the House bill and also in the Senate amendment) are general in their application, as distinguished from subsection (a).' (Pp. 65—66.) D. Debate on the Conference Report: 1. House: 351 a. Representative Case: 352 'The Taft-Hartley bill incorporates some other provisions which were in the Case bill of last year and which are pretty much accepted as proper subjects of legislation. 353 'For instance, the bill establishes suability for and by labor organizations as entities. The bill last year did that. The objection to suits against labor organizations has stemmed from a proper resentment against the travesty that took place in the old Danbury Hatters case where individual members of a union were harried and their property attached to satisfy a judgment for action taken by officers whom they did not control. It was as bad as such action would be against minority and individual stockholders of a corporation for acts they could not control. Both in the bill last year, and in this Taft-Hartley bill, the language while making labor organizations responsible under their contracts and for the acts of their agents, limits judgments to the assets of the organization itself.' (93 Cong.Rec. 6283.) 354 2. Senate: None. 355 E. Veto Message (H.R.Doc. No. 334, 80th Cong., 1st Sess: 356 'It would discourage the growing willingness of unions to include 'no strike' provisions in bargaining agreements, since any labor organization signing such an agreement would expose itself to suit for contract violation if any of its members engaged in an unauthorized 'wildcat' strike.' (P. 3.) 357 'The bill would invite unions to sue employers in the courts regarding the thousands of minor grievances which arise every day over the interpretation of bargaining agreements. * * *' (P. 4.) 358 'At the same time it would expose unions to suits for acts of violence, wildcat strikes and other actions, none of which were authorized or ratified by them * * *.' (P. 5.) F. Subsequent debate: 1. House: 359 a. Representative Robsion: 360 'For a number of years high, responsible labor leaders have stated over and over that they believe in the observance of contracts by both parties. One of the purposes of organizing and collective bargaining is to make a contract by management and the workers. This bill provides that management and labor each shall fairly and honestly live up to the terms of their contract and if either party breaks the contract and the other suffers loss or damage thereby, the party who is at fault must respond in fair and just damages. If the parties do not intend to live up to their contract, why should they take the time, trouble, and incur expense of making a contract? * * *' (93 Cong.Rec. 7491.) 2. Senate: 361 a. Senator Taft: 362 'This is a perfectly reasonable bill in every respect. If we are to have free collective bargaining it must be between two responsible parties. Some of the provisions of this bill deal with the question of making the unions responsible. There is no reason in the world why a union should not have the same responsibility that a corporation has which is engaged in business. So we have provided that a union may be sued as if it were a corporation. * * *' (Id., at 7537.) 1 International Ladies' Garment Workers' Union A.F.L. v. Jay-Ann Co., 5 Cir., 228 F.2d 632, semble; United Steelworkers of America, C.I.O. v. Galland-Henning Mfg. Co., 7 Cir., 241 F.2d 323, 325; Mercury Oil Refining Co. v. Oil Workers Intern, Union, C.I.O., 10 Cir., 187 F.2d 980, 983. 2 The following decisions are to the effect that § 301(a) creates substantive rights: Shirley-Herman Co. v. International Hod Carriers Union, 2 Cir., 182 F.2d 806, 809, 17 A.L.R.2d 609; Rock Drilling etc. Union v. Mason & Hanger Co., 2 Cir., 217 F.2d 687, 691—692; Signal-Stat. Corp. v. Local 475, 2 Cir., 235 F.2d 298, 300; Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 3 Cir., 210 F.2d 623, 625, affirmed on other grounds, 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510; Textile Workers Union of America v. Arista Mills, 4 Cir., 193 F.2d 529, 533; Hamilton Foundry & Machine Company v. International Molders & Foundry Union, 6 Cir., 193 F.2d 209, 215; American Federation of Labor v. Western Union, 6 Cir., 179 F.2d 535; Milk & Ice Cream Drivers & Dairy Employes Union, Local No. 98 v. Gillespie Milk Prod. Corp., 6 Cir., 203 F.2d 650, 651; United Electrical, Radio & Machine Workers of America v. Oliver Corp., 8 Cir., 205 F.2d 376, 384—385; Schatte v. International Alliance, 9 Cir., 182 F.2d 158, 164. 3 The Senate bill contained provisions which would have made it an unfair labor practice for either an employer or a union 'to violate the terms of a collective-bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration.' The Senate Report indicated that these provisions would permit the Board to grant relief in the same instances where suit might be maintained under § 301. 'While title III of the committee bill treats this subject by giving both parties rights to sue in the United States district court, the committee believes that such action should also be available before an administrative body.' The House bill defined the term 'bargain collectively' so as to require that, 'If an agreement is in effect between the parties providing a procedure for adjusting or settling such disputes, following such procedure.' Commenting on this definition in § 2 of the House bill, the House Report stated: 'When parties have agreed upon a procedure for settling their differences, and the agreement is in effect, they will be required to follow the procedure or be held guilty of an unfair labor practice. Most agreements provide procedures for settling grievances, generally including some form of arbitration as the last step. Consequently, this clause will operate in most cases, except those involving the negotiation of new contracts.' 4 S.Rep. No. 105, 80th Cong., 1st Sess., pp. 17—18 states: 'Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace. 'It has been argued that the result of making collective agreements enforceable against unions would be that they would no longer consent to the inclusion of a no-strike clause in a contract. 'This argument is not supported by the record in the few States which have enacted their own laws in an effort to secure some measure of union responsibility for breaches of contract. Four States—Minnesota, Colorado, Wisconsin, and California—have thus far enacted such laws and, so far as can be learned, no-strike clauses have been continued about as before. 'In any event, it is certainly a point to be bargained over and any union with the status of 'representative' under the NLRA which has bargained in good faith with an employer should have no reluctance in including a no-strike clause if it intends to live up to the terms of the contract. The improvement that would result in the stability of industrial relations is, of course, obvious.' 5 Section 302(a) as it passed the House read as follows: 'Any action for or proceeding involving a violation of an agreement between an employer and a labor organization or other representative of employees may be brought by either party in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, if such agreement affects commerce, or the court otherwise has jurisdiction of the cause.' 6 Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510, is quite a different case. There the union sued to recover unpaid wages on behalf of some 4,000 employees. The basic question concerned the standing of the union to sue and recover on those individual employment contracts. The question here concerns the right of the union to enforce the agreement to arbitrate which it has made with the employer. 7 We do not reach the question, which the Court reserved in Red Cross Line v. Atlantic Fruit Co., supra, 264 U.S. at page 125, 44 S.Ct. at page 278, whether as a matter of federal law executory agreements to arbitrate are enforceable, absent congressional approval. 8 See Judge Magruder in Local 205, United Electrical, Radio and Machine Workers of America (U.E.) v. General Electric Co., 1 Cir., 233 F.2d 85, 92. 9 Whether there are situations in which individual employees may bring suit in an appropriate state or federal court to enforce grievance rights under employment contracts where the collective bargaining agreement provides for arbitration of those grievances is a question we do not reach in this case. Cf. Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U.S. 437, 460, 464, 75 S.Ct. 489, 500, 502, 99 L.Ed. 510; Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Transcontinental & Western Air v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325. 1 See the opinion of Judge Wyzanski in Textile Workers Union of America (C.I.O.) v. American Thread Co., 113 F.Supp. 137. 2 See the dissent of Judge Brown in the Court of Appeals in this case, 230 F.2d 81, 89. 1 'Sec. 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. '(b) Any labor organization which epresents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as a entity and against its assets, and shall not be enforceable against any individual member or his assets. '(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members. '(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in his capacity as such, shall constitute service upon the labor organization. '(e) For the purposes of this section, in determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.' 2 At the Seamen's Union convention in 1923, at a time when the proposed Arbitration Act contained no exemptions, Furuseth, after referring to the effect of the act on individual contracts, stated: 'So far we have dealt with the individual. What about those, who shall seek to protect themselves through mutual aid? Some organizations are very strong in their cohesiveness. Cannot those organizations save not only the individuals but themselves? 'The Supreme Court has decided that voluntary organizations may be sued. If they shall enter into an agreement containing an arbitration clause, there can be little doubt that the organization will be bound.' Proceedings of the 26th Annual Convention of the International Seamen's Union of America, p. 204 (1923). The reference was to this Court's decision, the previous year, in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975. 3 In view of the course that this litigation has taken, I put to one side the bearing of the Norris-LaGuardia Act. It is not the first time that unions have conveniently disregarded, when it suited an immediate end, their vehement feelings that secured the restriction upon the federal courts in granting injunctions in labor disputes. Candor compels me to say that I do not think that the conclusion reached by Judge Bailey Aldrich in Local 205, United Electrical, Radio and Mach. Workers of America v. General Electric Co., D.C., 129 F.Supp. 665, has been persuasively met. 4 Osborn might possibly be limited on the ground that a federal instrumentality, the Bank of the United States, was involved, see note 5, infra, but such an explanation could not suffice to narrow the holding in the Pacific Railroad Removal Cases. 5 To be sure, the Court upheld the removal statute for suits or prosecutions commenced in a state court against federal revenue officers on account of any act committed under color of office. State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648. The Court, however, construed the action of Congress in defining the powers of revenue agents as giving them a substantive defense against prosecution under state law for commission of acts 'warranted by the Federal authority they possess.' Id., 100 U.S. at page 263. That put federal law in the forefront as a defense. In any event, the fact that officers of the Federal Government were parties may be considered sufficient to afford access to the federal forum. See In re Debs, 158 U.S. 564, 584—586, 15 S.Ct. 900, 906—907, 39 L.Ed. 1092; Mishkin, 53 Col.L.Rev., at 193: 'Without doubt, a federal forum should be available for all suits involving the Government, its agents and instrumentalities, regardless of the source of the substantive rule.' 6 Enunciation of such a requirement could in fact bring federal law somewhat further to the forefront than was true of Osborn, the Pacific Railroad Removal Cases, or the bankruptcy cases in the few cases where an assertion could be made that state law did not sufficiently recognize collective agreements as contracts. But there appears to be no State that today possesses such a rule. Most and probably all cases arising under § 301 certainly the present ones—would never present such a problem. 7 In No. 276, respondent's motion in the Court of Appeals to amend its complaint to show diversity of citizenship was denied on alternate grounds of possible mootness and Rule 17(b)'s reference of questions of capacity to sue to state law. The view of § 301 that I have set forth would permit that section to be applied constitutionally to situations, such as diversity of citizenship, where there is jurisdiction in the federal courts apart from § 301. I would therefore remand this case to permit the amendment alleging diversity of citizenship.

67

353 U.S. 657 77 S.Ct. 1007 1 L.Ed.2d 1103 Clinton E. JENCKS, Petitioner,v.UNITED STATES of America. No. 23. Argued Oct. 17, 1956. Decided June 3, 1957. Mr. John T. McTernan, Los Angeles, Cal., for petitioner. Mr. John V. Lindsay, New York City, for respondent. Mr. Justice BRENNAN delivered the opinion of the Court. 1 On April 28, 1950, the petitioner, as president of Amalgamated Bayard District Union, Local 890, International Union of Mine, Mill & Smelter Workers, filed an 'Affidavit of Non-Communist Union Officer' with the National Labor Relations Board, pursuant to § 9(h) of the National Labor Relations Act.1 He has been convicted under a two-count indictment charging that he violated 18 U.S.C. § 1001, 18 U.S.C.A. § 10012 by falsely swearing in that affidavit that he was not on April 28, 1950, a member of the Communist Party or affiliated with such Party. The Court of Appeals for the Fifth Circuit affirmed the conviction,3 and also an order of the District Court denying the petitioner's motion for a new trial.4 This Court granted certiorari.5 2 Two alleged trial errors are presented for our review. Harvey F. Matusow and J. W. Ford, the Government's principal witnesses, were Communist Party members paid by the Federal Bureau of Investigation contemporaneously to make oral or written reports of Communist Party activities in which they participated. They made such reports to the F.B.I. of activities allegedly participated in by the petitioner, about which they testified at the trial. Error is asserted in the denial by the trial judge of the petitioner's motions to direct the Government to produce these reports for inspection and use in cross-examining Matusow and Ford. Error is also alleged in the instructions given to the jury on membership, affiliation, and the credibility of informers.6 3 Former Party members testified that they and the petitioner, as members of the Communist Party of New Mexico, had been expressly instructed to conceal their membership and not to carry membership cards. They also testified that the Party kept no membership records or minutes of membership meetings, and that such meetings were secretly arranged and clandestinely held. One of the witnesses said that special care was taken to conceal the Party membership of members, like the petitioner, 'occupying strategic and important positions in labor unions and other organizations where public knowledge of their membership to non-Communists would jeopardize their position in the organization.' Accordingly, the Government did not attempt to prove the petitioner's alleged membership in the Communist Party on April 28, 1950, with any direct admissions by the petitioner of membership, by proof of his compliance with Party membership requirements, or that his name appeared upon a membership roster, or that he carried a membership card. 4 The evidence relied upon by the Government was entirely circumstantial. It consisted of testimony of conduct of the petitioner from early 1946 through October 15, 1949, and of Matusow's testimony concerning alleged conversations between him and the petitioner at a vacation ranch in July or August 1950, and concerning a lecture delivered by the petitioner at the ranch. The Government also attached probative weight to the action of the petitioner in executing and filing an Affidavit of Non-Communist Union Officer on October 15, 1949, because of the events surrounding the filing of that affidavit. The Government bridged the gap between October 15, 1949, and July or August 1950 with the testimony of Ford that, during that period, the Party took no disciplinary action against the petitioner for defection or deviation, and did not replace the petitioner in the Party office which Ford testified the petitioner held as a member of the Party State Board. 5 The first alleged Party activity of the petitioner preceded his union employment. A witness, who was a Party member in the spring of 1946, testified that, at that time, he and the petitioner were present at a closed Party meeting at the home of the Party chairman for Colorado, where the petitioner, a veteran of World War II, led in urging that veterans who were Party members spread out into several veterans' organizations and not all join the same one, the better to further Party work. 6 Later in 1946 the petitioner was employed by the International Union of Mine, Mill & Smelter Workers as business agent for several local unions in the Silver City-Bayard, New Mexico, area. It was testified that one of the petitioner's first acts was to meet with the International Union's then Regional Director for the Southwest, a Communist Party member, and with the Communist Party organizer for the area, to develop plans for organizing a Party group within each of those locals, which later merged to form Amalgamated Local 890 under the petitioner's presidency. 7 J. W. Ford was a member of the Communist Party of New Mexico from 1946 to September 1950 and, from 1948, was a member of the State Board and a Party security officer. He said that in 1948 he became a paid undercover agent for the F.B.I.7 and reported regularly upon Party activities and meetings. He testified that the petitioner was also a Party and a State Board member, and he related in detail occurrences at five closed Party meetings which he said the petitioner attended. 8 At the first meeting, in August 1948, Ford said the Party members worked out a plan to support the petitioner's candidacy for Congress on the ticket of the Progressive Party. At the second meeting, in February 1949, Ford said that the petitioner and other Communist Party members were appointed delegates to a meeting of the Mexican-American Association in Phoenix, Arizona, to further a Party plan to infiltrate that organization and to use it for the Party's purposes. At the third meeting, in April 1949, Ford said that the Party's state organization was completed, and the petitioner was appointed to the State Board and the Party leader in the southern half of the State. At the fourth meeting, in May 1949, Ford said that the petitioner gave a progress report upon his success in recruiting Party members among labor groups, and offered to use Local 890's newspaper, 'The Union Worker,' which he edited, to support issues of Party interest. At the fifth meeting, in August 1949, Ford said that preparations were made for another meeting later in that month of the Mexican-American Association in Albuquerque, and that the delegates, including the petitioner, were instructed to give vigorous support to the meeting but to take care not to make themselves conspicuous in the proceedings. 9 Ford's duties as a Party security officer were to keep watch on all Party members and to report 'any particular defections from the Communist philosophy or any peculiar actions, statements or associations, which would endanger the security of the Communist Party of the state.' If any defection reported by a security officer were considered important, the member 'would be called in and would be either severely reprimanded or criticized, or disciplined. If he refused to accept such discipline he would either be suspended or expelled.' Ford testified that, between August 1949 and September 1950, when Ford ceased his activities with the New Mexico Party, there was no disciplinary action taken against the petitioner and, to his knowledge, the petitioner was not replaced in his position on the State Board of the Communist Party. 10 The events leading up to the petitioner's execution and filing, on October 15, 1949, of an Affidavit of Non-Communist Union Officer were testified to by a former International Union representative, a Communist Party member during 1947 to 1949. He said that, about 17 months before, in May or June 1948, a meeting of Party members, holding offices in locals of the International Union of Mine, Mill & Smelter Workers, was held in Denver to formulate plans for combatting a movement, led by non-Communists, to secede from the International Union. He said that the Party members, including the petitioner, were informed of Party policy not to sign affidavits required by § 9(h) of the then recently enacted Taft-Hartley Act. There was no testimony that that policy changed before October 15, 1949. 11 The affidavit was filed shortly before a C.I.O. convention was scheduled to expel the Mine-Mill International and other unions from its membership. After filing the affidavit, the petitioner and other Local 890 officers published an article in 'The Union Worker' charging that the contemplated C.I.O. action was part of a program of 'right-wing unions * * * gobbling up chunks of militant unions. * * * Our International Union and its officers have swallowed a lot of guff, a lot of insults. But that is not the point. * * * Now that our Union has signed the phony affidavits we can defend ourselves * * * in case of raids. We do not fear attack from that quarter any longer.' 12 Matusow was a member of the Communist Party of New York and was a paid undercover agent for the F.B.I. before he went to New Mexico.8 In July or August 1950, he spent a 10-day vacation on a ranch near Taos, New Mexico, with the petitioner and a number of other people. He testified to several conversations with the petitioner there. He said he twice told the petitioner of his desire to transfer his membership from the New York to the New Mexico Party, and that on both occasions the petitioner applauded the idea and told him, 'we can use you out here, we need more active Party members.' On one of these occasions, Matusow said, the petitioner asked him for suggestions for a lecture the petitioner was preparing for delivery at the ranch, particularly as to what the New York Communists were doing about the Stockholm Peace Appeal. Matusow described to the petitioner a 'do-day' program adopted in New York when the Party members were doers, not talkers, and performed some activity, such as painting signs around a baseball stadium urging support for the Peace Appeal. He testified that the petitioner showed great interest in the idea and said he might bring it back to his fellow Party members in Silver City. 13 Matusow testified that the petitioner delivered his planned lecture, informed his audience of the 'do-day' idea, praised the Soviet Union's disarmament plan, referred to the United States as the aggressor in Korea, and urged all to read the 'Daily People's World,' identified by Matusow as the 'West Coast Communist Party newspaper.' Another witness, an expelled member of Amalgamated Local 890, testified that petitioner, during 1950, 1951 and 1952, repeatedly urged at union meetings that the union members read that paper. 14 Matusow also testified that, in one of their conversations, the petitioner told him of a program he was developing with leaders of the Mexican Miners Union to negotiate simultaneous expiration dates of collective bargaining agreements, to further a joint action of Mexican and American workers to cut off production to slow down the Korean War effort. Matusow also testified that when he told the petitioner that he had joined the Taos Chapter of the Mexican-American Association, the petitioner told him that this was proper Communist work because the Association was a key organization, controlled by the Party, for Communist activities in New Mexico and and that he, the petitioner, was active in the Association in the Silver City area.9 15 Ford and Matusow were subjected to vigorous cross-examination about their employment as informers for the F.B.I. Ford testified that in 1948 he went to the F.B.I. and offered his services, which were accepted. He thereafter regularly submitted reports to the FB.I., 'sometimes once a week, sometimes once a month, and at various other times; maybe three or four times a week, depending on the number of meetings * * * (he) attended and the distance between the meetings.' He said that his reports were made immediately following each meeting, while the events were still fresh in his memory. He could not recall, however, which reports were oral and which in writing. 16 The petitioner moved 'for an order directing an inspection of reports of the witness Ford to the Federal Bureau of Investigation dealing with each of the meetings which he said that he attended with the defendant Jencks in the years 1948 and 1949.' The trial judge, without stating reasons, denied the motion. 17 Matusow, on his cross-examination, testified that he made both oral and written reports to the F.B.I. on events at the ranch, including his conversations with the petitioner. The trial judge, again without reasons, denied the motion to require 'the prosecution to produce in Court the reports submitted to the F.B.I. by this witness (Matusow) concerning matters which he saw or heard at the * * * Ranch during the period that he was a guest there * * *.'10 18 The Government opposed petitioner's motions at the trial upon the sole ground that a preliminary foundation was not laid of inconsistency between the contents of the reports and the testimony of Matusow and Ford. The Court of Appeals rested the affirmance primarily upon that ground.11 19 Both the trial court and the Court of Appeals erred. We hold that the petitioner was not required to lay a preliminary foundation of inconsistency, because a sufficient foundation was established by the testimony of Matusow and Ford that their reports were of the events and activities related in their testimony. 20 The reliance of the Court of Appeals upon Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, is misplaced. It is true that one fact mentioned in this Court's opinion was that the witness admitted that the documents involved contradicted his testimony. However, to say that Gordon held a preliminary showing of inconsistency a prerequisite to an accused's right to the production for inspection of documents in the Government's possession, is to misinterpret the Court's opinion. The necessary essentials of a foundation, emphasized in that opinion, and present here, are that '(t)he demand was for production of * * * specific documents and did not propose any broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up. Nor was this a demand for statements taken from persons or informants not offered as witnesses.' (Emphasis added.) 344 U.S. at page 419, 73 S.Ct. at page 373. We reaffirm and re-emphasize these essentials. 'For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule * * *.' 344 U.S. at page 420, 73 S.Ct. at page 373. 21 The crucial nature of the testimony of Ford and Matusow to the Government's case is conspicuously apparent. The impeachment of that testimony was singularly important to the petitioner. The value of the reports for impeachment purposes was highlighted by the admissions of both witnesses that they could not remember what reports were oral and what written, and by Matusow's admission: 'I don't recall what I put in my reports two or three years ago, written or oral, I don't know what they were.' 22 Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness' testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness' trial testimony. 23 Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict, as in Gordon, the accused is helpless to know or discover conflict without inspecting the reports.12 A requirement of a showing of conflict would be clearly incompatible with our standards for the administration of criminal justice in the federal courts and must therefore be rejected. For the interest of the United States in a criminal prosecution '* * * is not that it shall win a case, but that justice shall be done * * *.' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.13 24 This Court held in Goldman v. United States, 316 U.S. 129, 132, 62 S.Ct. 993, 995, 86 L.Ed. 1322, that the trial judge had discretion to deny inspection when the witness '* * * does not use his notes or memoranda (relating to his testimony) in court * * *.' We now hold that the petitioner was entitled to an order directing the Government to produce for inspection all reports of Matusow and Ford in its possession, written and, when orally made, as recorded by the F.B.I., touching the events and activities as to which they testified at the trial. We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.14 25 The practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved.15 Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness. Only after inspection of the reports by the accused, must the trial judge determine admissibility—e.g., evidentiary questions of inconsistency, materiality and relevancy—of the contents and the method to be employed for the elimination of parts immaterial or irrelevant. See Gordon v. United States, 344 U.S., at page 418, 73 S.Ct. at page 372. 26 In the courts below the Government did not assert that the reports were privileged against disclosure on grounds of national security, confidential character of the reports, public interest or otherwise. In its brief in this Court, however, the Government argues that, absent a showing of contradiction, '(t)he rule urged by petitioner * * * disregards the legitimate interest that each party—including the Government—has in safeguarding the privacy of its files, particularly where the documents in question were obtained in confidence. Production of such documents, even to a court, should not be compelled in the absence of a preliminary showing by the party making the request.' The petitioner's counsel, believing that Court of Appeals' decisions imposed such a qualification, restricted his motions to a request for production of the reports to the trial judge for the judge's inspection and determination whether and to what extent the reports should be made available to the petitioner. 27 It is unquestionably true that the protection of vital national interests may militate against public disclosure of documents in the Government's possession. This has been recognized in decisions of this Court in civil causes where the Court has considered the statutory authority conferred upon the departments of government to adopt regulations 'not inconsistent with law, for * * * use * * * of the records, papers * * * appertaining' to his department.16 The Attorney General has adopted regulations pursuant to this authority declaring all Justice Department records confidential and that no disclosure, including disclosure in response to subpoena, may be made without his permission.17 28 But this Court has noticed, in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727, the holdings of the Court of Appeals for the Second Circuit18 that, in criminal causes '* * * the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense * * *.' 345 U.S. at page 12, 73 S.Ct. at page 534. 29 In United States v. Andolschek, 2 Cir., 142 F.2d 503, 506, Judge Learned Hand said: 30 '* * * While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully. Nor does it seem to us possible to draw any line between documents whose contents bears directly upon the criminal transactions, and those which may be only indirectly relevant. Not only would such a distinction be extremely difficult to apply in practice, but the same reasons which forbid suppression in one case forbid it in the other, though not, perhaps, quite so imperatively * * *.' We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Accord, Roviaro v. United States, 353 U.S. 53, 60—61, 77 S.Ct. 623, 627—628, 1 L.Ed.2d 639. The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession. 31 Reversed. 32 Mr. Justice FRANKFURTER joins the opinion of the Court, but deeming that the questions relating to the instructions to the jury should be dealt with, since a new trial has been directed, he agrees with the respects in which, and the reasons for which, Mr. Justice BURTON finds them erroneous. 33 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 34 Mr. Justice BURTON, whom Mr. Justice HARLAN joins, concurring in the result. 35 Because of the importance of this case to the administration of criminal justice in the federal courts, I believe it appropriate to set forth briefly the different route by which I reach the same result as does the Court. 36 Ford and Matusow, as the Court's opinion indicates, were crucial government witnesses because their testimony supplied the principal evidence relating to the period immediately surrounding the filing of petitioner's allegedly false affidavit. Cross-examination brought out the fact that each had made oral or written reports to the Federal Bureau of Investigation relating to the respective events about which each had testified on direct examination. Having established that fact, petitioner sought an order requiring the Government to produce, for inspection by the court, the reports relating to those matters about which each witness had testified. The procedure to be followed was carefully specified: the court was to determine whether the reports had evidentiary value for impeachment of the credibility of Ford or Matusow; if the court found that they had value for that purpose, it was then to make them available to petitioner for his use in cross-examination. The Government opposed each motion on the ground that no showing of contradiction between the witness' testimony and his reports had been made as required by a controlling Fifth Circuit decision, Shelton v. United States, 205 F.2d 806. Apparently on that ground, the trial court denied the motions. 37 Petitioner's requests were limited to a narrow category of reports dealing with specified meetings and conversations. The purpose of the requests—to impeach the credibility of crucial government witnesses—was made clear. Petitioner did not ask to inspect the documents himself; he sought access only to those portions of the reports which the trial court might determine to have evidentiary value for impeachment purposes, and to be unprivileged.1 38 I agree that, under such circumstances, it was unnecessary for petitioner to show that Ford's and Matusow's trial testimony was contradicted in some respect by their contemporaneous reports. Although some federal courts have required a showing of contradiction,2 this Court never has done so.3 A rule requiring a showing of contradiction in every case would not serve the ends of justice. I concur, therefore, in that portion of the Court's opinion holding that petitioner laid a sufficient foundation for the production of the reports. 39 I would not, however, replace the inflexible and narrow rule adopted by the courts below with the broader, but equally rigid rule announced by the Court. In matters relating to the production of evidence or the scope of cross-examination, a 'large discretion must be allowed the trial judge.' Goldman v. United States, 316 U.S. 129, 132, 62 S.Ct. 993, 995, 86 L.Ed. 1322; Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 470, 86 L.Ed. 680; Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624. The appropriate determination of a motion to produce reports made in connection with the examination of a witness depends upon the significance of the facts sought to be established, and upon the potential use of the requested document in proving those facts. Since that determination depends on 'numerous and subtle considerations difficult to detect or appraise from a cold record * * *,' the trial court's discretion should be upheld in the absence of a 'clear showing of prejudicial abuse of discretion * * *.' Cf. Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 221, 93 L.Ed. 168. We have so held even when the documents sought to be produced have been used at the trial for the purpose of refreshing a witness' recollection. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 232—234, 60 S.Ct. 811, 848 849, 84 L.Ed. 1129. When the documents have not been so used and are sought only to impeach the credibility of adverse witnesses, and not to prove the facts stated therein, the same conclusion is even more compelling. 40 The Court goes beyond the request of petitioner that reports be produced for examination by the trial court and, in effect, seems to hold that the Government waives any privileges it may have with respect to documents in its possession by placing the author of those documents on the witness stand in a criminal prosecution. The Government's privileges with respect to state secrets and the identity of confidential informants embody important considerations of public policy. They are peculiar privileges in that they require the withholding of evidence not only from the jury, but also from the defendant. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (identity of informers); Reynolds v. United States, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (state secrets). Once the defendant learns the state secret or the identity of the informer, the underlying basis for the privilege disappears, and there usually remains little need to conceal the privileged evidence from the jury. Thus, when the Government is a party, the preservation of these privileges is dependent upon nondisclosure of the privileged evidence to the defendant. This makes it necessary for the trial court, before disclosing the privileged material to the defendant, to pass on the question by examining in camera the portions claimed to be privileged. Cf. Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 679, 95 L.Ed. 879. There is nothing novel or unfair about such a procedure. According to Wigmore, it is customary. 41 '* * * it is obviously not for the witness to withhold the documents upon his mere assertion that they are not relevant or that they are privileged. The question of Relevancy is never one for the witness to concern himself with; nor is the applicability of a privilege to be left to his decision. It is his duty to bring what the Court requires; and the Court can then to its own satisfaction determine by inspection whether the documents produced are irrelevant or privileged. This does not deprive the witness of any rights of privacy, since the Court's determination is made by its own inspection, without submitting the documents to the opponent's view. * * *' (Emphasis deleted and supplied.) VIII Wigmore, Evidence (3d ed. 1940), 117—118. 42 Numerous federal decisions have followed this practice with respect to the type of documents here involved—contemporaneous reports made by a government investigator or informer who later testifies at the trial.4 This procedure protects the legitimate public interest in safeguarding executive files. It also respects the interests of justice by permitting an accused to receive all information necessary to his defense. The accused is given an opportunity to argue that the privilege asserted by the Government is inapplicable and that, even if applicable, his need for the evidence, under the circumstances of the case, outweighs the Government's interest in maintaining secrecy. The problem is closely related to that involved in Roviaro v. United States, supra, dealing with the necessity of the disclosure of an informer's identity in a criminal case. There this Court said: 43 '(N)o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.' 353 U.S. at page 62, 77 S.Ct. at page 628. 44 The trial judge exercises his discretion with knowledge of the issues involved in the case, the nature and importance of the Government's interest in maintaining secrecy, and the defendant's need for disclosure. By vesting this discretion in the trial judge, the conflicting interests are balanced, and a just decision is reached in the individual case without needless sacrifice of important public interests.5 45 I also disagree with the Court's holding that the failure to produce the records to petitioner necessitates a new trial. Petitioner requested only that the records be produced to the trial court.6 He is entitled to no more. Whether a new trial is required should depend on the contents of the requested reports. If the reports contain material that the trial court finds has evidentiary value to petitioner, a new trial should be granted in order that petitioner may use it. But if the reports do not contain contradictory or exculpatory material helpful to petitioner, no possible prejudice could have resulted from the trial court's denials of petitioner's motions.7 Were it not for the fact that I believe the trial court committed reversible error in instructing the jury with respect to the meaning of membership and affiliation, I would vacate the judgment below and remand to the trial court with instructions to examine the reports and to determine, in the light of the entire record, whether the failure to produce the reports was prejudicial to petitioner.8 46 However, I believe the trial court failed to give the jury sufficient guidance with respect to the meaning of the phrases 'member of the Communist Party,' and 'affiliated with such party' as they are used in § 9(h) of the Labor Management Relations Act, 61 Stat. 146, 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h). The instruction given as to membership was as follows: 47 'In considering whether or not the defendant was a member of the Communist Party, you may consider circumstantial evidence, as well as direct. You may consider whether or not he attended Communist Party meetings, whether or not he held an office in the Communist Party, whether or not he engaged in other conduct consistent only with membership in the Communist Party and all other evidence, either direct or circumstantial, which bears or may bear upon the question of whether or not he was a member of the Communist Party on April 28, 1950.' 48 This instruction failed to emphasize to the jury the essential element of membership in an organized group—the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member.9 49 The instruction on affiliation also was defective. After quoting dictionary definitions employing synonymous words, the trial court merely said: 'Affiliation * * * means something less than membership but more than sympathy. Affiliation with the Communist Party may be proved by either circumstantial or direct evidence, or both.' This instruction allowed the jury to convict petitioner on the basis of acts of intermittent cooperation. It did not require a continuing course of conduct 'on a fairly permanent basis' 'that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith.'10 50 Because of these errors in the instructions, petitioner is entitled to a new trial. Accordingly, I concur in the judgment of the Court. 51 Mr. Justice CLARK, dissenting. 52 The Court holds 'that the criminal action must be dismissed when the Government, on the grounds of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial.' This fashions a new rule of evidence which is foreign to our federal jurisprudence. The rule has always been to the contrary. It seems to me that proper judicial administration would require that the Court expressly overrule Goldman v. United States, 1942, 316 U.S. 129, 132, 62 S.Ct. 993, 995, 86 L.Ed. 1322, which is contra to the rule announced today. But that is not done. That case is left on the books to haunt lawyers and trial courts in their search for the proper rule. In Goldman the Court was unanimous on the issue of disclosure of documents1 and refused to order produced 'notes and memoranda made by the (federal) agents during the investigation.' The rule announced today has no support in any of our cases.2 Every federal judge and every lawyer of federal experience knows that it is not the present rule. Even the defense attorneys did not have the temerity to ask for such a sweeping decision. They only asked that the documents be delivered to the judge for his determination of whether the defendant should be permitted to examine them. This is the procedure followed in some of our circuits. My Brother BURTON has clearly stated in his concurring opinion the manner in which this procedure works. Perhaps here with a recanting witness the trial judge should have examined the specific documents called for, as the defense requested, and if he thought justice required their delivery to the defense, order such delivery to be made. I would have no objection to this being done. But as Brother BURTON points out, this would not require a reversal but merely a vacation of the judgment and a remand to the trial court for that purpose. 53 Unless the Congress changes the rule announced by the Court today, those intelligence agencies of our Government engaged in law enforcement may as well close up shop, for the Court has opened their files to the criminal and thus afforded him a Roman holiday for rummaging through confidential information as well as vital national secrets. This may well be a reasonable rule in state prosecutions where none of the problems of foreign relations, espionage, sabotage, subversive activities, counterfeiting, internal security, national defense, and the like exist, but any person conversant with federal government activities and problems will quickly recognize that it opens up a veritable Pandora's box of troubles. And all in the name of justice. For over eight score years now our federal judicial administration has gotten along without it and today that administration enjoys the highest rank in the world. 54 Director J. Edgar Hoover back in 1950 tellingly pointed this out before a Subcommittee of the Committee on Foreign Relations of the United States Senate. Among other things he said, 'I have always maintained the view that if we were to fully discharge the serious responsibilities imposed upon us, the confidential character of our files must be inviolate. * * * (U)nless we drastically change or circumscribe our procedures, they should not be disclosed.' In describing the files of the Bureau, he continued: 55 'FBI reports set forth all details secured from a witness. If those details were disclosed, they could become subject to misinterpretation, they could be quoted out of context, or they could be used to thwart truth, distort half-truths, and misrepresent facts. The raw material, the allegations, the details of associations, and compilation of information * * * are of value to an investigator in the discharge of his duty. These files were never intended to be used in any other manner and the public interest would not be served by the disclosure of their contents.' 56 'These files contain complaints, allegations, facts, and statements of all persons interviewed. Depending upon the purpose of the investigation, particularly in security cases, they contain, not only background data on the individual but details of his private life * * * the identities of our confidential sources of information and full details of investigative techniques. In short, they consist of a running account of all that transpires. 57 '* * * For want of a more apt comparison, our files can be compared to the notes of a newspaper reporter before he has culled through the printable material from the unprintable. The files do not consist of proven information alone. * * * One report may allege crimes of a most despicable type, and the truth or falsity of these charges may not emerge until several reports are studied, further investigation made, and the what separated from the chaff.' 58 'If spread upon the record, criminals, foreign agents, subversives, and others would be forewarned and would seek methods to carry out their activities by avoiding detection and thus defeat the very purposes for which the FBI was created.' Hearings before a Subcommittee of the Senate Committee on Foreign Relations on S. Res. 231, 81st Cong., 2d Sess. 327—329. 59 I can add nothing to this graphic expression of the necessity for the existence of the rule which, until today, kept inviolate investigative reports. 60 My Brother BURTON'S concurrence also points up the failure of the majority to pass upon another important question involved, namely, the sufficiency of the trial judge's instructions. The impact of this failure on him and on my Brother FRANKFURTER was such that they have announced their own views though the majority never reaches the point. For myself alone, I believe that the instructions on the whole were sufficient. It is unfortunate that the majority does not announce its position. This is only one of some 10 Communist affidavit cases now pending in the trial and appellate courts. Unless this case goes as did Gold's,3 the question of the sufficiency of instructions will come up in this as well as in each of the other cases. The Court is sorely divided on this important issue and proper judicial administration requires that charges as to what constitutes membership and affiliation in the Communist Party be announced. 1 61 Stat. 143, 146, as amended, 65 Stat. 602, 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h). Section 9(h) provides that processes of the National Labor Relations Board will be unavailable to a labor organization '* * * unless there is on file with the Board an affidavit executed * * * by each officer of such labor organization * * * that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods * * *.' 2 62 Stat. 749. 3 226 F.2d 540. 4 226 F.2d 553. 5 350 U.S. 980, 76 S.Ct. 467, 100 L.Ed. 849. 6 Because of our disposition of this case, it is unnecessary to consider the alleged errors in these instructions. 7 From 1948 through 1953, Ford was paid $7,025 for his services. Of that sum, approximately $3,325 covered the period to which his testimony related. 8 Other activities of Matusow are described in Communist Party of the United States v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, and United States v. Flynn, D.C., 130 F.Supp. 412. 9 Matusow recanted as deliberately false the testimony given by him at the trial. On the basis of this recantation, the petitioner moved for a new trial, while his appeal from the conviction was pending, on grounds of newly discovered evidence. After extended hearings, the District Court denied the motion. 10 During the hearings on the motion for a new trial, the petitioner made several requests for the production of documents in the possession of the Government, relating to the testimony given. These motions were denied. Because of our disposition of this case, it is unnecessary to consider these rulings. 11 In upholding the refusal to require the production of the reports, the Court of Appeals said: '* * * Upon a proper showing that the Government has possession of such inconsistent statements and the presence of the other requisite conditions, a person charged with crime would be permitted to examine and use them. But no such showing was made here * * *.' 226 F.2d at page 552. 12 Cf. United States v. Burr, 25 Fed.Cas. page 187, No. 14,694, wherein Chief Justice Marshall, when confronted with a request for the inspection of a letter addressed to the President and in the possession of the attorney for the United States, stated: 'Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents? * * * '* * * It is objected that the particular passages of the letter which are required are not pointed out. But how can this be done while the letter itself is withheld? * * *' 25 Fed.Cas. at page 191. 13 United States v. Schneiderman, D.C., 106 F.Supp. 731; People v. Dallabonda, 265 Mich. 486, 251 N.W. 594; see Canon 5, American Bar Association, Canons of Professional Ethics (1947). 14 Chief Justice Marshall also said in United States v. Burr, 25 Fed.Cas. page 187, No. 14,694: 'Let it be supposed that the letter may not contain anything respecting the person now before the court. Still it may respect a witness material in the case, and become important by bearing on his testimony. Different representations may have been made by that witness, or his conduct may have been such as to affect his testimony. In various modes a paper may bear upon the case, although before the case be opened its particular application cannot be perceived by the judge * * *.' 25 Fed.Cas. at page 191. What is true before the case is opened is equally true as the case unfolds. The trial judge cannot perceive or determine the relevancy and materiality of the documents to the defense without hearing defense argument, after inspection, as to its bearing upon the case. 15 See, e.g., United States v. Grayson, 2 Cir., 166 F.2d 863, 869; United States v. Beekman, 2 Cir., 155 F.2d 580, 584; United States v. Ebeling, 2 Cir., 146 F.2d 254, 256; United States v. Cohen, 2 Cir., 145 F.2d 82, 92; United States v. Krulewitch, 2 Cir., 145 F.2d 76, 78, 156 A.L.R. 337. 16 R.S. § 161, 5 U.S.C. § 22, 5 U.S.C.A. § 22; United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727; cf. Totten v. United States, 92 U.S. 105, 23 L.Ed. 605. 17 Atty.Gen.Order No. 3229, 28 CFR, 1946 Supp. § 51.71 (1939); Atty.Gen.Order No. 3229, Supp. 2, Pike & Fischer Admin.Law (2d), Dept. of Justice 1 (1947); Atty.Gen.Order No. 3229, Rev., 18 Fed.Reg. 1368 (1953). 18 United States v. Beekman, 155 F.2d 580; United States v. Andolschek, 142 F.2d 503. 1 In his brief, petitioner states: 'Petitioner asked only that the reports be produced to the trial judge so that he could examine them and determine whether they had evidentiary value for impeachment purposes. Petitioner sought access only to those portions of the reports having this value. The motion therefore proposed no broad foray into the government's files and afforded the judge every opportunity to protect the government's legitimate privilege as to the matters not connected with this case.' 2 Scanlon v. United States, 1 Cir., 223 F.2d 382, 385—386; Shelton v. United States, 205 F.2d 806, 814—815; Christoffel v. United States, 91 U.S.App.D.C. 241, 244—247, 200 F.2d 734, 737 739, reversed on other grounds, 345 U.S. 947, 73 S.Ct. 868, 97 L.Ed. 1371; D'Aquino v. United States, 9 Cir., 192 F.2d 338, 375; United States v. De Normand, 2 Cir., 149 F.2d 622, 625—626; United States v. Ebeling, 2 Cir., 146 F.2d 254, 257; Little v. United States, 8 Cir., 93 F.2d 401; Arnstein v. United States, 54 App.D.C. 199, 203, 296 F. 946, 950. 3 In Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, the petitioners had shown that written statements given to government agents by a key government witness contradicted the witness' trial testimony. In holding the the trial court erred in denying petitioners' motion for the production and inspection of these statements, the Court was deciding that case on its facts. I do not regard it as establishing a rule that a showing of contradiction is an essential element of the foundation precedent to production. 4 See, e.g., United States v. Coplon, 2 Cir., 185 F.2d 629, 638, 28 A.L.R.2d 1041; United States v. Beekman, 2 Cir., 155 F.2d 580, 584; United States v. Cohen, 2 Cir., 145 F.2d 82, 92; United States v. Krulewitch, 2 Cir., 145 F.2d 76, 79; United States v. Flynn, D.C., 130 F.Supp. 412; United States v. Mesarosh, D.C., 116 F.Supp. 345, 350; United States v. Schneiderman, D.C., 106 F.Supp. 731, 735—738. 5 Privileged material sometimes can be excised from the reports without destroying their value to the defendant. Only when deletion is impracticable is the court compelled to choose between disclosing the document as a whole and withholding it completely. Material withheld from the defendant should be sealed as part of the record so that an appellate court may review the action of the trial court and correct any abuse of discretion. 6 See n. 1, supra. 7 Rule 52(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' See Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593; Kotteakos v. United States, 328 U.S. 750, 756—777, 66 S.Ct. 1239, 1243—1253, 90 L.Ed. 1557. There are many cases in which nonproduction of documents has been held to be harmless error. Three comparatively recent cases, dealing with reports of law-enforcement officers are United States v. Sansone, 2 Cir., 231 F.2d 887; Montgomery v. United States, 5 Cir., 203 F.2d 887, 893 894; and Bundy v. United States, 90 U.S.App.D.C. 12, 193 F.2d 694. 8 The trial court is the appropriate forum to consider the possible prejudicial effect of the error. See, e.g., Communist Party of the United States v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003; Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654. 9 Fisher v. United States, 9 Cir., 231 F.2d 99, 106—107. See also, Ocon v. Guercio, 9 Cir., 237 F.2d 177; Baghdasarian v. United States, 1 Cir., 220 F.2d 677; Sigurdson v. Landon, 9 Cir., 215 F.2d 791; Dickhoff v. Shaughnessy, D.C., 142 F.Supp. 535. 10 United States ex rel. Kettunen v. Reimer, 2 Cir., 79 F.2d 315, 317. See also, Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; Fisher v. United States, 231 F.2d 99, 107—108. 1 Though the Court was divided on an issue not here material, the two dissenting opinions expressed no disagreement whatsoever on the disclosure issue. 2 The opinion cites only two of our cases for support. The quotations from Gordon v. United States, 1953, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, an opinion by my late Brother Jackson, a former Solicitor General and Attorney General, are lifted entirely out of context. The case holds explicitly that documents must be produced only after a foundation is laid 'showing that the documents were in existence, were in possession of the Government, were made by the Government's witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main issue being tried: the participation of the accused in the crime.' Id., 344 U.S. at pages 418—419, 73 S.Ct. at page 373. Likewise, United States v. Reynolds, 1953, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727, by my late Brother Chief Justice Vinson, approved the refusal of the Government to produce documents in a tort claims suit. The opinion gave no approval whatever to the conclusion announced by the majority here. I purposely omitted the reference in the opinion after the penultimate sentence, 'Accord, Roviaro v. United States, 353 U.S. 53, 60—61, 77 S.Ct. 623, 627—628, 1 L.Ed.2d 639.' That case had to do with the disclosure of a dead informant's name and did not touch on the problem of the disclosure of government documents. 3 In Gold v. United States, 1957, 352 U.S. 985, 77 S.Ct. 378, 1 L.Ed.2d 360, this Court reversed and remanded the case for a new trial because of official intrusion into the privacy of the jury. The case was dismissed on oral motion of the Government on May 9, 1957.

01

353 U.S. 436 77 S.Ct. 999 1 L.Ed.2d 963 PAN-ATLANTIC STEAMSHIP CORP., Appellant,v.ATLANTIC COAST LINE RAILROAD CO., et al. INTERSTATE COMMERCE COMMISSION, Appellant, v. ATLANTIC COAST LINE RAILROAD CO. et al. Nos. 408, 424. Argued April 23, 1957. Decided June 3, 1957. Mr. David G. Macdonald, Washington, D.C., for appellant in no. 408. Mr. James A. Murray, Washington, D.C., for appellant in No. 424. Mr. Charles H. Weston, Washington, D.C., for appellee United States in both cases. Mr. W. Q. Keenan, New Haven, Conn., for railroad appellees in both cases. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Section 311(a) of the Interstate Commerce Act, 49 U.S.C. § 911(a), 49 U.S.C.A. § 911(a), gives the Commission power to grant 'temporary authority' to a common carrier by water or a contract carrier by water to institute service for which 'there is an immediate and urgent need.' And the section provides that the temporary authority 'shall be valid for such time as the Commission shall specify, but not for more than an aggregate of one hundred and eighty days.' 2 Section 9(b) of the Administrative Procedure Act, 5 U.S.C. § 1008(b), 5 U.S.C.A. § 1008(b), provides that 'In any case in which the licensee has, in accordance with agency rules, made timely and sufficient application for a renewal or a new license, no license with reference to any activity of a continuing nature shall expire until such application shall have been finally determined by the agency.' 3 The question in the case is whether this provision of the Administrative Procedure Act authorizes the Commission to extend a temporary authority granted under § 311(a) of the Interstate Commerce Act for more than 180 days. 4 On May 5, 1955, Pan-Atlantic filed with the Commission an application for a permanent certificate of public convenience and necessity as a common carrier by water. The Commission, upon finding an immediate and urgent need for the service, issued on May 18, 1955, to Pan-Atlantic temporary authority to operate as a common carrier by water between various ports of the United States for a period of 180 days. The Commission did not conclude the proceedings on the application before the expiration of the 180-day period. Accordingly, prior to the expiration of the 180-day period and on application by Pan-Atlantic, it authorized Pan-Atlantic to continue to perform the water carrier service authorized by the temporary authority until further order of the Commission, but not beyond the time the application for a permanent certificate had been finally determined. The appellees, who are seven railroads, opposed this extension before the Commission and then instituted this suit in the District Court to vacate the Commission's order which authorized the continuance of the temporary authority beyond the 180-day period. 5 The District Court held for the appellees, 144 F.Supp. 53, feeling bound by the prior decision of that court in Stone's Express, Inc., v. United States, 122 F.Supp. 955,1 though two of the three judges indicated that were stare decisis not to control, they would sustain the Commission. 144 F.Supp. at page 54. The case is here by appeal. 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. We noted probable jurisdiction. 352 U.S. 914, 77 S.Ct. 213, 1 L.Ed.2d 121. 6 We sustain the Commission in its assertion of authority to extend this temporary authority beyond 180 days. 7 'License' as used in the Administrative Procedure Act includes 'the whole or part of any agency permit, certificate, approval, registration, charter, membership, statutory exemption of other form of permission.' § 2(e). A temporary authority granted under § 311(a) of the Interstate Commerce Act would seem to be a 'permit' or 'certificate' under the Administrative Procedure Act. 'Licensee,' as used in the sentence of § 9(b) which we have quoted. would seem, therefore, to include one who holds a temporary permit under § 311(a). It is argued that 'license' in that section includes only those that are permanent. But we see no justification for that narrow reading. A permit for 180 days covers an 'activity of a continuing nature.' 8 Section 9(b) of the Administrative Procedure Act is a direction to the various agencies. By its terms there must be a license outstanding; it must cover activities of a continuing nature; there must have been filed a timely and sufficient application to continue the existing operation; and the application for the new or extended license must not have been finally determined. 9 Each of these conditions is satisfied in the present case; and we see no reason why the provisions of this later Act may not be invoked to protect a person with a license from the damage he would suffer by being compelled to discontinue a business of a continuing nature, only to start it anew after the administrative hearing is concluded. That has been the Commission's consistent construction of the law;2 and we think it is the correct one. Section 9(b) of the Administrative Procedure Act contains a new rule that supplements the prior authority granted by § 311(a) of the Interstate Commerce Act. Initially, the Commission can do no more than issue a temporary authority good for 180 days. But once the conditions of § 9(b) are satisfied, an extension in the interests of economy and efficiency is authorized. 10 The Commission advises us that the combined time required for the administrative proceedings on an application for a certificate and for judicial review almost inevitably exceeds 180 days. Courts have no authority to issue these permits. See United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489—490, 62 S.Ct. 722, 729—730, 86 L.Ed. 971. Unless the authority is vested in the Commission by § 9(b), the operation, no matter how essential or necessary, must be discontinued at the end of 180 days. We think such a reading of the law would mutilate the administrative system which Congress created by the two Acts. Where the remedy for an evil is clear, the remedial provisions of the Administrative Procedure Act should be given full effect. See Wong Yang Sung v. McGrath, 339 U.S. 33, 41, 70 S.Ct. 445, 450, 94 L.Ed. 616. We conclude that an harmonious reading of § 311(a) and § 9(b) requires the latter to be read as supplementing the former and to be construed as applying to temporary as well as to permanent licenses. 11 Reversed. 12 Mr. Justice BURTON, whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting. 13 A major purpose of the Interstate Commerce Act is to prevent evils deemed to result from ease of entry and overcompetition in the transportation industry. American Trucking Ass'ns, Inc., v. United States, 344 U.S. 298, 312—313, 73 S.Ct. 307, 315—316, 97 L.Ed. 337. Accordingly, the Act prohibits new carrier operations except after notice to affected parties, an evidentiary hearing, administrative findings as to the public convenience and necessity of the proposed service, and court review of the administrative determination. See 49 U.S.C. §§ 306—308, 309, 49 U.S.C.A. §§ 306 308, 309. Sections 210a(a)1 (applying to motor carriers), and 311(a)2 (applying to water carriers) of the Act are narrow exceptions to this fundamental policy. They permit the Interstate Commerce Commission, 'in its discretion and without hearings or other proceedings,' to grant temporary authority for carrier service for which there is 'an immediate and urgent need' and within territory having no carrier service 'capable of meeting such need.' Any grant of temporary authority is expressly made subject to an unconditional maximum time limit of 180 days. 14 'Such temporary authority shall be valid for such time as the Commission shall specify, but for not more than an aggregate of one hundred and eighty days, and shall create no presumption that corresponding permanent authority will be granted thereafter.' 49 U.S.C. § 911(a), 49 U.S.C.A. § 911(a). See also, § 310a(a). 15 Congress was concerned with situations in which temporary authority might be needed on an emergency basis to meet specific transportation problems. However, it plainly was aware that the over-all purpose of the Act would be jeopardized unless the Commission's power to authorize temporary carrier operations was severely limited. The intent of Congress was unmistakable. In recommending the enactment of § 210a(a), the Interstate Commerce Commission itself said: 16 'Cases arise, and have been brought to our attention, where urgent need for interstate motor carrier service suddenly develops. The bringing in of oil wells in a new field and conditions created by a flood or other calamitous visitation are good examples, and there are others. 17 'We believe that the Commission should have power to meet such emergencies by a grant of temporary operating authority, in its discretion and without hearings or other proceedings. It is recognized that care would be necessary to protect the legitimate interests of other carriers * * *. (T)he authority granted would be strictly limited in time by the terms of the proposed amendment.' (Emphasis supplied.) S. Doc. No. 154, 75th Cong., 3d Sess. 2—3. 18 Congress realized that in many of the situations qualifying for temporary authority under §§ 201a(a) and 311(a) permanent authority might later be required. The 'bringing in of oil wells in a new field,' as well as other situations, might require the granting of permanent authority following the hearing required by the Act. In such situations, §§ 210a(a) and 311(a) operated as an incentive to the Commission to reach its final decision with respect to the granting of permanent authority within 180 days. 19 Thus, two policies underlie §§ 210a(a) and 311(a): (1) providing the Commission with discretionary power to handle emergency situations by granting a severely limited temporary authority; and (2) prodding the Commission to finish, within 180 days, its determination with respect to the granting of permanent authority for this service. The Court, by now holding that § 9(b) of the Administrative Procedure Act, 60 Stat. 242—243, 5 U.S.C. § 1008, 5 U.S.C.A. § 1008, authorizes the Commission to extend a temporary authority for more than 180 days, eliminates the second policy and makes the 180-day limitation meaningless. I do not believe that Congress intended § 9(b) of the Administrative Procedure Act to accomplish this result. 20 The Administrative Procedure Act, enacted in 1946, was designed to promote general fairness and regularity in administrative action. Section 9(b) partakes of this purpose by requiring administrative agencies to act on license applications with reasonable dispatch and 'with due regard to the rights or privileges of all the interested parties or adversely affected persons.' It also protects persons who have received licenses from their summary revocation, and from the hardships occasioned by expiration of a license before the licensing agency has been able to pass upon its renewal.3 It makes no reference to emergency permits restricted to a specific number of days. 21 The third sentence of § 9(b) merely provides that if a licensee has made timely application for 'a renewal or a new license, no license with reference to any activity of a continuing nature' shall expire prior to final administrative action on such application. The word 'renewal' obviously relates to the license already held and is inapplicable here. The legislative history indicates that the other words which might apply, 'new license,' refer to a new license of the same type or class as that already held.4 22 In this case, the expiration of appellant Pan-Atlantic's 180-day temporary authority, issued to cover an emergency situation while its application for permanent authority is pending, does not come within the terms of § 9(b) since the permanent license sought is not of the same type and class as the old license. The Court's contrary conclusion can be reached only by reading the word 'license' as used in the third sentence of § 9(b) in two different senses—first, as referring to a temporary license, and, second, as referring to a permanent license. The improbability of this interpretation is emphasized by policy considerations stemming from both the Administrative Procedure Act and the Interstate Commerce Act. 23 The policy behind the third sentence of § 9(b) is that of protecting those persons who already have regularly issued licenses from the serious hardships occasioned both to them and to the public by expiration of a license before the agency finds time to pass upon its renewal. As the initial license was obtained after a hearing at which all interested parties had an opportunity to be heard, § 9(b) operates to protect valuable existing rights and avoids unnecessary injury resulting from administrative delay. So applied, it does not prejudice the rights of others since they had a chance to be heard on the initial application, and can be heard on the renewal. However, the issuance of temporary authority to Pan-Atlantic in the instant case was done ex parte in order to meet an alleged emergency need. Affected parties had no opportunity to contest it. Moreover, Pan-Atlantic knew that the license was issued for a maximum period of 180 days and must have accepted it on that basis. To convert such temporary and limited rights into rights continuing until the Commission, without any time limit on doing so, finally acts on Pan-Atlantic's application for permanent authority deprives licensed competitors and other affected parties of their rights under the Interstate Commerce Act, without any hearing on the issues involved. 24 Temporary authorities are issued ex parte and without regard to their competitive effects. Yet, if permitted to be outstanding for prolonged periods, they may produce competitive changes comparable to those produced by a grant of permanent authority. In this case, as in a high proportion of the instances in which the Commission has extended a temporary authority beyond 180 days, Pan-Atlantic's 'temporary' service already has been in effect for more than two years. 25 The Interstate Commerce Act, for tested reasons of public policy, prohibits new carrier operations unless the applicant obtains a certificate of public convenience and necessity in a proceeding in which those adversely affected have an opportunity to be heard in opposition. Grants of temporary operating authority for the maximum period of 180 days constitute a narrow exception to these requirements. Section 9(b) of the Administrative Procedure Act should not be interpreted as wiping out this time limitation when the result conflicts with a fundamental objective of the National Transportation Policy. 26 There is a further incongruity if § 9(b) is interpreted to apply to temporary operating authorities issued by the Interstate Commerce Commission. Section 9(b) provides that 'no license * * * shall expire until such application shall have been finally determined by the agency.' (Emphasis supplied.) This language is mandatory. Although §§ 210a and 311 of the Interstate Commerce Act place the initial granting of temporary authority entirely in the Commission's discretion, the Commission would be compelled by § 9(b) to extend the temporary authority in every case involving activity of a continuing nature until it formally completes the proceeding on the application for permanent authority. The result is to require the Commission to extend the temporary authority even though, in a particular case, it might be convinced that the temporary emergency service was no longer necessary. 27 Even if § 9(b) is interpreted as extending temporary licenses during the pendency of permanent license proceedings, it should not be applied to the temporary authorities issued by the Interstate Commerce Commission under §§ 210a and 311 of the Interstate Commerce Act. Those sections are special statutes dealing in precise terms with a specific subject.5 28 In response to the claim that the Commission's construction of § 9(b) should be given considerable weight, it must be noted that its interpretation was adopted largely as a matter of expediency rather than as a reasoned interpretation.6 Cf. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124. In any event, it is the duty of the Court to determine whether, as a matter of law, the general provisions of § 9(b) of the Administrative Procedure Act override the express limitations placed by Congress upon the Commission by earlier provisions of the Interstate Commerce Act.7 29 For these reasons, I would affirm the judgment of the District Court. 1 That case became moot after probable jurisdiction had been noted by this Court. See 350 U.S. 906, 76 S.Ct. 190, 100 L.Ed. 795. 2 See 13 Fed.Reg. 4150 for the rules of the Commission governing these extensions. 1 52 Stat. 1238, as amended, 49 U.S.C. § 310a(a), 49 U.S.C.A. § 310a(a). Section 210a was enacted in 1938 as an amendment to the Motor Carrier Act of 1935. 2 54 Stat. 943, as amended, 49 U.S.C. § 911(a), 49 U.S.C.A. § 911(a). Section 311 was enacted in 1940 as part of the Water Carrier Act of that year. It is an almost exact counterpart of § 210a. 3 Section 9(b) of the Administrative Procedure Act, in its entirety, reads as follows: 'Sec. 9. * * * '(b) Licenses.—In any case in which application is made for a license required by law the agency, with due regard to the rights or privileges of all the interested parties or adversely affected persons and with reasonable dispatch, shall set and complete any proceedings required to be conducted pursuant to sections 7 and 8 of this Act or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, no withdrawal, suspension, revocation, or annulment of any license shall be lawful unless, prior to the institution of agency proceedings therefor, facts or conduct which may warrant such action shall have been called to the attention of the licensee by the agency in writing and the licensee shall have been accorded opportunity to demonstrate or achieve compliance with all lawful requirements. In any case in which the licensee has, in accordance with agency rules, made timely and sufficient application for a renewal or a new license, no license with reference to any activity of a continuing nature shall expire until such application shall have been finally determined by the agency.' (Emphasis supplied.) 4 The third sentence of § 9(b) was taken from a similar provision 'contained in the licensing procedure act of the State of Ohio (Act of June 3, 1943, sec. 1, amending secs. 154—167 (154 67) of the General Code; Amended substitute Senate bill No. 36).' Legislative History, Administrative Procedure Act, S.Doc. No. 248, 79th Cong., 2d Sess. 35. The Ohio statute expressly applied only to 'a new license of the same type or class, or renewal of an existing license * * *.' 120 Ohio Laws 1943—1944, p. 361, Administrative Procedure Act, Gen.Code, § 154—67. Cf. Stone's Express, Inc., v. United States, D.C., 122 F.Supp. 955. 'The words 'new license' were used in addition to the word 'renewal' because some federal agencies issue licenses for a limited term. Licenses for operation of broadcasting stations, which cannot be granted 'for a longer term than three years,' are an example. See § 307(d) of Communications Act of 1934, 48 Stat. 1084, as amended, 47 U.S.C. § 307(d), 47 U.S.C.A. § 307(d). 5 Repeals by implication are not favored. United States v. Borden Co., 308 U.S. 188, 198—200, CO S.Ct. 182, 188—189, 84 L.Ed. 181; United States v. Jackson, 302 U.S. 628, 631, 58 S.Ct. 390, 392, 82 L.Ed. 488. An earlier special statute controls over a later general statute. Washington v. Miller, 235 U.S. 422, 428, 35 S.Ct. 119, 122, 59 L.Ed. 295; Rodgers v. United States, 185 U.S. 83, 87—88, 22 S.Ct. 582, 583, 46 L.Ed. 816. Finally, § 12 of the Administrative Procedure Act, 60 Stat. 244, 5 U.S.C. § 1011, 5 U.S.C.A. § 1011, provides that 'Nothing in this Act shall be held to * * * limit or repeal additional requirements imposed by statute or otherwise recognized by law.' 6 The public announcement of the Commission's interpretation of § 9(b), published in September 1947, admitted that its interpretation was subject to question. 'There is a divergence of legal opinion on the question. Some of the Commission's lawyers are of the opinion that an extension is authorized by Section 210a(a) of the Interstate Commerce Act; others are of the opinion that continuances of such operations are authorized by Section 9(b) of the Administrative Procedure Act; while others doubt that either Section 9(b) of the Administrative Procedure Act or Section 210a(a) of the Interstate Commerce Act or any other provision, either extends or authorizes the Commission to extend, these temporary authorities where they have been in effect for 180 days * * *.' CCH Fed.Carriers Reporter 23,040. In addition, the Commission has requested Congress to enact amendments to the Interstate Commerce Act which would be unnecessary if § 9(b) of the Administrative Procedure Act meant what the Commission says it does. I.C.C., 61st Ann.Rep. (1947), 148; I.C.C., 69th Ann.Rep. (1955), 132. 7 Nor can the solution be found in the fact that the Commission has extended about 19% of all temporary authorizations beyond 180 days. If in fact there exists 'an immediate and urgent need' for service which no other carrier is capable of providing, 180 days is a sufficient time for final administrative determination of the question whether the service is required by public convenience and necessity. And even if it were not, the remedy would be legislative amendment of the Interstate Commerce Act, not administrative or judicial revision.

78

353 U.S. 685 77 S.Ct. 1022 1 L.Ed.2d 1122 John M. LEHMANN, Officer in Charge, Immigration and Naturalization Service, Petitioner,v.UNITED STATES of America ex rel. Bruno CARSON or Bruno Carasaniti. No. 72. Argued March 26, 27, 1957. Decided June 3, 1957. Rehearing Denied July 8, 1957. See 354 U.S. 944, 77 S.Ct. 1421. Mr. Roger D. Fisher, Washington, D.C., for the petitioner. Mr. David Carliner, Washington, D.C., for the respondent. Mr. Justice WHITTAKER delivered the opinion of the Court. 1 Respondent, a native and citizen of Italy, entered the United States in 1919 as a stowaway. No action was taken to deport him 'within five years after entry' as then limited by § 19 of the Immigration Act of February 5, 1917, 39 Stat. 889. 2 On January 15, 1936, respondent was convicted in Ohio of the crime of blackmail, and he was sentenced to imprisonment. On April 25, 1936, he was again convicted in Ohio of another crime of blackmail and sentenced to imprisonment. The second sentence was to begin at the expiration of the first. He was released from prison on February 1, 1941. A proceeding to deport him, under the provisions of § 19 of the Act of February 5, 1917, based upon his convictions of these two independent crimes, was commenced, but before final determination of that proceeding, the Governor of Ohio, on July 30, 1945, granted petitioner a conditional pardon1 for the second conviction. Because of that conditional pardon and of the provision in § 19 of the 1917 Act that 'the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned,' that deportation proceeding was withdrawn on October 9, 1945. 3 In 1952 Congress enacted the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C. § 1101 et seq., 8 U.S.C.A. § 1101 et seq., by which it repealed2 the Immigration Act of February 5, 1917, and, in many respects, substantially changed the law. The present proceeding was brought under the 1952 Act to deport respondent upon two grounds: first, under § 241(a)(1), as an alien who, at the time of entry, was excludable by the law existing at the time of entry (i.e., a stowaway under § 3 of the Immigration Act of February 5, 1917, 39 Stat. 875*), and, second, under § 241(a)(4), as an alien who had been convicted of two crimes involving moral turpitude for neither of which had he been granted 'a full and unconditional pardon.' After a hearing, respondent was ordered deported by a special inquiry officer. That order was affirmed by the Board of Immigration Appeals. 4 Respondent then filed a petition for a writ of habeas corpus in the District Court for the Northern District of Ohio, contending that, because of the five-year limitation contained in the former Act (§ 19 of the Immigration Act of February 5, 1917), he could not lawfully be deported as a stowaway after the lapse of five years from the date he entered this country, and that he could not lawfully be deported for having been convicted of the two crimes of blackmail, because he had been conditionally pardoned for one of them. The District Court denied the petition. The Court of Appeals reversed, United States v. Kershner, 6 Cir., 228 F.2d 142, 146, holding that respondent had acquired a 'status of non-deportability,' under the prior law, which was protected to him by the savings clause in § 405(a) of the 1952 Act, 66 Stat. 280, 8 U.S.C. § 1101, Note, 8 U.S.C.A. § 1101 note, 'unless otherwise specifically provided' in that Act, which it held had not been done. We granted certiorari. 352 U.S. 915, 77 S.Ct. 211, 1 L.Ed.2d 121. 5 Section 405(a) of the 1952 Act, upon which the Court of Appeals relied, provides in pertinent part as follows: 6 '(a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed * * * to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes,3 conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect * * *.' (Emphasis supplied.) 7 By its express terms, § 405(a) does not apply if it is 'otherwise specifically provided' in the Act. As respects the grounds of deportation involved here, we think the Act does otherwise specifically provide in § 241, 66 Stat. 204, 8 U.S.C. § 1251, 8 U.S.C.A. § 1251. That section, so far as here pertinent, provides: 8 '(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who— 9 '(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry; 10 '(4) * * * at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial; 11 '(b) The provisions of subsection (a)(4) respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States * * *. 12 '(d) Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding (1) that any such alien entered the United States prior to the date of enactment of this Act, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to the date of enactment of this Act.' (Emphasis supplied.) 13 Thus, even if we assume that respondent has a 'status' within the meaning of § 405(a), that section by its own terms does not apply to situations 'otherwise specifically provided' for in the Act. Section 241(a)(1) specifically provides for the deportation of an alien who 'at the time of entry was * * * excludable by the law existing at (that) time,' and § 241(a)(4) specifically provides for the deportation of an alien who 'at any time after entry' has been convicted of two crimes involving moral turpitude. And § 241(d) makes §§ 241(a)(1) and 241(a)(4) applicable to all aliens covered thereby 'notwithstanding (1) that any such alien entered the United States prior to the date of enactment of this Act, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a), occurred prior to the date of enactment of this Act.' It seems to us indisputable, therefore, that Congress was legislating retrospectively, as it may do,4 to cover offenses of the kind here involved. This case is, therefore, 'otherwise specifically provided' for within the meaning of § 405(a). The Court of Appeals was in error in holding to the contrary, and its judgment is reversed. 14 Reversed. 15 Opinion of Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs. 16 I agree with the Court that § 241 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251, 8 U.S.C.A. § 1251, makes aliens deportable for past offenses which when committed were not grounds for deportation. The Court goes on to hold, however, that such retrospective legislation is a valid exercise of congressional power, despite Art. I, § 9, of the Constitution providing that 'No Bill of Attainder or ex post facto Law shall be passed.' Past decisions cited by the Court support this holding on the premise that the ex post facto clause only forbids 'penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment.' Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586. I think this definition confines the clause too narrowly. As Mr. Justice DOUGLAS pointed out in his dissenting opinion in Marcello v. Bonds, 349 U.S. 302, 319, 75 S.Ct. 757, 766, 99 L.Ed. 1107, another line of decisions by this Court has refused to limit the protections of the clause to criminal cases and criminal punishments as those terms were defined in earlier times. Fletcher v. Peck, 6 Cranch 87, 138, 139, 3 L.Ed. 162; Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366. And see United States v. Lovett, 328 U.S. 303, 315, 316, 66 S.Ct. 1073, 1078, 1079, 90 L.Ed. 1252. 17 What is being done to these respondents seems to me to be the precise evil the ex post facto clause was designed to prevent. Both respondents are ordered deported for offenses they committed long ago—one in 1925 and the other in 1936. Long before the 1952 Act reached back to add deportation as one of the legal consequences of their offenses both paid the price society then exacted for their misconduct. They have lived in the United States for almost 40 years. To banish them from home, family, and adopted country is punishment of the most drastic kind whether done at the time when they were convicted or later. I think that this Court should reconsider the application of the ex post facto clause with a view to applying it in a way that more effectively protects individuals from new or additional burdens, penalties, or punishments retrospectively imposed by Congress. 1 The pardon was 'conditioned upon good behavior and conduct and provided that he demeans himself as a law abiding person and is not convicted of any other crime, otherwise this Pardon to become null and void.' 2 § 403(a)(13), 66 Stat. 279. * Now Immigration and Nationality Act 1952, 8 U.S.C.A. § 1182(a)(18). 3 It appears to be obvious that this was a typographical error and that the word should be read as 'statuses.' 4 Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978; Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549; United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521, 70 S.Ct. 329, 94 L.Ed. 307; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107.

12

353 U.S. 583 77 S.Ct. 1035 1 L.Ed.2d 1054 Harriel L. FOWLER, Petitioner,v.Frederick H. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia. No. 620. Argued April 30, 1957. Decided June 3, 1957. Rehearing Denied July 8, 1957. See 354 U.S. 944, 77 S.Ct. 1422. Mr. Leon S. Epstein, Atlanta, Ga., for the petitioner. Mr. Ralph S. Spritzer, Washington, D.C., for the respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 The factual background and the question presented in this case are the same as in Jackson v. Taylor, 353 U.S. 569, 77 S.Ct. 1027. The case reaches us from the Court of Appeals for the Fifth Circuit, 234 F.2d 615, which had reversed the District Court. We granted certiorari, 352 U.S. 940, 77 S.Ct. 267, 1 L.Ed.2d 236. 2 There are additional reasons to those in Jackson v. Taylor advanced for reversal in this case. Fowler contends that the 20-year sentence is arbitrarily severe, even though within the statutory maximum, citing United States v. Voorhees, 4 U.S.C.M.A. 509, 16 C.M.R. 83 (1954). But as we said in Burns v. Wilson, 1953, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, this Court exerts 'no supervisory power over the courts which enforce (military law); the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress.' Id., 346 U.S. at page 140, 73 S.Ct. at page 1048. If there is injustice in the sentence imposed it is for the Executive to correct, for since the board of review has authority to act, we have no jurisdiction to interfere with the exercise of its discretion. That power is placed by the Congress in the hands of those entrusted with the administration of military justice, or if clemency is in order, the Executive. It may be that the board's judgment was harsh or that the military's highest court should have intervened as it did in the Voorhees case, but we have no jurisdiction in that regard. As long ago as 1902 this Court recognized that it was a 'salutary rule that the sentences of courts-martial, when affirmed by the military tribunal of last resort, cannot be revised by the civil courts save only when void because of an absolute want of power, and not merely voidable because of the defective exercise of power possessed.' Carter v. McClaughry, 183 U.S. 365, 401, 22 S.Ct. 181, 195, 46 L.Ed. 236. 3 We note that petitioner's reliance on Voorhees' case is misplaced when he cites it as apposite to the problem here presented. While the Court of Military Appeals held there that the board should have ordered a rehearing, the rehearing was to include a reconsideration of the finding of guilt as well as the sentence. Though, as Judge Latimer indicates in his opinion, the board of review had the power to approve the sentence, dismissal from the service, such approval was found by that court to be an abuse of the discretion placed in the board under the particular circumstances of the case. We, of course, do not sit to pass on the exercise of discretion by the military authorities. Judge Latimer further indicated the Court of Military Appeals' recognition of the power of the board of review to affirm such parts, or amount of a sentence, as it finds correct in fact and law. The case, then, instead of supporting petitioner's position, indicates authority for the power of the board to modify the sentence. See United States v. Bigger, 2 U.S.C.M.A. 297, 8 C.M.R. 97 (1953). 4 The argument that the adjustment of the sentence by the board deprives the petitioner of two appeals likewise is without merit. He contends that if the resentencing were done by a court-martial he would have a review of that resentencing by the convening authority as well as the board of review. But Congress did not intend any such result. The accused has already had his day before the court-martial and the convening authority. It is not for us to say that the procedure established by Congress is unwise. There are no constitutional questions before us. We have determined that the board of review had jurisdiction to modify the sentence. Our inquiry cannot be extended beyond that question. 5 For these reasons, and those stated in Jackson v. Taylor, 353 U.S. 569, 77 S.Ct. 1027, the judgment is affirmed. 6 Affirmed. 7 The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN dissent for the reasons stated in the dissenting opinion of Mr. Justice BRENNAN in Jackson v. Taylor, 353 U.S. 581, 77 S.Ct. 1034.

12

354 U.S. 129 77 S.Ct. 1103 1 L.Ed.2d 1234 The BRITISH TRANSPORT COMMISSION, Petitioner,v.UNITED STATES of America, as Owner of THE U.S.N.S. HAITI VICTORY, et al. No. 247. Argued April 29, 1957. Decided June 10, 1957. Mr. Dean Acheson, Washington, D.C. for petitioner. Asst. Atty. Gen. George C. Doub, Washington, D.C., for respondent, the United States, as Owner, etc. Mr. Wilbur E. Dow, Jr., New York City, for respondents W. G. Haslam, and others. Mr. Justice CLARK delivered the opinion of the Court. 1 The British Transport Commission, owner of the overnight ferry, Duke of York, questions the power of a District Court sitting in an admiralty limitation proceeding to permit the parties to cross-claim against each other for damages arising out of the same maritime collision. The United States, as owner of the U.S.N.S. Haiti Victory, had filed the original proceeding in which the Commission along with others filed claims. While the proceeding was pending some of the claimants against the Haiti filed cross-claims against the Duke and, in addition, the United States asserted a 'set-off' and 'cross-claim' against the Duke in answer to the latter's claim. The District Court dismissed all of the cross-claims on the ground that 'a limitation proceeding does not provide a forum for the adjudication of liability of co-claimants to each other.' The Court of Appeals reversed holding that 'As a practical matter as well as an equitable one, the claimants herein should be allowed to implead the Commission.' 4 Cir., 230 F.2d 139, 144. Because the question is an important one of admiralty jurisdiction we granted certiorari, limited to the limitation proceeding question. 352 U.S. 821, 77 S.Ct. 59, 1 L.Ed.2d 46. We agree with the Court of Appeals. 2 On May 6, 1953, in the North Sea, the Naval Transport, Haiti Victory, owned by the United States, rammed the overnight channel ferry, Duke of York, owned by petitioner. The bow of the Duke broke away from the vessel and sank as a result of a deep cut on her port side just forward of the bridge inflicted by the Haiti. While the Haiti suffered only minor damage the Duke's loss was claimed to be $1,500,000. In addition several of the 437 persons aboard the Duke were killed, many were injured, and many of them lost thier baggage. The Haiti returned to the United States and, thereafter, this proceeding was filed under §§ 183—186 of the Limited Liability Act, R.S. §§ 4281 4289, as amended, 46 U.S.C. §§ 181—196, 46 U.S.C.A. §§ 181—196, for exoneration from, or limitation of, liability for loss or damage resulting from the collision. The United States as petitioner further alleged that the collision was 'caused by the fault and neglect of the §§ Duke of York and the persons in charge of her * * * and occurred without fault on the part of the petitioner * * *.' 3 The Duke filed a claim in the proceeding for $1,500,000 and in addition an answer in which it claimed, inter alia, that the damages resulting from the collision were 'not caused or contributed to by any fault or negligence on the part of this claimant * * * but were done, occasioned or incurred with the privity or knowledge of and were caused by the Petitioner and its managing officers and supervising agents and the master of the Haiti Victory * * * which will be shown on the trial' The United States answered that the collision 'was occasioned by either the sole fault of the Duke of York or the joint fault of both the Duke of York and the Haiti Victory'; it alleged damage to the Haiti in the sum of $65,000, and that in addition it 'has also been subjected to claims by passengers and members of the crews of both vessels filed herein, which presently approximate $809,714 for personal injury and death, and $45,975 for property damage other than that claimed by the Duke of York; all of which damage it prays to set off and recoup against the claimant, British Transport Commission, as owner of the Duke of York * * *.' Various of the claimants against the Haiti in the meanwhile filed impleading petitions against the Duke alleging the collision was 'caused or contributed to by the fault and negligence of the S.S. 'Duke of York' * * * ' setting out, as did the United States, the particular acts upon which the claim of negligence was based. The District Court dismissed all of these cross-claims holding that the Act offers 'a forum for the complete adjudication and recovery of all claims * * * against the petitioner only * * *. To permit one claimant to prosecute another claimant in the limitation litigation would be unfair. The latter has intervened under compulsion, the court enjoining his resort to any other tribunal. Therefore, his responsibility should not be enlarged beyond that incident to his claim. Obedience to the injunction should not expose him to an attack to which, in regular course, he would be subject only in the jurisdiction of his residence or other place of voluntary entrance.' 4 On a hearing 'restricted to the issues of the asserted liabilities of the two vessels, Duke of York and Haiti Victory, for the collision,' the court exonerated the Haiti from all liability, holding the Duke solely to blame for the collision. D.C., 131 F.Supp. 712. This finding was subseqnetly affirmed by the Court of Appeals and is not before us.1 In reversing the dismissal of the cross-claims the Court of Appeals reasoned that 'Modern codes of procedure have reflected two facets: (1) all rights, if this can fairly be done, should be decided in a single legal proceeding; (2) parties who submit themselves to the jurisdiction of a court in a legal proceeding should be bound by that court's decision on all questions, appropriate to and seasonably raised in, that proceeding. Those ideas, we think, can reasonably be deduced from the spirit, if not the letter, of the 56th Admiralty Rule (28 U.S.C.A.).' 230 F.2d at page 145. 5 The excellent coverage this Court's cases have given the historical incidents forming the background that went into the adoption of the Limited Liability Act relieves us of any minute recitation of that history. See Norwich & N.Y. Transp. Co. v. Wright, 1872, 13 Wall. 104, 20 L.Ed. 585; Providence & N.Y.S.S. Co. v. Hill Mfg. Co., 1883, 109 U.S. 578, 3 S.Ct. 379, 617, 27 L.Ed. 1038; The Main v. Williams, 1894, 152 U.S. 122, 14 S.Ct. 486, 38 L.Ed. 381; Just v. Chambers, 1941, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903. The history shows that although the Act was patterned on earlier English statutes its foundations sprang from the roots of the general maritime law of medieval Europe. 'The real object of the act * * * was to limit the liability of vessel owners to their interest in the adventure,' The Main v. Williams, supra, 152 U.S. at page 131, 14 S.Ct. at page 488, and thus 'to encourage shipbuildig and to induce capitalists to invest money in this branch of industry,' Norwich & N.Y. Transp. Co. v. Wright, supra, 13 Wall. at page 121. 6 The Congress by the provisions of the Act left the form and modes of procedure to the judiciary. Twenty years after passage of the Act this Court adopted some general rules with respect to admiralty practice. See 13 Wall. xii and xiii. Rule 56 first came into the General Admiralty Rules as Rule 59.2 As will be noted, it was originally fashioned to accommodate cross-libels in marine collision cases, but acting upon the same inherent power to bring into the proceeding other parties whose presence would enable the court to do substantial justice in regard to the entire matter, the courts soon began to extend the practice by analogy to cases other than collision. See, e.g., The Alert, D.C.188., 40 F. 836; 3 Moore, Federal Practice (2d ed. 1948), 450—456. As it is expressed in 2 Benedict, Admiralty (6th ed. 1940), § 349, at 534, 'the 'equity of the rule' was given wide extension and the principle * * * was applied by analogy to require the appearance of any additional respondent who might be responsible for the claim or a part thereof.' In the 1920 revision the 59th Rule became the 56th General Admiralty Rule and, as amended by this Court, authorized either a claimant or respondent to bring in any other vessel or person 'partly or wholly liable * * * by way of remedy over, contribution or otherwise, growing out of the same matter.' 254 U.S. 707.3 The present-day limitation proceeding, therefore, springs from the 1851 Act and this Court's rules. Neither source indicates that admiralty limitation precluded other ordinary admiralty procedures. In fact, as Mr. Justice Bradley put it in The Scotland, 1881, 105 U.S. 24, 33, 26 L.Ed. 1001, 'we may say, once for all, that (the rules) were not intended to restrict parties claiming the benefit of the law, but to aid them. * * * The rules referred to were adopted for the purpose of formulating a proceeding that would give full protection to the ship-owners in such a case. They were not intended to prevent them from availing themselves of any other remedy or process which the law itself might entitle them to adopt.' Accord, Ex parte Slayton, 1882, 105 U.S. 451, 26 L.Ed. 1066. 7 It is the Commission's contention that Rule 56 is wholly inapplicable to the adjudication of a claim of one co-claimant against another in a limitation proceeding. The rule, it says, refers to libels and the use of the word 'claimant' includes only the claimant of the vessel involved and not to those making claims against the vessel. But we have seen that Rule 56 has long been held to encompass cross-claims between parties in libel actions. This Court has held that limitation of liability petitions may also be determined by appropriate pleading in libel actions. See The North Star, 1882, 106 U.S. 17, 1 S.Ct. 41, 27 L.Ed. 91, and the discussion infra. It may therefore be said that a limitation proceeding not only provides concourse but serves the function of a cross-libel to determine the rights between petitioner and claimants as well; and equitable rights between the limitation petitioner and a claimant have long been recognized as encompassed in Rule 50.4 Moore-McCormack Lines, Inc., v. McMahon, 2 Cir., 1956, 235 F.2d 142. It appears then that had this proceeding started out as a libel the Commission admittedly would have no complaint. And as we have pointed out, the Rules were not promulgated as technicalities restricting the parties as well as the admiralty court in the adjudication of relevant issues before it. There should therefore be no requirement that the facts of a case be tailored to fit the exact language of a rule. The initial petition filed in the limitation proceeding alleged that the Duke was wholly or partly at fault and asked for a 'set-off' or 'cross-claim' against it; the Commission entered the case not only to prove its claim but to contest this allegation of negligence against the Duke. The claimants are all present in the litigation. The United States has now filed a cross-claim or cross-libel against the Commission, it already being a party to the suit and before the court. The question is not what 'tag' we put on the proceeding, or whether it is a 'suit' under Rule 56 or a libel in personam, or whether the pleading is of an offensive or defensive nature, but rather whether the Court has jurisdiction of the subject matter and of the parties. It is sufficient to say as did Chief Justice Taft for a unanimous Court in Hartford Accident & Indemnity Co. of Hartford v. Southern Pacific Co., 1927, 273 U.S. 207, 47 S.Ct. 357, 71 L.Ed. 612, 'that all the ease with which rights can be adjusted in equity is intended to be given to the (limitation) proceeding. It is the administration of equity in an admiralty court. * * * It looks to a complete and just disposition of a many-cornered controversy * * *.' Id., 273 U.S. at page 216, 47 S.Ct. at page 359. See also the opinion of Chief Justice Hughes for a unanimous Court in Just v. Chambers, 1941, 312 U.S. 383, 386—387, 668, 61 S.Ct. 687, 690, 85 L.Ed. 903. We do not believe that the analogy to equity is shadowy. The claimants in this proceeding have just claims arising out of the collision of the Haiti and the Duke. They have as much interest in the potential liability resulting from that marine disaster as has the equity receiver in perfecting the res of the estate. The scope of the proceeding is not limited to a determination of the petitioner's fault nor to its interest in the Haiti. In fact, here the fault of the disaster, a matter of legitimate interest to the claimants, has been adjudicated against the Commission and it admits this judgment is res judicata in all courts. Why does it not follow that the claimants, scattered as they are in eight countries of the world but all present in this proceeding, should recover judgment for their damages? Why should each be required to file a secondary action in the courts of another country merely to prove the amount of his due when the same evidence is already before the admiralty court here? Logic and efficient judicial administration require that recovery against all parties at fault is as necessary to the claimants as is the fund which limited the liability of the initial petitioner. Otherwise this proceeding is but a 'water haul' for the claimants, a result completely out of character in admiralty practice. Furthermore, the Commission entered this proceeding voluntarily without compulsion. It filed an answer asking that justice be done regarding the subject matter, the collision; it denied all fault on its part and affirmatively sought to place all blame on the Haiti; it claimed damage in the sum of $1,500,000; and it contested the Haiti's claim of limitation or exoneration. In all of these respects judgment went against the Commission—it lost. Now having lost, it claims that the court has wholly lost jurisdiction while had it won, jurisdiction to enter judgment on all claims would have continued. It asserts that neither the Haiti, which was damaged to the extent of some $65,000, nor any of the other 115 claimants may prove their losses against it. But reason compels the conclusion that if the court had power to administer justice in the event the Commission had won, it should have like power when it lost. Whether it is by analogy to Rule 56 or by virtue of Rule 44,5 or by admiralty's general rules heretofore promulgated by this Court, we hold it a necessary concomitant of jurisdiction in a factual situation such as this one that the Court have power to adjudicate all of the demands made and arising out of the same disaster. This too reflects the basic policy of the Federal Rules of Civil Procedure, 28 U.S.C.A. 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. 8 It is true that no case of this Court has passed on the question directly. However, examination of the practice of American admiralty courts indicates that cross-libel procedures have been resorted to between co-parties in a limitation concursus at least since The North Star, 1882, 106 U.S. 17, 1 S.Ct. 41, 27 L.Ed. 91. While initially that case was not a limitation proceeding, this Court held that both parties could have obtained a limitation of liability if entitled to it without the necessity of separate suits. In The Manitoba, 1887, 122 U.S. 97, 7 S.Ct. 1158, 30 L.Ed. 1095, both the libelant and the cross-libelant sought and received the benefit of liability limitation. Thereafter, in The City of Boston, 1909, 182 F. 171, 173, a District Court allowed the filing of cross-claims in the limitation proceeding there begun. It is of interest to note that while there was no express rule at the time permitting such procedure it was granted 'following the analogy of admiralty rule 59 (now Rule 56).' It was thought that 'the same claim for contribution which * * * might (be recovered) in an independent suit' could properly be adjudicated judicated by a cross-claim although there was no 'reported precedent for the allowance of such a claim in limited liability proceedings.' In re Eastern Dredging Co., D.C.1909, 182 F. 179, 183. In 1919 the Second Circuit decided The Adah, 258 F. 377, 381, in which Judge Hough declared that 'Whether it was necessary, in absolving the Adah, to fix blame on some one else, is a question we need not decide.' But where the parties enter the limitation proceeding, the court held 'It is enough that they did come in, and made parties of themselves. * * * Having become parties, they are bound by the decree entered in the suit wherein they are parties.' Id., 258 F. at page 381. And this was but the echo of Mr. Justice Bradley in The Scotland, supra, where he said, 'when parties choose to resort to (a nation's) forum for redress' they cannot 'complain of the determination of their rights by that law * * *.' 105 U.S. at pages 31—32, 26 L.Ed. 1001. Later in In re United States Steel Products Co., 1928, 24 F.2d 657, the Second Circuit squarely decided that cross-claims were properly considered in limitation proceedings. The United States' claim in limitation was 'a right of suit in admiralty against the Steel Inventor,' id., 24 F.2d at page 659, the court said, which subjected it to cross-suit, citing United States v. The Thekla, 1924, 266 U.S. 328, 45 S.Ct. 112, 69 L.Ed. 313. See also The Steel Inventor, 2 Cir., 1930, 43 F.2d 958. And as recently as Moore-McCormack Lines, Inc., v. McMahon, 1956, 235 F.2d 142, 143, the Second Circuit unanimously reaffirmed the principles of these cases. It reasoned that since all of the claims arose out of the same incident they should be determined in a single cause, thus effectuating an 'economy of trial litigation' so much desired in judicial administration. 9 Petitioner points to cases from the Second Circuit in which cross-claims were not permitted.6 But we find none apposite to this case, other than perhaps New Jersey Barging Corp. v. T. A. D. Jones & Co., D.C.1955, 135 F.Supp. 97. That case held that the impleading of the claimant would convert a proceeding to limit the petitioners' liability to a proceeding by other claimants against the impleaded claimant. While it is sufficient to say that New Jersey Barging Corp. has subsequently, in effect, been overruled by the Second Circuit in Moore-McCormack Lines, Inc., v. McMahon, supra, we might add that it is easily distinguishable from the situation here. No answer was filed and no effort was made toward an affirmative defense, the claimant only having forwarded his statement of asserted damage by mail. Nor do we think Algoma C. & H.B.R. Co. v. Great Lakes Transit Corp., 2 Cir., 1936, 86 F.2d 708, affords petitioner comfort. There Judge Learned Hand held that the railroad, in filing a limitation proceeding, had improperly laid venue. While there is some dicta in the opinion indicating that the petitioner in a limitation proceeding could recover nothing affirmatively, we agree with Judge Knox's interpretation of that case in his opinion in The Clio—The Springhill, 1948 A.M.C. 75, 77. In Algoma the original limitation petitioner had filed no counterclaim in its proceeding. Therefore nothing could be recovered affirmatively. The case therefore does not stand for the proposition that it would not be permissible for a counterclaim to be filed. The view that the counterclaim would be permissible is supported by The Steel Inventor, supra, and In re United States Steel Products Co., supra, in both of which Judge Hand participated. 10 Petitioner also depends heavily on Department of Highways of State of Louisiana v. Jahncke Service, Inc., 1949, 174 F.2d 894, an opinion of the Fifth Circuit. We believe it inapposite also. There Jahncke's barges tore loose in a windstorm and damaged the Department of Highways' bridge. Jahncke petitioned for limitation and the Department, after filing its claim and answer, then attempted to implead the Town of Madisonville, the owner of some other barges, which also had struck the bridge. Obviously there was no connection, other than the same wind and water, between Madisonville's barges which were independently moored and Jahncke's. Madisonville had filed no claim in Jahncke's limitation proceeding, the damages arising from a distinctly separate incident. 11 Petitioner points to the many dire consequences that may flow from exposing claimants to cross-claims. While these predictions are entirely speculative and not before us, we comment on those which petitioner believes to be the more serious. First it says foreign claimants will be frightened away and will not file claims in American limitation proceedings. This result is more, says petitioner, 'than just robbing Peter to pay Paul.' But if petitioner prevailed both Peter and Paul would be robbed. While it is true that no compulsion could be exerted on foreign claimants to file claims and some would not do so thus preventing the determination of fault from being res judicata as to them; and while an injunction against suits being filed in foreign jurisdictions would be ineffective unless comity required its recognition; and assuming all this would encourage the filing of foreign suits and the levying of attachments on any offending American vessel while in a foreign port, or for that matter against any vessel of the same American owner; still this would have little practical effect on the operation of our limitation law. Most foreign claimants are foreign shipowners whose vessels visit American ports and are subject to like action by claimants living here. Self-protection would balance things out. But even if it did not, of what good is a judgment as to fault, even if res judicata, if a claimant recovers nothing? The proceeding here would become entirely abortive. Petitioner's theory makes the claimants no more than pawns in a game between the offending shipowners in which all that the claimants win after the successful battle is the right to fight another day for their due and in another court. It appears to us, therefore, that fairness in litigation requires that those who seek affirmative recovery in a court should be subject therein to like exposure for the damage resulting from their acts connected with the identical incident. The claimants here ask no more. That no foreign country permits such impleading should not force litigants in United States courts to forego such procedures. Foreign limitation of liability procedures are for the most part different from ours where not only fault but claims are determined as part and parcel of the limitation action itself. We conclude that in the final analysis the manifest advantages of this cross-claim procedure serve the best interests of all of the parties before a court of the United States who find themselves the unfortunate victims of maritime disaster. 12 Other questions of procedural detail raised by the petitioner we leave to the trial courts. This has been the policy of this Court in the past in admiralty practice. 13 Affirmed. 14 Mr. Justice BRENNAN, dissenting, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, announced by Mr. Justice FRANKFURTER. 15 In terms, Admiralty Rule 56 authorizes cross-claim practice only in libel proceedings. The instant proceeding, however, is not a libel, but a limitation proceeding. I do not pause to examine the arguments marshalled by the Court in favor of cross-claim practice in limitation proceedings, for, in my opinion, if such practice is desirable, it should be introduced by amending the Admiralty Rules, and not by a decision in a particular litigation which was commenced by the original litigants without knowledge on their part or the Admiralty Bar that such a practice obtained in limitation proceedings. 16 It is inequitable, in the circumstances of this case, to apply to the British Commission a practice first announced today. The contracts of passage between the Commission and its co-claimants were not entered into under American law. The Duke of York was a passenger ferry operating on a fixed schedule between the Hook of Holland and Harwich, England. The 437 passengers aboard at the time of the collision held tickets for transportation across the North Sea from a railroad station in Holland to a railroad station in Harwich. Those tickets were contracts of passage containing provisions for exoneration from liability more favorable than are allowed by American law. There is no challenge to the statement in a footnote to the Commission's brief that 17 'Under English law the amount at which liability may be limited is far lower than in the United States, generally 15 per ton of tonnage. Merchant Shipping Act 1894 (57 & 58 Vict. c. 60) Sec. 503. Furthermore, the English rules of liability are substantially different from those applied in our courts. A carrier under English law may by appropriate contract and notice limit its liability for negligence, and periods of limitation for the assertion of damage or loss are different. See Collision Claims—Difference Between British and U.S. Law, Lloyds List and Shipping Gazette, July 14, 1953.' (Emphasis added.) 18 And see Adler v. Dickson, (1954) 2 Lloyd's List L.R. 267 (C.A.). There is at least a substantial prospect that in the American courts these more favorable English rules of liability may not be fully recognized and applied. Congress has said that provisions or limitations exonerating a shipowner from liability for negligence or from liability beyond a stipulated amount are against the public policy of the United States, and shall be null and void and of no effect. See, e.g., R.S. § 4283, as amended, 49 Stat. 1480, 46 U.S.C. § 183c, 46 U.S.C.A. § 183c; Note, 65 Yale L.J. 553; Moore v. American Scantic Line, D.C., 30 F.Supp. 843. 19 The British Commission could not have been compelled to enter the limitation proceeding, but did so voluntarily. We may reasonably infer that its decision to participate was based upon its understanding of the issues it would be called upon to face. The notice of those issues gave not the slightest hint that the Commission would be required to answer to other claimants who might enter the proceedings. The notice was: 20 'Notice is given that the United States of America has filed a petition pursuant to Title 46, U.S.Code, sections 183—189 and 789 (46 U.S.C.A. §§ 183—189, 789), claiming the right to exoneration from or limitation of liability for all claims arising on the voyage of the USNS HAITI VICTORY from New York City to Bremerhaven, Germany, terminating on May 8, 1953, at Bremerhaven. All persons having such claims must file them, under oath, as provided in United States Supreme Court Admiralty Rule 52, with the Clerk of this Court, at the United States Court House at Granby Street, Post Office Building, Norfolk, Virginia, and serve on or mail to the petitioner's proctors * * * at * * * a copy on or before October 15, 1953, or be defaulted. Personal attendance is not required. Any claimant desiring to contest the claims of petitioner must file an answer to said petition, as required by Supreme Court Admiralty Rule 53, and serve on or mail to petitioner's proctors a copy.' (Emphasis added.) 21 Plainly this notice told the Commission only that if it chose to enter this proceeding it must be prepared to contest the claims of the United States to exoneration from or limitation of liability for claims arising out of the collision. That issue did not in anywise draw in the Commission's defenses against claims of the Duke of York's passengers. The Commission therefore had no information to alert it that it might hazard its defenses under its contracts of passage if it entered the proceeding. The Commission thus had no fair opportunity to weigh that factor in reaching the very practical decision whether to enter the American proceeding or to stay out and meet all claimants on its home grounds. It is a fundamental of American justice that a litigant shall have fair notice of what he will be called upon to meet. In holding that, although the Commission was not given such notice, it must litigate the crossclaims here, the Court, in my view, denies equity in the name of equity. 22 I would reverse the judgment of the Court of Appeals and direct affirmance of the decree of the District Court. 1 The United States had not filed a cross-claim against the Duke for damage to its vessel because, as it alleges, its counsel felt that it had waived recovery of any claim against a vessel of the British Government by virtue of the 'Knock for Knock' Agreement, 56 Stat. 1780, E.A.S. 282, Dec. 4, 1942. Subseqnetly, while the appeal was pending, the British Government advised that it did not consider the Duke as a government vessel. Consequently, following the Court of Appeals decision, the United States filed a cross-claim against the Duke in the proceedings before the District Court. 2 Rule 56 was adopted as Rule 59 in 1883 as a codification of the decision in The Hudson, D.C.1883, 15 F. 162. The Rule then provided in part: 'In a suit for damage by collision, if the claimant of any vessel proceeded against, or any respondent proceeded against in personam, shall, by petition, on oath, presented before or at the time of answering the libel, or within such further time as the court may allow, and containing suitable allegations showing fault or negligence in any other vessel contributing to the same collision, and the particulars thereof, and that such other vessel or any other party ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such process may be issued * * *.' 112 U.S. 743. The remainder of Rule 59 in its original form is substantially similar to the last two sentences of the present Rule 56. 3 The present Rule 56 provides: 'In any suit, whether in rem or in personam, the claimant or respondent (as the case may be) shall be entitled to bring in any other vessel or person (individual or corporation) who may be partly or wholly liable either to the libellant or to such claimant or respondent by way of remedy over, contribution or otherwise, growing out of the same matter. This shall be done by petition, on oath, presented before or at the time of answering the libel, or at any later time during the progress of the cause that the court may allow. Such petition shall contain suitable allegations showing such liability, and the particulars thereof, and that such other vessel or person ought to be proceeded against in the same suit for such damage, and shall pray that process be issued against such vessel or person to that end. Thereupon such process shall issue, and if duly served, such suit shall proceed as if such vessel or person had been originally proceeded against; the other parties in the suit shall answer the petition; the claimant of such vessel or such new party shall answer the libel; and such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall appertain. But every such petitioner shall, upon filing his petition, give a stipulation, with sufficient sureties, or an approved corporate surety, to pay the libellant and to any claimant or any new party brought in by virtue of such process, all such costs, damages, and expenses as shall be awarded against the petitioner by the court on the final decree, whether rendered in the original or appellate court; and any such claimant or new party shall give the same bonds or stipulations which are required in the like cases from parties brought in under process issued on the prayer of a libellant.' 254 U.S. 707. 4 Rule 50 provides: 'Whenever a cross-libel in filed upon any counterclaim arising out of the same contract or cause of action for which the original libel was filed, and the respondent or claimant in the original suit shall have given security to respond in damages, the respondent in the cross-libel shall give security in the usual amount and form to respond in damages to the claims set forth in said cross-libel, unless the court, for cause shown, shall otherwise direct; and all proceedings on the original libel shall be stayed until such security be given unless the court otherwise directs.' 254 U.S. 702. 5 Rule 44 provides: 'In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules.' 254 U.S. 698. 6 Algoma C. & H.B.R. Co. v. Great Lakes Transit Corp., 1936, 86 F.2d 708; New Jersey Barging Corp. v. T. A. D. Jones & Co., D.C.S.D.N.Y.1955, 135 F.Supp. 97; Petition of Texas Co., D.C.S.D.N.Y.1948, 81 F.Supp. 758; Poling Bros. No. 5—Tom Wogan, 1937 A.M.C. 1513 (D.C.E.D.N.Y.).

78

354 U.S. 118 77 S.Ct. 1145 1 L.Ed.2d 1225 Joseph CURCIO, Petitioner,v.UNITED STATES of America. No. 260. Argued March 28, 1957. Decided June 10, 1957. Mr. Samuel Mezansky, New York City (Mr. Daniel H. Greenberg, New York City, with him on the brief), for petitioner. Miss Beatrice Rosenberg, Washington, D.C., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 The issue in this case is whether the custodian of a union's books and records may, on the ground of his Fifth Amendment privilege against self-incrimination, refuse to answer questions asked by a federal grand jury as to the whereabouts of such books and records which he has not produced pursuant to subpoena. For the reasons hereafter stated, we hold that the privilege against self-incrimination attaches to such questions. 2 In April 1956, a special grand jury in the United States District Court for the Southern District of New York was investigating racketeering in the garment and trucking industries in New York City. This investigation followed wide-spread charges of racketeering in labor unions, including specific charges that seven local unions had been recently chartered by a faction of the International Brotherhood of Teamsters to gain control of the Teamsters' New York Joint Council, and that these 'phantom unions' were controlled by a group of gangsters, ex-convicts and labor racketeers. 3 Petitioner, Joseph Curcio, the secretary-treasurer of Local 269 of the International Brotherhood of Teamsters, one of the alleged 'phantom unions,' was subpoenaed to appear before the grand jury, and to produce the union's books and records. There were two subpoenas—a personal subpoena ad testificandum and a subpoena duces tecum addressed to him in his capacity as secretary-treasurer of Local 269. On several days he appeared before the grand jury but failed to produce the demanded books and records. He testified that he was the secretary-treasurer of Local 269; that the union had books and records; but that they were not then in his possession. He refused, on the ground of self-incrimination, to answer any questions pertaining to the whereabouts, or who had possession, of the books and records he had been ordered to produce. 4 The District Court, after a hearing in which petitioner attempted to justify his claim of privilege, directed petitioner to answer 15 questions pertaining to the whereabouts of the books and records.1 It ruled that petitioner's claim of privilege was improper because he had not made a sufficient showing that his answers might incriminate him. When petitioner persisted in his refusal to answer, the District Court summarily adjudged him guilty of criminal contempt, and sentenced him to six months' confinement unless he sooner purged himself by answering the questions. This conviction related solely to petitioner's failure to answer questions asked pursuant to the personal subpoena ad testificandum. He has not been charged with failing to produce the books and records demanded in the subpoena duces tecum. 5 The Court of Appeals affirmed the conviction. 2 Cir., 234 F.2d 470. It held that petitioner had failed to show that his answers to the 15 questions might incriminate him; that the privilege against self-incrimination did not attach to questions put to a custodian relating to the whereabouts of union books; and that petitioner had been accorded a fair hearing. We granted certiorari to determine whether petitioner's claim of privilege was properly denied. 352 U.S. 820, 77 S.Ct. 62, 1 L.Ed.2d 45. 6 In the courts below, the Government contended that petitioner had not made a sufficient showing that answering the 15 questions might tend to incriminate him. The Government no longer so contends. In its brief it now says, 'We make no claim that, if petitioner's personal privilege did apply to questions concerning the union records, he failed to make an adequate showing of possible incrimination.' There is substantial ground for the Government's concession.2 7 We turn, therefore, to the remaining issue—whether petitioner's personal privilege against self-incrimination attaches to questions relating to the whereabouts of the union books and records which he did not produce pursuant to subpoena. 8 It is settled that a corporation is not protected by the constitutional privilege against self-incrimination. A corporate officer may not withhold testimony or documents on the ground that his corporation would be incriminated. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652. Nor may the custodian of corporate books or records withhold them on the ground that he personally might be incriminated by their production. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771; Essgee Co. v. United States, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917. Even after the dissolution of a corporation and the transfer of its books to individual stockholders, the transferees may not invoke their privilege with respect to the former corporate records. Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423; Wheeler v. United States, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309. The foregoing cases stand for the principle that the books and records of corporations cannot be insulated from reasonable demands of governmental authorities by a claim of personal privilege on the part of their custodian. 9 In United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, this principle was applied to an unincorporated association, a labor union. Stating that the privilege against self-incrimination had the historic function of 'protecting only the natural individual from compulsory incrimination through his own testimony or personal records' (id., 322 U.S. at page 701, 64 S.Ct. at page 1252), the Court held that 'the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity' (id., 322 U.S. at page 699, 64 S.Ct. at page 1251). 10 'But individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination. And the official records and documents of the organization that are held by them 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 them personally.' Id., 322 U.S. at page 699, 64 S.Ct. at page 1251. 11 The Government now contends that the representative duty which required the production of union records in the White case requires the giving of oral testimony by the custodian in this case. From the fact that the custodian has no privilege with respect to the union books in his possession, the Government reasons that he also has no privilege with respect to questions seeking to ascertain the whereabouts of books and records which have been subpoenaed but not produced. In other words, when the custodian fails to produce the books, he must, according to the Government, explain or account under oath for their nonproduction, even though to do so may tend to incriminate him. 12 The Fifth Amendment suggests no such exception. It guarantees that 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' A custodian, by assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State's visitorial powers. But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony. 13 In the Wilson case, supra, which is the leading case for the proposition that corporate officers may not invoke their personal privilege against self-incrimination to prevent the production of corporate records, Mr. Justice Hughes, speaking for the Court, drew the distinction sharply. He said, 'They (the custodians of corporate records) may decline to utter upon the witness stand a single self-criminating word. They may demand that any accusation against them individually be established without the aid of their oral testimony or the compulsory production by them of their private papers.' 221 U.S., at page 385, 31 S.Ct. at page 546. In the White case, supra, the Court was careful to point out that 'The subpoena duces tecum was directed to the union and demanded the production only of its official documents and records' (322 U.S. at page 704, 64 S.Ct. at page 1254), that 'He (White, the custodian of the union's records) had not been subpoenaed personally to testify' (id., 322 U.S. at page 695—696, 64 S.Ct. at page 1250), and that 'there was no effort or indicated intention to examine him personally as a witness' (id., 322 U.S. at page 696, 64 S.Ct. at page 1250). And in Shapiro v. United States, 335 U.S. 1, 27, 68 S.Ct. 1375, 1389, 92 L.Ed. 1787, holding that the privilege against self-incrimination did not apply to records required to be kept by food licensees under wartime OPA regulations, the Court said, 'Of course all oral testimony by individuals can properly be compelled only by exchange of immunity for waiver of privilege.' There is no hint in these decisions that a custodian of corporate or association books waives his constitutional privilege as to oral testimony by assuming the duties of his office. By accepting custodianship of records he 'has voluntarily assumed a duty which overrides his claim of privilege' only with respect to the production of the records themselves. Wilson v. United States, 221 U.S. 361, 380, 31 S.Ct. 538, 544. 14 United States v. Austin-Bagley Corp., 2 Cir., 31 F.2d 229, and cases following it3 are relied upon by the Government. Those cases, holding that a corporate officer who has been required by subpoena to produce corporate documents may also be required, by oral testimony, to identify them, are distinguishable and we need not pass on their validity. The custodian's act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself. The custodian is subjected to little, if any, further danger of incrimination. However, in the instant case, the Government is seeking to compel the custodian to do more than identify documents already produced. It seeks to compel him to disclose, by his oral testimony, the whereabouts of books and records which he has failed to produce. It even seeks to make the custodian name the persons in whose possession the missing books may be found. Answers to such questions are more than 'auxiliary to the production' of unprivileged corporate or association records.4 15 The Government cites but one federal case, United States v. Field, 2 Cir., 193 F.2d 92, as directly supporting its position.5 In that case, the trustees of a bail fund were held in contempt for failure to produce records of the fund pursuant to a subpoena. After affirming the convictions on that ground, the Court of Appeals for the Second Circuit went on to consider, by way of dictum, other contentions raised by the trustees. One of their contentions was that questions about the location and production of records were improper. The court, relying on several cases in which a custodian was compelled to identify records which he had already produced, said that the questions pertaining to the location of the records 'were proper under the precedents.' Id., at page 97. The cases cited, however, do not support the court's dictum.6 16 The Government suggests that subpoenaed corporate and association records will be obtained more readily for law-enforcement purposes if their custodian is threatened with summary commitment for contempt in failing to testify as to their whereabouts, rather than with prosecution for disobedience of the subpoena to produce the records themselves. We need not concern ourselves with the relative efficacy of those procedures.7 There is a great difference between them. The compulsory production of corporate or association records by their custodian is readily justifiable, even though the custodian protests against it for personal reasons, because he does not own the records and has no legally cognizable interest in them. However, forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind. He might be compelled to convict himself out of his own mouth. That is contrary to the spirit and letter of the Fifth Amendment. 17 Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court with instructions to enter a judgment of acquittal. 18 Reversed and remanded. 1 The questions were as follows: 'I am going to ask you certain questions, including some that were put to you on Thursday, which you declined to answer. Referring to the books and records of Local 269 of the International Brotherhood of Teamsters, have you at any time been in custody of those books and records? * * * 'Mr. Curcio, have you ever had possession of the books and records of this local? * * * 'Did you have custody and control of these records last Thursday? * * * 'Do you have possession of those records or any of them today? * * * 'Do you have custody and control of any of those records today? * * * 'Where are any of those records today, if you know? * * * 'Who has any of those records today, if you know? * * * 'Where were any of these records or all of these records a week ago Thursday? * * * 'Where were any or all of these records a week ago Saturday? * * * 'Where were any or all of these records a week ago last Monday? * * * 'Where were any or all of these records yesterday? * * * 'Where are any or all of these records today? * * * 'Who, if you know, had any or all of these records a week ago last Saturday? * * * 'Who had any or all of these records a week ago yesterday? * * * 'Who has any or all of these records today? * * * The above questions were selected by the Government from 225 that were asked petitioner before the grand jury. He was directed by the foreman of the grand jury to answer these 15, and, upon his refusal to do so under claim of his privilege against self-incrimination, the District Court advised him that it proposed to ask him those questions itself, and that his failure to answer them would constitute contempt of court. The District Judge thereupon asked petitioner these questions in open court in the presence of the grand jury. Petitioner refused to answer each of them, and stated that he refused to do so because his answers might tend to incriminate him. 2 The grand jury was investigating union racketeering. The newspapers had featured charges that petitioner's union was one of seven 'phantom locals' of the International Brotherhood of Teamsters and that it was dominated by gangsters and racketeers. Petitioner conceded that he had a prison record and it was charged that the president of Local 269 was Johnny DioGuardia, allegedly one of the key figures in union racketeering in the New York area. In this context, the questions were incriminating. See 18 U.S.C. §§ 1503 and 1951, 18 U.S.C.A. §§ 1503, 1951. 'To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' Hoffman v. United States, 341 U.S. 479, 486—487, 71 S.Ct. 814, 818, 95 L.Ed. 1118. See also, Trock v. United States, 351 U.S. 976, 76 S.Ct. 1048, 100 L.Ed. 1493; Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997; Singleton v. United States, 343 U.S. 944, 72 S.Ct. 1041, 96 L.Ed. 1349; Greenberg v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332. 3 Pulford v. United States, 6 Cir., 155 F.2d 944, 947; Lumber Products Ass'n v. United States, 9 Cir., 144 F.2d 546, 553; Carolene Products Co. v. United States, 4 Cir., 140 F.2d 61, 66 67; United States v. Illinois Alcohol Co., 2 Cir., 45 F.2d 145, 149. See also, United States v. Lay Fish Co., D.C., 13 F.2d 136, 137. 4 The leading case of United States v. Austin-Bagley Corp., supra, 31 F.2d at pages 233, 234, explains the scope and limitations of this doctrine. In that case, the secretary-treasurer of a corporation, who was charged with conspiracy to violate the National Prohibition Act, 27 U.S.C.A. § 1 et seq., was called to the stand by the Government and compelled to identify the minutes of the corporation. Circuit Judge Learned Hand, for the Court of Appeals, upheld this procedure, stating: 'That the production of the books and documents could be compelled, even if they contained entries incriminating the accused, is now well-settled law. * * * However, the availability of the documents does not necessarily determine that of the testimony by which they may be authenticated. Conceivably it might be possible to force their production, and yet their possessor be protected from proving by his oath that they were what they purport to be. * * * 'While, therefore, we do not disguise tenuous, distinction, we think that the greater includes the less, and that, since greater includes the less, and that, since the production can be forced, it may be made effective by compelling the producer to declare that the documents are genuine. * * * Hence it appears to us that the case (Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450) determines that testimony auxiliary to the production is as unprivileged as are the documents themselves. By accepting the office of custodian the holder not only exposes himself to producing the documents, but to making their use possible without requiring other proof than his own.' 5 The Government also cites Bleakley v. Schlesinger, 294 N.Y. 312, 62 N.E.2d 85, holding that a corporation officer who fails to produce corporate records pursuant to a subpoena must give a reasonable explanation or suffer the penalty for nonproduction. But cf. Bradley v. O'Hare, 2 App.Div.2d 436, 156 N.Y.S.2d 533, where questions put to a union official relating to the whereabouts of union records were held privileged. 6 Moreover, prior and subsequent decisions of the same court, in which two of the same judges participated, contradict the statement contained in the Field case. In United States v. Daisart Sportswear, Inc., 2 Cir., 169 F.2d 856, 861—862, the court stated that 'we do not believe that the principle of the Austin-Bagley case, supra, may be projected so that a corporate officer may be compelled to testify as to any and all phases of the corporation's activities, without at the same time obtaining a grant of immunity for the incriminating matter he is compelled to disclose.' And further, that 'the production of records must be distinguished from oral testimony as to what the records would contain, had they been produced.' Id., at page 862. Subsequently, in United States v. Patterson, 2 Cir., 219 F.2d 659, 662, the court, in reversing a contempt conviction for refusal to produce records, approved the trial court's ruling that questions relating to the whereabouts of the records were privileged. 'The defendant can here legally be jailed only for a contempt in failing to produce the sought-after books when they are fairly shown to be presently within his power and control. He cannot legally be jailed for contempt for invoking his constitutionally protected privilege not to be a witness against himself.' See also, Lopiparo v. United States, 8 Cir., 216 F.2d 87, where the trial court upheld the custodian's claim of privilege with respect to oral testimony pertaining to corporate records. 7 In this case petitioner might have been proceeded against for his failure to produce the records demanded by the subpoena duces tecum. See Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906; United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771. From a memorandum filed by the Government, it appears that petitioner later did produce for the grand jury certain books and records of the union when threatened with a commitment for contempt for his failure to comply with a subsequent subpoena duces tecum issued to him in his representative capacity. The Government suggested that this subsequent compliance had rendered this proceeding moot, but we believe that it did not do so because the order for petitioner's commitment was for criminal, not civil, contempt.

01

354 U.S. 147 77 S.Ct. 1269 1 L.Ed.2d 1246 LAKE TANKERS CORPORATION, Petitioner,v.Lillian M. HENN, Administratrix. No. 445. Argued May 6, 1957. Decided June 10, 1957. Rehearing Denied July 8, 1957. See 354 U.S. 945, 77 S.Ct. 1421. Mr. Eugene Underwood, New York City, for the petitioner. Mr. Frank C. Mason, New York City, for the respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This admiralty limitation proceeding resulted from a maritime disaster in 1954. The aggregate amount of all of the claims filed in the proceeding and for which the petitioner could be held liable if found at fault is less than the value of petitioner's vessels and their pending freight. The question presented is whether the respondent, the principal claimant, may, under these circumstances, proceed with her action in a state court, subject to the continuing jurisdiction of the federal court to protect petitioner's right to limited liability, to determine the obligation of the petitioner to respond in damages for the loss of the life of her husband. We agree with the disposition of the District Court as modified by the Court of Appeals. 2 Respondent's husband was a passenger on the pleasure yacht, Blackstone, which was involved in a collision on the Hudson River on July 10, 1954, with petitioner's tug, Eastern Cities, pushtowing petitioner's barge, L.T.C. No. 38. The Blackstone capsized and respondent's husband was drowned. The other 10 persons on board the yacht were rescued. Respondent, as her husband's administratrix, brought suit against the petitioner in a New York state court claiming $500,000 damages for the loss of her husband's life. She alleged that the loss was caused by Lake Tankers' negligent operation of both its tug and its barge. Actions by four other claimants were also commenced in the New York state courts against the petitioner for damages for personal injuries and for loss of the Blackstone. 3 Thereafter, Lake Tankers Corporation filed this proceeding in admiralty in the United States District Court for the Southern District of New York for exoneration from or limitation of liability. As required by the statute authorizing limitation proceedings1 the petitioner filed approved security. While the first bond was only in the amount of $118,542.21, representing the petitioner's interest in its tug alone, thereafter a bond covering the barge in the amount of $165,000 was filed. Appropriate restraining orders were issued enjoining the prosecution or filing of any claims against Lake Tankers except in the limitation proceeding. There is no dispute in regard to the adequacy or correctness of the amount of the two bonds. 4 After petitioner instituted the limitation proceeding the respondent filed a claim for $250,000 in it covering the same loss asserted in her state court case. The 10 survivors, including those who had filed suits in the state court, also filed their claims in the limitation proceeding. These totaled only $9,525. All of the claimants, including respondent, have relinquished all right to any damage in excess of the amounts set forth in their respective claims in the limitation proceeding and expressly limited their recovery to those amounts. The respondent has amended her claim further by allocating $100,000 of her alleged damage to the tug and the remaining $150,000 to the barge. She has also filed stipulations agreeing neither to increase these claims, nor to enter into a judgment in excess of these amounts, and she has waived any claim of res judicata relative to the issue of the petitioner's right to limit liability if that issue should be passed on in the state court proceeding. The District Court on application then vacated the restraining order since the total fund exceeded the amount of the claims. Petition of Lake Tankers Corp., 137 F.Supp. 311. The Court of Appeals for the Second Circuit affirmed, entering an order, to which respondent has also agreed, with respect to the state court suit, as follows: 5 "If claimant obtains a judgment in her state court suit for an amount in excess of $100,000, an injunction will issue permanently enjoining her from collecting such excess unless the judgment rests on a special verdict allocating the amount as between the libelant as owner of the tug and as owner of the barge respectively. Thus if the judgment exceeds $100,000 and the jury finds libelant liable solely as owner of the tug, she will be enjoined from collecting any excess. If the jury finds that the libelant is liable solely as owner of the barge, she will be enjoined from collecting any amount in excess of $150,000." 2 Cir., 232 F.2d 573, 577. 6 On rehearing the Second Circuit, sitting en banc, reaffirmed its decision. 235 F.2d 783. We granted certiorari to pass upon the important jurisdictional question presented. 352 U.S. 914, 77 S.Ct. 216, 1 L.Ed.2d 121. 7 This Court has recently considered the cases which discuss the historical background of the Limited Liability Act, R.S. §§ 4281—4289, as amended, 46 U.S.C. §§ 181—196, 46 U.S.C.A. §§ 181 196, In British Transport Commission v. United States, 1957, 354 U.S. 129, 77 S.Ct. 1103. It was there pointed out that the Act was adopted primarily to encourage the development of American merchant shipping. The first section of the Act here involved contains its fundamental provision which declares that the liability for any damage arising from a disaster at sea which is occasioned without the privity or knowledge of the shipowner shall in no case exceed the value of the vessel at fault together with her pending freight, 46 U.S.C. § 183, 46 U.S.C.A. § 183. As Mr. Justice Van Devanter stated for a unanimous Court in White v. Island Transportation Co., 1914, 233 U.S. 346, 351, 34 S.Ct. 589, 591, 58 L.Ed. 993, 'The succeedng sections are in the nature 'The succeeding sections are in the nature proceedings by which the first is to be made effective. Therefore, they should be so construed as to bring them into correspondence with it.' Among these sections dealing with the mechanics of effecting such limitation of liability is § 184 covering those incidents where 'the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of (the claimants).' In that event, the section continues, 'they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose' the owners 'may take the appropriate proceedings in any court * * *.' (Emphasis added.) The succeeding section provides that in such an event the owner 'may petition a district court of the United States * * * for limitation of liability within the provisions of this chapter * * *.' It further declares that upon compliance with its requirements 'all claims and proceedings against the owner with respect to the matter in question shall cease.' This provision is implemented by Rule 51 of our Admiralty Rules, 28 U.S.C.A. which spells out in more detail the manner in which the owner of any vessel who 'shall desire to claim the benefit of limitation of liability * * *' shall proceed. It is, therefore, crystal clear that the operation of the Act is directed at misfortunes at sea where the losses incurred exceed the value of the vessel and the pending freight. And, as is pointed out in British Transport Commission, supra, where the fund created pursuant to the Act is inadequate to cover all damages and the owner has sought the protection of the Act the issues arising from the disaster could be litigated within the limitation proceeding. Otherwise the purpose of the Act, i.e., limitation of the owner's liability, might be frustrated. Only in this manner may there be a marshalling of all of the statutory assets remaining after the disaster and a concurse of claimants. In such a situation it matters not to the owner what the 'take' of the individual claimant may be from the proceeding for under the Act his payment is limited to the value of the vessel and the pending freight. He can suffer no more in any event. 8 On the other hand, where the value of the vessel and the pending freight, the fund paid into the proceeding by the offending owner, exceeds the claims made against it, there is no necessity for the maintenance of the concourse. This is not to say that concursus is not available where a vessel owner in good faith believes the fund inadequate, but here there is no contention that there might be further claims; the value of the vessels is undisputed and the claims are fixed; it follows indubitably that the fund is sufficient to pay all claims in full. While it is true that the claims as initially filed in the state court exceeded the fund created in the limitation proceeding, still when the admiralty court dissolved the injunction against the state suit these claims, as filed in and limited by stipulation and order of the admiralty court in the limitation proceeding, aggregated less than thd fund. On appeal the Court of Appeals placed even more severe restrictions on the state court prosecution, thus insuring beyond doubt that petitioner's right of limitation under the Act was fully protected. 9 For us to expand the jurisdictional provisions of the Act to prevent respondent from now proceeding in her state case would transform the Act from a protective instrument to an offensive weapon by which the shipowner could deprive suitors of their common-law rights, even where the limitation fund is known to be more than adequate to satisfy all demands upon it. The shipowner's right to limit liability is not so boundless. The Act is not one of immunity from liability but of limitation of it and we read no other privilege for the shipowner into its language over and above that granting him limited liability. In fact, the Congress not only created the limitation procedure for the primary purpose of apportioning the limitation fund among the claimants where that fund was inadequate to pay the claims in full, but it reserved to such suitors their common-law remedies. 63 Stat. 101, 28 U.S.C. § 1333, 28 U.S.C.A. § 1333.2 In view of this explicit mandate from the Congress the respondent must not be thwarted in her attempt to employ her common-law remedy in the state court where she may obtain trial by jury. 10 The state proceeding could have no possible effect on the petitioner's claim for limited liability in the admiralty court and the provisions of the Act, therefore, do not control. Langnes v. Green, 1931, 282 U.S. 531, 539—540, 51 S.Ct. 243, 246, 75 L.Ed. 520. It follows that there can be no reason why a shipowner, under such conditions, should be treated any more favorably than an airline, bus, or railroad company. None of them can force a damage claimant to trial without a jury. They, too, must suffer a multiplicity of suits. Likewise, the shipowner, so long as his claim of limited liability is not jeopardized, is subject to all common-law remedies available against other parties in damage actions. The Act, as we have said, was not adopted to insulate shipowners from liability but merely to limit it to the value of the vessel and the pending freight. It is contended that Maryland Casualty Co. v. Cushing, 1954, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806, is to the contrary. While there was no opinion of the Court in that case, it involved an alleged clash between Louisiana's direct action statute, LSA—R.S. 22:655, and the Act. The majority concluded there was no clash. The amount of the claims there far exceeded the value, if any, of the vessel and the pending freight. The language in one opinion to the effect that concursus is 'the heart' of the limitation system therefore refers to those cases where the claims exceed the value of the vessel and the pending freight. In that event, as we have pointed out, the concursus is vital to the protection of the offending owner's statutory right of limitation. But this is not to say that where concursus is not necessary to the protection of this statutory right it is nonetheless required. 11 We conclude that in the situation here a concursus beyond that required by the orders heretofore entered in this case is not necessary and respondent may therefore proceed with her state court suit. 12 Affirmed. 13 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 14 Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice BURTON join, dissenting. 15 I agree with the result reached by Judge Hincks in his dissenting opinion below, In re Petition of Lake Tankers Corp., 2 Cir., 232 F.2d 573, 579, and think that this judgment should be reversed. Since federal limitation jurisdiction was properly invoked, we should not permit it to be aborted by subsequent actions by the claimants with a view to obtaining transfer of the trial of their claims to the state courts. At the time the limitation proceeding was commenced the total claims which had been asserted in the several state court actions far exceeded the value of both the vessels owned by the petitioner, and limitation proceedings were required. The steps subsequently taken by the claimants to limit their maximum recovery against the petitioner should no more be allowed to defeat or impair the full effectiveness of the limitation proceeding than would a subsequent reduction in the amount involved be permitted to defeat a diversity jurisdiction which had initially been properly invoked. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. 1 R.S. § 4285, as amended, 46 U.S.C. § 185, 46 U.S.C.A. § 185. 2 The forerunner of the current section gave the District Courts jurisdiction 'Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it * * *.' 42 Stat. 634, 28 U.S.C.(1946 ed.) § 41(3). As re-enacted it reads, in pertinent part, that the District Courts have original jurisdiction, exclusive of the courts in the States in 'Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.' 63 Stat. 101, 28 U.S.C. § 1333, 28 U.S.C.A. § 1333.

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354 U.S. 156 77 S.Ct. 1127 1 L.Ed.2d 1253 Caryl CHESSMAN, Petitioner,v.Harley O. TEETS, Warden. No. 893. Argued May 13, 1957. Decided June 10, 1957. Mr. George T. Davis, San Francisco, Cal., for petitioner. Deputy Atty. Gen. William M. Bennett, San Francisco, Cal., for respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 Our writ of certiorari in this case was limited to the following question: 2 'whether, in the circumstances of this case, the state court proceedings to settle the trial transcript, upon which petitioner's automatic appeal from his conviction was necessarily heard by the Supreme Court of the State of California, in which trial court proceedings petitioner allegedly was not represented in person or by counsel designated by the state court in his behalf, resulted in denying petitioner due process of law, within the meaning of the Fourteenth Amendment to the Constitution of the United States.' 353 U.S. 928, 77 S.Ct. 720, 1 L.Ed.2d 722. 3 We believe that a mere statement of the facts in this long-drawn-out criminal litigation, material to the issue now before us, will suffice to show why we have reached the conclusion that the judgment of the Court of Appeals, affirming by a divided court1 discharge of the writ of habeas corpus herein, must be vacated, and the case remanded for further proceedings. 4 In May 1948, petitioner, following a trial by jury in the Superior Court of Los Angeles County, was convicted of a series of felonies under a multi-count indictment, and was sentenced to death upon two counts charging him with kidnaping for the purpose of robbery, with infliction of bodily harm, in violation of § 209 of the California Penal Code. In capital cases California provides that 'an appeal is automatically taken by the defendant without any action by him or his counsel,'2 and that in such cases 'the entire record of the action shall be prepared.'3 The Supreme Court of the State of California affirmed petitioner's conviction by a divided court. People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001. 5 At the trial petitioner insisted upon defending himself, and repeatedly refused the trial court's offer of counsel, although he did have at his disposal the services of a deputy public defender, who acted as his 'legal adviser' and was present at the counsel table throughout the trial. About a month after the conclusion of the trial, the official court reporter of the trial proceedings suddenly died, having at that time completed the dictation into a recording machine of what later turned out to be 646 out of 1,810 pages of the trial transcript. Following the denial of petitioner's motion in the Superior Court for a new trial,4 there ensued the preparation and settlement of the trial transcript constituting the appellate record upon which the California Supreme Court subsequently heard petitioner's appeal. It is the circumstances under which this transcript was prepared and settled that give rise to the issue now confronting us. 6 At the instance of the deputy district attorney in charge of the case, and with the approval of the trial judge, one Stanley Fraser, a court reporter and former colleague of the deceased reporter, Perry, was employed in September 1948 to transcribe the uncompleted portion of Perry's shorthand notes, amounting to 1,164 pages as finally transcribed. In November 1948 petitioner unsuccessfully sought to have the California Supreme Court halt the preparation of the transcript on the ground that Perry's notes could not be transcribed with reasonable accuracy.5 Fraser accordingly went forward with the work, and was occupied with it over the next several months. A 'rough' draft of the transcript was submitted to the trial judge in February 1949, but was not made available to petitioner, although he had requested that it be furnished him. After this draft had been gone over by the deputy district attorney, it was filed with the judge in final form on April 11, 1949, and a copy was then sent to the petitioner at San Quentin Prison. Thereafter petitioner sent to the trial judge a list of some 200 corrections to the transcript, and at the same time moved that 7 'a hearing to ordered * * * to enable (petitioner) to determine actually the ability of Mr. Fraser to read Mr. Perry's notes, and to enable the (petitioner) to offer a showing this is not, and challenge it as, a usable transcript, and to enable (petitioner) to point out to the court the many inaccuracies and omissions in this transcript, to prove these inaccuracies and omissions, and for the court to determine these matters * * *.' 8 In these papers petitioner further stated that he had 'not yet had the opportunity to confer with his legal advisor during the trial and consequently has been hesitant to offer error in certain instances until he has verified this error with his legal advisor.' 9 Petitioner's motion was denied and the matter continued to proceed on an ex parte basis to final conclusion. At hearings held on June 1, 2, and 3, 1949, in which petitioner was not represented in person or by an attorney, the trial judge, after hearing Fraser's testimony as to the accuracy of his transcription and allowing some 80 of the corrections listed by petitioner, settled the record upon which petitioner's automatic appeal was to be heard. Thereafter petitioner made a motion in the California Supreme Court attacking the adequacy of these settlement proceedings, complaining, among other things, that he had not been permitted to appear at such proceedings. While that motion was pending, on August 18, 1949, a further hearing was held before the trial judge with reference to the settlement of the record, at which two witnesses were examined. Again, petitioner was not represented at this hearing either in person or by counsel. The sufficiency of the record, as thus settled, was upheld by the California Supreme Court, first upon the motion just mentioned, People v. Chessman, 35 Cal.2d 455, 218 P.2d 769, 19 A.L.R.2d 1084, and subsequently upon petitioner's appeal from his conviction, 38 Cal.2d 166, 238 P.2d 1001. 10 On October 17, 1955, this Court, reversing the Court of Appeals, remanded to the District Court for a hearing petitioner's application for a writ of habeas corpus, charging fraud in the preparation of the state court record, which had been summarily dismissed by the District Court. 350 U.S. 3, 76 S.Ct. 34, 100 L.Ed. 4.6 This resulted in the judgment which is now before us. The District Court held that no fraud had been shown. The record of proceedings held before District Judge Goodman reveals the following additional facts as to the preparation of the state court record, none of which appear to be disputed by the State, which has been ably and conscientiously represented here: Fraser, the substitute reporter, was an uncle by marriage of the deputy district attorney in charge of this case, a fact of which neither the state trial court nor the appellate court was aware when it approved the transcript. In preparing the transcript, Fraser worked in close collaboration with the prosecutor, and also went over with two police officers, who testified for the State at the trial, his transcription of their testimony. The latter episodes were likewise unknown to the state courts when they approved the transcript. The testimony of one of these officers concerned petitioner's alleged confession, a subject of dispute at the trial, and petitioner's list of alleged inaccuracies, already mentioned, related to some of that testimony. It also appeared at this hearing that Fraser had destroyed the 'rough' draft of his transcription which petitioner had sought to obtain during the settlement proceedings.7 11 Under the circumstances which have been summarized, we must hold that the ex parte settlement of this state court record violated petitioner's constitutional right to procedural due process. We think the petitioner was entitled to be represented throughout those proceedings either in person or by counsel. See Powell v. State of Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63, 77 L.Ed. 158; Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674; compare Dowdell v. United States, 221 U.S. 325, 331, 31 S.Ct. 590, 592, 55 L.Ed. 753; Schwab v. Berggren, 143 U.S. 442, 449, 12 S.Ct. 525, 527, 36 L.Ed. 218; see also Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. If California chose to deny petitioner's request to appear in those proceedings in propria persona, it then became incumbent on the State to appoint counsel for him. Cf. Powell v. State of Alabama, supra. We cannot agree that petitioner's refusal to be represented by counsel at the trial constituted a waiver of his right to counsel at the settlement proceedings.8 Moreover, it is at least doubtful whether, as a matter of due process, any such waiver would be effective to relieve the trial judge of a duty to appoint counsel for petitioner in connection with the settlement of this record, which was a necessary9 and integral part of the compulsory appeal provided by California in capital cases.10 We need not decide that question, however, for the record fails to show that petitioner ever waived his right to counsel in connection with the settlement of the appellate record. 12 Nor can we regard the hearings before Judge Goodman, at which petitioner was both represented by counsel and personally present, as curing the lack of procedural due process in the state proceedings. Judge Goodman considered that our order of October 17, 1955, restricted the inquiry before him to the issue of whether the settlement of the state court record had been tainted by fraud, and that the accuracy of the record, as such, was not an issue in this proceeding.11 We accept fully Judge Goodman's finding that there was no fraud. Even so, the fact remains that the petitioner has never had his day in court upon the controversial issues of fact and law involved in the settlement of the record upon which his conviction was affirmed. 13 By no means are we to be understood as saying that the state record has been shown to be inaccurate or incomplete. All we hold is that, consistently with procedural due process, California's affirmance of petitioner's conviction upon a seriously disputed record, whose accuracy petitioner has had no voice in determining, cannot be allowed to stand.12 Without blinking the fact that the history of this case presents a sorry chapter in the annals of delays in the administration of criminal justice,13 we cannot allow that circumstance to deter us from withholding relief so clearly called for.14 On many occasions this Court has found it necessary to say that the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution. Evidently it also needs to be repeated that the overriding responsibility of this Court is to the Constitution of the United States, no matter how late it may be that a violation of the Constitution is found to exist. This Court may not disregard the Constitution because an appeal in this case, as in others, has been made on the eve of execution. We must be deaf to all suggestions that a valid appeal to the Constitution, even by a guilty man, comes too late, because courts, including this Court, were not earlier able to enforce what the Constitution demands. The proponent before the Court is not the petitioner but the Constitution of the United States. 14 We have given careful consideration to the nature of the relief to be granted. Petitioner's discharge is not to be ordered without affording California an opportunity to review his conviction upon a record the sufficiency of which has been litigated in proceedings satisfying the requirements of procedural due process. Nor do we think it will do simply to remand the case to the District Court for an inquiry into the accuracy of the record upon which the California Supreme Court has already acted. The task of affording petitioner a further review of his conviction upon a properly settled record is necessarily one for the state courts. A federal court is in no such position as the state courts are to determine what inaccuracies or other facts might be decisive under state law, particularly in view of the unusual character of the issues here involved. We conclude, therefore, that our proper course is to vacate the judgments of the Court of Appeals and the District Court and to remand the case to the District Court, with instructions to enter such orders as may be appropriate to allow California a reasonable time within which to take further proceedings not inconsistent with this opinion, failing which the petitioner shall be discharged. Cf. Dowd v. United States, 340 U.S. 206, 209—210, 71 S.Ct. 262, 263—264, 95 L.Ed. 215. It is so ordered. 15 Judgments vacated and case remanded to the District Court with instructions. 16 Mr. Justice BURTON dissents because he believes that, upon consideration of all the circumstances of this case, the State of California has accorded to this petitioner due process of law within the meaning of the Constitution of the United States. 17 The CHIEF JUSTICE took no part in the consideration or decision of this case. 18 Mr. Justice DOUGLAS, with whom Mr. Justice CLARK concurs, dissenting. 19 I agree with the general principle announced by the Court. But I think it is misapplied here. Its application to the facts results, I fear, in a needless detour in a case already long-drawn-out by many appeals.1 20 I agree that in a case like this it matters not whether the petitioner is guilty or innocent, whether his complaint is timely or tardy. We should respect a man's constitutional right whenever or however it is presented to us. My difficulty here is not with any principle the Court announces. My dissent is based on the conviction that, in substance, the requirements of due process have been fully satisfied, that to require more is to exalt a technicality. 21 To say that the settlement in this case was ex parte is to be technically accurate. But it is not to state the whole story. Chessman was not present in court when the record was settled. Nor was he represented there by a lawyer, for he had over and again refused to allow a state-appointed lawyer to represent him. Chessman, however, played an active role in the process of the settlement of the record. The early draft prepared by Fraser, the new reporter, was sent to him for his suggestions. That Chessman went over this draft with a fine-footh comb is evident from a reading of 200 odd corrections which he prepared. Of these proposals, about 80 were adopted and the rest refused.2 Some of these proposals were specific, calling the court's attention to the use of a wrong word or phrase. Many were not specific. Some merely said that the reported version of certain testimony was garbled or incomplete or inaccurate. These generalized criticisms were never made specific. When Chessman made a generalized criticism, not once did he indicate such and such a fact had been omitted and prejudice shown, how an episode had been distorted and prejudice shown, where a date or name had been confused and prejudice shown, in what material respect an account was garbled and prejudice shown. Errors might have been made that were minor and inconsequential or major and fatal. From all that Chessman said to the California courts and from all he now says to this Court, it is impossible to conclude that there is any important, significant prejudicial error in the record on which the appeal in this case was taken. Certainly we are pointed to none. Only vague assertions are made. Not once is a finger placed on a crucial issue of the case and a showing made or attempted that on that issue the facts were distorted to Chessman's prejudice. The conclusion is irresistible that Chessman is playing a game with the courts, stalling for time while the facts of the case grow cold. 22 Much time is given to the fact that Fraser, the substitute reporter, was related to the prosecutor and to the fact that Fraser, in reconstructing the record talked with several witnesses for the State. Those circumstances conceivably could give rise to prejudice. Yet not once does Chessman say in what way the words of a witness on a critical issue are distorted so as to cause prejudice to Chessman's appeal. We know that there was no connivance between the prosecutor and the substitute reporter, for such was the finding of the District Court. Chessman v. Teets, 138 F.Supp. 761. And those findings are not subject to challenge, as we limited our grant of certiorari. What we are told—and all that we are told—is that Chessman should have been present in person or by an attorney at the hearing where the record was settled. Error is presumed because he was not present nor represented. But we should presume just the contrary, since Chessman had the opportunity to submit his version and indicate any errors in the reconstructed record and yet came up with no single omission, distortion, falsification, mistake, or error that could reasonably be said to be prejudicial. 23 A good illustration concerns the main issue on the appeal—the so-called confession obtained from Chessman. The confession was held admissible by the Supreme Court of California. People v. Chessman, 38 Cal.2d 166, 178—182, 238 P.2d 1001, 1008—1011. That was the main point in the petition for certiorari brought here in the 1951 Term. It presented the problem of the effect of prolonged detention by the police on the voluntary character of the confession, the type of problem presented in Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; and Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815. The Court denied certiorari. Chessman v. People of State of California, 343 U.S. 915, 72 S.Ct. 650, 96 L.Ed. 1330. 24 In that petition Chessman claimed what he claims now—that he should have had a hearing on the settlement of the record. And he asserted that, if the transcript had been wholly accurate, it would be obvious that the confession was involuntary, while on the reconstructed record the question was more debatable. 25 The reconstructed record shows that Chessman was held incommunicado about 72 hours by the police before arraignment. During this time he was beaten to some extent. During this time he was interrogated off and on by the police. Only when he had made an oral confession was he arraigned. Not once in the earlier petition or in the present one or in any other motion paper did Chessman rebut the accuracy of the facts stated in the reconstructed record. He did not, for example, allege he was held longer than 72 hours. He did not say he was beaten more often or more severely than the reconstructed record shows. He did not assert that he was interrogated for longer periods or subjected to a greater ordeal than the reconstructed record states. Yet certainly he knows whether he was or whether he was not. 26 He advances no fact, no assertion, no evidence to show that on this critical issue in the case—and in my mind the most important one—the reconstructed record is distorted. I would presume accuracy, not error, in any record from any court. I would insist that this defendant make some showing of inaccuracy in a material way before I would send this record back for further reconstruction. 27 Only once during the long history of this case has Chessman pointed specifically to material inaccuracy or omission in the transcript. His charge of fraud, now set to rest by the findings of the District Court, was predicated upon a conspiracy to have expunged from the record certain specific remarks and instructions of the trial court. These omissions had not been mentioned in the long list of inaccuracies which Chessman submitted to the California courts. And, on these contentions, Chessman has now been given a hearing by the District Court, which found: 28 '8. The instructions given by the trial judge to the jury on May 21, 1948 were correctly and accurately reported in the transcript as prepared by Fraser. The trial judge did not instruct the jury at that time as alleged and testified to by petitioner. Petitioner's statements in this regard are false and perjurious. 29 '9. The allegation in the petition that the trial judge stated to the jury on May 21, when instructing them, that 'this defendant is one of the worse (sic) criminals I have had in my court's is false and perjurious. The trial judge made no such statement. Hence the transcript was correct in not including such statement.' 138 F.Supp. at pages 765—766. 30 To repeat, this is not a case of a helpless man who was given no opportunity to participate in the settlement of the record. He did participate in a real, vivid sense of the term. A lawyer who entered the case by appointment at this late stage would be utterly helpless, for he would have no idea what went on at the trial. When it came to the settlement of the record, California did all that reasonably could be required by sending the reconstructed record to Chessman for criticism. His specific criticisms were often accepted.3 His general criticisms were not.4 Since it was in his power to make the general criticisms specific, he was given that opportunity which due process of law requires. Yet he declined over and again to make the general criticisms specific, asking only that he be present at the hearing. 31 The habeas corpus jurisdiction of the federal courts has been greatly under fire in recent years. I for one would hate to see it abolished or greatly curtailed by Congress. It has done high service in the administration of justice. Not uncommonly a case that is here on certiorari from a state court presents only darkly or obliquely an important constitutional issue. Perhaps, as in Massey v. Moore, 348 U.S. 105, the issue could not be raised at the trial. Perhaps the trial lawyer failed to present it clearly. Perhaps only after the trial were the full facts known. Perhaps the issue was poorly focused in the trial court's charge. On habeas corpus the facts can be fully developed; and perhaps only then can the basic constitutional defect be laid bare. Such, for example, was the situation in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; and Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948, where miscarriages of justice were prevented only through the writ of habeas corpus. And see Pollak, Proposals to Curtail Federal Habeas Corpus for State Prisoners: Collateral Attack on the Great Writ, 66 Yale L.J. 50. 32 But the fragile grounds upon which the present decision rests jeopardize the ancient writ for use by federal courts in state prosecutions. The present decision states in theory the ideal of due process. But the facts of this case cry out against its application here. Chessman has received due process over and again. He has had repeated reviews of every point in his case. The question of the adequacy of the reconstructed record has been here seven times. The question of Chessman's right to participate in the settlement proceedings has been here at least four times.5 Not once before now did a single Justice vote to grant certiorari on that issue. If the failure to let Chessman, or a lawyer acting for him, participate in the hearing on the settlement of the record went to jurisdiction6 (as it must for habeas corpus to issue), then we should have granted certiorari when the Supreme Court of California first held in People v. Chessman, 35 Cal.2d 455, 218 P.2d 769, 19 A.L.R.2d 1084, that the reconstructed record was a proper record for appeal. That decision of the California Supreme Court was announced May 19, 1950. We denied certiorari on October 9, 1950. Chessman v. People of State of California, 340 U.S. 840, 71 S.Ct. 29, 95 L.Ed. 616. Nearly seven years later we return to precisely the same issue and not only grant certiorari but order relief by way of habeas corpus. 33 On Chessman's first appeal, Justice Carter and Justice Edmonds dissented from the decision of the California Supreme Court, stating that in their view the necessity to use a reconstructed record in a capital case reqired a new trial. 35 Cal.2d 455, 468—473, 218 P.2d 769, 776—780, 19 A.L.R.2d 1084. That view to me makes sense as a matter of state law. But the Court today makes no such ruling. To order, after this long delay, a new record seems to me a futility. It must be remembered that Chessman was convicted on May 21, 1948—over nine years ago. It is difficult to see how, after that long lapse of time, the memory of any participant (if he is still alive) would be sharp enough to make any hearing meaningful. We meddle mischievously with the law when we issue the writ today. We do not act to remedy any injustice that has been demonstrated. When the whole history of the case is considered, we seize upon a technicality to undo what has been repeatedly sustained both by the California Supreme Court and by this Court. I would guard the ancient writ jealously, using it only to prevent a gross miscarriage of justice. APPENDIX 34 Before his appeal was heard by the California Supreme Court, Chessman moved in that court for orders augmenting and correcting the record, and for a dismissal of his automatic appeal. On May 19, 1950, the California Supreme Court granted the motion for augmentation of the record, insofar as it sought to have added to the transcript the voir dire examination of jurors and the prosecutor's opening statement. Further relief was denied. People v. Chessman, 35 Cal.2d 455, 218 P.2d 769, 19 A.L.R.2d 1084. On June 12, 1950, that court denied a petition for a writ of habeas corpus without hearing or opinion. Chessman's petition for a writ of certiorari to review that decision was filed in this Court on July 31, 1950. No. 98, Misc., 1950 Term. In the petition, Chessman urged that he had been denied due process because he was not present at the hearing in which the trial judge considered objections to the transcript. Certiorari was denied on October 9, 1950. Chessman v. People of State of California, 340 U.S. 840, 71 S.Ct. 29, 95 L.Ed. 616. 35 Chessman then petitioned the United States District Court for the Northern District of California for a writ of habeas corpus and equitable relief. On December 4, 1950, the District Court discharged its order to show cause and dismissed the petition. On December 27, 1950, the District Court denied Chessman leave to appeal in forma pauperis, and, on January 9, 1951, denied a certificate of probable cause. On February 27, 1951, the United States Court of Appeals for the Ninth Circuit denied a petition for a certificate of probable cause and for leave to appeal in forma pauperis. On April 2, 1951, Chessman petitioned for a writ of certiorari to review that decision of the Court of Appeals, and for leave to file a petition for habeas corpus. No. 442, Misc., 1950 Term. In this Court, Chessman contended that the state court should be enjoined from deciding his pending appeal until it granted him a full hearing on the question of the adequacy of the record. Certiorari and the motion for leave to file petition for writ of habeas corpus were denied on May 14, 1951. Chessman v. People of State of California, 341 U.S. 929, 71 S.Ct. 800, 95 L.Ed. 1359. 36 The California Supreme Court affirmed Chessman's conviction on December 18, 1951. People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001. Chessman filed a petition for a writ of certiorari on February 20, 1952. No. 371, Misc., 1951 Term. In this Court he claimed that he had been denied due process because of the manner in which the record was prepared and particularly because he had been denied an opportunity to prove his factual contentions as to the inaccuracy of the transcript. It was also contended that he had been denied the opportunity to prepare for trial, that the confession introduced against him was coerced, that the prosecution had unfairly presented its case, that his defense had been unreasonably hampered at the trial, and that the statute under which he was sentenced to death was unconstitutional. Certiorari was denied on March 31, 1952. Chessman v. People of State of California, 343 U.S. 915, 72 S.Ct. 650, 96 L.Ed. 1330. Rehearing was denied on April 28, 1952. 343 U.S. 937, 72 S.Ct. 773, 96 L.Ed. 1344. 37 On May 19, 1952, Chessman filed a petition for writ of habeas corpus in the United States District Court for the Northern District of California. The District Court denied the petition without hearing on June 9, 1952. The United States Court of Appeals for the Ninth Circuit affirmed that decision in May 28, 1953. Chessman v. People, 205 F.2d 128. Petition for a writ of certiorari was filed November 9, 1953. No. 239, Misc., 1953 Term. Here, Chessman contended that he was entitled to a hearing on his contentions in the courts below that he was forced to go to trial unprepared, that coerced confessions had been introduced into evidence against him, that the prosecution and judge were guilty of misconduct. It was alleged that some of these matters could not have been properly determined by the California Supreme Court because of inadequacies in the record, which, it was alleged, had been fraudulently prepared without giving him the opportunity to prove the inaccuracy or fraud. Certiorari was denied on December 14, 1953. Chessman v. People of State of California, 346 U.S. 916, 74 S.Ct. 278, 98 L.Ed. 412. Rehearing was denied on February 1, 1954. 347 U.S. 908, 74 S.Ct. 430, 98 L.Ed. 1066. 38 On July 16, 1954, Chessman filed a petition for a writ of habeas corpus in the Supreme Court of California. That petition was denied July 21, 1954, without written opinion. Collateral proceedings are: In re Chessman, 43 Cal.2d 296, 273 P.2d 263; In re Chessman, 43 Cal.2d 391, 274 P.2d 645; In re Chessman, 43 Cal.2d 408, 274 P.2d 645, 655. Chessman's petition for a writ of certiorari was filed August 14, 1954. No. 285, 1954 Term. He contended that the trial transcript had been fraudulently prepared by the prosecutor, reporter and trial judge. On October 25, 1954, certiorari was denied 'without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court.' Chessman v. People of State of California, 348 U.S. 864, 75 S.Ct. 85, 95 L.Ed. 681. 39 Chessman applied to the United States District Court for the Northern Division of California for a writ of habeas corpus on December 30, 1954. The District Court dismissed the petition without a hearing on January 4, 1955. In re Chessman, 128 F.Supp. 600. On January 11, 1955, Chief Judge Denman of the Court of Appeals for the Ninth Circuit granted a certificate of probable cause for appeal. Application of Chessman, 219 F.2d 162. The Court of Appeals for the Ninth Circuit, sitting en banc, on April 7, 1955, affirmed the District Court decision. Chessman v. Teets, 221 F.2d 276. Petition for a writ of certiorari was filed June 30, 1955. No. 196, 1955 Term. It was alleged that prejudicial statements of the trial judge at the trial had been deleted from the transcript as a result of a fraudulent conspiracy between the prosecuting attorney and the court reporter. It was also alleged that Chessman's right to be present at the 'vital stage of the proceedings' to settle the record had been 'summarily ignored.' On October 17, 1955, certiorari was granted, the judgment of the Court of Appeals was reversed, and the case remanded to the District Court for a hearing on Chessman's allegations of fraud. Chessman v. Teets, 350 U.S. 3, 76 S.Ct. 34, 100 L.Ed. 4. 40 Hearings were ordered in the District Court, commencing January 9, 1956. Hearings were commenced on January 16, after Chessman was granted two continuances. The hearing lasted 7 days. Finding that there had been no fraud, and that the trial judge's statements and instructions to the jury had been accurately reported, the District Court discharged the writ on January 31, 1956. Chessman v. Teets, 138 F.Supp. 761. The Court of Appeals affirmed on October 18, 1956. Chessman v. Teets, 239 F.2d 205. Rehearing was denied on November 20, 1956. Chessman's seventh petition for a writ of certiorari was filed on February 1, 1957. No. 566, Misc., 1956 Term.* We granted certiorari, limiting it to the question whether Chessman's failure to be represented in person or by counsel at the settlement proceedings deprived him of due process of law, thus excluding review on the issue of fraud. See 353 U.S. 928, 77 S.Ct. 720, 1 L.Ed.2d 722. 1 9 Cir., 239 F.2d 205. Chief Judge Denman dissented. 2 West's Ann.Cal.Codes, Penal Code, § 1239(b). 3 California Rules on Appeal, Rule 33(c), 36 Cal.2d 28. 4 Where the making of a transcript of a civil trial becomes impossible by reason of the death or disability of the court reporter, the California statutes empower the trial judge to set aside the judgment and order a new trial. West's Ann.Cal.Codes, Code Civ.Proc., § 953e. The California Penal Code, however, contains no comparable provision. 5 On September 16, 1948, when the appointment of the substitute stenographer was under consideration, the Chairman of the Executive Committee of the Los Angeles Superior Court Reporters' Association wrote the Board of Supervisors respecting the matter, as follows: 'We believe the purported charge against the county is not only an exorbitant one per se, but will reflect further adverse publicity upon our group because we have serious doubts that any reporter will be able to furnish a usable transcript of said shorthand notes. Other reporters of our number have examined and studied Mr. Perry's notes and have reached the conclusion that many portions of the same will be found completely indecipherable because, toward the latter part of each court session, Mr. Perry's notes show his illness. We feel that this should be brought to your attention.' 6 On five previous occasions, this Court had denied petitions for certiorari filed by this petitioner. See note 1, infra. 7 Petitioner alleges that there were other relevant circumstances that should have been explored in the state settlement proceedings, but could not, he asserts, be proved in the hearings before Judge Goodman because of inability to secure records and the attendance of witnesses from outside the Northern District of California. 8 The following statement of the petitioner at the trial, quoted in the State's present brief, hardly supports the claim of such a continuing waiver: 'I wish to point out that it is my intention * * * at this time (to represent myself) and to continue to do so until such time as it is legally established that I am not qualified to do so, and that I will not accept a court-appointed attorney.' See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. 9 See note 3, supra. In granting a certificate of probable cause for appeal to the Court of Appeals in the present proceeding, Chief Judge Denman noted: 'How important the California law regards this transcription (of the trial proceedings) and certification (as to its correctness) by the reporter is apparent from the fact that in civil cases the death of the reporter before his transcription and certification, gives the trial court the discretionary power to set aside the judgment and order a new trial. California Code of Civil Procedure, § 953e. By some quirk in California legislation this does not apply to criminal cases. However, it is obvious that if the reporter's transcript is so important as to give the court such power in a civil case, a fortiori it must have such importance in a criminal case in which, on the evidence to be transcribed, the accused is sentenced to death. Likewise its importance is emphasized by the California law making the appeal automatic from death sentences. California Penal Code, § 1239(b).' In re Chessman, 9 Cir., 219 F.2d 162, 164. 10 See note 2, supra. Counsel for the petitioner, whose representations in this regard were not challenged by the State, informed us on the oral argument that the California Supreme Court customarily appoints counsel for the defendant when he is not otherwise represented by counsel on an automatic appeal. 11 Judge Goodman did state, however, that he found petitioner's claims with respect to certain alleged prejudicial comments by the trial judge and the prosecutor to be without foundation. In the context of the limited issue with which the judge was here concerned, we should be slow to regard these 'findings' as possessing the same conclusiveness as if they had been made in a proceeding where the accuracy of the record, as such, was in issue. 12 In view of our holding we cannot regard ourselves as concluded by the California Supreme Court's holdings that the record on which it acted was adequate as a matter of state law, and that, in any event, the inaccuracies then claimed by the petitioner would not have changed the result of his appeal. Petitioner is entitled to have his conviction reviewed upon a record which has been settled in accordance with procedural due process. Moreover, in holding as it did the state court was not aware of the facts later developed in hearings before Judge Goodman, see, 354 U.S. 161, 77 S.Ct. 1130, supra, and we cannot know that those facts, and others that might be disclosed upon an adversary hearing focused squarely on the adequacy of the transcript, would not lead it to a different conclusion. 13 Certainly this Court's previous denials of certiorari, Chessman v. People of State of California, 340 U.S. 840, 71 S.Ct. 29, 95 L.Ed. 616; 341 U.S. 929, 71 S.Ct. 800, 95 L.Ed. 1359; 343 U.S. 915, 72 S.Ct. 650, 96 L.Ed. 1330; 346 U.S. 916, 74 S.Ct. 278, 98 L.Ed. 412; 348 U.S. 864, 75 S.Ct. 85, 95 L.Ed. 681, do not foreclose us from now granting appropriate relief. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. And it may be noted that it was not until the present proceedings in the District Court that the facts surrounding the settlement of the state court record were fully developed. 14 In Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, this Court did not hesitate to deal with a claimed denial of constitutional rights some 18 years after the petitioner had been convicted in a state court. See also Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1062, 92 L.Ed. 1356. 1 See the Appendix to this opinion. 2 These include many that relate to the crime of burglary, of which he was acquitted. 3 The trial judge resolved doubts in favor of the defendant. Thus he ruled 'The amendment * * * is ordered as suggested by the appellant, not because the Court has any recollection of that but to give the appellant the benefit of the doubt in the matter.' 4 A typical ruling by the trial court on a general objection is as follows: 'Going over then to page 1048, lines 4 to 10, defendant makes no suggestion as to what ought to go in there. A check with the shorthand notes indicates that the transcription is correct. The objection is overruled.' Occasionally the trial judge ruled as follows on an objection that was cast in general terms: 'Page 866, nothing being pointed out which would be any assistance to the Court in amending the transcript, the amendment is disallowed. However, this again happens to be one of those instances in which the testimony and the manner in which it was given impressed themselves strongly on my mind, and I am quite satisfied that that is a verbatim transcription of that portion of the testimony and is not inaccurate as asserted.' 5 See the Appendix to this opinion. 6 See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. * Other reported proceedings in connection with Chessman's case are as follows: People v. Superior Court (In re Chessman), Cal.App.1954, 273 P.2d 936; In re Chessman (People v. Superior Court), 1955, 44 Cal.2d 1, 279 P.2d 24. And see the opinion of Judge Hamley, below. 239 F.2d 200—210, note 2.

34

354 U.S. 114 77 S.Ct. 1116 1 L.Ed.2d 1221 Ralph D. SWANSON, Marie A. Swanson and Janet C. Sheaff, Petitioners,v.Glenn W. TRAER et al. No. 149. Argued March 27, 1957. Decided June 10, 1957. Mr. James E. Doyle, Madison, Wis., for the petitioners. Mr. James E. S. Baker, Chicago, Ill., and Marland Gale, New York City, for the respondents. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This case, a companion case to Smith v. Sperling, 354 U.S. 91, 77 S.Ct. 1112, presents another aspect of the problem of realignment of parties in a stockholders' derivative suit that is brought in the Federal District Court on the basis of diversity of citizenship. Plaintiff-stockholders are citizens of Nevada and stockholders in the Chicago North Shore & Milwaukee Ry. Co., an Illinois corporation. It was made a defendant along with individuals, who are citizens of Illinois, a Delaware corporation, and an Indiana corporation. The complaint charged a conspiracy to defraud the Railway Co. The alleged fraud consisted of a series of sales of transit properties to the Railway Co., properties in which it is charged some of the directors were personally interested. The complaint averred a demand on the directors to bring suit, a refusal on their part, and the futility of making any demand on the stockholders. 2 Answers were filed and motions made to dismiss. The District Court dismissed the bill on the ground that no showing had been made that the refusal of the management to act to redress the alleged wrong was not a decision entrusted to the good-faith judgment of the directors. In other words, the District Court concluded that the controversy did not fall within the exceptional group of cases where the stockholder may dispute the management and take the reins of corporate litigation in his own hands. 3 On appeal, the Court of Appeals did not reach that question. Though it appeared from the record that the directors were opposed to the bringing of the suit, the Court of Appeals concluded that there was no such hostility to the plaintiffs as to make it 'antagonistic' within the meaning of the cases. It accordingly realigned the corporation as a party plaintiff. Since there were then Illinois citizens on each side of the litigation, the requisite diversity was not present and the orders dismissing the bill were affirmed. 7 Cir., 230 F.2d 228. The case is here on a writ of certiorari. 352 U.S. 865, 77 S.Ct. 91, 1 L.Ed.2d 74. 4 For the reasons stated in Smith v. Sperling, supra, we think this case is an instance where the management—for good reasons or for bad—is definitely and distinctly opposed to the institution of this litigation. The management is, therefore, antagonistic to the stockholders as that conception has been used in the cases. It follows that the corporation was properly made a defendant. 5 There remains for consideration the question ruled on by the District Court and which the Court of Appeals did not reach, viz. whether this suit is of that exceptional character which stockholders may bring. 6 As we stated in Smith v. Sperling, 354 U.S. 91, 77 S.Ct. 1112, since our decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the question whether in these diversity suits a stockholder may sue on behalf of his corporation is governed by local law. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 555—556, 69 S.Ct. 1221, 1229—1230, 93 L.Ed. 1528. The classical description of those situations is contained in Hawes v. City of Oakland, 104 U.S. 450, 460, 26 L.Ed. 827: 7 'Some action or threatened action of the managing board of directors or trustees of the corporation which is beyond the authority conferred on them by their charter or other source of organization; 8 'Or such a fraudulent transaction completed or contemplated by the acting managers, in connection with some other party, or among themselves, or with other shareholders as will result in serious injury to the corporation, or to the interests of the other shareholders; 9 'Or where the board of directors, or a majority of them, are acting for their own interest, in a manner destructive of the corporation itself, or of the rights of the other shareholders; 10 'Or where the majority of shareholders themselves are oppressively and illegally pursuing a course in the name of the corporation, which is in violation of the rights of the other shareholders, and which can only be restrained by the aid of a court of equity.' 11 Whether local law follows that definition or adopts another and whether this case falls within the one provided by local law is a question on which the Court of Appeals has not ruled. We therefore remand the case to it for consideration of the question. 12 Reversed. 13 Mr. Justice FRANKFURTER, Mr. Justice BURTON, Mr. Justice HARLAN and Mr. Justice WHITTAKER, dissenting. 14 For dissenting opinion see 354 U.S. 91, 77 S.Ct. 1119.

89

354 U.S. 91 77 S.Ct. 1112 1 L.Ed.2d 1205 Charles B. SMITH, as Special Administrator of the Estate of Edward E. Birn, Deceased, Petitioner,v.Milton SPERLING, Harry M. Warner, Jack L. Warner, et al. No. 316. Argued March 27 and 28, 1957. Decided June 10, 1957. Mr. Herman H. Levy, Los Angeles, Cal., for the petitioner. Messrs. Eugene D. Williams, Los Angeles, Cal., and Oliver B. Schwaf, Beverly Hills, Cal., for the respondents. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 This suit was filed in the Federal District Court in California by reason of diversity of citizenship. It is a stockholder's derivative suit. The first cause of action, the only one involved here, is based on alleged fraudulent wastage of assets of Warner Bros. Pictures, Inc. (which we will call Warner Bros.) for the benefit of one Sperling, a son-in-law of a director of Warner Bros., and United States Pictures, Inc. (which we will call United), the son-in-law's corporation. Extended allegations are made concerning various agreements between Warner Bros. and United which, it is charged, are unfair to Warner Bros. Demand on the directors of Warner Bros. to institute this action was not made because, it is averred, such a demand would be futile since, inter alia, all or a majority of the board of directors approved the contracts. The plaintiff is a citizen of New York;1 the defendant directors are citizens of California; and Warner Bros. and United are Delaware corporations. 2 The complaint joined Warner Bros. as a defendant. It was urged before the District Court, and it is claimed here, that since the cause of action sought to be enforced is one that belongs to the corporation and since the corporation is not 'antagonistic' to the stockholder within the meaning of that term as used in Doctor v. Harrington, 196 U.S. 579, 588, 25 S.Ct. 355, 357, 49 L.Ed. 606, Warner Bros. should be realigned as plaintiff. In that event there would be no diversity of citizenship since Delaware corporations would be on both sides of the lawsuit. Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435. 3 The District Court held a hearing on the issue—a hearing that lasted 15 days. It found: 4 (1) that the contracts in controversy were made in good faith and without fraud; that they were considered by the directors to be in the best interests of Warner Bros. and that, in approving them, they exercised their best business judgment; 5 (2) that Warner Bros. was not under the domination or control of the Warners on the board; and that the stockholders, officers, or directors were not 'antagonistic to the financial interests' of Warner Bros.; 6 (3) that neither all nor a majority nor any of the directors and officers of Warner Bros. 'wrongfully participated' in the acts complained of; that the board was not dominated or controlled by the Warners and Sperling or by any one or more of them; 7 (4) that if demand had been made on Warner Bros. to institute suit, the management would not have been disqualified 'from faithfully doing their duty' as officers and directors but that 'such a demand would have been futile.'2 8 For these reasons the District Court realigned Warner Bros. as a party plaintiff and dismissed the bill. 117 F.Supp. 781. The Court of Appeals affirmed. 9 Cir., 237 F.2d 317. The case is here on a writ of certiorari. 352 U.S. 865, 77 S.Ct. 98, 1 L.Ed.2d 74. 9 This is a corporate cause of action brought by a stockholder. Whether it is a proper case for assertion by a stockholder of that cause of action is not the question here. Such was the problem involved in Hawes v. City of Oakland, 104 U.S. 450, 26 L.Ed. 827, upon which so much reliance is placed in supporting the court below. Here we assume that this corporate cause of action may be enforced by the stockholder. We are concerned only with a question of federal diversity jurisdiction. 10 The gist of the findings of the District Court is that since there was no fraud on the part of the directors in making the contracts but only an exercise of independent business judgment, the management was not antagonistic to the financial interests of the corporation. That is an issue that goes to the merits, not to the question of jurisdiction. There will, of course, be antagonism between the stockholder and the management where the dominant officers and directors are guilty of fraud or misdeeds. But wrongdoing in that sense is not the sole measure of antagonism. There is antagonism whenever the management is aligned against the stockholder and defends a course of conduct which he attacks. The charge normally is cast in terms of fraud, breach of trust, or illegality. See Doctor v. Harrington, supra; Venner v. Great Northern R. Co., 209 U.S. 24, 28 S.Ct. 328, 52 L.Ed. 666; Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 522, 523, 67 S.Ct. 828, 830—831, 91 L.Ed. 1067. The answer, of course, always denies the charge of wrongdoing. To stop and try the charge of wrongdoing is to delve into the merits. That does not seem to us to be the proper course. It is a time-consuming, wasteful exertion of energy on a preliminary issue in the case. The instant case is a good illustration, for it has been over eight years in the courts on this question of jurisdiction. 11 Since our decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the law which governs the merits in these derivative actions is local law. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 555—556, 69 S.Ct. 1221, 1229 1230, 93 L.Ed. 1528. The result, then, of the approach followed by the court below is to have more than a preliminary trial on matters going to the merits of the controversy. Obviously federal law would govern the preliminary trial on the issues of wrongdoing, for that matter goes to the question of federal jurisdiction. Yet should the District Court decide those issues in favor of the stockholder, a second trial on the merits will require that the same issues be tried out according to the set of rules supplied by local law. 12 It seems to us that the proper course is not to try out the issues presented by the charges of wrongdoing but to determine the issue of antagonism on the face of the pleadings and by the nature of the controversy. The bill and answer normally determine whether the management is antagonistic to the stockholder, as Central R. Co. of New Jersey v. Mills, 113 U.S. 249, 5 S.Ct. 456, 28 L.Ed. 949, and Doctor v. Harrington, supra, indicate.3 The management may refuse or fail to act for any number of reasons. Fraud may be one; the reluctance to take action against a close business associate may be another; honest belief in the wisdom of the course of action which the management has approved may be still another; and so on. As the Court said in Delaware & Hudson Co. v. Albany & S.R. Co., 213 U.S. 435, 451, 29 S.Ct. 540, 545, 53 L.Ed. 862, where the management was deemed to be antagonistic to the stockholder, 'The attitude of the directors need not be sinister. It may be sincere.' Whenever the management refuses to take action to undo a business transaction or whenever, as in this case, it so solidly approves it that any demand to rescind would be futile, antagonism is evident. The cause of action, to be sure, is that of the corporation. But the corporation has become through its managers hostile and antagonistic to the enforcement of the claim. 13 Collusion to satisfy the jurisdictional requirements of the District Courts may, of course, always be shown;4 and it will always defeat jurisdiction. Absent collusion, there is diversity jurisdiction when the real collision of issues, City of Indianapolis v. Chase National Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 16, 86 L.Ed. 47, or as stated in Helm v. Zarecor, 222 U.S. 32, 36, 32 S.Ct. 10, 11, 56 L.Ed. 77, 'the actual controversy,' is between citizens of different States. This is a practical not a mechanical determination and is resolved by the pleadings and the nature of the dispute. 14 Here it is plain that the stockholder and those who manage the corporation are completely and irrevocably opposed on a matter of corporate practice and policy. A trial may demonstrate that the stockholder is wrong and the management right. It may show a dispute that lies in the penumbra of business judgment, unaffected by fraud. But that issue goes to the merits, not to jurisdiction. There is jurisdiction if there is real collision between the stockholder and his corporation. That there is such a collision is evident here. 15 The judgment must therefore be reversed and the case remanded to the District Court. 16 Reversed. 17 For dissenting opinion, see 354 U.S. 91, 77 S.Ct. 1119. 18 Mr. Justice FRANKFURTER, whom Mr. Justice BURTON, Mr. Justice HARLAN, and Mr. Justice WHITTAKER join, dissenting. 19 The Court holds that, collusion aside, whenever a corporation refuses to bring a suit and a derivative suit is brought by a stockholder on its behalf, the corporation is always to be aligned as a defendant for purposes of determining diversity jurisdiction. The Court thus makes the exception the rule, and by confounding the requirements for establishing a substantive cause of action with the requirements of diversity jurisdiction, it overturns a half-century's precedents in this Court. The scope and significance of this undoing cannot be appreciated without a brief review of the history of the jurisdictional adjudications—which control the present cases—and of the wholly different precedents establishing the substantive rules that govern stockholders' suits when there is unquestionable jurisdiction in the constitutional sense. It will also be necessary to set forth generous portions of the opinions of the Court in prior cases to demonstrate that not only do they not support the Court's view but that they are being overturned by it. 20 The present cases involve the jurisdiction of the federal courts, and that question alone. No aspect of the substantive cause of action is before us. At the outset, two guiding principles governing this litigation must be kept clearly in mind: (1) These are constitutional cases, involving the 'judicial power' of the United States over controversies 'between citizens of different States.' (2) These are stockholders' suits; the stockholder sues not in his own right but in the right and on behalf of the corporation. 21 The contrasting difference between a stockholder's suit for his corporation and a suit by him against it, is crucial. In the former, he has no claim of his own; he merely has a personal controversy with his corporation regarding the business wisdom or legal basis for the latter's assertion of a claim against third parties. Whatever money or property is to be recovered would go to the corporation, not a fraction of it to the stockholder. When such a suit is entertained, the stockholder is in effect allowed to conscript the corporation as a complainant on a claim that the corporation, in the exercise of what it asserts to be its uncoerced discretion, is unwilling to initiate. This is a wholly different situation from that which arises when the corporation is charged with invasion of the stockholder's independent right. Thus, for instance, if a corporation rearranges the relationship of different classes of security holders to the detriment of one class, a stockholder in the disadvantaged class may proceed against the corporation as a defendant to protect his own legal interest. 22 The basic principles of diversity jurisdiction, often stated, obviously bear repeating: 23 'To sustain diversity jurisdiction there must exist an 'actual,' Helm v. Zarecor, 222 U.S. 32, 36, 32 S.Ct. 10, 11, 56 L.Ed. 77, 'substantial,' Niles-Bement-Pond Co. v. Iron Moulders Union, 254 U.S. 77, 81, 41 S.Ct. 39, 41, 65 L.Ed. 145, controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side. Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435. Diversity jurisdiction cannot be conferred upon the federal courts by the parties' own determination of who are plaintiffs and who defendants. It is our duty, as it is that of the lower federal courts, to 'look beyond the pleadings and arrange the parties according to their sides in the dispute.' City of Dawson v. Columbia, etc., Trust Co., 197 U.S. 178, 180, 25 S.Ct. 420, 421, 49 L.Ed. 713.' City of Indianapolis v. Chase National Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47. 24 The initial and leading case dealing with the alignment of parties for jurisdictional purposes in a stockholder's suit is Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 357, 49 L.Ed. 606. That was a suit by stockholders against two individuals alleged to control the company in question and a third-party corporation. Realigning the corporation as a plaintiff, the Circuit Court held that there was no diversity, and it dismissed the bill for lack of jurisdiction. This Court reversed. After stating that Equity Rule 94 (now Rule 23(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.) contemplated suits 'brought by a stockholder in a corporation founded on rights which may properly be asserted by the corporation,' the Court went on to indicate what must have been the basis for aligning the corporation in that case as a defendant: 25 'And the decisions of this court establish that such a suit, when between citizens of different States, involves a controversy cognizable in a Circuit Court of the United States. The ultimate interest of the corporation made defendant may be the same as that of the stockholder made plaintiff, but the corporation may be under a control antagonistic to him, and made to act in a way detrimental to his rights. In other words, his interests, and the interests of the corporation, may be made subservient to some illegal purpose. If a controversy hence arise, and the other conditions of jurisdiction exist, it can be litigated in a Federal court.' 196 U.S. at page 587, 25 S.Ct. at page 357. 26 The Court then went on to discuss these other 'conditions of jurisdiction,' i.e., the complainants' compliance with the substantive and procedural requirements of Equity Rule 94. In refusing to realign, the Court did not state that mere refusal to sue on the part of the corporation was a sufficient reason to align the corporation as a defendant. The Court referred to 'antagonistic' control and the stockholder's 'interests, and the interests of the corporation' being made 'subservient to some illegal purpose.' 27 This question of what constitutes 'antagonistic' control is the crux of the present cases. The District Court in No. 316, in the course of its thorough opinion, stated: 28 'For a corporation to be 'in antagonistic hands,' * * * or to have a 'hostile attitude,' * * * such as would permit alignment on the side against its presumptive financial interests, surely requires more than a mere argument or difference of opinion between the corporation and the suing stockholder as to the desirability of bringing the suit. Patently, if difference of opinion were all the 'controversy' required to be shown between the stockholder and his corporation in order to preclude alignment of the latter with the plaintiff-stockholder, then there can be no occasion for all the pages of discussion of corporate domination or control, since every stockholder's derivative suit is by definition predicated upon the assumption that the corporation has refused to sue.' 117 F.Supp. 781, 802. 29 This has been the view that this Court has consistently taken since Doctor v. Harrington. Three years later, Doctor v. Harrington was reaffirmed and its basis made clear in Venner v. Great Northern R. Co., 209 U.S. 24, 28 S.Ct. 328, 52 L.Ed. 666. That was a stockholder's suit brought in a state court against the Great Northern Railroad and its President, James J. Hill, with an allegation that the 'railroad and its board of directors were under his absolute control.' Id., 209 U.S. at page 29, 28 S.Ct. at page 328. Both defendants were citizens of the same State. They removed the case into the federal court and the plaintiff, claiming that the corporation should be realigned, sought remand to the state court on the ground that the federal court lacked jurisdiction. The Court, if such was its thought, obviously would have said simpliciter that since the corporation refused to sue, the corporation must be aligned as a defendant. It did not do so. The whole thought of Mr. Justice Moody's opinion is completely contrary. 30 'Let it be assumed for the purposes of this decision that the court may disregard the arrangement of parties made by the pleader, and align them upon the side where their interest in and attitude to the controversy really places them, and then may determine the jurisdictional question in view of this alignment. (Citing the In re Removal Cases, 100 U.S. 457, 25 L.Ed. 593, and other cases.) If this rule should be applied it would leave the parties here where the pleader has arranged them. It would doubtless be for the financial interests of the defendant railroad that the plaintiff should prevail. But that is not enough. Both defendants unite, as sufficiently appears by the petition and other proceedings, in resisting the plaintiff's claim of illegality and fraud. They are alleged to have engaged in the same illegal and fraudulent conduct, and the injury is alleged to have been accomplished by their joint action. The plaintiff's controversy is with both, and both are rightfully and necessarily made defendants, and neither can, for jurisdictional purposes, be regarded otherwise than as a defendant * * *.' Id., 209 U.S. at page 31, 32, 28 S.Ct. at page 329. 31 To make explicit the case's relation to the prior case of Doctor v. Harrington, the Court continued: 32 'The case of Doctor v. Harrington is precisely in point on this branch of the case, and is conclusive. In that case the plaintiffs, stockholders in a corporation, brought an action in the circuit court against the corporation and Harrington, another stockholder, 'who directed the management of the affairs of the corporation, dictated its policy, and selected its directors.' It was alleged that Harrington fraudulently caused the corporation to make its promissory note without consideration, obtained a judgment on the note, and sold, on execution, for much less than their real value, the assets of the corporation to persons acting for his benefit. On the face of the pleadings there was the necessary diversity of citizenship, but it was insisted that the corporation, because its interest was the same as that of the plaintiff, should be regarded as a plaintiff. The court below so aligned the corporation defendant, and, as that destroyed the diversity of citizenship, dismissed the suit for want of jurisdiction. This court reversed the decree, saying (the quotation is of the part of the Court's opinion in Doctor, quoted supra, 77 S.Ct. 1120). There was therefore in the case at bar the diversity of citizenship which confers jurisdiction.' Id., 209 U.S. at pages 32—33, 28 S.Ct. at page 330. 33 The jurisdictional doctrine of Doctor v. Harrington, as reaffirmed and elaborated in Venner v. Great Northern R. Co., was accepted without question only ten years ago in Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067. The Court in that case summarized the jurisdictional doctrine of alignment of parties in stockholders' suits: 34 'The cause of action which such a plaintiff brings before the court is not his own but the corporation's. 35 It is the real party in interest and he is allowed to act in protection of its interest somewhat as a 'next friend' might do for an individual, because it is disabled from protecting itself. If, however, such a case as this were treated as other actions, the federal court would realign the parties for jurisdictional purposes according to their real interests. In this case, which is typical of many, this would put (the corporation) on the plaintiff's side * * * and jurisdiction would be ousted. City of Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47. But jurisdiction is saved in this class of cases by a special dispensation because the corporation is in antagonistic hands. Doctor v. Harrington, 196 U.S. 579, 25 S.Ct. 355, 49 L.Ed. 606.' Id., 330 U.S. at pages 522—523, 67 S.Ct. at page 831. 36 Mr. Justice Jackson's opinion for the Court throws further light on what is meant by 'antagonistic hands' by characterizing 'the real party in interest,' the corporation, as 'disabled from protecting itself.' That cannot mean anything else except what the Venner case, quoting from Doctor v. Harrington, set forth as the reason for disablement, viz., that the very individuals who have a stranglehold over the corporation are the people against whom suit is sought to be brought and, therefore, in any sense that has any meaning, they are the defendants for that reason. And it is not merely that the obvious sense of the foregoing paragraph quoted from Koster gives the significance to Doctor v. Harrington that Venner gave it. That meaning is reinforced by the Court's succeeding reference to a stockholder's interest in 'bringing faithless managers to book.' Id., 330 U.S. at page 524, 67 S.Ct. at page 832. 37 In the District Court in No. 316, Smith v. Sperling, Judge Mathes made an exhaustive survey of all the precedents relating to the jurisdictional test to be applied in stockholders' suits, 117 F.Supp. 781, affirmed 9 Cir., 237 F.2d 317, and stated the jurisdictional test to be derived from the cases as follows: 38 'If the corporation has suffered actionable wrong and is 'in antagonistic hands'—i.e. so dominated that it is incapacitated to act in keeping with its own financial interests—then a federal court should not, because of such disability, align the corporation with the plaintiff-stockholder in determining whether diversity jurisdiction exists.' 117 F.Supp. at page 801. 39 The Court of Appeals for the Seventh Circuit took the same view in No. 149, Swanson v. Traer, 230 F.2d 228, 237. 40 The jurisdictional rules that the Court has laid down for over half a century—emerging from all the cases and not merely from Doctor v. Harrington standing by itself—do not represent a capricious or formalistic determination as to when there is or is not diversity jurisdiction. On the contrary, they represent a true appreciation of the nature of the stockholder's suit and a faithful application of well-settled principles of diversity jurisdiction: when a suit is brought that is in fact and in law the corporation's, the corporation from the nature of the cause of action is a plaintiff and must appear among the plaintiffs, except when the corporation is in fact the tool of the very people against whom a judgment is sought. In the latter circumstances the corporation is merely a compendious name for the controlling defendants who are hiding behind it. 41 The Court, purporting to interpret this half-century of precedents, sweeps them away. In so doing, it greatly expands the diversity jurisdiction. 'Antagonism' is a difficult standard to meet and is a more unusual situation. Refusal to sue provides automatic entry. Moreover, whenever the corporation and the real defendants are of the same citizenship, there would be no diversity jurisdiction unless antagonism could be shown. No similar restriction on jurisdiction is made because of possible non-diverseness of the stockholder and the corporation defendant because it is generally not too difficult to find a non-diverse stockholder to institute suit. 42 The Court professes to do no more than to apply well-settled precedents. But the well-settled precedents that are applied have absolutely 'nothing to do with the case.' The Court has found support in the line of cases that deal solely with substantive requirements or with the procedural rules for establishing compliance with those requirements. These have nothing to do with the constitutional jurisdiction of the federal courts in diversity suits. 43 Prior to the Judiciary Act of 1875, 18 Stat. 470, there was only very limited federal question jurisdiction in the District Courts. See Hart and Wechsler, The Federal Courts and the Federal System, 727—730. Moreover, diversity jurisdiction was established on the basis of the alignment set forth in the pleadings. In re Removal Cases, 100 U.S. 457, 469, 25 L.Ed. 593. If a corporation desiring to bring suit could not come within the requirements of diversity jurisdiction, the only way its suit could be tried in the federal courts, prior to the vast enlargement of their jurisdiction by the Act of 1875, was by virtue of a suit brought on its behalf by a stockholder of the requisite citizenship. This was the procedure followed in the important case of Dodge v. Woolsey, the Court noting that any suspected issue of contrivance should have been alleged and proved by the defendant. 18 How. 331, 346, 15 L.Ed. 401. 44 The result of this practice was described by Mr. Justice Miller for the Court in the leading case of Hawes v. City of Oakland, 104 U.S. 450, 452, 26 L.Ed. 827. 45 'Since the decision of this court in Dodge v. Woolsey * * * the frequency with which the most ordinary and usual chancery remedies are sought in the Federal courts by a single stockholder of a corporation who possesses the requisite citizenship, in cases where the corporation whose rights are to be enforced cannot sue in those courts, seems to justify a consideration of the grounds on which that case was decided, and of the just limitations of the exercise of those principles. 46 'This practice has grown until the corporations created by the laws of the States bring a large part of their controversies with their neighbors and fellow-citizens into the courts of the United States for adjudication, instead of resorting to the State courts, which are their natural, their lawful, and their appropriate forum. * * * A corporation having such a controversy, which it is foreseen must end in litigation, and preferring for any reason whatever that this litigation shall take place in a Federal court, in which it can neither sue its real antagonist nor be sued by it, has recourse to a holder of one of its shares, who is a citizen of another State. This stockholder is called into consultation, and is told that his corporation has rights which the directors refuse to enforce or to protect. He instantly demands of them to do their duty in this regard, which of course they fail or refuse to do, and thereupon he discovers that he has two causes of action entitling him to equitable relief in a court of chancery; namely, one against his own company * * * for refusing to do what he has requested them to do; and the other against the party which contests the matter in controversy with that corporation. These two causes of action he combines in an equity suit in the Circuit Court of the United States, because he is a citizen of a different State, though the real parties to the controversy could have no standing in that court. * * * the whole case is prepared for hearing on the merits, the right of the stockholder to a standing in equity receives but little attention, and the overburdened courts of the United States have this additional important litigation imposed upon them by a simulated and conventional arrangement, unauthorized by the facts of the case or by the sound principles of equity jurisdiction.' Id., 104 U.S. at pages 452—453. 47 The Court in Hawes v. City of Oakland was not concerned at all with control of the corporation by allegedly wrongdoing directors for purposes of aligning the parties. The Court was concerned with imposition on the jurisdiction of the federal judiciary in the general run of stockholders' actions, and more particularly, in the usual situation where the defendants would not be directors at all but third parties having nothing to do with the management of the corporation. 48 The Court in Hawes, therefore, announced restrictions upon a stockholder attempting to bring 'a suit founded on a right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff.' Id., 104 U.S. at page 460. Not only must a complainant show some ultra vires or fraudulent action by the directors but he must also demonstrate that he was a shareholder at the time of the transaction complained of (or acquired shares thereafter by operation of law), that he has made efforts to induce the desired action by the directors and, if necessary, by the stockholders, and that 'the suit is not a collusive one to confer on a court of the United States jurisdiction in a case of which it could otherwise have no cognizance * * *.' Id., 104 U.S. at page 461. These rules were codified that Term in Equity Rule 94, see 104 U.S. ix, now Rule 23(b) of the Federal Rules of Civil Procedure. Their history and purpose indicate the character of the requirements laid down by the Court. They do not define the constitutional jurisdiction of the Court; they are the allegations in any event requisite to the Court's proceeding to consider the case. In Hawes itself, the Court, after finding that the stockholder had not complied with the requisites for suit, dismissed the action, not for want of jurisdiction, but for want of equity. The argument that compliance with the rule was a jurisdictional requirement was made and rejected in Venner v. Great Northern R. Co., 209 U.S. at pages 33—34, 28 S.Ct. at page 330: 'this argument overlooks the purpose and nature of the rule. * * * Neither the rule nor the decision from which it was derived deals with the question of the jurisdiction of the courts, but only prescribes the manner in which the jurisdiction shall be exercised.' 49 Compliance with Rule 94 was the issue in Delaware & Hudson Co. v. Albany & S.R. Co., 213 U.S. 435, 29 S.Ct. 540, 53 L.Ed. 862. In that case, the lower court certified to this Court questions concerning maintenance of a stockholders' suit in the face of failure to allege demand for relief upon the directors and stockholders of the corporation. The Court held that such a demand would have been futile in view of the control of the defendant corporation by the other corporate defendant. It was during the course of its discussion of the futility of making a demand in such a situation that the Court stated what is relied upon by the Court in the present case—that the 'attitude of the directors need not be sinister. It may be sincere.' Id., 213 U.S. at page 451, 29 S.Ct. at page 545. Of course, the Court in that case was quite correct. But it was not concerned with, or adverting to, jurisdictional alignment, any more than it was talking about jurisdictional alignment in Hawes, also now relied upon by the Court. Both cases involved by the liminary requirements for stating a cause of action under the Rules. (For a similar discussion of what stockholders must allege with respect to the attitude of directors, but in a case where there was clearly federal question jurisdiction, see Ashwander v. T.V.A., 297 U.S. 288, 318—323, and 341—344, 56 S.Ct. 466, 469—472, 480, 481, 80 L.Ed. 688.)* 50 Further confusion is introduced by the fact that both problems—jurisdictional alignment and compliance with Rule 94—may be present in the same case. This was true in Doctor v. Harrington, where the Court was not very careful in making explicit separation of the two issues; it was also true of Venner v. Great Northern R. Co., supra, where the Court was very careful to separate the two issues. Such separation of very different concepts is of course essential when one characterizes the attitude of the directors. It is one thing when suit is against a third party to hold that a demand on the directors need not be made if such demand would for any reason be futile, and that sincere opposition by directors would make such a demand futile. It is quite something else to state that, since sincere opposition is sufficient for that purpose, it is also sufficient to demonstrate that the corporation is 'disabled from protecting itself' and should therefore be aligned as a defendant. That, as we have seen, is factually false and is contrary to what this Court for 52 years has laid down as the controlling rules governing diversity jurisdiction. 51 One final matter of general importance should be discussed before applying the general principles adduced to the facts of the present cases. The Court states (354 U.S. 96, 77 S.Ct. 1115): '(T)he proper course is not to try out the issues presented by the charges of wrongdoing but to determine the issue of antagonism on the face of the pleadings and by the nature of the controversy.' Of course the charges of wrongdoing need not be determined to ascertain the jurisdiction of the federal courts. What must be determined when directors or other persons alleged to control the corporation are joined as defendants is the relation of these people to the corporation. And while in certain cases the issues may be determined from the face of the pleadings, the courts are not so limited. The Court speaks of making 'a practical not a mechanical determination,' but a more mechanical determination could hardly be imagined. If anything had been regarded as settled until today about federal jurisdiction, it was that 'It is our duty, as it is that of the lower federal courts, to 'look beyond the pleadings and arrange the parties according to their sides in the dispute.' City of Dawson v. Columbia, etc., Trust Co., 197 U.S. 178, 180, 25 S.Ct. 420, 421, 49 L.Ed. 713.' City of Indianapolis v. Chase National Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47. Of course, this may take time and may not always be easy of determination. I had not thought up to now that such considerations should lead us to disregard our constitutional obligation, for, as the District Court in No. 316 stated, 'It is more than costly error therefore it is an unconstitutional invasion of the jurisdiction of the state courts—for a federal court to sustain federal jurisdiction of a civil action between private persons where 'the matter in controversy' exceeds the sum or value of $3,000 * * * but does not arise 'under the Constitution, laws or treaties of the United States,' * * * and diversity of citizenship as to 'the matter in controversy' does not exist. U.S.Const., Art. III; 28 U.S.C. § 1332 * * *.' 117 F.Supp. at page 808. 52 The proceedings in each of the present cases have followed different paths. In No. 316, Smith v. Sperling, the District Court held a hearing to determine the presence of the special circumstances that this Court's decisions indicated would require alignment of the corporation as a defendant. It did not find such circumstances and, aligning the corporation as a plaintiff, it dismissed the cause of action for lack of the requisite diversity. 117 F.Supp. 781. On appeal, the Court of Appeals for the Ninth Circuit affirmed this aspect of the case. 237 F.2d 317. I find no justification for overturning the findings and conclusions of the District Court made after extended hearing and analysis and affirmed by the Court of Appeals. I would therefore affirm. 53 In No. 149, Swanson v. Traer, the District Court dismissed plaintiffs' complaint on the merits because it did not appear that they had 'laid a foundation sufficient to support a derivative stockholders' suit.' On appeal, the Court of Appeals for the Seventh Circuit affirmed, but on the ground that necessary realignment of the corporation as a plaintiff destroyed diversity and required dismissal of the suit for lack of jurisdiction. 230 F.2d 228. Examining the pleadings, the position taken by the corporation in the litigation, especially the affidavit and statement by counsel for the corporation, the Court of Appeals concluded that 'in their business judgment, both the directors and Mr. Busch (the corporation's counsel) were of the sincere opinion that the filing of such a suit would not be for the best interests of the corporation and its stockholders. The named plaintiffs disagreed. This difference of opinion is not of itself evidence of antagonism on the part of the Railway Company.' Id., at page 237. 54 The court stated that the allegation of the complaint that 'several members' of the corporation's board of directors at the time suit was filed had been a part of the alleged conspiracy was insufficient to allege antagonism by a majority of the board. The court was also impressed by a lengthy, detailed affidavit filed by the corporation's counsel, retained after the transactions complained of, who stated that he had reviewed the transaction pursuant to the direction of the board of directors and had advised against suit. The facts relied on by the Court of Appeals are not without weight in support of its conclusion. The plaintiffs' general allegations, however, imply hostility on the part of the whole board of directors, and, in this state of the record, plaintiffs should have been given an opportunity to substantiate their allegations at a hearing before the District Court, as was the indicated course of proceeding when the matter initially came before the District Court. For this reason, I would remand the case for such a hearing. 1 While the action was pending plaintiff died and for him a special administrator has been substituted. The latter is a citizen of California. Had the suit been originally commenced by the decedent's representative, it would have been the citizenship of the representative which would have been determinative of jurisdiction in this diversity case. See Chappedelaine v. Dechenaux, 4 Cranch 306, 2 L.Ed. 629; Childress v. Emory, 8 Wheat. 642, 669, 5 L.Ed. 705; Mexican Central R. Co. v. Eckman, 187 U.S. 429, 434, 23 S.Ct. 211, 213, 47 L.Ed. 245; Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 186, 52 S.Ct. 84, 85, 76 L.Ed. 233. But jurisdiction, once attached, is not impaired by a party's later change of domicile. Mullen v. Torrance, 9 Wheat. 537, 6 L.Ed. 154. As Chief Justice Marshall said in that case: 'It is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.' Id., 9 Wheat. at page 539. The rationale, that jurisdiction is tested by the facts as they existed when the action is brought, is applied to a situation where a party dies and a non-diverse representative is substituted. Dunn v. Clarke, 1834, 8 Pet. 1, 8 L.Ed. 845. 2 The bill therefore meets the requirements of Rule 23(b) of the Rules of Civil Procedure, 28 U.S.C.A. that the stockholder show with particularity what efforts he made to get those who control the corporation to take action, 'and the reasons for his failure to obtain such action or the reasons for not making such effort.' And see Hawes v. City of Oakland, 104 U.S. 450, 26 L.Ed. 827; Delaware & Hudson Co. v. Albany & S.R. Co., 213 U.S. 435, 29 S.Ct. 540, 53 L.Ed. 862. 3 The Court in Doctor v. Harrington, supra, 196 U.S. at page 587, 25 S.Ct. at page 357, said, 'The ultimate interest of the corporation made defendant may be the same as that of the stockholder made plaintiff, but the corporation may be under a control antagonistic to him, and made to act in a way detrimental to his rights. In other words, his interests, and the interests of the corporation, may be made subservient to some illegal purpose. If a controversy hence arise, and the other conditions ofjurisdiction exist, it can be litigated in a Federal court.' The complaint in that case charged fraud by a dominant director and stockholder to his advantage and to the detriment of the minority stockholders. The answer denied the fraud. The Court did not stop, as the District Court did in the instant case, to inquire if transactions complained of were colorable or were sustained by sound business judgment. After reviewing the earlier decisions, the Court concluded, 'The case at bar is brought within the doctrine of those cases by the allegations of the bill.' Id., 196 U.S. at page 588, 25 S.Ct. at page 358. The leading case cited by the Court was Hawes v. City of Oakland, 104 U.S. 450, 26 L.Ed. 827, where in determining whether a proper case for a derivative action had been made out, the Court looked only to the nature of the charges contained in the bill. Id., 104 U.S. at pages 461—462. 4 28 U.S.C. § 1359, 28 U.S.C.A. § 1359, provides: 'A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.' Collusion is shown, for example, where the neglect or refusal of the directors to take the desired action on the part of the corporation is simulated so that it may be made to appear that the diversity of citizenship necessary for federal jurisdiction exists. City of Detroit v. Dean, 106 U.S. 537, 1 S.Ct. 560, 27 L.Ed. 300; City of Quincy v. Steel, 120 U.S. 241, 7 S.Ct. 520, 30 L.Ed. 624. * The confusion between these two lines of cases—the jurisdictional alignment cases and the cases dealing with the problems with which former Equity Rule 94 was concerned—is fully treated in the opinion of District Judge Mathes in No. 316. See 117 F.Supp. 781, 792—809.

89

354 U.S. 1 77 S.Ct. 1222 1 L.Ed.2d 1148 Curtis REID, Superintendent of the District of Columbia Jail, Appellant,v.Clarice B. COVERT. Nina KINSELLA, Warden of the Federal Reformatory for Women, Alderson, West Virginia, Petitioner, v. Walter KRUEGER. Nos. 701, 713. Argued Feb. 27, 1957. Decided June 10, 1957. [Syllabus from pages 1-2 intentionally omitted] Solicitor General J. Lee Rankin, Washington, D.C., for appellant in No. 701 and for petitioner in No. 713. Mr. Frederick Bernays Wiener, Washington, D.C., for appellee in No. 701 and for respondent in No. 713. Mr. Justice BLACK announced the judgment of the Court and delivered an opinion, in which The CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join. 1 These cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. These cases are particularly significant because for the first time since the adoption of the Constitution wives of soldiers have been denied trial by jury in a court of law and forced to trial before courts-martial. 2 In No. 701 Mrs. Clarice Covert killed her husband, a sergeant in the United States Air Force, at an airbase in England. Mrs. Covert, who was not a member of the armed services, was residing on the base with her husband at the time. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice (UCMJ).1 The trial was on charges preferred by Air Force personnel and the court-martial was composed of Air Force officers. The court-martial asserted jurisdiction over Mrs. Covert under Article 2(11) of the UCMJ,2 which provides: 3 'The following persons are subject to this code: 4 '(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States * * *.' 5 Counsel for Mrs. Covert contended that she was insane at the time she killed her husband, but the military tribunal found her guilty of murder and sentenced her to life imprisonment. The judgment was affirmed by the Air Force Board of Review, 16 CMR 465, but was reversed by the Court of Military Appeals, 6 USCMA 48, because of prejudicial errors concerning the defense of insanity. While Mrs. Covert was being held in this country pending a proposed retrial by court-martial in the District of Columbia, her counsel petitioned the District Court for a writ of habeas corpus to set her free on the ground that the Constitution forbade her trial by military authorities. Construing this Court's decision in United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, as holding that 'a civilian is entitled to a civilian trial' the District Court held that Mrs. Covert could not be tried by courtmartial and ordered her released from custody. The Government appealed directly to this Court under 28 U.S.C. § 1252, 28 U.S.C.A. § 1252. See 350 U.S. 985, 76 S.Ct. 476, 100 L.Ed. 852. 6 In No. 713 Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him. She was tried for murder by a court-martial and despite considerable evidence that she was insane was found guilty and sentenced to life imprisonment. The judgment was approved by the Army Board of Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals, 5 USCMA 314. Mrs. Smith was then confined in a federal penitentiary in West Virginia. Her father, respondent here, filed a petition for habeas corpus in a District Court for West Virginia. The petition charged that the court-martial was without jurisdiction because Article 2(11) of the UCMJ was unconstitutional insofar as it authorized the trial of civilian dependents accompanying servicemen overseas. The District Court refused to issue the writ, 137 F.Supp. 806, and while an appeal was pending in the Court of Appeals for the Fourth Circuit we granted certiorari at the request of the Government, 350 U.S. 986, 76 S.Ct. 476, 100 L.Ed. 853. 7 The two cases were consolidated and argued last Term and a majority of the Court, with three Justices dissenting and one reserving opinion, held that military trial of Mrs. Smith and Mrs. Covert for their alleged offenses was constitutional. 351 U.S. 470, 76 S.Ct. 886, 100 L.Ed. 1342; 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352. The majority held that the provisions of Article III and the Fifth and Sixth Amendments which require that crimes be tried by a jury after indictment by a grand jury did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there and that Congress could provide for the trial of such offenses in any manner it saw fit so long as the procedures established were reasonable and consonant with due process. The opinion then went on to express the view that military trials, as now practiced, were not unreasonable or arbitrary when applied to dependents accompanying members of the armed forces overseas. In reaching their conclusion the majority found it unnecessary to consider the power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces' under Article I, § 8, cl. 14 of the Constitution. 8 Subsequently, the Court granted a petition for rehearing, 352 U.S. 901, 77 S.Ct. 124, 1 L.Ed.2d 92. Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities. I. 9 At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.3 Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.4 When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later an English historian wrote: 10 'In a Settled Colony the inhabitants have all the rights of Englishmen. They take with them, in the first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown, the duty of obedience to the lawful commands of the Sovereign, and obedience to the Laws which Parliament may think proper to make with reference to such a Colony. But, on the other hand, they take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country.'5 11 The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone, they have been jealously preserved from the encroachments of Government by express provisions of our written Constitution.6 12 Among those provisions, Art. III, § 2 and the Fifth and Sixth Amendments are directly relevant to these cases. Article III, § 2 lays down the rule that: 13 'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.' The Fifth Amendment declares: 14 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * *.' And the Sixth Amendment provides: 15 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.' 16 The language of Art. III, § 2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. After declaring that all criminal trials must be by jury, the section states that when a crime is 'not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.' If this language is permitted to have its obvious meaning,7 § 2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held.8 From the very first Congress, federal statutes have implemented the provisions of § 2 by providing for trial of murder and other crimes committed outside the jurisdiction of any State 'in the district where the offender is apprehended, or into which he may first be brought.'9 The Fifth and Sixth Amendments, like Art. III, § 2, are also all inclusive with their sweeping references to 'no person' and to 'all criminal prosecutions.' 17 This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States.10 While it has been suggested that only those constitutional rights which are 'fundamental' protect Americans abroad,11 we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of 'Thou shalt nots' which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right.12 As Blackstone wrote in his Commentaries: 18 '* * * the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! * * * (I)t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.'13 19 Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience. 20 The keystone of supporting authorities mustered by the Court's opinion last June to justify its holding that Art. III, § 2, and the Fifth and Sixth Amendments did not apply abroad was In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581. The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship's officer, was seized and tried before a consular 'court' in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other 'non-Christian' countries.14 These statutes provided that the laws of the United States were to govern the trial except: 21 '* * * where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.'15 22 The consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the 'non-Christian' countries to which the statutes applied. Under these statutes consuls could and did make the criminal laws, initiate charges, arrest alleged offenders, try them, and after conviction take away their liberty or their life-sometimes at the American consulate. Such a blending of executive, legislative, and judicial powers in one person or even in one branch of the Government is ordinarily regarded as the very acme of absolutism.16 Nevertheless, the Court sustained Ross' conviction by the consul. It stated that constitutional protections applied 'only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.'17 Despite the fact that it upheld Ross' conviction under United States laws passed pursuant to asserted constitutional authority, the Court went on to make a sweeping declaration that '(t)he Constitution can have no operation in another country.'18 23 The Ross approach that the Constitution has no applicability abroad has long since been directly repudiated by numerous cases.19 That approach is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad.20 Thus the Ross case rested, at least in substantial part, on a fundamental misconception and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans.21 We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era. 24 The Court's opinion last Term also relied on the 'Insular Cases' to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable to the trial of Mrs. Smith and Mrs. Covert.22 We believe that reliance was misplaced. The 'Insular Cases,' which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, § 3,23 had entirely different cultures and customs from those of this country. This Court, although closely divided,24 ruled that certain constitutional safeguards wee not applicable to these territories since they had not been 'expressly or impliedly incorporated' into the Union by Congress. While conceding that 'fundamental' constitutional rights applied everywhere,25 the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions.26 25 The 'Insular Cases' can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes.27 But we have no authority, or inclination, to read exceptions into it which are not there.28 II. 26 At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents.29 For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith killed her husband.30 Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that article 2(11) of UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States' obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. 27 Article VI, the Supremacy Clause of the Constitution, declares: 28 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; * * *.' 29 There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in 'pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect.31 It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.32 In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined. 30 There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.33 For example, in Geofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.Ed. 642, it declared: 31 'The treaty power, as expressed in the constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government or in that of one of the States, or a session of any portion of the territory of the latter, without its consent.' 32 This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.34 It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument. 33 There is nothing in State of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641, which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.35 34 In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. Covert. Since their court-martial did not meet the requirements of Art. III, § 2, or the Fifth and Sixth Amendments we are compelled to determine if there is anything within the Constitution which authorizes the military trial of dependents accompanying the armed forces overseas. III. 35 Article I, § 8, cl. 14, empowers Congress 'To make Rules for the Government and Regulation of the land and naval Forces.' It has been held that this creates an exception to the normal method of trial in civilian courts as provided by the Constitution and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights.36 But if the language of Clause 14 is given its natural meaning,37 the power granted does not extend to civilians—even though they may be dependents living with servicemen on a military base.38 The term 'land and naval Forces' refers to persons who are members of the armed services and not to their civilian wives, children and other dependents. It seems inconceivable that Mrs. Covert or Mrs. Smith could have been tried by military authorities as members of the 'land and naval Forces' had they been living on a military post in this country. Yet this constitutional term surely has the same meaning everywhere. The wives of servicemen are no more members of the 'land and naval Forces' when living at a military post in England or Japan than when living at a base in this country or in Hawaii or Alaska. 36 The Government argues that the Necessary and Proper Clause (18) when taken in conjunction with Clause 14 allows Congress to authorize the trial of Mrs. Smith and Mrs. Covert by military tribunals and under military law. The Government claims that the two clauses together constitute a broad grant of power 'without limitation' authorizing Congress to subject all persons, civilians and soldiers alike, to military trial if 'necessary and proper' to govern and regulate the land and naval forces. It was on a similar theory that Congress once went to the extreme of subjecting persons who made contracts with the military to court-martial jurisdiction with respect to frauds related to such contracts.39 In the only judicial test a Circuit Court held that the legislation was patently unconstitutional. Ex parte Henderson, 11 Fed.Cas. page 1067, No. 6,349. 37 It is true that the Constitution expressly grants Congress power to make all rules necessary and proper to govern and regulate those persons who are serving in the 'land and naval Forces.' But the Necessary and Proper Clause cannot operate to extend military jurisdiction to any group of persons beyond that class described in Clause 14—'the land and naval Forces.' Under the grand design of the Constitution civilian courts are the normal repositories of power to try persons charged with crimes against the United States. And to protect persons brought before these courts, Article III and the Fifth, Sixth, and Eighth Amendments establish the right to trial by jury, to indictment by a grand jury and a number of other specific safeguards. By way of contrast the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law.40 Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of Clause 14. 38 Nothing said here contravenes the rule laid down in McCulloch v. Maryland, 4 Wheat. 316, at page 421, 4 L.Ed. 579 that: 39 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' In McCulloch this Court was confronted with the problem of determining the scope of the Necessary and Proper Clause in a situation where no specific restraints on governmental power stood in the way. Here the problem is different. Not only does Clause 14, by its terms, limit military jurisdiction to members of the 'land and naval Forces,' but Art. III, § 2 and the Fifth and Sixth Amendments require that certain express safeguards, which were designed to protect persons from oppressive governmental practices, shall be given in criminal prosecutions—safeguards which cannot be given in a military trial. In the light of these as well as other constitutional provisions, and the historical background in which they were formed, military trial of civilians is inconsistent with both the 'letter and spirit of the constitution.' 40 Further light is reflected on the scope of Clause 14 by the Fifth Amendment. That Amendment which was adopted shortly after the Constitution reads: 41 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * *.' (Emphasis added.) 42 Since the exception in this Amendment for 'cases arising in the land or naval forces' was undoubtedly designed to correlate with the power granted Congress to provide for the 'Government and Regulation' of the armed services, it is a persuasive and reliable indication that the authority conferred by Clause 14 does not encompass persons who cannot fairly be said to be 'in' the military service. 43 Even if it were possible, we need not attempt here to precisely define the boundary between 'civilians' and members of the 'land and naval Forces.' We recognize that there might be circumstances where a person could be 'in' the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. But the wives, children and other dependents of servicemen cannot be placed in that category, even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government.41 We have no difficulty in saying that such persons do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier's family. 44 The tradition of keeping the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution. The idea that the relatives of soldiers could be denied a jury trial in a court of law and instead be tried by court-martial under the guise of regulating the armed forces would have seemed incredible to those men, in whose lifetime the right of the military to try soldiers for any offenses in time of peace had only been grudgingly conceded.42 The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history. They knew that ancient republics had been overthrown by their military leaders.43 They were familiar with the history of Seventeenth Century England, where Charles I tried to govern through the army and without Parliament. During this attempt, contrary to the Common Law, he used courts-martial to try soldiers for certain non-military offenses.44 this court-martialing of soldiers in peacetime evoked strong protests from Parliament.45 The reign of Charles I was followed by the rigorous military rule of Oliver Cromwell. Later, James II used the Army in his fight against Parliament and the People. He promulgated Articles of War (strangely enough relied on in the Government's brief) authorizing the trial of soldiers for non-military crimes by courts-martial.46 This action hastened the revolution that brought William and Mary to the throne upon their agreement to abide by a Bill of Rights which, among other things, protected the right of trial by jury.47 It was against this general background that two of the greatest English jurists, Lord Chief Justice Hale and Sir William Blackstone—men who exerted considerable influence on the Founders expressed sharp hostility to any expansion of the jurisdiction of military courts. For instance, Blackstone went so far as to assert: 45 'For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land.'48 46 The generation that adopted the Constitution did not distrust the military because of past history alone. Within their own lives they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston at various times from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and to intimidate the local populace. The trial of soldiers by courts-martial and the interference of the military with the civil courts aroused great anxiety and antagonism not only in Massachusetts but throughout the colonies. For example, Samuel Adams in 1768 wrote: 47 '* * * (I)s it not enough for us to have seen soldiers and mariners forejudged of life, and executed within the body of the county by martial law? Are citizens to be called upon, threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law military, in breach of the fundamental rights of subjects, and contrary to the law and franchise of the land? * * * Will the spirits of people as yet unsubdued by tyranny, unawed by the menaces of arbitrary power, submit to be governed by military force? No! Let us rouse our attention to the common law,—which is our birthright, our great security against all kinds of insult and oppression * * *.'49 48 Colonials had also seen the right to trial by jury subverted by acts of Parliament which authorized courts of admiralty to try alleged violations of the unpopular 'Molasses' and 'Navigation' Acts.50 This gave the admiralty courts jurisdiction over offenses historically triable only by a jury in a court of law and aroused great resentment throughout the colonies.51 As early as 1765 delegates from nine colonies meeting in New York asserted in a 'Declaration of Rights' that trial by jury was the 'inherent and invaluable' right of every citizen in the colonies.52 49 With this background it is not surprising that the Declaration of Independence protested that George III had 'affected to render the Military independent of and superior to the Civil Power' and that Americans had been deprived in many cases of 'the benefits of Trial by Jury.'53 And those who adopted the Constitution embodied their profound fear and distrust of military power, as well as their determination to protect trial by jury, in the Constitution and its Amendments.54 Perhaps they were aware that memories fade and hoped that in this way they could keep the people of this Nation from having the fight again and again the same old battles for individual freedom. 50 In light of this history, it seems clear that the Founders had no intention to permit the trial of civilians in military courts, where they would be denied jury trials and other constitutional protections, merely by giving Congress the power to make rules which were 'necessary and proper' for the regulation of the 'land and naval Forces.' Such a latitudinarian interpretation of these clauses would be at war with the well-established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority. The Constitution does not say that Congress can regulate 'the land and naval Forces and all other persons whose regulation might have some relationship to maintenance of the land and naval Forces.' There is no indication that the Founders contemplated setting up a rival system of military courts to compete with civilian courts for jurisdiction over civilians who might have some contact or relationship with the armed forces. Courts-martial were not to have concurrent jurisdiction with courts of law over non-military America. 51 On several occasions this Court has been faced with an attempted expansion of the jurisdiction of military courts. Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281, one of the great landmarks in this Court's history, held that military authorities were without power to try civilians not in the military or naval service by declaring martial law in an area where the civil administration was not deposed and the courts were not closed.55 In a stirring passage the Court proclaimed: 52 'Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right—one of the most valuable in a free country—is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service.'56 53 In Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688, the Court reasserted the principles enunciated in Ex parte Milligan and reaffirmed the tradition of military subordination to civil authorities and institutions. It refused to sanction the military trial of civilians in Hawaii during wartime despite government claims that the needs of defense made martial law imperative. 54 Just last Term, this Court held in United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, that military courts could not constitutionally try a discharged serviceman for an offense which he had allegedly committed while in the armed forces. It was decided (1) that since Toth was a civilian he could not be tried by military court-martial,57 and (2) that since he was charged with murder, a 'crime' in the constitutional sense, he was entitled to indictment by a grand jury, jury trial, and the other protections contained in Art. III, § 2 and the Fifth, Sixth, and Eighth Amendments. The Court pointed out that trial by civilian courts was the rule for persons who were not members of the armed forces. 55 There are no supportable grounds upon which to distinguish the Toth case from the present cases. Toth, Mrs. Covert, and Mrs. Smith were all civilians. All three were American citizens. All three were tried for murder. All three alleged crimes were committed in a foreign country. The only differences were: (1) Toth was an ex-serviceman while they were wives of soldiers; (2) Toth was arrested in the United States while they were seized in foreign countries. If anything, Toth had closer connection with the military than the two women for his crime was committed while he was actually serving in the Air Force. Mrs. Covert and Mrs. Smith had never been members of the army, had never been employed by the army, had never served in the army in any capacity. The Government appropriately argued in Toth that the constitutional basis for court-martialing him was clearer than for court-martialing wives who are accompanying their husbands abroad.58 Certainly Toth's conduct as a soldier bears a closer relation to the maintenance of order and discipline in the armed forces than the conduct of these wives. The fact that Toth was arrested her while the wives were arrested in foreign countries is material only if constitutional safeguards do not shield a citizen abroad when the Government exercises its power over him. As we have said before, such a view of the Constitution is erroneous. The mere fact that these women had gone overseas with their husbands should not reduce the protection the Constitution gives them. 56 The Milligan, Duncan and Toth cases recognized and manifested the deeply rooted and ancient opposition in this country to the extension of military control over civilians. In each instance an effort to expand the jurisdiction of military courts to civilians was repulsed. 57 There have been a number of decisions in the lower federal courts which have upheld military trial of civilians performing services for the armed forces 'in the field' during time of war.59 To the extent that these cases can be justified, insofar as they involved trial of persons who were not 'members' of the armed forces, they must rest on the Government's 'war powers.' In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront. From a time prior to the adoption of the Constitution the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of some civilians in that area by military courts under military rules.60 But neither Japan nor Great Britian could properly be said to be an area where active hostilities were under way at the time Mrs. Smith and Mrs. Covert committed their offenses or at the time they were tried.61 58 The Government urges that the concept 'in the field' should be broadened to reach dependents accompanying the military forces overseas under the conditions of world tension which exist at the present time. It points out how the 'war powers' include authority to prepare defenses and to establish our military forces in defensive posture about the world. While we recognize that the 'war powers' of the Congress and the Executive are broad,62 we reject the Government's argument that present threats to peace permit military trial of civilians accompanying the armed forces overseas in an area where no actual hostilities are under way.63 The exigencies which have required military rule on the battlefront are not present in areas where no conflict exists. Military trial of civilians 'in the field' is an extraordinary jurisdiction and it should not be expanded at the expense of the Bill of Rights. We agree with Colonel Winthrop, an expert on military jurisdiction, who declared: 'a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace.'64 (Emphasis not supplied.) 59 As this Court stated in United States ex rel. Toth v. Quarles, 350 U.S. 11, 7l S.Ct. 1, 100 L.Ed. 8, the business of soldiers is to fight and prepare to fight wars, not to try civilians for their alleged crimes. Traditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks. Because of its very nature and purpose the military must place great emphasis on discipline and efficiency. Correspondingly, there has always been less emphasis in the military on protecting the rights of the individual than in civilian society and in civilian courts. 60 Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of 'command influence.'65 In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings—in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.66 61 We recognize that a number of improvements have been made in military justice recently by engrafting more and more of the methods of civilian courts on courts-martial. In large part these ameliorations stem from the reaction of civilians, who were inducted during the two World Wars, to their experience with military justice. Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in the civil courts. Looming far above all other deficiencies of the military trial, of course, is the absence of trial by jury before an independent judge after an indictment by a grand jury. Moreover the reforms are merely statutory; Congress—and perhaps the President—can reinstate former practices, subject to any limitations imposed by the Constitution, whenever it desires.67 As yet it has not been clearly settled to what extent the Bill of Rights and other protective parts of the Constitution apply to military trials.68 62 It must be emphasized that every person who comes within the jurisdiction of courts-martial is subject to military law—law that is substantially different from the law which governs civilian society. Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms.69 It emphasizes the iron hand of discipline more than it does the even scales of justice. Moreover, it has not yet been definitely established to what extent the President, as Commander-in-Chief of the armed forces, or his delegates, can promulgate, supplement or change substantive military law as well as the procedures of military courts in time of peace, or in time of war.70 In any event, Congress has given the President broad discretion to provide the rules governing military trials.71 For example, in these very cases a technical manual issued under the President's name with regard to the defense of insanity in military trials was of critical importance in the convictions of Mrs. Covert and Mrs. Smith. If the President can provide rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials. Such blending of functions in one branch of the Government is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers. 63 In summary, 'it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.'72 In part this is attributable to the inherent differences in values and attitudes that separate the military establishment from civilian society. In the military, by necessity, emphasis must be placed on the security and order of the group rather than on the value and integrity of the individual. 64 It is urged that the expansion of military jurisdiction over civilians claimed here is only slight, and that the practical necessity for it is very great.73 The attitude appears to be that a slight encroachment on the Bill of Rights and other safeguards in the Constitution need cause little concern. But to hold that these wives could be tried by the military would be a tempting precedent. Slight encroachments create new boundaries from which legions of power can seek new territory to capture. 'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives then of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'74 Moreover we cannot consider this encroachment a slight one. Throughout history many transgressions by the military have been called 'slight' and have been justified as 'reasonable' in light of the 'uniqueness' of the times. We cannot close our eyes to the fact that today the peoples of many nations are ruled by the military. 65 We should not break faith with this nation's tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. The country has remained true to that faith for almost one hundred seventy years. Perhaps no group in the Nation has been truer than military men themselves. Unlike the soldiers of many other nations, they have been content to perform their military duties in defense of the Nation in every period of need and to perform those duties well without attempting to usurp power which is not theirs under our system of constitutional government. 66 Ours is a government of divided authority on the assumption that in division there is not only strength but freedom from tyranny. And under our Constitution courts of law alone are given power to try civilians for their offenses against the United States. The philosophy expressed by Lord Coke, speaking long ago from a wealth of experience, is still timely: 67 'God send me never to live under the Law of Conveniency or Discretion. Shall the Souldier and Justice Sit on one Bench, the Trumpet will not let the Cryer speak in Westminster-Hall.'75 68 In No. 701, Reid v. Covert, the judgment of the District Court directing the Mrs. Covert be released from custody is affirmed. 69 Affirmed. 70 In No. 713, Kinsella v. Krueger, the judgment of the District Court is reversed and the case is remanded with instructions to order Mrs. Smith released from custody. 71 Reversed and remanded. 72 Mr. Justice WHITTAKER took no part in the consideration or decision of these cases. 73 Mr. Justice FRANKFURTER, concurring in the result. 74 These cases involve the constitutional power of Congress to provide for trial of civilian dependents accompanying members of the armed forces abroad by court-martial in capital cases. The normal method of trial of federal offenses under the Constitution is in a civilian tribunal. Trial of offenses by way of court-martial, with all the characteristics of its procedure so different from the forms and sageguards of procedure in the conventional courts, is an exercise of exceptional jurisdiction, arising from the power granted to Congress in Art. I, § 8, cl. 14, of the Constitution of the United States 'To make Rules for the Government and Regulation of the land and naval Forces.' Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838; see United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. forms and safeguards of procedure in Law and Precedents (2d ed. 1896), 52. Article 2(11) of the Uniform Code of Military Justice, 64 Stat. 107, 109, 50 U.S.C. § 552(11), 50 U.S.C.A. § 552(11), and its predecessors were passed as an exercise of that power, and the agreements with England and Japan recognized that the jurisdiction to be exercised under those agreements was based on the relation of the persons involved to the military forces. See the agreement with Great Britain, 57 Stat. 1193, E.A.S. No. 355, and the United States of America (Visiting Forces) Act, 1942, 5 & 6 Geo. VI, c. 31; and the 1952 administrative agreement with Japan, 3 U.S. Treaties and Other International Agreements 3341, T.I.A.S. No. 2492. 75 Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the 'land and naval Forces,' and who therefore are not protected by specific provisions of Article III and the Fifth and Sixth Amendments. It is of course true that, at least regarding the right to a grand jury indictment, the Fifth Amendment is not unmindful of the demands of military discipline.1 Within the scope of appropriate construction, the phrase 'except in cases arising in the land or naval Forces' has been assumed also to modify the guaranties of speedy and public trial by jury. And so, the problem before us is not to be answered by recourse to the literal words of this exception. The cases cannot be decided simply by saying that, since these women were not in uniform, they were not 'in the land or naval Forces.' The Court's function in constitutional adjudications is not exhausted by a literal reading of words. It may be tiresome, but it is nonetheless vital, to keep our judicial minds fixed on the injunction that 'it is a constitution we are expounding.' MCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579. Although Winthrop, in his treatise, states that the Constitution 'clearly distinguishes the military from the civil class as separate communities' and 'recognizes no third class which is part civil and part military military for a particular purpose or in a particular situation, and civil for all other purposes and in all other situations * * *,' Winthrop, Military Law and Precedents (2d ed. 1896), 145, this Court, applying appropriate methods of constitutional interpretation, has long held, and in a variety of situations, that in the exercise of a power specifically granted to it, Congress may sweep in what may be necessary to make effective the explicitly worded power. See Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, especially 289 et seq., 40 S.Ct. 141, 148, 64 L.Ed. 260; Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 201, 32 S.Ct. 44, 45, 57 L.Ed. 184; Railroad Commission of State of Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U.S. 563, 588, 42 S.Ct. 232, 237, 66 L.Ed. 371. This is the significance of the Necessary and Proper Clause, which is not to be considered so much a separate clause in Art. I, § 8, as an integral part of each of the preceding 17 clauses. Only thus may be avoided a strangling literalness in construing a document that is not an enumeration of static rules but the living framework of government designed for an undefined future. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Hurtado v. People of State of California, 110 U.S. 516, 530 531, 4 S.Ct. 111, 118—119, 292, 28 L.Ed. 232. 76 Everything that may be deemed, as the exercise of an allowable judgment by Congress, to fall fairly within the conception conveyed by the power given to Congress 'To make Rules for the Government and Regulation of the land and naval Forces' is constitutionally within that legislative grant and not subject to revision by the independent judgment of the Court. To be sure, every event or transaction that bears some relation to 'the land and naval Forces' does not ipso facto come within the tolerant conception of that legislative grant. The issue in these cases involves regard for considerations not dissimilar to those involved in a determination under the Due Process Clause. Obviously, the practical situations before us bear some relation to the military. Yet the question for this Court is not merely whether the relation of these women to the 'land and naval Forces' is sufficiently close to preclude the necessity of finding that Congress has been arbitrary in its selection of a particular method of trial. For, although we must look to Art. I, § 8, cl. 14, as the immediate justifying power, it is not the only clause of the Constitution to be taken into account. The Constitution is an organic scheme of government to be dealt with as an entirety. A particular provision cannot be dissevered from the rest of the Constitution. Our conclusion in these cases therefore must take due account of Article III and the Fifth and Sixth Amendments. We must weigh all the factors involved in these cases in order to decide whether these women dependents are so closely related to what Congress may allowably deem essential for the effective 'Government and Regulation of the land and naval Forces' that they may be subjected to court-martial jurisdiction in these capital cases, when the consequence is loss of the protections afforded by Article III and the Fifth and Sixth Amendments. 77 We are not concerned here even with the possibility of some alternative non-military type of trial that does not contain all the safeguards of Article III and the Fifth and Sixth Amendments. We must judge only what has been enacted and what is at issue. It is the power actually asserted by Congress under Art. I, § 8, cl. 14, that must now be adjudged in the light of Article III and the Fifth and Sixth Amendments. In making this adjudication, I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question. The Court has not before it, and therefore I need not intimate any opinion on, situations involving civilians, in the sense of persons not having a military status, other than dependents. Nor do we have before us a case involving a non-capital crime. This narrow delineation of the issue is merely to respect the important restrictions binding on the Court when passing on the constitutionality of an Act of Congress. 'In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.' Liverpool, New York & Philadelphia Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. 78 We are also not concerned here with the substantive aspects of the grant of power to Congress to 'make Rules for the Government and Regulation of the land and naval Forces.' What conduct should be punished and what constitutes a capital case are matters for congressional discretion, always subject of course to any specific restrictions of the Constitution. These cases involve the validity of procedural conditions for determining the commission of a crime in fact punishable by death. The taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights. Thus, in Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, the fact 'above all that they stood in deadly peril of their lives' led the Court to conclude that the defendants had been denied due process by the failure to allow them reasonable time to seek counsel and the failure to appoint counsel. I repeat. I do not mean to imply that the considerations that are controlling in capital cases involving civilian dependents are constitutionally irrelevant in capital cases involving civilians other than dependents or in non-capital cases involving dependents or other civilians. I do say that we are dealing here only with capital cases and civilian dependents. 79 The Government asserts that civilian dependents are an integral part of our armed forces overseas and that there is substantial military necessity for subjecting them to court-martial jurisdiction. The Government points out that civilian dependents go abroad under military auspices, live with military personnel in a military community, enjoy the privileges of military facilities, and that their conduct inevitably tends to influence military discipline. 80 The prosecution by court-martial for capital crimes committed by civilian dependents of members of the armed forces abroad is hardly to be deemed, under modern conditions, obviously appropriate to the effective exercise of the power to 'make Rules for the Government and Regulation of the land and naval Forces' when it is a question of deciding what power is granted under Article I and therefore what restriction is made on Article III and the Fifth and Sixth Amendments. I do not think that the proximity, physical and social, of these women to the 'land and naval Forces' is, with due regard to all that has been put before us, so clearly demanded by the effective 'Government and Regulation' of those forces as reasonably to demonstrate a justification for court-martial jurisdiction over capital offenses. 81 The Government speaks of the 'great potential impact on military discipline' of these accompanying civilian dependents. This cannot be denied, nor should its implications be minimized. But the notion that discipline over military personnel is to be furthered by subjecting their civilian dependents to the threat of capital punishment imposed by court-martial is too hostile to the reasons that underlie the procedural safeguards of the Bill of Rights for those safeguards to be displaced. It is true that military discipline might be affected seriously if civilian dependents could commit murders and other capital crimes with impunity. No one, however, challenges the availability to Congress of a power to provide for trial and punishment of these dependents for such crimes.2 The method of trial alone is in issue. The Government suggests that, if trial in an Article III court subject to the restrictions of the Fifth and Sixth Amendments is the only alternative, such a trial could not be held abroad practicably, and it would often by equally impracticable to transport all the witnesses back to the United States for trial. But, although there is no need to pass on that issue in this case, trial in the United States is obviously not the only practical alternative and other alternatives may raise different constitutional questions. The Government's own figures for the Army show that the total number of civilians (all civilians 'serving with, employed by, or accompanying the armed forces' overseas and not merely civilian dependents) for whom general courts-martial for alleged murder were deemed advisable3 was only 13 in the 7 fiscal years, 1950—1956. It is impossible to ascertain from the figures supplied to us exactly how many persons were tried for other capital offenses, but the figures indicate that there could not have been many. There is nothing to indicate that the figures for the other services are more substantial. It thus appears to be a manageable problem within the procedural restrictions found necessary by this opinion. 82 A further argument is made that a decision adverse to the Government would mean that only a foreign trial could be had. Even assuming that the NATO Status of Forces Agreement, 4 U.S. Treaties and Other International Agreements 1792, T.I.A.S. No. 2846, covering countries where a large part of our armed forces are stationed, gives jurisdiction to the United States only through its military authorities, this Court cannot speculate that any given nation would be unwilling to grant or continue such extraterritorial jurisdiction over civilian dependents in capital cases if they were to be tried by some other manner than court-martial. And, even if such were the case, these civilian dependents would then merely be in the same position as are so many federal employees and their dependents and other United States citizens who are subject to the laws of foreign nations when residing there.4 See also the NATO Status of Forces Agreement, supra, Art. VII, §§ 2, 3. 83 The Government makes the final argument that these civilian dependents are part of the United States military contingent abroad in the eyes of the foreign nations concerned and that their conduct may have a profound effect on our relations with these countries, with a consequent effect on the military establishment there. But the argument that military court-martials in capital cases are necessitated by this factor assumes either that a military court-martial constitutes a stronger deterrent to this sort of conduct or that, in the absence of such a trial, no punishment would be meted out and our foreign policy thereby injured. The reasons why these considerations carry no conviction have already been indicated. 84 I therefore conclude that, in capital cases, the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by Article I, considered in connection with the specific protections of Article III and the Fifth and Sixth Amendments. 85 Since the conclusion thus reached differs from what the Court decided last Term, a decent respect for the judicial process calls for re-examination of the two grounds that then prevailed. The Court sustained its action on the authority of the cases dealing with the power of Congress to 'make all needful Rules and Regulations' for the Territories, reinforced by In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581, in which this Court, in 1891, sustained the criminal jurisdiction of a consular court in Japan.5 These authorities grew out of, and related to, specific situations very different from those now here. They do not control or even embarrass the problem before us. 86 Legal doctrines are not self-generated abstract categories. They do not fall from the sky; nor are they pulled out of it. They have a specific jurisdical origin and etiology. They derive meaning and content from the circumstances that gave rise to them and from the purposes they were designed to serve. To these they are bound as is a live tree to its roots. Doctrines like those expressed by the Ross and the series of cases beginning with American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242, must be placed in their historical setting. They cannot be wrenched from it and mechanically transplanted into an alien, unrelated context without suffering mutilation or distortion. 'If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference. We really are concerned about precedents chiefly when their facts differ somewhat from the facts in the case at bar. Then there is a gulf or hiatus that has to be bridged by a concern for principle and a concern for practical results and practical wisdom.' Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation, 36. This attitude toward precedent underlies the whole system of our case law. It was thus summarized by Mr. Justice Brandeis: '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.' Jaybird Mining Co. v. Weir, 271 U.S. 609, 619, 46 S.Ct. 592, 595, 70 L.Ed. 1112 (dissenting). Especially is this attitude to be observed in constitutional controversies. 87 The territorial cases relied on by the Court last Term held that certain specific constitutional restrictions on the Government did not automatically apply in the acquired territories of Florida, Hawaii, the Philippines, or Puerto Rico. In these cases, the Court drew its decisions from the power of Congress to 'make all needful Rules and Regulations respecting the Territory * * * belonging to the United States,' for which provision is made in Art. IV, § 3. The United States from time to time acquired lands in which many of our laws and customs found an uncongenial soil because they ill accorded with the history and habits of their people. Mindful of all relevant provisions of the Constitution and not allowing one to frustrate another—which is the guiding thought of this opinion—the Court found it necessary to read Art. IV, § 3 together with the Fifth and Sixth Amendments and Article III in the light of those circumstances. The question arose most frequently with respect to the establishment of trial by jury in possessions in which such a system was wholly without antecedents. The Court consistently held with respect to such 'Territory' that congressional power under Art. IV, s 3 was not restricted by the requirement of Art. III, § 2, cl. 3 and the Sixth Amendment of providing trial by jury. 88 'If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the United States extends, or if Congress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that, no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to statehood, if this doctrine is sound, it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice. Again, if the United States shall acquire by treaty the cession of territory having an established system of jurisprudence, where jury trials are unknown, but a method of fair and orderly trial prevails under an acceptable and long-established code, the preference of the people must be disregarded, their established customs ignored and they themselves coerced to accept, in advance of incorporation into the United States, a system of trial unknown to them and unsuited to their needs. We do not think it was intended, in giving power to Congress to make regulations for the territories, to hamper its exercise with this condition.' Dorr v. United States, 195 U.S. 138, 148, 24 S.Ct. 808, 812, 49 L.Ed. 128.6 89 The 'fundamental right' test is the one which the Court has consistently enunciated in the long series of cases—e.g., American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242; De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041; Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128; Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627—dealing with claims of constitutional restrictions on the power of Congress to 'make all needful Rules and Regulations' for governing the unincorporated territories. The process of decision appropriate to the problem led to a detailed examination of the relation of the specific 'Territory' to the United States. This examination, in its similarity to analysis in terms of 'due process,' is essentially the same as that to be made in the present cases in weighing congressional power to make 'Rules for the Government and Regulation of the land and naval Forces' against the safeguards of Article III and the Fifth and Sixth Amendments. 90 The results in the cases that arose by reason of the acquisition of exotic 'Territory' do not control the present cases, for the territorial cases rest specifically on Art. IV, § 3, which is a grant of power to Congress to deal with 'Territory' and other Government property. Of course the power sought to be exercised in Great Britain and Japan does not relate to 'Territory.'7 The Court's opinions in the territorial cases did not lay down a broad principle that the protective provisions of the Constitution do not apply outside the continental limits of the United States. This Court considered the particular situation in each newly acquired territory to determine whether the grant to Congress of power to govern 'Territory' was restricted by a specific provision of the Constitution. The territorial cases, in the emphasis put by them on the necessity for considering the specific circumstances of each particular case, are thus relevant in that they provide an illustrative method for harmonizing constitutional provisions which appear, separately considered, to be conflicting. 91 The Court last Term relied on a second source of authority, the consular court case, In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581. Pursuant to a treaty with Japan, Ross, a British subject but a member of the crew of a United States ship, was tried and convicted in a consular court in Yokohama for murder of a fellow seaman while the ship was in Yokohama harbor. His application for a writ of habeas corpus to a United States Circuit Court was denied, 44 F. 185, and on appeal here, the judgment was affirmed. This Court set forth the ground of the Circuit Court, 'the long and uniform acquiescence by the executive, administrative and legislative departments of the government in the validity of the legislation,' 140 U.S. at page 461, 11 S.Ct. at page 899, and then stated: 92 'The circuit court might have found an additional ground for not calling in question the legislation of Congress, in the uniform practice of civilized governments for centuries to provide consular tribunals in other than Christian countries * * * for the trial of their own subjects or citizens for offenses committed in those countries, as well as for the settlement of civil disputes between them; and in the uniform recognition, down to the time of the formation of our government, of the fact that the establishment of such tribunals was among the most important subjects for treaty stipulations. * * * 93 'The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out * * *. 94 '* * * By the constitution a government is ordained and established 'for the United States of America,' and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad. * * * The constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States * * *.' 140 U.S. at pages 462 464, 11 S.Ct. at pages 899—900. 95 One observation should be made at the outset about the grounds for decision in Ross. Insofar as the opinion expressed a view that the Constitution is not operative outside the United States—and apparently Mr. Justice Field meant by 'United States' all lands over which the United States flag flew, see John W. Burgess, How May the United States Govern Its Extra-Continental Territory?, 14 Pol.Sci.Q. 1 (1899)—it expressed a notion that has long since evaporated. Governmental action abroad is performed under both the authority and the restrictions of the Constitution for example, proceedings before American military tribunals, whether in Great Britain or in the United States, are subject to the applicable restrictions of the Constitution. See opinions in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508. 96 The significance of the Ross case and its relevance to the present cases cannot be assessed unless due regard is accorded the historical context in which that case was decided. Ross is not rooted in any abstract principle or comprehensive theory touching constitutional power or its restrictions. It was decided with reference to a very particular, practical problem with a long history. To be mindful of this does not attribute to Mr. Justice Field's opinion some unavowed historical assumption. On behalf of the whole Court, he spelled out the considerations that controlled it: 97 'The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. * * * In other than Christian countries they were, by treaty stipulations, usually clothed with authority to hear complaints against their countrymen and to sit in judgment upon them when charged with public offenses. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hospitality of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offense, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people.' 140 U.S. at page 462—463, 11 S.Ct. at page 899. 98 'It is true that the occasion for consular tribunals in Japan may hereafter be less than at present, as every year that country progresses in civilization and in the assimilation of its system of judicial procedure to that of Christian countries, as well as in the improvement of its penal statutes; but the system of consular tribunals * * * is of the highest importance, and their establishment in other than Christian countries, where our people may desire to go in pursuit of commerce, will often be essential for the protection of their persons and property.' Id., 140 U.S. at page 480, 11 S.Ct. at page 905.8 99 It is important to have a lively sense of this background before attempting to draw on the Ross case. Historians have traced grants of extraterritorial rights as far back as the permission given by Egypt in the 12th or 13th century B.C. to the merchants of Tyre to establish factories on the Nile and to live under their own law and practice their own religion. Numerous other instances of persons living under their own law in foreign lands existed in the later pre-Christian era and during the Roman Empire and the so-called Dark and Middle Ages—Greeks in Egypt, all sorts of foreigners in Rome, inhabitants of Christian cities and states in the Byzantine Empire, the Latin kingdoms of the Levant, and other Christian cities and states, Mohammedans in the Byzantine Empire and China, and many others lived in foreign lands under their own law. While the origins of this extraterritorial jurisdiction may have differed in each country, the notion that law was for the benefit of the citizens of a country and its advantages not for foreigners appears to have been an important factor. Thus, there existed a long-established custom of extraterritorial jurisdiction at the beginning of the 15th century when the complete conquest of the Byzantine Empire by the Turks and the establishment of the Ottoman Empire substantially altered political relations between Christian Europe and the Near East. But commercial relations continued, and in 1535 Francis I of France negotiated a treaty with Suleiman I of Turkey that provided for numerous extraterritorial rights, including criminal and civil jurisdiction over all disputes among French subjects. 1 Ernest Charrie re, Negociations de la France dans le Levant 283. Other nations and eventually the United States in 1830, 8 Stat. 408, later negotiated similar treaties with the Turks. (For a more complete history of the development of extraterritorial rights and consular jurisdiction see 1 Calvo, Le Droit International The orique et Pratique (5th ed., Rousseau, 1896), 2—18, 2 id., 9—12; Hinckley, American consular jurisdiction in the Orient, 1—9; 1 Miltitz, Manuel des Consuls passim; Ravndal, The Origin of the Capitulations and of the Consular Institution, S.Doc.No. 34, 67th Cong., 1st Sess. 5—45, 56—96; Shih Shun Liu, Extraterritoriality, 23—66, 118 Studies in History, Economics and Public Law, Columbia University (1925); Twiss, The Law of Nations (1884 rev. ed.), 443 457.) The emergence of the nation-state in Europe and the growth of the doctrine of absolute territorial sovereignty changed the nature of extraterritorial rights. No longer were strangers to be denied the advantages of local law. Indeed, territorial sovereignty meant the exercise of sovereignty over all residents within the borders of the state, and the system of extraterritorial consular jurisdiction tended to die out among Christian nations in the 18th and 19th centuries. But a new justification was found for the continuation of that jurisdiction in those countries whose systems of justice were considered inferior, and it was this strong feeling with respect to Moslem and Far Eastern countries that was reflected, as we have seen, in the Ross opinion. 100 Until 1842, China had asserted control over all foreigners within its territory, Shih Shun Liu, op. cit. supra, 76—89, but, as a result of the Opium War, Great Britain negotiated a treaty with China whereby the obtained consular offices in five open ports and was granted extraterritorial rights over her citizens. On July 3, 1844, Caleb Cushing negotiated a similar treaty on behalf of the United States. 8 Stat. 592. In a letter to Secretary of State Calhoun, he explained: 'I entered China with the formed general conviction that the United States ought not to concede to any foreign state, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States, unless that foreign state be of our own family of nations,—in a word, a Christian state.' Quoted in 7 Op.Atty.Gen. 495, 496—497. Later treaties continued the extraterritorial rights of the United States, and the Treaty of 1903 contained the following article demonstrating the purpose of those rights: 101 'The Government of China having expressed a strong desire to reform its judicial system and to bring it into accord with that of Western nations, the United States agrees to give every assistance to such reform and will also be prepared to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in doing so.' 33 Stat. 2208, 2215. 102 The first treaty with Japan was negotiated by Commodore Perry in 1854. 11 Stat. 597. It opened two ports, but did not provide for any exercise of judicial powers by United States officials. Under the Treaty of 1857, 11 Stat. 723, such power was given, and later treaties, which opened up further Japanese cities for trade and residence by United States citizens, retained these rights. The treaty of 1894, effective on July 17, 1899, however, ended these extraterritorial rights and Japan, even though a 'non-Christian' nation, came to occupy the same status as Christian nations. 29 Stat. 848. The exercise of criminal jurisdiction by consuls over United States citizens was also provided for, at one time or another, in treaties with Borneo, 10 Stat. 909, 910; Siam, 11 Stat. 683, 684; Madagascar, 15 Stat. 491, 492; Samoan Islands, 20 Stat. 704; Korea, 23 Stat. 720, 721; Tonga Islands, 25 Stat. 1440, 1442, and, by virtue of most-favored-nation clauses, in treaties with Tripoli, 8 Stat. 154; Persia, 11 Stat. 709; the Congo, 27 Stat. 926; and Ethiopia, 33 Stat. 2254. The exercise of criminal jurisdiction was also provided for in a treaty with Morocco, 8 Stat. 100, by virtue of a most-favorednation clause and by virtue of a clause granting jurisdiction if 'any * * * citizens of the United States * * * shall have any disputes with each other.' The word 'disputes' has been interpreted by the International Court of Justice to comprehend criminal as well as civil disputes. France v. United States, I. C.J. Reports 1952, pp. 176, 188—189. The treaties with Algiers, 8 Stat. 133, 224, 244; Tunis, 8 Stat. 157; and Muscat, 8 Stat. 458, contained similar 'disputes' clauses.9 103 The judicial power exercised by consuls was defined by statute and was sweeping: 104 'Jurisdiction in both criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.' Rev.Stat. § 4086. 105 The consuls, then, exercised not only executive and judicial power, but legislative power as well. 106 The number of people subject to the jurisdiction of these courts during their most active periods appears to have been fairly small. In the Chronicle & Directory for China, Japan, & the Philippines, for the year 1870, there is a listing of the total number of foreign, not just United States, residents in these three places. The list is 81 pages long, with a total of some 4,500 persons. (Pp. 54—134.) This same publication gives the following information about Japan: 'The number of foreigners settled in Japan is as yet very small. At the end of the year 1862, the foreign community at Kanagawa, the principal of the three ports of Japan open to aliens, consisted of * * * thirty-eight Americans * * * and in the latter part of 1864 the permanent foreign residents at Kanagawa had increased to 300, not counting soldiers, of which number * * * about 80 (were) Americans * * *. At Nagasaki, the second port of Japan thrown open to foreign trade by the government, the number of alien settlers was as follows on the 1st of January, 1866:—* * * American citizens 32 * * *. A third port opened to European and American traders, that of Hakodadi, in the north of Japan, was deserted, after a lengthened trial, by nearly all the foreign merchants settled there * * *.' (Appendix, p. 353.) The Stateman's Yearbook of 1890 shows: China at the end of 1888: 1,020 Americans (p. 411); Japan in 1887: 711 Americans (p. 709); Morocco, 1889 estimate: 'The number of Christians is very small, not exceeding 1,500.' (P. 739.) The Stateman's Yearbook of 1901 shows: China at the end of 1899: 2,335 Americans (p. 484); Japan, December 31, 1898, just before the termination of our extraterritorial rights: 1,165 Americans (p. 809); Morocco: 'The number of Christians does not exceed 6,000; the Christian population of Tangier alone probably amounts to 5,000.' (P. 851.) These figures of course do not include those civilians temporarily in the country coming within consular jurisdiction. 107 The consular court jurisdiction, then, was exercised in countries whose legal systems at the time were considered so inferior that justice could not be obtained in them by our citizens. The existence of these courts was based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in those countries. The Ross case, therefore, arose out of, and rests on, very special, confined circumstances, and cannot be applied automatically to the present situation, involving hundreds of thousands of American citizens in countries with civilized systems of justice. If Congress had established consular courts or some other non-military procedure for trial that did not contain all the protections afforded by Article III and the Fifth and Sixth Amendments for the trial of civilian dependents of military personnel abroad, we would be forced to a detailed analysis of the situation of the civilian dependent population abroad in deciding whether the Ross case should be extended to cover such a case. It is not necessary to do this in the present cases in view of our decision that the form of trial here provided cannot constitutionally be justified. 108 The Government, apparently recognizing the constitutional basis for the decision in Ross, has, on rehearing, sought to show that civilians in general and civilian dependents in particular have been subject to military order and discipline ever since the colonial period. The materials it has submitted seem too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication. What has been urged on us falls far too short of proving a well-established practice—to be deemed to be infused into the Constitution—of court-martial jurisdiction, certainly not in capital cases, over such civilians in time of peace. 109 Mr. Justice HARLAN, concurring in the result. 110 I concur in the result, on the narrow ground that where the offense is capital, Article 2(11)1 cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces over-seas in times of peace. 111 Since I am the only one among today's majority who joined in the Court's opinions of June 11, 1956, which sustained the court-martial jurisdiction in these cases, 351 U.S. 470, 76 S.Ct. 886, 100 L.Ed. 1342; 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352, I think it appropriate to state the reasons which led to my voting, first, to rehear these cases, 352 U.S. 901, 77 S.Ct. 124, 1 L.Ed.2d 92, and, now, to strike down that jurisdiction. I. 112 The petitions for rehearing which were filed last summer afforded an opportunity for a greater degree of reflection upon the difficult issues involved in these cases than, at least for me, was possible in the short interval between the argument and decision of the cases in the closing days of last Term.2 As a result I became satisfied that this court-martial jurisdiction could in any event not be sustained upon the reasoning of our prior opinion. In essence, that reasoning was this: (1) Under In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581, and the Insular Cases,3 the requirement of a trial by an Article III court and the other specific safeguards of Article III and the Fifth and Sixth Amendments are not applicable to the trial of American citizens outside the United States; (2) there is thus no express constitutional prohibition against the use of courtsmartial for such trials abroad; (3) the choice of a court-martial in cases such as these was 'reasonable,' because of these women's connection with the military, and therefore satisfied due process; (4) the court-martial jurisdiction was thus constitutional. I have since concluded that this analysis was not sound, for two reasons: 113 (1) The underlying premise of the prior opinion, it seems to me, is that under the Constitution the mere absence of a prohibition agaisnt an asserted power, plus the abstract reasonableness of its use, is enough to establish the existence of the power. I think this is erroneous. The powers of Congress, unlike those of the English Parliament, are constitutionally circumscribed. Under the Constitution Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers. Hence the constitutionality of the statute here in question must be tested, not by abstract notions of what is reasonable 'in the large,' so to speak, but by whether the statute, as applied in these instances, is a reasonably necessary and proper means of implementing a power granted to Congress by the Constitution. To say that the validity of the statute may be rested upon the inherent 'sovereign powers' of this country in its dealings with foreign nations seems to me to be no more than begging the question. As I now see it, the validity of this court-martial jurisdiction must depend upon whether the statute, as applied to these women, can be justified as an exercise of the power, granted to Congress by Art. I, § 8, cl. 14 of the Constitution, 'To make Rules for the Government and Regulation of the land and naval Forces.' I can find no other constitutional power to which this statute can properly be related. I therefore think that we were wrong last Term in considering that we need not decide the case in terms of the Article I power. In my opinion that question squarely confronts us. 114 (2) I also think that we were mistaken in interpreting Ross and the Insular Cases as standing for the sweeping proposition that the safeguards of Article III and the Fifth and Sixth Amendments automatically have no application to the trial of American citizens outside the United States, no matter what the circumstances. Aside from the questionable wisdom of mortgaging the future by such a broad pronouncement, I am satisfied that our prior holding swept too lightly over the historical context in which this Court upheld the jurisdiction of the old consular and territorial courts in those cases. I shall not repeat what my brother FRANKFURTER has written on this subject, with which I agree. But I do not go as far as my brother BLACK seems to go on this score. His opinion, if I understand it correctly, in effect discards Ross and the Insular Cases as historical anomalies. I believe that those cases, properly understood, still have vitality, and that, for reasons suggested later, which differ from those given in our prior opinions, they have an important bearing on the question now before us. II. 115 I come then to the question whether this court-martial jurisdiction can be justified as an exercise of Congress' Article I power to regulate the armed forces. 116 At the outset, I cannot accept the implication of my brother BLACK'S opinion that this Article I power was intended to be unmodified by the Necessary and Proper Clause of the Constitution,4 and that therefore this power is incapable of expansion under changing circumstances. The historical evidence, in fact, shows quite the opposite. True, the records of the time indicate that the Founders shared a deep fear of an unchecked military branch. But what they feared was a military branch unchecked by the legislature, and susceptible of use by an arbitrary executive power.5 So far as I know, there is no evidence at all that the Founders intended to limit the power of the people, as embodied in the legislature, to make such laws in the regulation of the land and naval forces as are necessary to the proper functioning of those forces. In other words, there is no indication that any special limitation on the power of Congress, as opposed to the power of the executive, was subsumed in the grant of power to govern the land and naval forces. Alexander Hamilton, indeed, stated exactly the opposite:6 117 'The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitations, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. 118 '* * * Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. * * * 119 'Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management. * * * A government, the constitution of which renders it unfit to be entrusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. Wherever these can with propriety be confided, the coincident powers may safely accompany them.' 120 No less an authority than Chief Justice Marshall, in M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, has taught us that the Necessary and Proper Clause is to be read with all the powers of Congress, so that 'where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.' Id., 4 Wheat. at page 423. 121 I think it no answer to say, as my brother BLACK does, that 'having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of (Art. I) Clause 14.' For that simply begs the question as to whether there is such a collision, an issue to which I address myself below. 122 For analytical purposes, I think it useful to break down the issue before us into two questions: 'First, is there a rational connection between the trial of these army wives by court-martial and the power of Congress to make rules for the governance of the land and naval forces; in other words, is there any initial power here at all? Second, if there is such a rational connection, to what extent does this statute, though reasonably calculated to subserve an enumerated power, collide with other express limitations on congressional power; in other words, can this statute, however appropriate to the Article I power looked at in isolation, survive against the requirements of Article III and the Fifth and Sixth Amendments? I recognize that these two questions are ultimately one and the same, since the scope of the Article I power is not separable from the limitations imposed by Article III and the Fifth and Sixth Amendments. Nevertheless I think it will make for clarity of analysis to consider them separately. A. 123 I assume, for the moment, therefore, that we may disregard other limiting provisions of the Constitution, and examine the Article I power in isolation. So viewed, I do not think the courts-martial of these army wives can be said to be an arbitrary extension of congressional power. 124 It is suggested that historically the Article I power was intended to embody a rigid and unchangeable self-limitation, namely, that it could apply only to those in the actual service of the armed forces.7 I cannot agree that this power has any such rigid content. First of all, the historical evidence presented by the Government convinces me that, at the time of the adoption of the Constitution, military jurisdiction was not thought to be rigidly limited to uniformed personnel. The fact is that it was traditional for 'retainers to the camp' to be subjected to military discipline, that civilian dependents encamped with the armies were traditionally regarded as being in that class, and that the concept was not strictly limited to times of war.8 Indeed, the British, who are no less sensitive than we to maintaining the supremacy of civil justice, have recently enacted a law comparable to the statute involved here.9 125 Thinking, as I do, that Article I, still taking it in isolation, must be viewed as supplemented by the Necessary and Proper Clause, I cannot say that the court-martial jurisdiction here involved has no rational connection with the stated power. The Government, it seems to me, has made a strong showing that the court-martial of civilian dependents abroad has a close connection to the proper and effective functioning of our overseas military contingents. There is no need to detail here the various aspects of this connection, which have been well dealt with in the dissenting opinion of my brother CLARK. Suffice it to say that to all intents and purposes these civilian dependents are part of the military community overseas,10 are so regarded by the host country, and must be subjected to the same discipline if the military commander is to have the power to prevent activities which would jeopardize the security and effectiveness of his command.11 The matter has been well summarized by General Palmer, Commander of the Eighth Army, stationed in Japan: 126 'Jurisdiction by courts-martial over all civilians accompanying the Army overseas is essential because of the manner in which U.S. Armed Forces personnel live in their overseas military communities. In this command, almost all personnel serving in or accompanying the U.S. Armed Forces live in or near separate, closely-knit U.S. military communities which are basically under the control, administration and supervision of the local U.S. Commander who is in turn responsive to the normal military chain of command. This responsibility which is vested in the military commander extends to the administration and supervision of the operation and use of all facilities and major activities of the community including the proper control of occupants and users which is inherent in such supervision overseas. In the absence of a supporting judicial system responsive to the same government as the military, such as is the case existing in the United States and overseas possessions, and as the law enforcement requirement stems primarily from the immediate unalterable responsibilities of the overseas commander and his subordinate commanders, it is essential that the commander be vested with the law enforcement authority commensurate with his responsibilities.' 127 It seems to me clear on such a basis that these dependents, when sent overseas by the Government, become pro tanto a part of the military community. I cannot say, therefore, that it is irrational or arbitrary for Congress to subject them to military discipline. I do not deal now, of course, with the problem of alternatives to court-martial jurisdiction; all that needs to be established at this stage is that, viewing Art. I, § 8, cl. 14 in isolation, subjection of civilian dependents overseas to court-martial jurisdiction can in no wise be deemed unrelated to the power of Congress to make all necessary and proper laws to insure the effective governance of our overseas land and naval forces. B. 128 I turn now to the other side of the coin. For no matter how practical and how reasonable this jurisdiction might be, it still cannot be sustained if the Constitution guarantees to these army wives a trial in an Article III court, with indictment by grand jury and jury trial as provided by the Fifth and Sixth Amendments. 129 We return, therefore, to the Ross question: to what extent do these provisions of the Constitution apply outside the United States? 130 As I have already stated, I do not think that it can be said that these safeguards of the Constitution are never operative without the United States, regardless of the particular circumstances. On the other hand, I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution 'does not apply' overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a specific guarantee altogether impracticable and anomalous. To take but one example: Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627, is not good authority for the proposition that jury trials need never be provided for American citizens tried by the United States abroad; but the case is good authority for the proposition that there is no rigid rule that jury trial must always be provided in the trial of an American overseas, if the circumstances are such that trial by jury would be impractical and anomalous. In other words, what Ross and the Insular Cases hold is that the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress' power to provide for the trial of Americans overseas. 131 I think the above thought is crucial in approaching the cases before us. Decision is easy if one adopts the constricting view that these constitutional guarantees as a totality do or do not 'apply' overseas. But, for me, the question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it. The question is one of judgment, not of compulsion. And so I agree with my brother FRANKFURTER that, in view of Ross and the Insular Cases, we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is 'due' a defendant in the particular circumstances of a particular case. 132 On this basis, I cannot agree with the sweeping proposition that a full Article III trial, with indictment and trial by jury, is required in every case for the trial of a civilian dependent of a serviceman overseas. The Government, it seems to me, has made an impressive showing that at least for the run-of-the-mill offenses committed by dependents overseas, such a requirement would be as impractical and anomalous as it would ahve been to require jury trial for Balzac in Porto Rico.12 Again, I need not go into details, beyond stating that except for capital offenses, such as we have here, to which, in my opinion, special considerations apply, I am by no means ready to say that Congress' power to provide for trial by court-martial of civilian dependents overseas is limited by Article III and the Fifth and Sixth Amendments. Where, if at all, the dividing line should be drawn among cases not capital, need not now be decided. We are confronted here with capital offenses alone; and it seems to me particularly unwise now to decide more than we have to. Our far-flung foreign military establishments are a new phenomenon in our national life, and I think it would be unfortunate were we unnecessarily to foreclose, as my four brothers would do, our future consideration of the broad questions involved in maintaining the effectiveness of these national outposts, in the light of continuing experience with these problems. 133 So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge and trier of fact are not responsive to the command of the convening authority. I do not concede that whatever process is 'due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case. The distinction is by no means novel, compare Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, with Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; nor is it negligible, being literally that between life and death. And, under what I deem to be the correct view of Ross and the Insular Cases, it is precisely the kind of distinction which plays a large role in the process of weighing the competing considerations which lead to sound judgment upon the question whether certain safeguards of the Constitution should be given effect in the trial of an American citizen abroad. In fact, the Government itself has conceded that one grave offense, treason, presents a special case: 'The gravity of this offense is such that we can well assume that, whatever difficulties may be involved in trial far from the scene of the offense * * * the trial should be in our courts.' I see no reason for not applying the same principle to any case where a civilian dependent stands trial on pain of life itself. The number of such cases would appear to be so negligible that the practical problems of affording the defendant a civilian trial would not present insuperable problems. 134 On this narrow ground I concur in the result in these cases. 135 Mr. Justice CLARK, with whom Mr. Justice BURTON joins, dissenting. 136 The Court today releases two women from prosecution though the evidence shows that they brutally killed their husbands, both American soldiers, while stationed with them in quarters furnished by our armed forces on its military installations in foreign lands. In turning these women free, it declares unconstitutional an important section of an Act of Congress governing our armed forces. Furthermore, four of my brothers would specifically overrule and two would impair the long-recognized vitality of an old and respected precedent in our law, the case of In re Ross, 1891, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581, cited by this Court with approval in many opinions and as late as 1929 by a unanimous Court1 in Ex parte Bakelite Corp., 279 U.S. 438, 451, 49 S.Ct. 411, 413, 73 L.Ed. 789. And, finally, the Court reverses, sets aside, and overrules two majority opinions and judgments of this Court in these same cases, reported in 351 U.S. at page 470, 76 S.Ct. at page 886, and 351 U.S. at page 487, 76 S.Ct. at page 880, and entered on June 11, 1956, less than 12 months ago. In substitute therefor it enters no opinion whatever for the Court. It is unable to muster a majority. Instead, there are handed down three opinions. But, worst of all, it gives no authoritative guidance as to what, if anything, the Executive or the Congress may do to remedy the distressing situation in which they now find themselves. 137 Mr. Justice BURTON and I remain convinced that the former opinions of the Court are correct and that they set forth valid constitutional doctrine under the long-recognized cases of this Court. The opinions were neither written nor agreed to in haste and they reflect the consensus of the majority reached after thorough discussion at many conferences. In fact, the cases were here longer both before and after argument than many of the cases we decide. We adhere to the views there expressed since we are convinced that through them we were neither 'mortgaging the future,' as is claimed, nor foreclosing the present, as does the judgment today. We do not include a discussion of the theory upon which those former judgments were entered because we are satisfied with its handling in the earlier opinions. See 351 U.S. at page 470, 76 S.Ct. at page 886, and 351 U.S. at page 487, 76 S.Ct. at page 880. I. 138 Before discussing the power of the Congress under Art. I, § 8, cl. 14 of the Constitution it is well to take our bearings. These cases do not involve the jurisdiction of a military court-martial sitting within the territorial limits of the United States. Nor are they concerned with the power of the Government to make treaties or the legal relationship between treaties and the Constitution. Nor are they concerned with the power of Congress to provide for the trial of Americans sojourning, touring, or temporarily residing in foreign nations. Essentially, we are to determine only whether the civilian dependents of American Servicemen may constitutionally be tried by an American military court-martial in a foreign country for an offense committed in that country. Congress has provided in Article 2(11) of the Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. § 552(11), 50 U.S.C.A. § 552(11), that they shall be so tried in those countries with which we have an implementing treaty. The question therefore is whether this enactment is reasonably related to the power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces.' U.S.Const. Art. I, § 8, cl. 14. 139 Historically, the military has always exercised jurisdiction by court-martial over civilians accompanying armies in time of war. Over 40 years ago this jurisdiction was declared by Congress to include 'all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States.'2 Art. of War 2(d), 39 Stat. 651. Article 2(11) of the present Uniform Code of Military Justice was taken without material change from this provision of the Articles of War. At the time of enactment of the earlier provision Congress was plainly concerned with the maintenance of discipline and morale of American expeditionary forces composed of both military and civilian personnel. As pointed out in the Senate Report to the Sixty-fourth Congress at the time Article 2(d) was adopted: 140 'The existing articles are further defective in that they do not permit the disciplining of these three classes of camp followers in time of peace in places to which the civil jurisdiction of the United States does not extend and where it is contrary to international policy to subject such persons to the local jurisdiction, or where, for other reasons, the law of the local jurisdiction is not applicable, thus leaving these classes practically without liability to punishment for their unlawful acts under such circumstances as, for example, * * * where such forces so accompanied are engaged in the nonhostile occupation of foreign territory, as was the case during the intervention of 1906—7 in Cuba.' S.Rep. No. 130, 64th Cong., 1st Sess. 37—38. 141 Since that time the power of Congress to make civilians amenable to military jurisdiction under such circumstances has been considered and sustained by this Court and other federal courts in a number of cases. In Madsen v. Kinsella, 1952, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988, we sustained the jurisdiction of a military commission to try a civilian wife for the murder of her husband in Germany in 1949. Unlike Mrs. Smith, the petitioner in Madsen contended that a military court-martial had exclusive jurisdiction to try her pursuant to Article of War 2(d), the predecessor of Article 2(11). In upholding the constitutionality of trial by a military commission, we pointed out that its jurisdiction was concurrent with that of the military court-martial, 343 U.S. at page 345, 72 S.Ct. at page 701, and that the jurisdiction of both stemmed directly from Article 2(d), 343 U.S. at page 361, 72 S.Ct. at page 710. 142 It is contended that no holding on the validity of court-martial jurisdiction over civilians was necessary to our decision in Madsen and that the case itself is distinguishable because occupied territory was involved and hence the action of Congress could be supported under the War Power. It is true that our reference to concurrent court-martial jurisdiction—when both petitioner and the Government agreed to it—was a concomitant to that decision, but our recognition of the power of Congress to authorize military trial of civilians under the circumstances provided for in Article 2(d) was essential to the judgment. 343 U.S. at page 361, 72 S.Ct. at page 710. Madsen was factually very similar to the present case, and in terms of the relevant considerations involved it is practically indistinguishable. In Madsen, as here, the crime involved was murder of a serviceman by a dependent wife living as a civilian with our armed forces in a foreign country. In both cases jurisdiction was exercised by a military tribunal pursuant to an Act of Congress authorizing such jurisdiction over all persons accompanying the armed forces outside the territorial jurisdiction of the United States. The distinction that in one case the trial was by court-martial and in the other by a military commission is insubstantial. The contention that jurisdiction could be sustained in Madsen under the War Power of Congress but that this power is unavailable to authorize jurisdiction in Smith is likewise without merit.3 Aside from the fact that this Court has never restricted so narrowly the action that Congress might take under the War Power, see Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688, and Silesian-American Corp. v. Clark, 1947, 332 U.S. 469, 68 S.Ct. 179, 92 L.Ed. 81, there is as much, if not more, justification for employment of the War Power in Japan in 1952 as in Germany in 1949. At the time Mrs. Smith's crime was committed, Japan was the logistics and aviation base for actual hostilities then being waged in Korea, just across the Sea of Japan. And in 1949, Germany, after four years of peaceful and uneventful occupation, could hardly be considered an area where Congress could act only under its War Power. But the salient feature common to both countries was that the problems of maintaining control, morale, and discipline of our military contingents located there were substantially identical. These problems were not appreciably affected by the fact that one instance occurred during an occupation and the other shortly after a peace treaty had been signed. 143 Earlier, in Duncan v. Kahanamoku, 1946, 327 U.S. 304, 313, 66 S.Ct. 606, 610, 90 L.Ed. 688, this Court had recognized the 'well-established power of the military' to exercise jurisdiction over persons directly connected with the armed forces, and this power has been repeatedly recognized in cases decided in the lower federal courts. See United States ex rel. Mobley v. Handy, 5 Cir., 1949, 176 F.2d 491; Perlstein v. United States, 3 Cir., 1945, 151 F.2d 167; Grewe v. France, D.C.1948, 75 F.Supp. 433; In re Berue, D.C.1944, 54 F.Supp. 252; Hines v. Mikell, 4 Cir., 1919, 259 F. 28; Ex parte Jochen, D.C.1919, 257 F. 200; Ex parte Falls, D.C.1918, 251 F. 415; Ex parte Gerlach, D.C.1917, 247 F. 616. See also United States v. Burney, 6 U.S.C.M.A. 776, 21 C.M.R. 98 (1956). 144 In considering whether Article 2(11) is reasonably necessary to the power of Congress to provide for the government of the land and naval forces we note, as relevant, certain other considerations. As a nation we have found it necessary to the preservation of our security in the present day to maintain American forces in 63 foreign countries throughout the world. In recent years the services have recognized that the presence of wives and families at many of these foreign bases is essential to the maintenance of the morale of our forces. This policy has received legislative approval and the tremendous expense to the Government involved in the transportation and accommodation of dependents overseas is considered money well spent. It is not for us to question this joint executive and legislative determination. The result, however, has been the creation of American communities of mixed civilian and military population on military bases throughout the world. These civilians are dependent on the military for food, housing, medical facilities, transportation, and protection. Often they live in daily association in closely knit groups nearly isolated from their surroundings. It cannot be denied that disciplinary problems have been multiplied and complicated by this influx of civilians onto military bases, and Congress has provided that military personnel and civilians alike shall be governed by the same law administered by the same courts. 145 Concerning the effect of civilian activities under such circumstances on the discipline and morale of the armed services, we have found no better statement than that of Judge Latimer of the United States Court of Military Appeals where the constitutionality of Article 2(11) was upheld in the recent case of United States v. Burney, 6 U.S.C.M.A. 776, 21 C.M.R. 98 (1956). Referring to the combat readiness of an overseas command, Judge Latimer stated: 146 '(I)t is readily ascertainable that black market transactions, trafficking in habit-forming drugs, unlawful currency circulation, promotion of illicit sex relations, and a myriad of other crimes which may be perpetrated by persons closely connected with one of the services, could have a direct and forceful impact on the efficiency and discipline of the command. One need only view the volume of business transacted by military courts involving, for instance, the sale and use of narcotics in the Far East, to be shocked into a realization of the truth of the previous statement. If the Services have no power within their own system to punish that type of offender, then indeed overseas crime between citilians and military personnel will flourish and that amongst civilians will thrive unabated and untouched. A few civilians plying an unlawful trade in military communities can, without fail, impair the discipline and combat readiness of a unit. At best, the detection and prosecution of crime is a difficult and time-consuming business, and we have grave doubts that, in faraway lands, the foreign governments will help the cause of a military commander by investigating the seller or user of habit-forming drugs, or assist him in deterring Americans civilians from stealing from their compatriots, or their Government, or from misusing its property.' 6 U.S.C.M.A., at 800, 21 C.M.R., at 122. 147 In addition, it is reasonable to provide that the military commander who bears full responsibility for the care and safety of those civilians attached to his command should also have authority to regulate their conduct. Moreover, all members of an overseas contingent should receive equal treatment before the law. In their actual day-to-day living they are a part of the same unique communities, and the same legal considerations should apply to all. There is no reason for according to one class a different treatment than is accorded to another. The effect of such a double standard on discipline, efficiency, and morale can easily be seen. 148 In United States ex rel. Toth v. Quarles, 1955, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, the Court recognized this necessity. There Art. I, § 8, cl. 14 was 'given its natural meaning' and 'would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.' (Emphasis added.) Id., 350 U.S. at page 15, 76 S.Ct. at page 4. The Court went on to say: 149 'It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving ex-servicemen the benefit of a civilian court trial when they are actually civilians. * * * Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.' Id., 350 U.S. at pages 22—23, 76 S.Ct. at page 8. 150 These women were as much 'a part' of the military installation as were their husbands. Upon attack by an enemy they would be so treated; all foreign governments so recognized them at all times; and, in addition, it has been clearly shown, unlike in Toth, that 'the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed' by excluding them from the provisions of the Uniform Code. Every single one of our major military commanders over the world has filed a statement to this effect in this case. We should not substitute our views as to this necessity for the views of those charged with the responsibility of the protection of such far-flung outposts of the free world. The former minority, however, repudiates this underlying basis of the opinion in Toth, namely, that where disciplinary measures are necessary to the regulation of the arnmed forces the Congress does have constitutional power to make rules. In my opinion the rules it has made are necessary to the regulation of the land and naval forces and the means chosen, the Uniform Code, is in no way an unreasonable one. 151 There remains the further consideration of whether this provision is "the least possible power adequate to the end proposed." United States ex rel. Toth v. Quarles, supra, 350 U.S. at page 23, 76 S.Ct. at page 8. This is the strict standard by which we determine the scope of constitutional power of Congress to authorize trial by court-martial. A study of the problem clearly indicates that the use of the Uniform Code of Military Justice was really the only practicable alternative available. 152 While it was conceded before this Court that Congress could have established a system of territorial or consular courts to try offenses committed by civilian dependents abroad, the action of four of my brothers who would overrule and two who would impair the vitality of In re Ross, supra, places this alternative in jeopardy. Territorial courts have been used by our Government for over a century and have always received the sanction of this Court until today. However, in the light of all of the opinions of the former minority here, the use of a system of territorial or consular courts is now out of the question. Moreover, Congress probably had concluded to abandon this system before the Uniform Code was adopted, since a short time thereafter the jurisdiction of the last of our territorial or consular courts was terminated. 70 Stat. 773. 153 Another alternative the Congress might have adopted was the establishment of federal courts pursuant to Article III of the Constitution. These constitutional courts would have to sit in each of the 63 foreign countries where American troops are stationed at the present time. Aside from the fact that the Constitution has never been interpreted to compel such an undertaking, it would seem obvious that it would be manifestly impossible. The problem of the use of juries in common-law countries alone suffices to illustrate this. Obviously the jury could not be limited to those who live within the military installation. To permit this would be a sham. A jury made up of military personnel would be tantamount to the personnel of a court-martial to which the former minority objects. A jury composed of civilians residing on the military installation is subject to the same criticism. If the jury is selected from among the local populace, how would the foreign citizens be forced to attend the trial? And perchance if they did attend, language barriers in non-English-speaking countries would be nigh insurmountable. Personally, I would much prefer, as did Mrs. Madsen, that my case be tried before a military court-martial of my own countrymen. Moreover, we must remember that the agreement of the foreign country must be obtained before any American court could sit in its territory. In noncommon-law countries, if such courts were permitted to sit—a doubtful possibility—our jury system would be tossed about like a cork on unsettled waters. 154 Likewise, trial of offenders by an Article III court in this country, perhaps workable in some cases, is equally impracticable as a general solution to the problem. The hundreds of petty cases involving black-market operations, narcotics, immorality, and the like, could hardly be brought here for prosecution even if the Congress and the foreign nation involved authorized such a procedure. Aside from the tremendous waste of the time of military personnel and the resultant disruptions, as well as the large expenditure of money necessary to bring witnesses and evidence to the United States, the deterrent effect of the prosecution would be nil because of the delay and distance at which it would be held. Furthermore, compulsory process is an essential to any system of justice. The attendance of foreign nationals as witnesses at a judicial proceeding in this country could rest only on a voluntary basis and depositions could not be required. As a matter of international law such attendance could never be compelled and the court in such a proceeding would be powerless to control this vital element in its procedure. In short, this solution could only result in the practical abdication of American judicial authority over most of the offenses committed by American civilians in foreign countries. 155 The only alternative remaining—probably the alternative that the Congress will now be forced to choose—is that Americans committing offenses on foreign soil be tried by the courts of the country in which the offense is committed. Foreign courts have exclusive jurisdiction under the principles of international law and many nations enjoy concurrent jurisdiction with the American military authorities pursuant to Article VII of the Agreement Regarding Status of Forces of Parties to the North Atlantic Treaty.4 Where the American military authorities do have jurisdiction, it is only by mutual agreement with the foreign sovereign concerned and pursuant to carefully drawn agreements conditioned on trial by the American military authorities. Typical of these agreements was the one concluded between the United States and Japan on February 28, 1952, and in force at the time one of these cases arose. Under this and like agreements, the jurisdiction so ceded to the United States military courts will surely be withdrawn if the services are impotent to exercise it. It is clear that trial before an American court-martial in which the fundamentals of due process are observed is preferable to leaving American servicemen and their dependents to the widely varying standards of justice in foreign courts throughout the world. Under these circumstances it is untenable to say that Congress could have exercised a lesser power adequate to the end proposed. II. 156 My brothers who are concurring in the result seem to find some comfort in that for the present they void an Act of Congress only as to capital cases. I find no distinction in the Constitution between capital and other cases. In fact, at argument all parties admitted there could be no valid difference. My Brothers are careful not to say that they would uphold the Act as to offenses less than capital. They unfortunately leave that decision for another day. This is disastrous to proper judicial administration as well as to law enforcement. The Congress and the Executive Department are entitled to know whether a court-martial may be constitutionally utilized to try an offense less than capital. If so, then all that is necessary is to eliminate capital punishment insofar as Article 2(11) offenses are concerned. I deeply regret that the former minority does not, now that it has become the majority, perform the high duty that circumstance requires. Both the Congress and the Executive are left only to conjecture as to whether they should 'sack' Article 2(11) and require all dependents to return and remain within this country or simply eliminate capital punishment from all offenses under the Article. The morale of our troops may prevent the former and certainly the abstention of this Court prohibits the latter. All that remains is for the dependents of our soldiers to be prosecuted in foreign courts, an unhappy prospect not only for them but for all of us. 1 50 U.S.C. § 712, 50 U.S.C.A. § 712. 2 50 U.S.C. § 552(11), 50 U.S.C.A. § 552(11). 3 Martin v. Hunter's Lessee, 1 Wheat. 304, 326, 4 L.Ed. 97; Ex parte Milligan, 4 Wall. 2, 119, 136—137, 18 L.Ed. 281; Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 477, 59 S.Ct. 595, 596, 83 L.Ed. 927; Ex parte Quirin, 317 U.S. 1, 25, 63 S.Ct. 1, 9, 87 L.Ed. 3. 4 Marbury v. Madison, 1 Cranch 137, 176—180, 2 L.Ed. 60; Territory of Hawaii v. Mankichi, 190 U.S. 197, 236—239, 23 S.Ct. 787, 789—799, 47 L.Ed. 1016 (Harlan, J., dissenting). 5 2 Clode, Military Forces of the Crown, 175. 6 Cf. Barron v. Baltimore, 7 Pet. 243, 250, 8 L.Ed. 672. 7 This Court has constantly reiterated that the language of the Constitution where clear and unambiguous must be given its plain evident meaning. See, e.g., Ogden v. Saunders, 12 Wheat. 213, 302—303, 6 L.Ed. 606; Lake County v. Rollins, 130 U.S. 662, 670—671, 9 S.Ct. 651, 652—653, 32 L.Ed. 1060. In United States v. Sprague, 282 U.S. 716, 731—732, 51 S.Ct. 220, 222, 75 L.Ed. 640, the Court said: 'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition. * * * The fact that an instrument drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such limiting phrase * * * is persuasive evidence that no qualification was intended.' 8 According to Madison, the section was intended 'to provide for trial by jury of offences committed out of any State.' 3 Madison Papers (Gilpin ed. 1841) 1441. 9 1 Stat. 113—114. With slight modifications this provision is now 18 U.S.C. § 3238, 18 U.S.C.A. § 3238. 10 See, e.g., Balzac v. People of Porto Rico, 258 U.S. 298, 312—313, 42 S.Ct. 343, 348—349, 66 L.Ed. 627 (Due Process of Law); Downes v. Bidwell, 182 U.S. 244, 277, 21 S.Ct. 770, 783, 45 L.Ed. 1088 (First Amendment, Prohibition against Ex Post Facto Laws or Bills of Attainder, art. 1, § 9); Mitchell v. Harmony, 13 How. 115, 134, 14 L.Ed. 75 (Just Compensation Clause of the Fifth Amendment); Best v. United States, 1 Cir., 184 F.2d 131, 138 (Fourth Amendment); Eisentrager v. Forrestal, 84 U.S.App.D.C. 396, 174 F.2d 961 (Right to Habeas Corpus), reversed on other grounds sub nom. Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255; Turney v. United States, 115 F.Supp. 457, 464, 126 Ct.Cl. 202 (Just Compensation Clause of the Fifth Amendment). 11 See Dorr v. United States, 195 U.S. 138, 144—148, 24 S.Ct. 808, 810—812, 49 L.Ed. 128. 12 The right to trial by jury in a criminal case is twice guaranteed by the Constitution. It is common knowledge that the fear that jury trial might be abolished was one of the principal sources of objection to the Federal Constitution and was an important reason for the adoption of the Bill of Rights. The Sixth Amendment reaffirmed the right to trial by jury in criminal cases and the Seventh Amendment insured such trial in civil controversies. See 2 Elliot's Debates (2d ed. 1836) passim; 3 id. passim. 13 3 Blackstone's Commentaries 379. As to the importance of trial by jury, see also Ex parte Milligan, 4 Wall. 2, 122—123, 18 L.Ed. 281; Thompson v. State of Utah, 170 U.S. 343, 349—350, 18 S.Ct. 620, 622—623, 42 L.Ed. 1061; United States ex rel. Toth v. Quarles, 350 U.S. 11, 16, 18—19, 76 S.Ct. 1, 4—6, 100 L.Ed. 8; 2 Kent's Commentaries, 3—10; The Federalist, No. 83 (Hamilton); 2 Wilson's Works (Andrews ed. 1896) 222. De Tocqueville observed: 'The institution of the jury * * * places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. * * * He who punishes the criminal is * * * the real master of society. * * * All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury.' 1 De Tocqueville, Democracy in America (Reeve trans. 1948 ed.), 282 283. 14 Rev.Stat. §§ 4083—4130 (1878). 15 Id., § 4086. 16 Secretary of State Blaine referred to these consular powers as 'greater than ever the Roman law conferred on the pro-consuls of the empire, to an officer who, under the terms of the commitment of this astounding trust, is practically irresponsible.' S.Exec.Doc. No. 21, 47th Cong., 1st Sess. 4. Seward, at a time when he was Consul-General, declared: '(t)here is no reason, excepting the absence of appropriate legislations, why American citizens in China, charged with grave offenses, should not have the privilege of a trial by jury as elsewhere throughout the world where the institution of civilization prevails.' Id., at 7. 17 In re Ross, supra, 140 U.S. at page 464, 11 S.Ct. at page 900. 18 Ibid. 19 See cases cited in note 10, supra. 20 See, e.g., Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249; United States v. Flores, 289 U.S. 137, 53 S.Ct. 580, 77 L.Ed. 1086; United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149; Chandler v. United States, 1 Cir., 171 F.2d 921, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081. 21 70 Stat. 773, 22 U.S.C.A. § 141 note. 22 Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016; Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128; Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. 23 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; * * *.' 24 Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088, the first of the 'Insular Cases' was decided over vigorous dissents from Mr. Chief Justice Fuller, joined by Justices Harlan, Brewer, and Peckham, and from Mr. Justice Harlan separately. The four dissenters took the position that all the restraints of the Bill of Rights and of other parts of the Constitution were applicable to the United States Government wherever it acted. This was the position which the Court had consistently followed prior to the 'Insular Cases.' See, e.g., Thompson v. State of Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223. 25 As to the great significance of the right to trial by jury see text at note 13, supra, and the authorities referred to in that note. 26 Later the Court held that once a territory became 'incorporated' all of the constitutional protections became 'applicable.' See, e.g., Rassmussen v. United States, 197 U.S. 516, 520—521, 25 S.Ct. 514, 515—516, 49 L.Ed. 862. 27 It may be said that it is difficult to amend the Constitution. To some extent that is true. Obviously the Founders wanted to guard against hasty and illconsidered changes in the basic charter of government. But if the necessity for alteration becomes pressing, or if the public demand becomes strong enough, the Constitution can and has been promptly amended. The Eleventh Amendment was ratified within less than two years after the decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440. And more recently the Twenty-First Amendment, repealing nationwide prohibition, became part of the Constitution within ten months after congressional action. On the average it has taken the States less than two years to ratify each of the twenty-two amendments which have been made to the Constitution. 28 In 1881, Senator Carpenter, while attacking the consular courts 'as a disgrace to this nation' because they deprived citizens of the 'fundamental and essential' rights to indictment and trial by jury, declared: 'If we are too mean as a nation to pay the expense of observing the Constitution in China, then let us give up our concessions in China and come back to as much of the Constitution as we can afford to carry out.' 11 Cong.Rec. 410. 29 Executive Agreement of July 27, 1942, 57 Stat. 1193. The arrangement now in effect in Great Britain and the other North Atlantic Treaty Organization nations, as well as in Japan, is the NATO Status of Forces Agreement, 4 U.S. Treaties and Other International Agreements 1792, T.I.A.S. 2846, which by its terms gives the foreign nation primary jurisdiction to try dependents accompanying American servicemen for offenses which are violations of the law of both the foreign nation and the United States. Art. VII, §§ 1(b), 3(a). The foreign nation has exclusive criminal jurisdiction over dependents for offenses which only violate its laws. Art. VII, § 2(b). However, the Agreement contains provisions which require that the foreign nations provide procedural safeguards for our nationals tried under the terms of the Agreement in their courts, Art. VII, § 9. Generally, see Note, 70 Harv.L.Rev. 1043. Apart from those persons subject to the Status of Forces and comparable agreements and certain other restricted classes of Americans, a foreign nation has plenary criminal jurisdiction, of course, over all Americans—tourists, residents, businessmen, government employees and so forth—who commit offenses against its laws within its territory. 30 See Administrative Agreement, 3 U.S. Treaties and Other International Agreements 3341, T.I.A.S. 2492. 31 See the references collected in 4 Farrand, Records of the Federal Convention (rev. ed. 1937), 123. 32 See the discussion in the Virginia Convention on the adoption of the Constitution, 3 Elliot's Debates (1836 ed.) 500 519. 33 E.g., United States v. State of Minnesota, 270 U.S. 181, 207—208, 46 S.Ct. 298, 305—306, 70 L.Ed. 539; Holden v. Joy, 17 Wall. 211, 242—243, 21 L.Ed. 523; The Cherokee Tobacco, 11 Wall. 616, 620—621, 20 L.Ed. 227; Doe ex dem. Clark v. Braden, 16 How. 635, 657, 14 L.Ed. 1090. Cf. Marbury v. Madison, 1 Cranch 137, 176 180, 2 L.Ed. 60. We recognize that executive agreements are involved here but it cannot be contended that such an agreement rises to greater stature than a treaty. 34 In Whitney v. Robertson, 124 U.S. 190, at page 194, 8 S.Ct. 456 at page 458, 31 L.Ed. 386 the Court stated: 'By the constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. * * * (I)f the two are inconsistent, the one last in date will control the other * * *.' Head Money Cases, Edye v. Robertson, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798; Botiller v. Dominguez, 130 U.S. 238, 9 S.Ct. 525, 32 L.Ed. 926; Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068, See Clark v. Allen, 331 U.S. 503, 509—510, 67 S.Ct. 1431, 1435—1436, 91 L.Ed. 1633; Moser v. United States, 341 U.S. 41, 45, 71 S.Ct. 553, 555, 95 L.Ed. 729. 35 See United States v. Darby, 312 U.S. 100, 124—125, 61 S.Ct. 451, 462—463, 85 L.Ed. 609, and the authorities collected there. 36 Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538. 37 See note 7, supra. 38 Colonel Winthrop, who has been called the 'Blackstone of Military Law,' made the following statement in this treatise: 'Can (the power of Congress to raise, support, and govern the military forces) be held to include the raising or constituting, and the governing nolens volens, in time of peace, as a part of the army, of a class of persons who are under no contract for military service, * * * who render no military service, perform no military duty, receive no military pay, but are and remain civilians in every sense and for every capacity. * * * In the opinion of the author, such a range of control is certainly beyond the power of Congress under (the Constitution. The FifthAmendment) clearly distinguishes the military from the civil class as separate communities. It recognizes no third class which is part civil and part military * * * and it cannot be perceived how Congress can create such a class, without a disregard of the letter and spirit of the organic law.' Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 106. 39 12 Stat. 696. For debates showing sharp attacks on the constitutionality of this legislation see Cong.Globe, 37th Cong., 3d Sess. 952—958. The legislation was subsequently repealed. Rev.Stat. (1878 ed.) §§ 1342, 5596. 40 As the Government points out in its brief on rehearing: 'The clause granting Congress power to make rules for the government and regulation of the land and naval forces was included in the final draft of the Constitution without either discussion or debate. * * * Neither the original draft presented to the convention nor the draft submitted by the 'Committee of Detail' contained the clause. 5 Elliot's Debates 130, 379.' 41 Most of the benefits received by dependents accompanying servicemen overseas are also enjoyed by those accompanying servicemen in this country—for example, quarters, commissary privileges, medical benefits, free transportation of household effects and so forth. 42 In the Mutiny Acts, first passed in 1688, 1 Will. & Mar., c. 5, the English Parliament reluctantly departed from the Common Law, see note 44, infra, and granted the Army authority in time of peace to try soldiers—initially for only the offenses of mutiny and desertion in time of civil insurrection. In the beginning this limited court-martial jurisdiction was granted only for periods of four months; later it was granted from year to year. See 1 Clode, Military Forces of the Crown, 19—21, 55—61, 76—78, 142—166, 499 501, 519—520. 519—520. Initially the Mutiny Acts did not apply to the American Colonies. In 1713, Parliament, for the first time, authorized the trial of soldiers by courts-maritial during peacetime in the overseas dominions. 12 Anne, c. 13, § 43; 1 Geo. I, c. 34. See the British War Office, Manual of Military Law (7th ed. 1929), 10—14. For colonial reaction to military trial of soldiers in this country in the period preceding the revolution see text at note 49 and the authorities referred to there. It was not until 1863 that Congress first authorized the trial of soldiers, in wartime, for civil crimes such as murder, arson, rape, etc., by courts-martial. 12 Stat. 736. Previously the soldiers had been turned over to state authorities for trial in state courts. In Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118, this Court declined to construe the 1863 statute as depriving civilian courts of a concurrent jurisdiction to try soldiers for crimes. The Court said: 'With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no such intention should be ascribed to Congress in the absence of clear and direct language to that effect.' Id., 97 U.S. at page 514. 43 Washington warned that 'Mercenary Armies * * * have at one time or another subverted the liberties of allmost all the Countries they have been raised to defend * * *.' 26 Writings of Washington (Fitzpatrick ed.) 388. Medison in The Federalist, No. 41, cautioned: '(T)he liberties of Rome proved the final victim to her military triumphs; and * * * the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments.' 44 The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts so 'if a life-guardsman deserted, he could only be sued for breach of contract, and if he struck his officer he was only liable to an indictment or an action of battery.' 2 Campbell, Lives of the Chief Justices (1st ed. 1849), 91. In time of war the Common Law recognized an exception that permitted armies to try soldiers 'in the field.' The pages of English history are filled with the struggle of the common-law courts and Parliament against the jurisdiction of military tribunals. See, for example, 8 Richard II, c. 5; 13 Richard II, cc. 2, 5; 1 Henry IV, c. 14; 18 Henry VI, c. 19; 3 Car. I, c. 1. See 3 Rushworth, Historical Collections, App. 76—81. During the Middle Ages the Court of the Constable and Marshal exercised jurisdiction over offenses committed by soldiers in time of war and over cases 'of Death or Murder committed beyond the Sea.' Hale, History and Analysis of the Common Law of England (1st ed. 1713), 37—42. As time passed the jurisdiction of this court was steadily narrowed by Parliament and the common-law courts so that Lord Chief Justice Hale (1609—1676) could write that the court 'has been long disused upon great Reasons.' Hale, supra, 42. As the Court of the Constable and Marshal fell into disuse and disrepute jurisdiction over soldiers in time of war was assumed by commissions appointed by the King or by military councils. In Mostyn v. Fabrigas, 1 Cowp. 161, at 176, Lord Mansfield observed that 'tradesmen who followed the train (of the British Army at Gibraltar) were not liable to Martial law.' (The distinction between the terms 'martial law' and 'military law' is of relatively recent origin. Early writers referred to all trials by military authorities as 'martial law.') 45 In 1627, the Petition of Right, 3 Car. I, c. 1 (Pickering, Vol. VII, p. 319, 1763) protested: 'nevertheless of late time divers commissions under your Majesty's great seal have issued forth, by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, muting or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial: '(Your Majesty's subjects) do therefore humbly pray your most excellent majesty * * * that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed, or put to death contrary to the laws and franchise of the land.' See also 1 Clode, Military Forces of the Crown, 18—20, 424—425. 46 These Articles are set out in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 920. James II also removed Lord Chief Justice Herbert and Sir John Holt (later Lord Chief Justice) from the bench for holding that military trials in peacetime were illegal and contrary to the law of the land. See 2 Campbell, Lives of the Chief Justices (1st ed. 1849), 90—93, 129. 47 1 Will. & Mar., c. 2. 48 1 Blackstone's Commentaries 413. And Hale in much the same vein wrote: 'First, That in Truth and Reality (martial law) is not a Law, but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance, * * *. 'Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be 'executed or) exercised upon others; for others who were not listed under the Army had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army; whereof they were not Parts, but they were to be order'd and govern'd according to the Laws to which they were subject, though it were a Time of War. 'Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the Kings Courts are open for all Persons to receive Justice, according to the Laws of the Land.' Hale, History and Analysis of the Common Law of England (1st ed. 1713), 40—41. 49 1 Wells, The Life and Public Services of Samuel Adams, 231. See also Dickerson, Boston Under Military Rule; Report of Boston Committee of Correspondence (November 20, 1772), 'A List of Infringements and Violations of Rights,' in Morison, The American Revolution 1764—1788, 91; Declaration and Resolves of the First Continental Congress in 1 Journals of the Continental Congress (Ford ed.) 63—73. In June 1775, General Gage, then Royal Governor of Massachusetts Colony, declared martial law in Boston and its envirous. The Continental Congress denounced this effort to supersede the course of the common law and to substitute the law martial. Declaration of Causes of Taking Up Arms, in 2 American Archives, Fourth Series (Force ed.), 1865, 1868. In November 1775, Norfolk, Virginia, also was placed under martial law by the Royal Governor. The Virginia Assembly denounced this imposition of the 'most execrable of all systems, the law martial,' as in 'direct violation of the Constitution, and the laws of this country.' 4 id., 81—82. And the Constitution adopted by the provincial Congress of South Carolina on March 26, 1776, protested: '* * * governors and others bearing the royal commission in the colonies (have) * * * dispensed with the law of the land, and substituted the law martial in its stead; * * *.' Thorpe, The Federal and State Constitutions, 3242. 50 4 Geo. III, c. 15; 8 Geo. III, c. 22. 51 See 4 Benedict, American Admiralty (6th ed. 1940), §§ 672 704; Harper, The English Navigation Laws, 184—196; 9 John Adams, Works, 318—319. Jefferson in 1775 protested: '(Parliament has) extended the jurisdiction of the courts of admiralty beyond their antient limits thereby depriving us of the inestimable right of trial by jury in cases affecting both life and property and subjecting both to the arbitrary decision of a single and dependent judge.' 2 Journals of the Continental Congress (Ford ed.) 132. 52 43 Harvard Classics 147, 148. 53 State constitutions adopted during this period generally contained provisions protecting the right to trial by jury and warning against the military. See Thorpe, Federal and State Constitutions, (Delaware) 569, (Maryland) 1688, (Massachusetts) 1891—1892, (North Carolina) 2787—2788, (Pennsylvania) 3083, (South Carolina) 3257, (Virginia) 3813—3814. 54 See Art. I, §§ 8, 9; Art. II, § 2; Art. III; Amendments II, III, V, VI of the Constitution. See Madison, The Debates in the Federal Convention of 1787, in Documents Illustrative of the Formation of The Union of The American States, H.R.Doc. No. 398, 69th Cong., 1st Sess. 564—571, 600—602; Warren, The Making of the Constitution (1947 ed.), 482—484, 517—521. The Federalist, Nos. 26, 27, 28, 41; Elliot's Debates (2d ed. 1836) passim. 55 Cf. Ex parte Merryman, 17 Fed.Cas. page 144, No. 9,487. And see the account of the trial of Theobald Wolfe Tone, 27 Howell's State Trials 614. 56 4 Wall. at pages 122—123. 57 350 U.S. 22—23, 76 S.Ct. 8—9. Cf. United States ex rel. Flannery v. Commanding General, D.C., 69 F.Supp. 661, reversed by stipulation in unreported order of the Second Circuit, No. 20235, April 18, 1946. And see Ex parte Van Vranken, C.C., 47 F. 888; Antrim's Case, 5 Phil. 278, 288; Jones v. Seward, 40 Barb., N.Y., 563, 569—570; Smith v. Shaw, 12 Johns., N.Y., 257. 58 Brief for respondent, p. 31, United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8: 'Indeed, we think the constitutional case is, if anything, clearer for the court-martial of Toth, who was a soldier at the time of his offense, than it is for a civilian accompanying the armed forces.' 59 Perlstein v. United States, 3 Cir., 151 F.2d 167, certiorari granted 327 U.S. 777, 66 S.Ct. 956, 90 L.Ed. 1005, dismissed as moot 328 U.S. 822, 66 S.Ct. 1358, 90 L.Ed. 1602; Hines v. Mikell, 4 Cir., 259 F. 28; Ex parte Jochen, D.C., 257 F. 200; Ex parte Falls, D.C., 251 F. 415; Ex parte Gerlach, D.C., 247 F. 616; Shilman v. United States, D.C., 73 F.Supp. 648, reversed in part, 2 Cir., 164 F.2d 649, certiorari denied 333 U.S. 837, 68 S.Ct. 608, 92 L.Ed. 1122; In re Berue, D.C., 54 F.Supp. 252; McCune v. Kilpatrick, D.C., 53 F.Supp. 80; In re Di Bartolo, D.C., 50 F.Supp. 929. 60 See, e.g., American Articles of War of 1775, Art. XXXII in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 953, 956. We have examined all the cases of military trial of civilians by the British or American Armies prior to and contemporaneous with the Constitution that the Government has advanced or that we were able to find by independent research. Without exception these cases appear to have involved trials during wartime in the area of battle—'in the field'—or in occupied enemy territory. Even in these areas there are only isolated instances of military trial of 'dependents' accompanying the armed forces. Apparently the normal method of disciplining campfollowers was to expel them from the camp or to take away their ration privileges. 61 Experts on military law, the Judge Advocate General and the Attorney General have repeatedly taken the position that 'in the field' means in an area of actual fighting. See, e.g., Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 100 102; Davis, Military Law (3d ed. 1915), 478—479; Dudley, Military Law and the Procedures of Courts-Martial (2d ed. 1908), 413—414; 14 Ops.Atty.Gen. 22; 16 Ops.Atty.Gen. 48; Dig.Op. JAG (1912) 151; id. (1901) 56, 563; id. (1895) 76, 325—326, 599—600; id. (1880) 49, 211, 384. Cf. Walker v. Chief Quarantine Officer, D.C., 69 F.Supp. 980, 987. Article 2(10) of the UCMJ, 50 U.S.C. § 552(10), 50 U.S.C. § 552(10), provides that in time of war persons serving with or accompanying the armed forces in the field are subject to court-martial and military law. We believe that Art. 2(10) sets forth the maximum historically recognized extent of military jurisdiction over civilians under the concept of 'in the field.' The Government does not attempt—and quite appropriately so—to support military jurisdiction over Mrs. Smith or Mrs. Covert under Art. 2(10). 62 Even during time of war the Constitution must be observed. Ex parte Milligan, 4 Wall. 2 at page 120, declares: 'The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.' Also see Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194; United States v. Commodities Trading Corp., 339 U.S. 121, 125, 70 S.Ct. 547, 550, 94 L.Ed. 707. 63 Madsen v. Kinsella, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988, is not controlling here. It concerned trials in enemy territory which had been conquered and held by force of arms and which was being governed at the time by our military forces. In such areas the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether they are connected with the Army or not. 64 Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 107. 65 See Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess.; Beets v. Hunter, D.C., 75 F.Supp. 825, reversed on other grounds, 10 Cir., 180 F.2d 101, certiorari denied 339 U.S. 963, 70 S.Ct. 997, 94 L.Ed. 1372; Shappiro v. United States, 69 F.Supp. 205, 107 Ct.Cl. 650. Cf. Keeffe, JAG Justice in Korea, 6 Catholic U. of Amer.L.Rev. 1. The officer who convenes the court-martial also has final authority to determine whether charges will be brought in the first place and to pick the board of inquiry, the prosecutor, the defense counsel, and the law officer who serves as legal adviser to the court-martial. 66 Speaking of the imperative necessity that judges be independent, Hamilton declared: '* * * (L)iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; * * * nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.' The Federalist, No. 78. 67 The chief legal officers of the armed services have already recommended to Congress that certain provisions of the UCMJ which were designed to provide protection to an accused should be repealed or limited in the interest of military order and efficiency. Joint Report of the United States Court of Military Appeals and the judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury (1954). See Walsh, Military Law: Return to Drumhead Justice?, 42 A.B.A.J. 521. 68 Cf. Burns v. Wilson, 346 U.S. 137, 146, 148, 150, 73 S.Ct. 1045, 1050, 1051, 1052, 97 L.Ed. 1508; Note, 70 Harv.L.Rev. 1043, 1050—1053. But see Jackson v. Taylor, 353 U.S. 569, 77 S.Ct. 1027; In re Grimley, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636. The exception in the Fifth Amendment, of course, provides that grand jury indictment is not required in cases subject to military trial and this exception has been read over into the Sixth Amendment so that the requirements of jury trial are inapplicable. Ex parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 1, 16, 87 L.Ed. 3. In Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable such a practice would be unconstitutional. Cf. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114. 69 For example, Art. 134, UCMJ, 50 U.S.C. § 728, 50 U.S.C.A. § 728, provides: 'Though not specifically mentioned in this (Code), all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces * * * shall be taken cognizance of * * * and punished at the discretion of (a court-martial).' In 1942 the Judge Advocate General ruled that a civilian employee of a contractor engaged in construction at an Army base could be tried by court-martial under the predecessor of Article 134 for advising his fellow employees to slow down at their work. Dig.Op. JAG, 1941 Supp., 357. 70 See Ex parte Quirin, 317 U.S. 1, 28—29, 63 S.Ct. 1, 10 11, 87 L.Ed. 3; United States v. Eliason, 16 Pet. 291, 301, 10 L.Ed. 968; Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823. Cf. General Orders, No. 100, Official Records, War of Rebellion, Ser. III, Vol. III, April 24, 1863; 15 Op.Atty.Gen. 297 and Note attached. 71 Art. 36, UCMJ, 50 U.S.C. § 611, 50 U.S.C.A. § 611. 72 United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8. 73 According to the Government's figures almost 95% of the civilians tried abroad by army courts-martial during the six-year period from 1949—1955 were tried for minor offenses. In this country 'petty offenses' by civilians on military reservations are tried by civilian commissioners unless the alleged offender chooses trial in the Federal District Court. 18 U.S.C. § 3401, 18 U.S.C.A. § 3401. 74 Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746. 75 3 Rushworth, Historical Collections, App. 81. 1 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces * * *.' Article 2 of the Uniform Code of Military Justice Provides: 'The following persons are subject to this code: * * * (11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States * * *.' 2 Article III, § 2, cl. 3, provides that 'The Trial of all Crimes * * * when not committed within any State * * * shall be at such Place or Places as the Congress may by Law have directed.' Since 1790, 1 Stat. 113—114, Congress has provided for such trial in the district where the offender is found (apprehended) or first brought. See 18 U.S.C. § 3238, 18 U.S.C.A. § 3238. 3 Under Article 19 of the Uniform Code of Military Justice, 64 Stat. 114, 50 U.S.C. § 579, 50 U.S.C.A. § 579, a special court-martial may impose any punishment not forbidden by the Code 'except death, dishonorable discharge, dismissal, confinement in excess of six months, hard labor without confinement in excess of three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for a period exceeding six months.' Under Art. 20, 64 Stat. 114, 50 U.S.C. § 580, 50 U.S.C.A. § 580, a summary court-martial may impose any punishment not forbidden by the Code 'except death, dismissal, dishonorable or bad-conduct discharge, confinement in excess of one month, hard labor without confinement in excess of forty-five days, restriction to certain specified limits in excess of two months, or forfeiture of pay in excess of two-thirds of one month's pay.' In order to impose a punishment in excess of these limits, a general court-martial must be convened under Art. 18, 64 Stat. 114, 50 U.S.C. § 578, 50 U.S.C.A. § 578. 4 A report of the Joint Committee on Reduction of Nonessential Federal Expenditures of Federal Personnel and Pay indicates that the executive agencies of the Federal Government, excluding the Department of Defense, alone employed 51,027 persons outside the continental United States in February 1957, excluding employees of the Panama Canal. S. Comm. Print No. 157, 85th Cong., 1st Sess. Although these figures include 'some foreign nationals,' they nevertheless indicate a substantial number of United States citizens subject to foreign law. See 103 Cong.Rec. 5313—5316. 5 Having based the constitutionality of Article 2(11) on these grounds, the Court concluded, 'we have no need to examine the power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces' under Article I of the Constitution.' 351 U.S. 470, 476, 76 S.Ct. 886, 889, 100 L.Ed. 13420. 6 In Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016, the Court rested its decision on an interpretation of the joint resolution of Congress annexing the Hawaiian Islands. The Court held that the act of annexation did not of its own force require indictment by grand jury and a trial by a Sixth Amendment jury. Implicit in this holding was the assumption that such indictment and trial were not constitutionally required in Hawaii. This assumption was based on a recognition that the act should not be construed as 'imposing upon the islands every provision of a Constitution, which must have been unfamiliar to a large number of their inhabitants, and for which no previous preparation had been made * * *.' Id., 190 U.S. at pages 215—216, 23 S.Ct. at page 790. 7 For a statement of the applicable law before the question arose with respect to lands outside the continental limits of the United States, see Thompson v. State of Utah, 170 U.S. 343, 347, 18 S.Ct. 620, 621, 42 L.Ed. 1061: 'It is equally beyond question that the provisions of the national constitution relating to trials by jury for crimes and to criminal prosecutions apply to the territories of the United States.' But see Mormon Church v. United States, 136 U.S. 1, 44, 10 S.Ct. 792, 803, 34 L.Ed. 481: 'Doubtless congress, in legislating for the territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the constitution from which Congress derives all its powers, than by any express and direct application of its provisions.' 8 This feeling about the 'non-Christian' nations of the world was widely shared. In his 'Jubilee of the Constitution,' delivered on the 50th anniversary of the inauguration of George Washington, John Quincy Adams said: 'The Declaration of Independence recognised the European law of nations, as practised among Christian nations, to be that by which they considered themselves bound, and of which they claimed the rights. This system is founded upon the principle, that the state of nature between men and between nations, is a state of peace. But there was a Mahometan law of nations, which considered the state of nature as a state of war—an Asiatic law of nations, which excluded all foreigners from admission within the territories of the state * * *. With all these different communities, the relations of the United States were from the time when they had become an independent nation, variously modified according to the operation of those various laws. It was the purpose of the Constitution of the United States to establish justice over them all.' Adams, Jubilee of the Constitution 73. See also the views of Secretary of State Hamilton Fish, quoted in 351 U.S. at pages 484—485, 76 S.Ct. at pages 893—894. 9 On August 1, 1956, the President approved Public Law 856, 84th Cong., 2d Sess., providing for the relinquishment by the President, at such time as he deemed appropriate, of the consular jurisdiction of the United States in Morocco, the only foreign country where United States consuls continued to exercise such jurisdiction. 70 Stat. 773, 22 U.S.C.A. § 141 note. The jurisdiction was relinquished on October 6, 1956. N.Y. Times, Oct. 8, 1956, p. 1, col. 6. 1 50 U.S.C. § 552(11), 50 U.S.C.A. § 552(11). 2 The cases were argued on May 3, 1956, and decided on June 11, 1956. 3 Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016; Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128; Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. 4 Article I, § 8, cl. 18 of the Constitution provides that Congress shall have the power 'to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' 5 Thus, proposals to limit the size of the standing army in times of peace to a specific number of men in the Constitution were defeated at the Constitutional Convention. See 5 Elliot's Debates 442—443 ('no room for * * * distrust of the representatives of the people'). See also The Federalist, No. 24: '(T)he whole power of raising armies was lodged in the Legislature, not in the Executive; * * * this legislature was to be a popular body, consisting of the representatives of the people periodically elected * * *.' 6 The Federalist, No. 23. 7 To be sure, the opinion does 'recognize that there might be circumstances where a person could be 'in' the armed services for purposes of (Art. I, § 8) Clause 14 even though he had not formally been inducted into the military or did not wear a uniform.' It continues, however, to state categorically that 'wives, children and other dependents of servicemen cannot be placed in that category * * *.' 8 The essential element was thought to be, not so much that there be war, in the technical sense, but rather that the forces and their retainers be 'in the field.' The latter concept, in turn, would seem to have extended to any area where the nature of the military position and the absence of civil authority made military control over the whole camp appropriate. See, in general, Blumenthal, Women Camp Followers of the American Rovolution. The British history is the same. See, in particular, Samuel, Historical Account of the British Army and of the Law Military, pp. 691—692. 9 Army Act, 1955, 3 & 4 Eliz. II, ch. 18, § 209; and see Fifth Schedule, id., at 219. 10 These dependents are taken abroad only because their presence is deemed necessary to the morale and proper functioning of our armies overseas. They are transported at government expense, carry passports identifying them as service dependents, are admitted to the host country without visas, use military payment certificates, and receive the benefit of army postal facilities and privileges. They enjoy the tax exemptions and customs benefits of the military. They are treated at service hospitals, their children go to schools maintained by the Government, and they share with the military the recreational facilities provided by the Government. They are housed and furnished heat, light, fuel, water, and telephone service by the military, as well as receiving transportation, food, and clothing from military sources. 11 This necessity is particularly acute with regard to peculiarly 'military' and 'local' offenses which must be dealt with swiftly and effectively. Thus security regulations at these military installations must be enforced against civilian dependents as well as servicemen; the same is true of base traffic violations, black marketeering, and misuse of military customs and post-exchange privileges. 12 The practical circumstances requiring some sort of disciplinary jurisdiction have already been adverted to, supra, 354 U.S. 71—73, 77 S.Ct. 1258—1260. These circumstances take on weight when viewed in light of the alternatives available to Congress—certainly a crucial question in weighing the need for dispensing with particular constitutional guarantees abroad. What are these alternatives? (1) One is to try all offenses committed by civilian dependents abroad in the United States. But the practical problems in the way of such a choice are obvious and overwhelming. To require the transportation home for trial of every petty black marketeer or violator of security regulations would be a ridiculous burden on the Government, quite aside from the problems of persuading foreign witnesses to make the trip and of preserving evidence. It can further be deemed doubtful in the extreme whether foreign governments would permit crimes punishable under local law to be tried thousands of miles away in the United States. (2) Civilian trial overseas by the United States also presents considerable difficulties. If juries are required, the problem of jury recruitment would be difficult. Furthermore, it is indeed doubtful whether some foreign governments would accede to the creation of extraterritorial United States civil courts within their territories—courts which by implication would reflect on the fairness of their own tribunals and which would smack unpleasantly of consular courts set up under colonial 'capitulations.' (3) The alternative of trial in foreign courts, in at least some instances, is no more palatable. Quite aside from the fact that in some countries where we station troops the protections granted to criminal defendants compare unfavorably with our own minimum standards, the fact would remain that many of the crimes involved particularly breaches of security—are not offenses under foreign law at all, and thus would go completely unpunished. Add to this the undesirability of foreign police carrying out investigations in our military installations abroad, and it seems to me clear that this alternative does not commend itself. 1 The Court was composed of Chief Justice Taft and Associate Justices Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, and Stone. Mr. Justice Van Devanter wrote the opinion for the Court. 2 An interesting and authoritative treatment of court-martial jurisdiction over camp followers is found in Blumenthal, Women Camp Followers of the American Revolution (1952). It points out many instances where women, not in the armed services, were subjected to a court-martial long after the war had ended. This was not taken to be an 'astronomical doctrine' either in our forces or abroad. 3 In this connection see 'Madsen v. Kinsella—Landmark and Guidepost in Law of Military Occupation,' by John M. Raymond, Assistant Legal Adviser, Department of State, 47 Am.J.Int'l L. 300 (1953). 4 NATO Status of Forces Agreement, T.I.A.S. 2846 (signed in London on July 19, 1951), 4 U.S.Treaties and Other International Agreements 1792.

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354 U.S. 178 77 S.Ct. 1173 1 L.Ed.2d 1273 John T. WATKINS, Petitioner,v.UNITED STATES of America. No. 261. Argued March 7, 1957. Decided June 17, 1957. [Syllabus from pages 178-181 intentionally omitted ] Mr. Joseph L. Rauh, Jr., Washington, D.C., for petitioner. Sol. Gen. J. Lee Rankin, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This is a review by certiorari of a conviction under 2 U.S.C. § 192, 2 U.S.C.A. § 192 for 'contempt of Congress.' The misdemeanor is alleged to have been committed during a hearing before a congressional investigating committee. It is not the case of a truculent or contumacious witness who refuses to answer all questions or who, by boisterous or discourteous conduct, disturbs the decorum of the committee room. Petitioner was prosecuted for refusing to make certain disclosures which he asserted to be beyond the authority of the committee to demand. The controversy thus rests upon fundamental principles of the power of the Congress and the limitations upon that power. We approach the questions presented with conscious awareness of the far-reaching ramifications that can follow from a decision of this nature. 2 On April 29, 1954, petitioner appeared as a witness in compliance with a subpoena issued by a Subcommittee of the Committee on Un-American Activities of the House of Representatives. The Subcommittee elicited from petitioner a description of his background in labor union activities. He had been an employee of the International Harvester Company between 1935 and 1953. During the last eleven of those years, he had been on leave of absence to serve as an official of the Farm Equipment Workers International Union, later merged into the United Electrical, Radio and Machine Workers. He rose to the position of President of District No. 2 of the Farm Equipment Workers, a district defined geographically to include generally Canton and Rock Falls, Illinois, and Dubuque, Iowa. In 1953, petitioner joined the United Automobile Workers International Union as a labor organizer. 3 Petitioner's name had been mentioned by two witnesses who testified before the Committee at prior hearings. In September 1952, on Donald O. Spencer admitted having been a Communist from 1943 to 1946. He declared that he had been recruited into the Party with the endorsement and prior approval of petitioner, whom he identified as the then District Vice-President of the Farm Equipment Workers.1 Spencer also mentioned that petitioner had attended meetings at which only card-carrying Communists were admitted. A month before petitioner testified, one Walter Rumsey stated that he had been recruited into the Party by petitioner.2 Rumsey added that he had paid Party dues to, and later collected dues from, petitioner, who had assumed the name, Sam Brown. Rumsey told the Committee that he left the Party in 1944. 4 Petitioner answered these allegations freely and without reservation. His attitude toward the inquiry is clearly revealed from the statement he made when the questioning turned to the subject of his past conduct, associations and predilections: 5 'I am not now nor have I ever been a card-carrying member of the Communist Party. Rumsey was wrong when he said I had recruited him into the party, that I had received his dues, that I paid dues to him, and that I had used the alias Sam Brown. 6 'Spencer was wrong when he termed any meetings which I attended as closed Communist Party meetings. 7 'I would like to make it clear that for a period of time from approximately 1942 to 1947 I cooperated with the Communist Party and participated in Communist activities to such a degree that some persons may honestly believe that I was a member of the party. 8 'I have made contributions upon occasions to Communist causes. I have signed petitions for Communist causes. I attended caucuses at an FE convention at which Communist Party officials were present. 9 'Since I freely cooperated with the Communist Party I have no motive for making the distinction between cooperation and membership except the simple fact that it is the truth. I never carried a Communist Party card. I never accepted discipline and indeed on several occasions I opposed their position. 10 'In a special convention held in the summer of 1947 I led the fight for compliance with the Taft-Hartley Act by the FE-CIO International Union. This fight became so bitter that it ended any possibility of future cooperation.'3 11 The character of petitioner's testimony on these matters can perhaps best be summarized by the Government's own appraisal in its brief: 12 'A more complete and candid statement of his past political associations and activities (treating the Communist Party for present purposes as a mere political party) can hardly be imagined. Petitioner certainly was not attempting to conceal or withhold from the Committee his own past political associations, predilections, and preferences. Furthermore, petitioner told the Committee that he was entirely willing to identify for the Committee, and answer any questions it might have concerning, 'those persons whom I knew to be members of the Communist Party,' provided that, 'to (his) best knowledge and belief,' they still were members of the Party * * *.'4 13 The Subcommittee, too, was apparently satisfied with petitioner's disclosures. After some further discussion elaborating on the statement, counsel for the Committee turned to another aspect of Rumsey's testimony. Rumsey had identified a group of persons whom he had known as members of the Communist Party, and counsel began to read this list of names to petitioner. Petitioner stated that he did not know several of the persons. Of those whom he did know, he refused to tell whether he knew them to have been members of the Communist Party. He explained to the Subcommittee why he took such a position: 14 'I am not going to plead the fifth amendment, but I refuse to answer certain questions that I believe are outside the proper scope of your committee's activities. I will answer any questions which this committee puts to me about myself. I will also answer questions about those persons whom I knew to be members of the Communist Party and whom I believe still are. I will not, however, answer any questions with respect to others with whom I associated in the past. I do not believe that any law in this country requires me to testify about persons who may in the past have been Communist Party members or otherwise engaged in Communist Party activity but who to my best knowledge and belief have long since removed themselves from the Communist movement. 15 'I do not believe that such questions are relevant to the work of this committee nor do I believe that this committee has the right to undertake the public exposure of persons because of their past activities. I may be wrong, and the committee may have this power, but until and unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the political activities of my past associates.'5 16 The Chairman of the Committee submitted a report of petitioner's refusal to answer questions to the House of Representatives. H.R. Rep. No. 1579, 83d Cong., 2d Sess. The House directed the Speaker to certify the Committee's report to the United States Attorney for initiation of criminal prosecution. H. Res. 534, 83d Cong., 2d Sess.6 A seven-count indictment was returned.7 Petitioner waived his right to jury trial and was found guilty on all counts by the court. The sentence, a fine of $100 and one year in prison, was suspended, and petitioner was placed on probation. 17 An appeal was taken to the Court of Appeals for the District of Columbia. The conviction was reversed by a three-judge panel, one member dissenting. Upon rehearing en banc, the full bench affirmed the conviction with the judges of the original majority in dissent. 98 U.S.App.D.C. 190, 233 F.2d 681. We granted certiorari because of the very important questions of constitutional law presented. 352 U.S. 822, 77 S.Ct. 62, 1 L.Ed.2d 46. 18 We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case.8 Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to 'punish' those investigated are indefensible. 19 It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged. 20 The rudiments of the power to punish for 'contempt of Congress' come to us from the pages of English history. The origin of privileges and contempts extends back into the period of the emergence of Parliament. The establishment of a legislative body which could challenge the absolute power of the monarch is a long and bitter story. In that struggle, Parliament made broad and varied use of the contempt power. Almost from the beginning, both the House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti.9 Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege. 21 In particular, this exclusion of lex parliamenti from the lex terrae, or law of the land, precluded judicial review of the exercise of the contempt power or the assertion of privilege. Parliament declared that no court had jurisdiction to consider such questions. In the latter part of the seventeenth century, an action for false imprisonment was brought by one Jay who had been held in contempt. The defendant, the Serjeant-at-Arms of the House of Commons, demurred that he had taken the plaintiff into custody for breach of privilege. The Chief Justice, Pemberton, overruled the demurrer. Summoned to the bar of the House, the Chief Justice explained that he believed that the assertion of privilege went to the merits of the action and did not preclude jurisdiction. For his audacity, the Chief Justice was dispatched to Newgate Prison.10 22 It seems inevitable that the power claimed by Parliament would have been abused. Unquestionably it was. A few examples illustrate the way in which individual rights were infringed. During the seventeenth century, there was a violent upheaval, both religious and political. This was the time of the Reformation and the establishment of the Church of England. It was also the period when the Stuarts proclaimed that the royal prerogative was absolute. Ultimately there were two revolutions, one protracted and bloody, the second without bloodshed. Critical commentary of all kinds was treated as contempt of parliament in these troubled days. Even clergymen were imprisoned for remarks made in their sermons.11 Perhaps the outstanding case arose from the private conversation of one Floyd, a Catholic, in which he expressed pleasure over the misfortune of the King's Protestant son-in-law and his wife. Floyd was not a member of Parliament. None of the persons concerned was in any way connected with the House of Commons. Nevertheless, that body imposed an humiliating and cruel sentence upon Floyd for contempt.12 The House of Lords intervened, rebuking the Commons for their extension of the privilege. The Commons acceded and transferred the record of the case to the Lords, who imposed substantially the same penalty.13 23 Later in that century, during the reign of Charles II, there was great unrest over the fact that the heir apparent, James, had embraced Catholicism. Anti-Catholic feeling ran high, spilling over a few years later when the infamous rogue, Titus Oates, inflamed the country with rumors of a 'Popish Plot' to murder the King. A committee of Parliament was appointed to learn the sources of certain pamphlets that had been appearing. One was entitled: The Grand Question Concerning the Prorogation of this Parliament for a Year and Three Months Stated and Discussed. A Doctor Carey admitted to the committee that he knew the author, but refused to divulge his name. Brought to the bar of the House of Lords, he persisted in this stand. The House imposed a fine of 1,000 and committed the witness to the Tower.14 24 A hundred years later, George III had managed to gain control of Parliament through his ministers. The King could not silence the opposition, however, and one of the most vocal was John Wilkes. This precipitated a struggle that lasted for several years until Wilkes finally prevailed. One writer sums up the case thus: 25 'He had won a victory for freedom of the press. He had directed popular attention to the royally-controlled House of Commons, and pointed out its unrepresentative character, and had shown how easily a claim of privilege might be used to sanction the arbitrary proceedings of ministers and Parliament, even when a fundamental right of the subject was concerned. It was one of life's little ironies that work of such magnitude had been reserved for one of the worst libertines and demagogues of all time.'15 26 Even as late as 1835, the House of Commons appointed a select committee to inquire into '* * * the origin, nature, extent and tendency of the Orange Institutions.' This was a political-religious organization, vehemently Protestant in religion and strongly in favor of the growth of the British Empire. The committee summoned the Deputy Grand Secretary and demanded that he produce all the records of the organization. The witness refused to turn over a letter-book, which he admitted contained his answers to many communications upon Orange business. But it also contained, he said, records of private communications with respect to Orangeism. Summoned to the bar of the House of Commons, he remained adamant and was committed to Newgate Prison.16 27 Modern times have seen a remarkable restraint in the use by Parliament of its contempt power. Important investigations, like those conducted in America by congressional committees, are made by Royal Commissions of Inquiry.17 These commissions are comprised of experts in the problem to be studied. They are removed from the turbulent forces of politics and partisan considerations. Seldom, if ever, have these commissions been given the authority to compel the testimony of witnesses or the production of documents.18 Their success in fulfilling their fact-finding missions without resort to coercive tactics is a tribute to the fairness of the processes to the witnesses and their close adherence to the subject matter committed to them. 28 The history of contempt of the legislature in this country is notably different from that of England. In the early days of the United States, there lingered the direct knowledge of the evil effects of absolute power. Most of the instances of use of compulsory process by the first Congresses concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials.19 Unlike the English practice, from the very outset the use of contempt power by the legislature was deemed subject to judicial review.20 29 There was very little use of the power of compulsory process in early years to enable the Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws. The first occasion for such an investigation arose in 1827 when the House of Representatives was considering a revision of the tariff laws.21 In the Senate, there was no use of a fact-finding investigation in aid of legislation until 1859.22 In the Legislative Reorganization Act, the Committee on Un-American Activities was the only standing committee of the House of Representatives that was given the power to compel disclosures.23 30 It is not surprising, from the fact that the Houses of Congress so sparingly employed the power to conduct investigations, that there have been few cases requiring judicial review of the power. The Nation was almost one hundred years old before the first case reached this Court to challenge the use of compulsory process as a legislative device, rather than in inquiries concerning the elections or privileges of Congressmen.24 In Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, decided in 1881, an investigation had been authorized by the House of Representatives to learn the circumstances surrounding the bankruptcy of Jay Cooke & Company, in which the United States had deposited funds. The committee became particularly interested in a private real estate pool that was a part of the financial structure. The Court found that the subject matter of the inquiry was 'in its nature clearly judicial and therefore one in respect to which no valid legislation could be enacted.' The House had thereby exceeded the limits of its own authority. 31 Subsequent to the decision in Kilbourn, until recent times, there were very few cases dealing with the investigative power.25 The matter came to the fore again when the Senate undertook to study the corruption in the handling of oil leases in the 1920's. In McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580, and Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, the Court applied the precepts of Kilbourn to uphold the authority of the Congress to conduct the challenged investigations. The Court recognized the danger to effective and honest conduct of the Government if the legislature's power to probe corruption in the executive branch were unduly hampered. 32 Following these important decisions, there was another lull in judicial review of investigations. The absence of challenge, however, was not indicative of the absence of inquiries. To the contrary, there was virgorous use of the investigative process by a Congress bent upon harnessing and directing the vast economic and social forces of the times. Only one case came before this Court, and the authority of the Congress was affirmed.26 33 In the decade following World War II, there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the threat of subversion of the United States Government, but other subjects of congressional interest also contributed to the changed scene. This new phase of legislative inquiry involved a broad-scale intrusion into the lives and affairs of private citizens. It brought before the courts novel questions of the appropriate limits of congressional inquiry. Prior cases, like Kilbourn, McGrain and Sinclair, had defined the scope of investigative power in terms of the inherent limitations of the sources of that power. In the more recent cases, the emphasis shifted to prolems of accommodating the interest of the Government with the rights and privileges of individuals. The central theme was the application of the Bill of Rights as a restraint upon the assertion of governmental power in this form. 34 It was during this period that the Fifth Amendment privilege against self-incrimination was frequently invoked and recognized as a legal limit upon the authority of a committee to require that a witness answer its questions.27 Some early doubts as to the applicability of that privilege before a legislative committee never matured.28 When the matter reached this Court, the Government did not chellenge in any way that the Fifth Amendment protection was available to the witness, and such a challenge could not have prevailed. It confined its argument to the character of the answers sought and to the adequacy of the claim of privilege. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964; Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997; Bart v. United States, 349 U.S. 219, 75 S.Ct. 712, 99 L.Ed. 1016.29 35 A far more difficult task evolved from the claim by witnesses that the committees' interrogations were infringements upon the freedoms of the First Amendment.30 Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.31 36 Abuses of the investigative process may imperceptibly lead to abridgment of protected freedoms. The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference. And when those forced revelations concern matters that are unorthodox, unpopular, or even hateful to the general public, the reaction in the life of the witness may be disastrous. This effect is even more harsh when it is past beliefs, expressions or associations that are disclosed and judged by current standards rather than those contemporary with the matters exposed. Nor does the witness alone suffer the consequences. Those who are identified by witnesses and thereby placed in the same glare of publicity are equally subject to public stigma, scorn and obloquy. Beyond that, there is the more subtle and immeasurable effect upon those who tend to adhere to the most orthodox and uncontroversial views and associations in order to avoid a similar fate at some future time. That this impact is partly the result of non-governmental activity by private persons cannot relieve the investigators of their responsibility for initiating the reaction. 37 The Court recognized the restraints of the Bill of Rights upon congressional investigations in United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. The magnitude and complexity of the problem of applying the First Amendment to that case led the Court to construe narrowly the resolution describing the committee's authority. It was concluded that, when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter. 38 Accommodation of the congressional need for particular information with the individual and personal interest in privacy is an arduous and delicate task for any court. We do not underestimate the difficulties that would attend such an undertaking. It is manifest that despite the adverse effects which follow upon compelled disclosure of private matters, not all such inquiries are barred. Kilbourn v. Thompson teaches that such an investigation into individual affairs is invalid if unrelated to any legislative purpose. That is beyond the powers conferred upon the Congress in the Constitution. United States v. Rumely makes it plain that the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that overbalances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly. 39 Petitioner has earnestly suggested that the difficult questions of protecting these rights from infringement by legislative inquiries can be surmounted in this case because there was no public purpose served in his interrogation. His conclusion is based upon the thesis that the Subcommittee was engaged in a program of exposure for the sake of exposure. The sole purpose of the inquiry, he contends, was to bring down upon himself and others the violence of public reaction because of their past beliefs, expressions and associations. In support of this argument, petitioner has marshalled an impressive array of evidence that some Congressmen have believed that such was their duty, or part of it.32 40 We have no doubt that there is no congressional power to expose for the sake of exposure. The public is, of entitled to be informed concerning the workings of its government.33 That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals. But a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served.34 41 Petitioner's contentions do point to a situation of particular significance from the standpoint of the constitutional limitations upon congressional investigations. The theory of a committee inquiry is that the committee members are serving as the representatives of the parent assembly in collecting information for a legislative purpose. Their function is to act as the eyes and ears of the Congress in obtaining facts upon which the full legislature can act. To carry out this mission, committees and subcommittees, sometimes one Congressman, are endowed with the full power of the Congress to compel testimony. In this case, only two men exercised that authority in demanding information over petitioner's protest. 42 An essential premise in this situation is that the House or Senate shall have instructed the committee members on what they are to do with the power delegated to them. It is the responsibility of the Congress, in the first instance, to insure that compulsory process is used only in furtherance of a legislative purpose. That requires that the instructions to an investigating committee spell out that group's jurisdiction and purpose with sufficient particularity. Those instructions are embodied in the authorizing resolution. That document is the committee's charter. Broadly drafted and loosely worded, however, such resolutions can leave tremendous latitude to the discretion of the investigators. The more vague the committee's charter is, the greater becomes the possibility that the committee's specific actions are not in conformity with the will of the parent House of Congress. 43 The authorizing resolution of the Un-American Activities Committee was adopted in 1938 when a select committee, under the chairmanship of Representative Dies, was created.35 Several years later, the Committee was made a standing organ of the House with the same mandate.36 It defines the Committee's authority as follows: 44 'The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propagandaactivities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.'37 45 It would be difficult to imagine a less explicit authorizing resolution. Who can define the meaning of 'un-American'? What is that single, solitary 'principle of the form of government as guaranteed by our Constitution'?38 There is no need to dwell upon the language, however. At one time, perhaps, the resolution might have been read narrowly to confine the Committee to the subject of propaganda.39 The events that have transpired in the fifteen years before the interrogation of petitioner make such a construction impossible at this date. 46 The members of the Committee have clearly demonstrated that they did not feel themselves restricted in any way to propaganda in the narrow sense of the word.40 Unquestionably the Committee conceived of its task in the grand view of its name. Un-American activities were its target, no matter how or where manifested. Notwithstanding the broad purview of the Committee's experience, the House of Representatives repeatedly approved its continuation. Five times it extended the life of the special committee.41 Then it made the group a standing committee of the House.42 A year later, the Committee's charter was embodied in the Legislative Reorganization Act.43 On five occasions, at the beginning of sessions of Congress, it has made the authorizing resolution part of the rules of the House.44 On innumerable occasions, it has passed appropriation bills to allow the Committee to continue its efforts. 47 Combining the language of the resolution with the construction it has been given, it is evident that the preliminary control of the Committee exercised by the House of Representatives is slight or non-existent. No one could reasonably deduce from the charter the kind of investigation that the Committee was directed to make. As a result, we are asked to engage in a process of retroactive rationalization. Looking backward from the events that transpired, we are asked to uphold the Committee's actions unless it appears that they were clearly not authorized by the charter. As a corollary to this inverse approach, the Government urges that we must view the matter hosptiably to the power of the Congress—that if there is any legislative purpose which might have been furthered by the kind of disclosure sought, the witness must be punished for witholding it. No doubt every reasonable indulgence of legality must be accorded to the actions of a coordinate branch of our Government. But such deference cannot yield to an unnecessary and unreasonable dissipation of precious constitutional freedoms. 48 The Government contends that the public interest at the core of the investigations of the Un-American Activities Committee is the need by the Congress to be informed of efforts to overthrow the Government by force and violence so that adequate legislative safeguards can be erected. From this core, however, the Committee can radiate outward infinitely to any topic thought to be related in some way to armed insurrection. The outer reaches of this domain are known only by the content of 'un-American activities.' Remoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action. A third dimension is added when the investigators turn their attention to the past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the present. 49 The consequences that flow from this situation are manifold. In the first place, a reviewing court is unable to make the kind of judgment made by the Court in United States v. Rumely, supra. The Committee is allowed, in essence, to define its own authority, to choose the direction and focus of its activities. In deciding what to do with the power that has been conferred upon them, members of the Committee may act pursuant to motives that seem to them to be the highest. Their decisions, nevertheless, can lead to ruthless exposure of private lives in order to gather data that is neither desired by the Congress nor useful to it. Yet it is impossible in this circumstance, with constitutional freedoms in jeopardy, to declare that the Committee has ranged beyond the area committed to it by its parent assembly because the boundaries are so nebulous. 50 More important and more fundamental than that, however, it insultates the House that has authorized the investigation from the witnesses who are subjected to the sanctions of compulsory process. There is a wide gulf between the responsibility for the use of investigative power and the actual exercise of that power. This is an especially vital consideration in assuring respect for constitutional liberties. Protected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need. 51 It is, of course, not the function of this Court to prescribe rigid rules for the Congress to follow in drafting resolutions establishing investigating committees. That is a matter peculiarly within the realm of the legislature, and its decisions will be accepted by the courts up to the point where their own duty to enforce the constitutionally protected rights of individuals is affected. An excessively broad charter, like that of the House Un-American Activities Committee, places the courts in an untenable position if they are to strike a balance between the public need for a particular interogation and the right of citizens to carry on their affairs free from unnecessary governmental interference. It is impossible in such a situation to ascertain whether any legislative purpose justifies the disclosures sought and, if so, the importance of that information to the Congress in furtherance of its legislative function. The reason no court can make this critical judgment is that the House of Representatives itself has never made it. Only the legislative assembly initiating an investigation can assay the relative necessity of specific disclosures. 52 Absence of the qualitative consideration of petitioner's questioning by the House of Representatives aggravates a serious problem, revealed in this case, in the relationship of congressional investigating committees and the witnesses who appear before them. Plainly these committees are restricted to the missions delegated to them, i.e., to acquire certain data to be used by the House or the Senate in coping with a problem that falls within its legislative sphere. No witness can be compelled to make disclosures on matters outside that area. This is a jurisdictional concept of pertinency drawn from the nature of a congressional committee's source of authority. It is not wholly different from nor unrelated to the element of pertinency embodied in the criminal statute under which petitioner was prosecuted. When the definition of jurisdictional pertinency is as uncertain and wavering as in the case of the Un-American Activities Committee, it becomes extremely difficult for the Committee to limit its inquiries to statutory pertinency. 53 Since World War II, the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House. The sanction there imposed is imprisonment by the House until the recalcitrant witness agrees to testify or disclose the matters sought, provided that the incarceration does not extend beyond adjournment. The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law. 54 The appropriate statute is found in 2 U.S.C. § 192, 2 U.S.C.A. § 192. It provides: 55 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.'45 56 In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases. Among these is the right to have available, through a sufficiently precise statute, information revealing the standard of criminality before the commission of the alleged offense.46 Applied to persons prosecuted under § 192, this raises a special problem in that the statute defines the crime as refusal to answer 'any question pertinent to the question under inquiry.' Part of the standard of criminality, therefore, is the pertinency of the questions propounded to the witness.47 57 The problem attains proportion when viewed from the standpoint of the witness who appears before a congressional committee. He must decide at the time the questions are propounded whether or not to answer. As the Court said in Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, the witness acts at his peril. he is '* * * bound rightly to construe the statute.' Id., 279 U.S. at page 299, 49 S.Ct. at page 274. An erroneous determination on his part, even if made in the utmost good faith, does not exculpate him if the court should later rule that the questions were pertinent to the question under inquiry. 58 It is obvious that a person compelled to make this choice is entitled to have knowledge of the subject to which the interrogation is deemed pertinent. That knowledge must be available with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. The 'vice of vaueness'48 must be avoided here as in all other crimes. There are several sources that can outline the 'question under inquiry' in such a way that the rules against vagueness are satisfied. The authorizing resolution, the remarks of the chairman or members ofthe committee, or even the nature of the proceedings themselves, might sometimes make the topic clear. This case demonstrates, however, that these sources often leave the matter in grave doubt. 59 The first possibility is that the authorizing resolution itself will so clearly declare the 'question under inquiry' that a witness can understand the pertinency of questions asked him. The Government does not contend that the authorizing resolution of the Un-American Activities Committee could serve such a purpose. Its confusing breadth is amply illustrated by the innumerable and diverse questions into which the Committee has inquired under this charter since 1938. If the 'question under inquiry' were stated with such sweeping and uncertain scope, we doubt that it would withstand an attack on the ground of vagueness. 60 That issue is not before us, however, in light of the Government's position that the immediate subject under inquiry before the Subcommittee interviewing petitioner was only one aspect of the Committee's authority to investigate un-American activities. Distilling that single topic from the broad field is an extremely difficult task upon the record before us. There was an opening statement by the Committee Chairman at the outset of the hearing, but this gives us no guidance. In this statement, the Chairman did no more than paraphrase the authorizing resolution and give a very general sketch of the past efforts of the Committee.49 61 No aid is given as to the 'question under inquiry' in the action of the full Committee that authorized the creation of the Subcommittee before which petitioner appeared. The Committee adopted a formal resolution giving the Chairman the power to appoint subcommittees '* * * for the purpose of performing any and all acts which the Committee as a whole is authorized to do.'50 In effect, this was a device to enable the investigations to proceed with a quorum of one or two members and sheds no light on the relevancy of the questions asked of petitioner.51 62 The Government believes that the topic of inquiry before the Subcommittee concerned Communist infiltration in labor. In his introductory remarks, the Chairman made reference to a bill, then pending before the Committee,52 which would have penalized labor unions controlled or dominated by persons who were, or had been, members of a 'Communist-action' organization, as defined in the Internal Security Act of 1950. The Subcommittee, it is contended, might have been endeavoring to determine the extent of such a problem. 63 This view is corroborated somewhat by the witnesses who preceded and followed petitioner before the Subcommittee. Looking at the entire hearings, however, there is strong reason to doubt that the subject revolved about labor matters. The published transcript is entitled: Investigation of Communist Activities in the Chicago Area, and six of the nine witnesses had no connection with labor at all.53 64 The most serious doubts as to the Subcommittee's 'question under inquiry,' however, stem from the precise questions that petitioner has been charged with refusing to answer. Under the terms of the statute, after all, it is these which must be proved pertinent. Petitioner is charged with refusing to tell the Subcommittee whether or not be knew that certain named persons had been members of the Communist Party in the past. The Subcommittee's counsel read the list from the testimony of a previous witness who had identified them as Communists. Although this former witness was identified with labor, he had not stated that the persons he named were involved in union affairs. Of the thirty names propounded to petitioner, seven were completely unconnected with organized labor. One operated a beauty parlor. Another was a watchmaker. Several were identified as 'just citizens' or 'only Communists.' When almost a quarter of the persons on the list are not labor people, the inference becomes strong that the subject before the Subcommittee was not defined in terms of Communism in labor. 65 The final source of evidence as to the 'question under inquiry' is the Chairman's response when petitioner objected to the questions on the grounds of lack of pertinency. The Chairman then announced that the Subcommittee was investigating 'subversion and subversive propaganda.'54 This is a subject at least as broad and indefinite as the authorizing resolution of the Committee, if not more so. 66 Having exhausted the several possible indicia of the 'question under inquiry,' we remain unenlightened as to the subject to which the questions asked petitioner were pertinent. Certainly, if the point is that obscure after trial and appeal, it was not adequately revealed to petitioner when he had to decide at his peril whether or not to answer. Fundamental fairness demands that no witness be compelled to make such a determination with so little guidance. Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto.55 To be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it. 67 The statement of the Committee Chairman in this case, in response to petitioner's protest, was woefully indequate to convey sufficient information as to the pertinency of the questions to the subject under inquiry. Petitioner was thus not accorded a fair opportunity to determine whether he was within his rights in refusing to answer, and his conviction is necessarily invalid under the Due Process Clause of the Fifth Amendment. 68 We are mindful of the complexities of modern government and the ample scope that must be left to the Congress as the sole constitutional depository of legislative power. Equally mindful are we of the indispensable funtion, in the exercise of that power, of congressional investigations. The conclusions we have reached in this case will not prevent the Congress, through its committees, from obtaining any information it needs for the proper fulfillment of its role in our scheme of government. The legislature is free to determine the kinds of data that should be collected. It is only those investigations that are conducted by use of compulsory process that give rise to a need to protect the rights of individuals against illegal encroachment. That protection can be readily achieved through procedures which prevent the separation of power from responsibility and which provide the constitutional requisites of fairness for witnesses. A measure of added care on the part of the House and the Senate in authorizing the use of compulsory process and by their committees in exercising that power would suffice. That is a small price to pay if it serves to uphold the principles of limited, constitutional government without constricting the power of the Congress to inform itself. 69 The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with instructions to dismiss the indictment. 70 It is so ordered. 71 Judgment of Court of Appeals reversed and case remanded to District Court with instructions. 72 Mr. Justice BURTON and Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 73 Mr. Justice FRANKFURTER, concurring. 74 I deem it important to state what I understand to be the Court's holding. Agreeing with its holding, I join its opinion. 75 The power of the Congress to punish for contempt of its authority is, as the Court points out, rooted in history. It has been acknowledged by this Court since 1821. Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242. Until 1857, Congress was content to punish for contempt through its own process. By the Act of January 24, 1857, 11 Stat. 155, as amended by the Act of January 24, 1862, 12 Stat. 333, Congress provided that, 'in addition to the pains and penalties now existing' (referring of course to the power of Congress itself to punish for contempt), 'contumacy in a witness called to testify in a matter properly under consideration by either House, and deliberately refusing to answer questions pertinent thereto, shall be a misdemeanor against the United States.' In re Chapman, 166 U.S. 661, 672, 17 S.Ct. 677, 681, 41 L.Ed. 1154. This legislation is now 2 U.S.C. § 192, 2 U.S.C.A. § 192. By thus making the federal judiciary the affirmative agency for enforcing the authority that underlies the congressional power to punish for contempt Congress necessarily brings into play the specific provisions of the Constitution relating to the prosecution of offenses and those implied restrictions under which courts function. 76 To turn to the immediate problem before us, the scope of inquiry that a committee is authorized to pursue must be defined with sufficiently unambiguous clarity to safeguard a witness from the hazards of vagueness in the enforcement of the criminal process against which the Due Process Clause protects. The questions must be put with relevance and definiteness sufficient to enable the witness to know whether his refusal to answer may lead to conviction for criminal contempt and to enable both the trial and the appellate courts readily to determine whether the particular circumstances justify a finding of guilt. 77 While implied authority for the questioning by the Committee, sweeping as was its inquiry, may be squeezed out of the repeated acquiescence by Congress in the Committee's inquiries, the basis for determining petitioner's guilt is not thereby laid. Prosecution for contempt of Congress presupposes an adequate opportunity for the defendant to have awareness of the pertinency of the information that he has denied to Congress. And the basis of such awareness must be contemporaneous with the witness' refusal to answer and not at the trial for it. Accordingly, the actual scope of the inquiry that the Committee was authorized to conduct and the relevance of the questions to that inquiry must be shown to have been luminous at the time when asked and not left, at best, in cloudiness. The circumstances of this case were wanting in these essentials. 78 Mr. Justice CLARK, dissenting. 79 As I see it the chief fault in the majority opinion is its mischievous curbing of the informing function of the Congress. While I am not versed in its procedures, my experience in the Executive Branch of the Government leads me to believe that the requirements laid down in the opinion for the operation of the committee system of inquiry are both unnecessary and unworkable. It is my purpose to first discuss this phase of the opinion and then record my views on the merits of Watkins' case. I. 80 It may be that at times the House Committee on Un-American Activities has, as the Court says, 'conceived of its task in the grand view of its name.' And, perhaps, as the Court Indicates, the rules of conduct placed upon the Committee by the House admit of individual abuse and unfairness. But that is none of our affair. So long as the object of a legislative inquiry is legitimate and the questions propounded are pertinent thereto, it is not for the courts to interfere with the committee system of inquiry. To hold otherwise would be an infringement on the power given the Congress to inform itself, and thus a trespass upon the fundamental American principle of separation of powers. The majority has substituted the judiciary as the grand inquisitor and supervisor of congressional investigations. It has never been so. II. 81 Legislative committees to inquire into facts or conditions for assurance of the public welfare or to determine the need for legislative action have grown in importance with the complexity of government. The investigation that gave rise to this prosecution is of the latter type. Since many matters requiring statutory action lie in the domain of the specialist or are unknown without testimony from informed witnesses, the need for information has brought about legislative inquiries that have used the compulsion of the subpoena to lay bare needed facts and a statute, 2 U.S.C. § 192, 2 U.S.C.A. § 192 here involved, to punish recalcitrant witnesses. The propriety of investigations has long been recognized and rarely curbed by the courts, though constitutional limitations on the investigatory powers are admitted.1 The use of legislative committees to secure information follows the example of the people from whom our legislative system is derived. The British method has variations from that of the United States but fundamentally serves the same purpose—the enlightenment of Parliament for the better performance of its duties. There are standing committees to carry on the routine work, royal commissions to grapple with important social or economic problems, and special tribunals of inquiry for some alleged offense in government.2 Our Congress has since its beginning used the committee system to inform itself. It has been estimated that over 600 investigations have been conducted since the First Congress. They are 'a necessary and appropriate attribute of the power to legislate * * *.' McGrain v. Daugherty, 1927, 273 U.S. 135, 175, 47 S.Ct. 319, 329, 71 L.Ed. 580. 82 The Court indicates that in this case the source of the trouble lies in the 'tremendous latitude' given the Un-American Activities Committee in the Legislative Reorganization Act.3 It finds that the Committee 'is allowed, in essence, to define its own authority, (and) to choose the direction and focus of its activities.' This, of course, is largely true of all committees within their respective spheres. And, while it is necessary that the 'charter,' as the opinion calls the enabling resolution, 'spell out (its) jurisdiction and purpose,' that must necessarily be in more or less general terms. An examination of the enabling resolutions of other committees reveals the extent to which this istrue. 83 Permanent or standing committees of both Houses have been given power in exceedingly broad terms. For example, the Committees on the Armed Services have jurisdiction over 'Common defense generally';4 the Committees on Interstate and Foreign Commerce have jurisdiction over 'interstate and foreign commerce generally';5 and the Committees on Appropriation have jurisdiction over 'Appropriation of the revenue for the support of the Government.'6 Perhaps even more important for purposes of comparison are the board authorizations given to select or special committees established by the Congress from time to time. Such committees have been 'authorized and directed' to make full and complete studies 'of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce';7 'of * * * all lobbying activities intended to influence, encourage, promote, or retard legislation';8 'to determine the extent to which current literature * * * containing immoral, (or) obscene * * * matter, or placing improper emphasis on crime * * * are being made available to the people of the United States * * *';9 and 'of the extent to which criminal or other improper practices * * * are or have been, engaged in in the field of labor-management relations * * * to the detriment of the interests of the public * * *.'10 (Emphasis added in each example.) Surely these authorizations permit the committees even more 'tremendous latitude' than the 'charter' of the Un-American Activities Committee. Yet no one has suggested that the powers granted were too broad. To restrain and limit the breadth of investigative power of this Committee necessitates the similar handling of all other committees. The resulting restraint imposed on the committee system appears to cripple the system beyond workability. 84 The Court finds fault with the use made of compulsory process, power for the use of which is granted the Committee in the Reorganization Act. While the Court finds that the Congress is free 'to determine the kinds of data' it wishes its committees to collect, this has led the Court says, to an encroachment on individual rights through the abuse of process. To my mind this indicates a lack of understanding of the problems facing such committees. I am sure that the committees would welcome voluntary disclosure. It would simplify and relieve their burden considerably if the parties involved in investigations would come forward with a frank willingness to cooperate. But everyday experience shows this just does not happen. One needs only to read the newspapers to know that the Congress could gather little 'data' unless its committees had, unfettered, the power of subpoena. In fact, Watkins himself could not be found for appearance at the first hearing and it was only by subpoena that he attended the second. The Court generalizes on this crucial problem saying 'added care on the part of the House and the Senate in authorizing the use of compulsory process and by their committees in exercising that power would suffice.' It does not say how this 'added care' could be applied in practice; however, there are many implications since the opinion warns that 'procedures which prevent the separation of power from responsibility' would be necessary along with 'constitutional requisites of fairness for witnesses.' The 'power' and 'responsibility' for the investigations are, of course, in the House where the proceeding is initiated. But the investigating job itself can only be done through the use of committees. They must have the 'power' to force compliance with their requirements. If the rule requires that this power be retained in the full House then investigations will be so cumbrous that their conduct will be a practical impossibility. As to 'fairness for witnesses' there is nothing in the record showing any abuse of Watkins. If anything, the Committee was abused by his recalcitrance. 85 While ambiguity prevents exactness (and there is 'vice in vagueness' the majority reminds), the sweep of the opinion seems to be that 'preliminary control' of the Committee must be exercised. The Court says a witness' protected freedoms cannot 'be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.' Frankly I do not see how any such procedure as 'preliminary control' can be effected in either House of the Congress. What will be controlled reliminarily? The plans of the investigation, the necessity of calling certain witnesses, the questions to be asked, the details of subpoenas duces tecum, etc? As it is now, Congress is hard pressed to find sufficient time to fully debate and adopt all needed legislation. The Court asserts that 'the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House.' This was to be expected. It may be that back in the twenties and thirties Congress could spare the time to conduct contempt hearings, but that appears impossible now. The Court places a greater burden in the conduct of contempt cases before the courts than it does before 'the bar of the House.' It cites with approval cases of contempt tried before a House of the Congress where no more safeguards were present than we find here. In contempt prosecutions before a court, however, the majority places an investigative hearing on a par with a criminal trial, requiring that 'knowledge of the subject to which the interrogation is deemed pertinent * * * must be available (to the witness) with same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense.' I know of no such claim ever being made before. Such a requirement has never been thought applicable to investigations and is wholly out of place when related to the informing function of the Congress. See Frankfurter, Hands Off The Investigations, 38 New Republic, May 21, 1924, p. 329, 65 Cong.Rec. 9080—9082. The Congress does not have the facts at the time of the investigation for it is the facts that are being sought. In a criminal trial the investigation has been completed and all of the facts are at hand. The informing function of the Congress is in effect 'a study by the government of circumstances which seem to call for study in the public interest.' See Black, Inside a Senate Investigation, 172 Harper's Magazine, Feb. 1936, pp. 275, 278. In the conduct of such a proceeding it is impossible to be as explicit and exact as in a criminal prosecution. If the Court is saying that its new rule does not apply to contempt cases tried before the bar of the House affected, it may well lead to trial of all contempt cases before the bar of the whole House in order to avoid the restrictions of the rule. But this will not promote the result desired by the majority. Summary treatment, at best, could be provided before the whole House because of the time factor, and such treatment would necessarily deprive the witness of many of the safeguards in the present procedures. On review here the majority might then find fault with that procedure. III. 86 Coming to the merits of Watkins' case, the Court reverses the judgment because: (1) The subject matter of the inquiry was not 'made to appear with undisputable clarity' either through its 'charter' or by the Chairman at the time of the hearing and, therefore, Watkins was deprived of a clear understanding of 'the manner in which the propounded questions (were) pertinent thereto'; and (2) the present committee system of inquiry of the House, as practiced by the Un-American Activities Committee, does not provide adequate safeguards for the protection of the constitutional right of free speech. I subscribe to neither conclusion. 87 Watkins had been an active leader in the labor movement for many years and had been identified by two previous witnesses at the Committee's hearing in Chicago as a member of the Communist Party. There can be no question that he was fully informed of the subject matter of the inquiry. His testimony reveals a complete knowledge and understanding of the hearings at Chicago. There the Chairman had announced that the Committee had been directed 'to ascertain the extent and success of subversive activities directed against these United States (and) On the basis of these investigations and hearings * * * (report) its findings to the Congress and (make) recommendations * * * for new legislation.' He pointed to the various laws that had been enacted as a result of Committee recommendations. He stated that 'The Congress has also referred to the House Committee on Un-American Activities a bill which would amend the National Security Act of 1950' which, if made law, would restrict the availability of the Labor Act to unions not 'in fact Communist-controlled action groups.' The Chairman went on to say that 'It cannot be said that subversive infiltration has had a greater nor a lesser success in infiltrating this important area. The hearings today are the culmination of an investigation * * *. Every witness who has been subpoenaed to appear before the committee here in Chicago * * * (is) known to possess information which will assist the Committee in performing its directed function to the Congress of the United States.' 88 A subpoena had issued for Watkins to appear at the Chicago hearings but he was not served. After Watkins was served the hearing in question was held in Washington, D.C. Reference at this hearing was made to the one conducted in Chicago. Watkins came before the Committee with a carefully prepared statement. He denied certain testimony of the previous witnesses and declared that he had never been a 'card-carrying member' of the Party. He admitted that for the period 1942—1947 he 'cooperated with the Communist Party * * * participated in Communist activities * * * made contributions * * * attended caucuses at (his union's) convention at which Communist Party officials were present * * * (and) freely cooperated with the Communist Party * * *.' This indicated that for a five-year period he, a union official, was cooperating closely with the Communist Party even permitting its officials to attend union caucuses. For the last two years of this liaison the Party had publicly thrown off its cloak of a political party. It was a reconstituted, militant group known to be dedicated to the overthrow of our Government by force and violence. In this setting the Committee attempted to have Watkins identify 30 persons, most of whom were connected with labor unions in some way. While one 'operated a beauty parlor' and another was 'a watchmaker,' they may well have been 'drops' or other functionaries in the program of cooperation between the union and the Party. It is a non sequitur for the Court to say that since 'almost a quarter of the persons on the list are not labor people, the inference becomes strong that the subject before the Subcommittee was not defined in terms of Communism in labor.' I submit that the opposite is true. IV. 89 I think the Committee here was acting entirely within its scope and that the purpose of its inquiry was set out with 'undisputable clarity.' In the first place, the authorizing language of the Reorganization Act11 Must be read as a whole, not dissected. It authorized investigation into subversive activity, its extent, character, objects, and diffusion. While the language might have been more explicit than using such words as 'un-American,' or phrases like 'principle of the form of government,' still these are fairly well understood terms. We must construe them to give them meaning if we can. Our cases indicate that rather than finding fault with the use of words or phrases, we are bound to presume that the action of the legislative body in granting authority to the Committee was with a legitimate object 'if (the action) is capable of being so construed.' (Emphasis added.) People ex rel. McDonald v. Keeler, 1885, 99 N.Y. 463, 487, 2 N.E. 615, 627, 628, as quoted and approved in McGrain v. Daugherty, supra, 273 U.S. at page 178, 47 S.Ct. at page 330, 71 L.Ed. 580. Before we can deny the authority 'it must be obvious that' the Committee has 'exceeded the bounds of legislative power.' Tenney v. Brandhove, 1951, 341 U.S. 367, 378, 71 S.Ct. 783, 789, 95 L.Ed. 1019. The fact that the Committee has often been attacked has caused close scrutiny of its acts by the House as a whole and the House has repeatedly given the Committee its approval. 'Power' and 'responsibility' have not been separated. But the record in this case does not stop here. It shows that at the hearings involving Watkins, the Chairman made statements explaining the functions of the Committee.12 And, furthermore, Watkins' action at the hearing clearly reveals that he was well acquainted with the purpose of the hearing. It was to investigate Communist infiltration into his union. This certainly falls within the grant of authority from the Reorganization Act and the House has had ample opportunity to limit the investigative scope of the Committee if it feels that the Committee has exceeded its legitimate bounds. 90 The Court makes much of petitioner's claim of 'exposure for exposure's sake' and strikes at the purposes of the Committee through this catch phrase. But we are bound to accept as the purpose of the Committee that stated in the Reorganization Act together with the statements of the Chairman at the hearings involved here. Nothing was said of exposure. The statements of a single Congressman cannot transform the real purpose of the Committee into something not authorized by the parent resolution. See United States v. Rumely, 1953, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770; Sinclair v. United States, 1929, 279 U.S. 263, 290, 295, 49 S.Ct. 268, 272, 73 L.Ed. 692. The Court indicates that the questions propounded were asked for exposure's sake and had no pertinency to the inquiry. It appears to me that they were entirely pertinent to the announced purpose of the Committee's inquiry. Undoubtedly Congress has the power to inquire into the subjects of communism and the Communist Party. American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. As a corollary of the congressional power to inquire into such subject matter, the Congress, through its committees, can legitimately seek to identify individual members of the Party. Barsky v. United States, 1948, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 334 .u.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767. See also Lawson v. United States, 1949, 85 U.S.App.D.C. 167, 170 171, 176 F.2d 49, 52—53, certiorari denied, 339 U.S. 934, 70 S.Ct. 663, 94 L.Ed. 1352; United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, 90—92, certiorari denied, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122. 91 The pertinency of the questions is highlighted by the need for the Congress to know the extent of infiltration of communism in labor unions. This technique of infiltration was that used in bringing the downfall of countries formerly free but now still remaining behind the Iron Curtain. The Douds case illustrates that the Party is not an ordinary political party and has not bee at least since 1945. Association with its officials is not an ordinary association. Nor does it matter that the questions related to the past. Influences of past associations often linger on as was clearly shown in the instance of the witness Matusow and others. The techniques used in the infiltration which admittedly existed here might well be used again in the future. If the parties about whom Watkins was interrogated were Communists and collaborated with him, as a prior witness indicated, an entirely new area of investigation might have been opened up. Watkins' silence prevented the Committee from learning this information which could have been vital to its future investigation. The Committee was likewise entitled to elicit testimony showing the truth or falsity of the prior testimony of the witnesses who had involved Watkins and the union with collaboration with the Party. If the testimony was untrue a false picture of the relationship between the union and the Party leaders would have resulted. For these reasons there were ample indications of the pertinency of the questions. V. 92 The Court condemns the long-established and long-recognized committee system of inquiry of the House because it raises serious questions concerning the protection it affords to constitutional rights. It concludes that compelling a witness to reveal his 'beliefs, expressions or associations' impinges upon First Amendment rights. The system of inquiry, it says, must 'insure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly.' In effect the Court honors Watkins' claim of a 'right to silence' which brings all inquiries, as we know, to a 'dead end.' I do not see how any First Amendment rights were endangered here. There is nothing in the First Amendment that provides the guarantees Watkins claims. That Amendment was designed to prevent attempts by law to curtail freedom of speech. Whitney v. People of State of California, 1927, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095. It forbids Congress from making any law 'abridging the freedom of speech, or of the press.' It guarantees Watkins' right to join any organization and make any speech that does not have an intent to incite to crime. Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. But Watkins was asked whether he knew named individuals and whether they were Communists. He refused to answer on the ground that his rights were being abridged. What he was actually seeking to do was to protect his former associates, not himself, from embarrassment. He had already admitted his own involvement. He sought to vindicate the rights, if any, of his associates. It is settled that one cannot invoke the constitutional rights of another. Tileston v. Ullman, 1943, 318 U.S. 44, 46, 63 S.Ct. 493, 494, 87 L.Ed. 603. 93 As already indicated, even if Watkins' associates were on the stand they could not decline to disclose their Communist connections on First Amendment grounds. While there may be no restraint by the Government of one's beliefs, the right of free belief has never been extended to include the withholding of knowledge of past events or transactions. There is no general privilege of silence. The First Amendment does not make speech or silence permissible to a person in such measure as he chooses. Watkins has here exercised his own choice as to when he talks, what questions he answers, and when he remains silent. A witness is not given such a choice by the Amendment. Remote and indirect disadvantages such as 'public stigma, scorn and obloquy' may be related to the First Amendment, but they are not enough to block investigation. The Congress has recognized this since 1862 when it first adopted the contempt section, R.S. § 103, as amended, 2 U.S.C. § 193, 2 U.S.C.A. § 193, declaring that no witness before a congressional committee may refuse to testify 'upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous.' See also McGrain v. Daugherty, supra, 273 U.S. at pages 179, 180, 47 S.Ct. at page 330, 71 L.Ed. 580; United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, 89, certiorari denied, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122. See also Report on Congressional Investigations, Assn. of the Bar of the City of New York, 1948, 3—4. 94 We do not have in this case unauthorized, arbitrary, or unreasonable inquiries and disclosures with respect to a witness' personal and private affairs so ably and properly denounced in the Sinclair case, supra, 279 U.S. at pages 291, 292, 49 S.Ct. at page 271, 73 L.Ed. 692. This inquiry is far different from the cases relied upon by the Court. There is no analogy to the case of Richard Thompson13 involving the sermons of clergymen. It is not Floyd's14 case involving criticism of the royal family. There is no resemblance to John Wilkes' struggle for a seat in Parliament. It is not Briggs15 where the prosecutor sought to develop the national origin of policemen. It is not Kilbourn16 involving a private real estate pool. Nor is it Quinn,17 Emspak,18 or Bart,19 involving the Fifth Amendment. It is not Rumely20 involving the interpretation of a lobbying statute. Nor is this 'a new kind of congressional inquiry unknown in prior periods of American history * * * (i.e.) a broad scale intrusion into the lives and affairs of private citizens.' As I see it only the setting is different. It involves new faces and new issues brought about by new situations which the Congress feels it is necessary to control in the public interest. The difficulties of getting information are identical if not greater. Like authority to that always used by the Congress is employed here and in the same manner so far as congressional procedures are concerned. We should afford to Congress the presumption that it takes every precaution possible to avoid unnecessary damage to reputations. Some committees have codes of procedure, and others use the executive hearing technique to this end. The record in this case shows no conduct on the part of the Un-American Activities Committee that justifies condemnation. That there may have been such occasions is not for us to consider here. Nor should we permit its past transgressions, if any, to lead to the rigid restraint of all congressional committees. To carry on its heavy responsibility the compulsion of truth that does not incriminate is not only necessary to the Congress but is permitted within the limits of the Constitution. 1 R. 153—163; Hearings before the House of Representatives Committee on Un-American Activities on Communist Activities in the Chicago Area—Part 1, 82d Cong., 2d Sess., 3737—3752. 2 R. 135—149; Hearings before the House of Representatives Committee on Un-American Activities on Investigation of Communist Activities in the Chicago Area—Part 2, 83d Cong., 2d Sess. 4243 4260. 3 R. 75; Hearings, supra, note 2, Part 3, at 4268. 4 Brief for Respondent, pp. 59—60. 5 R. 85—86; Hearings, supra, note 2, Part 3, at 4275. 6 There were nine citations of contempt voted at the same time. Petitioner's case was the second to be acted upon. There was no debate other than a statement by Representative Javits on a proposal to consolidate the legislative bodies investigating subversion. 100 Cong.Rec. 6382—6386. The resolution to prosecute petitioner passed by a voice vote. There was lengthier discussion and a recorded vote on the first case considered by the House. Id., at 6375—6382. In none of the cases was there any debate on the merits of the witnesses' conduct. Id., at 6375—6401. 7 The counts of the indictment were patterned from the sequence of the questioning by the Committee. Petitioner was asked separately about six persons, and these are the basis of the first six counts. The last count comprises the omnibus question that gave a list of twenty-five names for petitioner to identify. With two exceptions, the questions asked for knowledge of past membership in the Communist Party. The context of the interrogation indicates that the Committee's concern was with such past conduct. Petitioner agreed to and did disclose his knowledge of those he believed to be present members. 8 'Now, we don't claim on behalf of the Government that there is any right to expose for the purposes of exposure. And I don't know that Congress has ever claimed any such right. But we do say, in the same breath, that there is a right to inform the public at the same time you inform the Congress.' 9 Coke, Fourth Institute, 15. 10 H.Comm.J. (1688—1693) 227; Jay v. Topham, 12 How.St.Tr. 822. 11 Proceedings against Richard Thompson, 8 How.St.Tr. 2; Wittke, The History of English Parliamentary Privilege, 50. 12 'Floyd, for uttering a few contemptible expressions, was degraded from his gentility, and to be held an infamous person; his testimony not to be received; to ride from the Fleet to Cheapside on horseback, without a saddle, with his face to the horse's tail, and the tail in his hand, and then to stand two hours in the pillory, and to be branded in the forehead with the letter K; to ride four days afterwards in the same manner to Westminster, and then to stand two hours more in the pillory, with words on a paper in his hat showing his offence; to be whipped at the cart's tail from the Fleet to Westminster Hall; to pay a fine of 5000l.; and to be a prisoner in Newgate during his life.' 1 DeLolme, The Rise and Progress of the English Constitution, 348. 13 H.L.J. (1620—1628) 110—111, 113, 116, 124, 125, 127, 132, 133—134, 183; Wittke, 76—77. See also Kelke, Constitutional Law and Cases, 155—156. 14 H.L.J. (1675—1681) 54—55. 15 Wittke, 122—123. With all his knavery, Wilkes was long a hero with certain persecuted groups in England. Here, streets and other public places have been named for him and his writings. 16 H.Comm.J. (1835) 533, 564—565, 571, 575. 17 Finer, Congressional Investigations: The British System, 18 U. of Chi.L.Rev. 521, 554—561; Smelser, Legislative Investigations: Safeguards for Witnesses: The Problem in Historical Perspective, 29 Notre Dame Law. 163, 167; Clokie & Robinson, Royal Commissions of Inquiry. 18 Finer, 559; Smelser, 167; Clokie & Robinson, 186—187. 19 See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 168—191; Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa.L.Rev. 691, 719—725. 20 The first case to reach this Court was Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242, which upheld the power of the House of Representatives to reprimand a person for attempting to bribe a member of the House. 21 On December 31, 1827, the House Committee on Manufacturers was given the task of inquiring into the effect that the proposed upward revision in the tariff schedules would have upon domestic manufacturers. The power of the House to authorize a fact-finding inquiry in aid of legislation was seriously challenged. After full debate the investigation was authorized by a vote of 102 to 88. 4 Cong.Deb. 889. 22 The subject matter of the select committee was '* * * the late invasion and seizure of the armory and arsenal of the United States at Harper's Ferry, in Virginia, by a band of armed men * * *. And that said committee (shall) report whether any and what legislation may, in their opinion, be necessary, on the part of the United States, for the future preservation of the peace of the country, or for the safety of the public property; and that said committee (shall) have power to send for persons and papers.' Cong. Globe, 36th Cong., 1st Sess. 141 (1859). 23 60 Stat. 828—829. All standing committees in the Senate were invested with the power of compulsory process. 60 Stat. 830 831. During the 83d Congress, two other standing committees in the House of Representatives, the Appropriations and Government Operations Committees, possessed that power. 99 Cong.Rec. 16—19. 24 The first court that was called upon to review the constitutional validity of a legislative inquiry was the New York Court of Common Pleas. The case arose out of the inquiry by the Common Council of New York into the conduct of the Police Department in 1855. Judge Charles Patrick Daly upheld the investigative power as implicit in the functions of a legislature, but ruled that the examination of witnesses must be confined to the subject under investigation. Applying this standard, he ruled that questions directed to the national origin of policemen were improper under the investigators' authorizing resolution. Briggs v. Mackeller, N.Y.Common Pleas, 1855, 2 Abb.Prac. 30. 25 In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154 (upheld conviction under R.S. § 102, forerunner of 2 U.S.C. § 192, 2 U.S.C.A. § 192, for refusal to answer questions in inquiry into charges of corruption among certain Senators with respect to pending bill on sugar tariff); cf. Marshall v. Gordon, 243 U.S. 521, 37 S.Ct. 448, 61 L.Ed. 881. 26 Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (upheld power of Senate to punish as a contempt the action of a witness in allowing the destruction and removal of papers subject to the subpoena of a Senate committee; held that enactment of 2 U.S.C. § 192, 2 U.S.C.A. § 192 did not impair contempt power of Houses of Congress). 27 The first reported case in which the claim of the privilege against self-incrimination was allowed in a congressional inquiry proceeding was United States v. Yukio Abe, D.C., 95 F.Supp. 991. Prior thereto, several state courts had held that legislative investigations were subject to the witness' privilege not to accuse himself under state constitutions. Emery's Case, 107 Mass. 172, decided in 1871 is the earliest. See also Ex parte Johnson, 187 S.C. 1, 196 S.E. 164, 118 A.L.R. 591. 28 E.g., Excerpts from Hearings before the House of Representatives Committee on Un-American Activities—Regarding Investigation of Communist Activities in Connection with the Atom Bomb, 80th Cong., 2d Sess. 5; N.Y. Herald Tribune, Sept. 6, 1948, p. 3, col. 6—7. 29 Appropriateness of the privilege has been upheld without question in many cases arising out of congressional inquiry. See, e.g., Starkovich v. United States, 9 Cir., 231 F.2d 411; Aiuppa v. United States, 6 Cir., 201 F.2d 287; United States v. Costello, 2 Cir., 198 F.2d 200; Marcello v. United States, 5 Cir., 196 F.2d 437; United States v. DiCarlo, D.C., 102 F.Supp. 597; United States v. Licavoli, D.C., 102 F.Supp. 607; United States v. Cohen, D.C., 101 F.Supp. 906; United States v. Jaffe, D.C. 98 F.Supp. 191; United States v. Fitzpatrick, D.C., 96 F.Supp. 491; United States v. Raley, D.C., 96 F.Supp. 495; United States v. Yukio Abe, D.C., 95 F.Supp. 991. 30 The first reported decision, made in 1947, grew out of the inquiry of the Un-American Activities Committee into certain organizations suspected of subversive actions. Subpoenas duces tecum had been issued calling for the correspondence and other records of these organizations. Refusals to comply were followed by prosecutions under 2 U.S.C. § 192, 2 U.S.C.A. § 192. The District Court denied motions to dismiss the indictments in United States v. Bryan, D.C., 72 F.Supp. 58. The decision with respect to the First Amendment was affirmed in Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241. 31 See United States v. Rumely, 345 U.S. 41, 43—44, 73 S.Ct. 543, 544, 545, 97 L.Ed. 770; Lawson v. United States, 85 U.S.App.D.C. 167, 176 F.2d 49, 51—52; Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, 244—250; United States v. Josephson, 2 Cir., 165 F.2d 82, 90—92. 32 In a report to the House, the Committee declared: 'While Congress does not have the power to deny to citizens the right to believe in, teach, or advocate, communism, fascism, and nazism, it does have the right to focus the spotlight of publicity upon their activities. * * *' H.R.Rep. No. 2, 76th Cong., 1st Sess. 13. A year later, the Committee reported that '* * * investigation to inform the American people * * * is the real purpose of the House Committee.' H.R.Rep. No. 1476, 76th Cong., 3d Sess. 1—2. A pamphlet issued by the Committee in 1951 stated that: 'Exposure in a systematic way began with the formation of the House Committee on Un-American Activities, May 26, 1938.' The Committee believed itself commanded '* * * to expose people and organizations attempting to destroy this country. That is still its job and to that job it sticks.' 100 Things You Should Know About Communism, H.R.Doc. No. 136, 82d Cong., 1st Sess. 19, 67. In its annual reports, the Committee has devoted a large part of its information to a public listing of names along with a summary of their activities. '* * * (T)he committee feels that the Congress and the American people will have a much clearer and fuller picture of the success and scope of communism in the United States by having set forth the names and, where possible, the positions occupied by individuals who have been identified as Communists, or former Communists, during the past year.' H.R.Rep. No. 2516, 82d Cong., 2d Sess. 6—7. 33 We are not concerned with the power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: 'The informing function of Congress should be preferred even to its legislative function.' Id., at 303. From the earliest times in its history, the Congress has assiduously performed an 'informing function' of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 168—194. 34 Compare the treatment of this point in Barenblatt v. United States, 100 U.S.App.D.C. —-, 240 F.2d 875, 880—881; Morford v. United States, 85 U.S.App.D.C. 172, 176 F.2d 54, 58; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278—279; United States v. Josephson, 2 Cir., 165 F.2d 82, 89; and United States v. Kamin, D.C., 136 F.Supp. 791, 800—801. 35 H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, 7586. 36 H.Res. 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 15. 37 H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 18, 24. 38 For contrasting views, see Morford v. United States, 85 U.S.App.D.C. 172, 176 F.2d 54, 57—58, and Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, 247—248. 39 The language of the resolution was obviously taken from the Dickstein resolution, which established the McCormack Committee in 1934 to study Nazi and other propaganda sent into the United States from foreign countries. H.Res. 198, 73d Cong., 2d Sess., 78 Cong.Rec. 4934, 4949. 40 In 1947, Judge Charles E. Clark, now Chief Judge of the Court of Appeals for the Second Circuit, wrote about the Committee: 'Suffice it to say here that its range of activity has covered all varieties of organizations, including the American Civil Liberties Union, the C.I.O., the National Catholic Welfare Conference, the Farmer-Labor party, the Federal Theatre Project, consumers' organizations, various publications from the magazine 'Time' to the 'Daily Worker,' and varying forms and types of industry, of which the recent investigation of the movie industry is fresh in the public mind. While it has avoided specific definition of what it is seeking, it has repeatedly inquired as to membership in the Communist party and in other organizations which it regards as communist controlled or affected.' United States v. Josephson, 2 Cir., 165 F.2d 82, 95 (dissent). See also the dissenting opinion of Judge Henry W. Edgerton, now Chief Judge of the Court of Appeals for the District of Columbia Circuit, in Barsky v. United States, 83 U.S.App.D.C. 127, at page 143, 167 F.2d 241, at page 257. 41 H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098, 1127 1128; H.Res. 321, 76th Cong., 3d Sess., 86 Cong.Rec. 572, 604—605; H.Res. 90, 77th Cong., 1st Sess., 87 Cong.Rec. 886, 899; H.Res. 420, 77th Cong., 2d Sess., 88 Cong.Rec. 2282, 2297; H.Res. 65, 78th Cong., 1st Sess., 89 Cong.Rec. 795, 809—810. 42 91 Cong.Rec. 10, 15. 43 60 Stat. 812, 828. 44 H.Res. 5, 80th Cong., 1st Sess., 93 Cong.Rec. 38; H.Res. 5, 81st Cong., 1st Sess., 95 Cong.Rec. 10; H.Res. 7, 82d Cong., 1st Sess., 97 Cong.Rec. 17, 19; H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15; H.Res. 5, 84th Cong., 1st Sess., 101 Cong.Rec. 11. 45 This statute was passed in 1857 as a direct result of an incident which caused the Congress to feel that it needed more severe sanctions to compel disclosures than were available in the historical procedure of summoning the recalcitrant witness before the bar of either House of Congress and ordering him held in custody until he agreed to testify. Such imprisonment is valid only so long as the House remains in session. See Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242; Eberling, Congressional Investigations, 180—184. The immediate cause for adoption of the statute was an accusation by one J. W. Simonton, a newspaperman, that certain unnamed Congressmen were soliciting bribes on a matter pending before the legislature. Simonton was cited before the House of Representatives and refused to divulge the names of those implicated. In the course of that episode, the forerunner of 2 U.S.C. § 192, 2 U.S.C.A. § 192 was passed in order '* * * to inflict a greater punishment than the committee believe the House possesses the power to inflict.' Cong.Globe, 34th Cong., 3d Sess. 405. See also id., 403—413, 426—433, 434—445. Thereafter, having been in custody more than two weeks, Simonton testified to the satisfaction of the committee and was discharged. 3 Hinds' Precedents § 1669. 46 United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. 47 United States v. Orman, 3 Cir., 207 F.2d 148; Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447; United States v. Kamin, D.C., 135 F.Supp. 382, Id., 136 F.Supp. 791. 48 United States v. Josephson, 2 Cir., 165 F.2d 82, 88. 49 'The committee will be in order. I should like to make an opening statement regarding our work here in the city of Chicago. The Congress of the United States, realizing that there are individuals and elements in this country whose aim it is to subvert our constitutional form of government, has established the House Committee on Un-American Activities. In establishing this committee, the Congress has directed that we must investigate and hold hearings, either by the full committee or by a subcommittee, to ascertain the extent and success of subversive activities directed against these United States. 'On the basis of these investigations and hearings, the Committee on Un-American Activities reports its findings to the Congress and makes recommendations from these investigations and hearings for new legislation. As a result of this committee's investigations and hearings, the Internal Security Act of 1950 was enacted (50 U.S.C.A. § 781 et seq.) 'Over the past fifteen years this committee has been in existence, both as a special and permanent committee, it has made forty-seven recommendations to the Congress to insure proper security against subversion. I am proud to be able to state that of these forty-seven recommendations, all but eight have been acted upon in one way or another. Among these recommendations which the Congress has not acted upon are those which provide that witnesses appearing before congressional committees be granted immunity from prosecution on the information they furnish. 'The committee has also recommended that evidence secured from confidential devices be admissible in cases involving the national security. The executive branch of Government has now also asked the Congress for such legislation. A study is now being made of various bills dealing with this matter. 'The Congress has also referred to the House Committee on Un-American Activities a bill which would amend the National Security Act of 1950. This bill, if enacted into law, would provide that the Subversive Activities Control Board should, after suitable hearings and procedures, be empowered to find if certain labor organizations are in fact Communist-controlled action groups. Following this action, such labor groups would not have available the use of the National Labor Relations Board as they now have under the provisions of the Labor-Management Relations Act of 1947 (29 U.S.C.A. § 141 et seq.). 'During the first session of this 83rd Congress, the House Un-American Activities Committee has held hearings inLos Angeles and San Francisco, California; Albany and New York City, New York; Philadelphia, Pennsylvania, and Columbus, Ohio. We are here in Chicago, Illinois, realizing that this is the center of the great midwestern area of the United States. 'It cannot be said that subversive infiltration has had a greater nor a lesser success in infiltrating this important area. The hearings today are the culmination of an investigation that has been conducted by the committee's competent staff and is a part of the committee's intention for holding hearings in various parts of the country. 'The committee has found that by conducting its investigations and holding hearings in various parts of the country, it has been able to secure a fuller and more comprehensive picture of subversive efforts throughout our nation. Every witness who has been subpoenaed to appear before the committee here in Chicago, as in all hearings conducted by this committee, are (sic) known to possess information which will assist the committee in performing its directed function to the Congress of the United States.' (R. 43—44; Hearing, supra, note 2, Part 1, at 4165—4166). 50 The Committee convened in executive session on January 22, 1953, and adopted the following resolution: 'Be It Resolved, that the Chairman shall have authority from time to time to appoint subcommittees composed of one or more members of the Committee on Un-American Activities for the purpose of performing any and all acts which the Committee as a whole is authorized to do.' (R. 91.) 51 The original resolution authorizing subcommittees was amended on March 3, 1954, to require any subcommittee to consist of at least three members, two of whom could constitute a quorum. (R. 92.) Petitioner appeared before a subcommittee composed at the outset of four members. After a recess in the course of his testimony, only two committeemen were present. It was during this latter phase of his testimony that petitioner refused to answer the questions involved in this case. 52 The bill pending at the time of the Chairman's remarks, March 15, 1954, and when petitioner testified a month later was H.R. 7487, 100 Cong.Rec. 763. No action was ever taken on this proposal. Introduced by Representative Velde, it would have withdrawn the rights, privileges and benefits under the National Labor Relations Act of any labor organization which was substantially directed, dominated or controlled by persons who were or ever had been members of a 'Communist-action organization,' as that phrase is used in the Internal Security Act. On July 6, 1954, after extensive hearings, the Senate Judiciary Committee reported favorably on S. 3706, a bill drafted by that committee to amend the Internal Security Act. Two days later, Representative Velde introduced H.R. 9838, which was identical to S. 3706. These bills eventually became law. 68 Stat. 775, 50 U.S.C.A. § 782 et seq. The Act created the concept of a 'Communist infiltrated organization,' and part of its provisions declared that a labor union that came within that definition should be barred from the rights, privileges and benefits of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The same sanctions were applied to a labor group that was a 'Communist-action' or 'Communist-front organization' under the original Internal Security Act. 53 The first four witnesses testified principally about the Communist Party activities of an employee of the National Cancer Institute of the United States Public Health Service. A Chicago attorney related to the Subcommittee his experiences with Communist youth organizations during his college days. The sixth witness told of her work as a district organizer for the Communist Party in Montana, Wyoming, Idaho and the Dakotas during the 1930's. 54 'This committee is set up by the House of Representatives to investigate subversion and subversive propaganda and to report to the House of Representatives for the purpose of remedial legislation. 'The House of Representatives has by a very clear majority, a very large majority, directed us to engage in that type of work, and so we do, as a committee of the House of Representatives, have the authority, the jurisdiction, to ask you concerning your activities in the Communist Party, concerning your knowledge of any other persons who are members of the Communist Party or who have been members of the Communist Party, and so, Mr. Watkins, you are directed to answer the question propounded to you by counsel.' (R. 86; Hearings, supra, note 2, Part 3, at 4275—4276.) 55 Cf. United States v. Kamin, D.C., 136 F.Supp. 791, 800. 1 United States v. Rumely, 1953, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770; Sinclair v. United States, 1929, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; Reed v. County Commissioners, 1928, 277 U.S. 376, 48 S.Ct. 531, 72 L.Ed. 924; McGrain v. Daugherty, 1927, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153 (1926). 2 Symposium on Congressional Investigations, 18 U. of Chi.L.Rev. 421, Finer, The British System, 521, 532, 554, 561 (1951). 3 The Committee originated in 1938 under H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, and was patterned after a resolution of 1934 authorizing the investigation of Nazi propaganda. H.Res. 198, 73d Cong., 2d Sess., 78 Cong.Rec. 4934. The resolution read much the same as the present authority of the Committee which is quoted below. By a succession of House Resolutions (H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098; H.Res. 321, 76th Cong., 3d Sess., 86 Cong.Rec. 572; H.Res. 90, 77th Cong., 1st Sess., 87 Cong.Rec. 886; H.Res. 420, 77th Cong., 2d Sess., 88 Cong.Rec. 2282; H.Res. 65, 78th Cong., 1st Sess., 89 Cong.Rec. 795) the Committee continued in existence until in 1945, by amendment of the House Rules, it was made a standing committee. 91 Cong.Rec. 10, 15. The Legislative Reorganization Act of 1946 retained it as one of the standing committees and provided: 'All proposed legislation, messages, petitions, memorials, and other matters relating to the subjects listed under the standing committees named below shall be referred to such committees, respectively: * * *' '(q) * * * (2) The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.' 60 Stat. 823, 828. The Committee is authorized to sit and act at any time, anywhere in the United States and to require the attendance of witnesses and the production of books and papers. A resolution of the Eighty-third Congress adopted the Rules of the previous Congresses as amended by the Legislative Reorganization Act of 1946. H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 16, 18, 24. 4 60 Stat. 815, 824. 5 60 Stat. 817, 826. 6 60 Stat. 815, 824. 7 S.Res. 202, 81st Cong., 2d Sess., in pertinent part provides: 'authorized and directed to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the State in which the transactions occur, and, if so, the manner and extent to which, and the identity of the persons, firms, or corporations by which such utilization is being made, what facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of law of the United States or the laws of any State: Provided, however, That nothing contained herein shall authorize (1) the recommendation of any change in the laws of the several States relative to gambling, or (2) any possible interference with the rights of the several States to prohibit, legalize, or in any way regulate gambling within their borders.' 8 H.Res. 298, 81st Cong., 1st Sess., in pertinent part provides: 'authorized and directed to conduct a study and investigation of (1) all lobbying activities intended to influence, encourage, promote, or retard legislation; and (2) all activities of agencies of the Federal Government intended to influence, encourage, promote, or retard legislation.' 9 H.Res. 596, 82d Cong., 2d Sess., in pertinent part provides: 'authorized and directed to conduct a full and complete investigation and study (1) to determine the extent to which current literature—books, magazines, and comic books—containing immoral, obscene, or otherwise offense matter, or placing improper emphasis on crime, violence, and corruption, are being made available to the people of the United States through the United States mails and otherwise; and (2) to determine the adequacy of existing law to prevent the publication and distribution of books containing immoral, offensive, and other undersirable matter.' 10 S.Res. 74, 85th Cong., 1st Sess., in pertinent part provides: 'authorized and directed to conduct an investigation and study of the extent to which criminal or other improper practices or activities are, or have been, engaged in in the field of labor-management relations or in groups or organizations of employees or employers to the detriment of the interests of the public, employers or employees, and to determine whether any changes are required in the laws of the United States in order to protect such interests against the occurrence of such practices or activities.' 11 See note 3, supra. 12 See ante, 77 S.Ct. 1199. See also the statement by Congressman Velde, Chairman of the Committee on Un-American Activities, April 29, 1954, at Washington, D.C., where Mr. Velde stated, inter alia: 'This committee is set up by the House of Representatives to investigate subversion and suversive propaganda and to report to the House of Representatives for the purpose of remedial legislation. 'The House of Representatives has by a very clear majority, a very large majority, directed us to engage in that type of work, and so we do, as a committee of the House of Representatives, have the authority, the jurisdiction, to ask you concerning your activities in the Communist Party, concerning your knowledge of any other persons who are members of the Communist Party or who have been members of the Communist Party, and so, Mr. Watkins, you are directed to answer the question propounded to you by counsel.' 13 Proceedings against Richard Thompson, 8 How.St.Tr. 2 (1680). 14 See 1 De Lolme, The Rise and Progress of the English Constitution, 1838, at 347—348. 15 Briggs v. MacKellar, N.Y.Common Pleas, 1855, 2 Abb.Prac. 30, 65. 16 Kilbourn v. Thompson, 1881, 103 U.S. 168, 26 S.Ct. 377. 17 Quinn v. United States, 1955, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. 18 Emspak v. United States, 1955, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997. 19 Bart v. United States, 1955, 349 U.S. 219, 75 S.Ct. 712, 99 L.Ed. 1016. 20 United States v. Rumely, 1953, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770.

23

354 U.S. 390 77 S.Ct. 1096 1 L.Ed.2d 1420 WEST POINT WHOLESALE GROCERY COMPANY, Appellant,v.The CITY OF OPELIKA, ALABAMA. No. 478. Argued April 24, 1957. Decided June 17, 1957. Mr. M. R. Schlesinger, Cleveland, Ohio, for the appellant. Mr. R. E. L. Cope, Union Spring, Ala., for the appellee. Mr. Justice HARLAN delivered the opinion of the Court. 1 This is a suit to recover taxes paid by the appellant to the City of Opelika, Alabama, on the ground that the taxes in question imposed a discriminatory burden on interstate commerce. The state court sustained a demurrer to the complaint, 38 Ala.App. 444, 87 So.2d 661, rejecting the appellant's federal contention, and we noted probable jurisdiction. 352 U.S. 924, 77 S.Ct. 225, 1 L.Ed.2d 159. 2 Section 130(a), of Ordinance No. 101—53 of the City of Opelika, as amended by Ordinance No. 103-53, provides that an annual privilege tax of $250 must be paid by any firm engaged in the wholesale grocery business which delivers, at wholesale, groceries in the City from points without the city.1 Appellant is a Georgia corporation engaged in the wholesale grocery business in West Point, Georgia. It solicits business in the City of Opelika through salesmen; orders are transmitted to appellant's place of business in Georgia, where they are accepted and the groceries thereupon loaded on trucks and delivered to the City. Appellant has no place of business, office, or inventory in Opelika, its only contact with that City being the solicitation of orders and the delivery of goods.2 3 We held in Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 96 L.Ed. 760, and in Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U.S. 389, 72 S.Ct. 424, 96 L.Ed. 436, that a municipality may not impose a flat-sum privilege tax on an interstate enterprise whose only contact with the municipality is the solicitation of orders and the subsequent delivery of goods at the end of an uninterrupted movement in interstate commerce, such a tax having a substantial exclusory effect on interstate commerce. In our opinion the tax here in question falls squarely within the ban of those cases. This is particularly so in that Opelika places no comparable flat-sum tax on local merchants. Wholesale grocers whose deliveries originate in Opelika, instead of paying $250 annually, are taxed a sum graduated according to their gross receipts. Such an Opelika wholesaler would have to gross the sum of $280,000 in sales in one year before his tax would reach the flat $250 amount imposed on all foreign grocers before they may set foot in the City.3 The Commerce Clause forbids any such discrimination against the free flow of trade over state boundaries. 4 Since the present tax cannot constitutionally be applied to the appellant, the judgment must be reversed and the case remanded for proceedings not inconsistent with this opinion. 5 Reversed. 6 Mr. Justice BLACK dissents. 1 The ordinance provides for the following 'schedule of rates for license or privilege taxes for the conduct of any trade, vocation, profession or other business conducted within the City of Opelika': 'Each person, firm or corporation engaged in the wholesale grocery business who unloads, delivers, distributes or disposes of groceries at wholesale in the City of Opelika, Alabama which are transported from a point without the City of Opelika, Alabama to a point within the City of Opelika, Alabama, Annual only . . . $250.00.' 2 The facts, which are admitted for purposes of the demurrer, are taken from the complaint. 3 Section 82 of the Ordinance provides for the following rates of tax on local wholesale merchants: "Where a gross annual business is: $100,000.00 and less.......... $35.00 Over $100,000.00 and less than $200,000.00. $50.00 $200,000.00 and less than $500,000.00. $75.00 $500,000.00 and less than $1,000,000.00. $100.00 $1,000,000.00 and less than $2,000,000.00. $200.00 $2,000,000.00 and over....... $250.00 'And in addition thereto, one-sixteenth (1/16) of one percent (1%) on the first $500,000.00 gross receipts, plus one-twentieth (1/20) of one percent (1%) on the next $500,000.00 gross receipts plus one-fortieth (1/40) of one percent (1%) on all gross receipts over one million dollars ($1,000,000.00).' Thus a local wholesale grocer grossing $280,000 in one year would pay a sum of $75.00, plus 1/16 of one percent of his sales, that is, $175.00—a total of $250.00.

78

354 U.S. 351 77 S.Ct. 1138 1 L.Ed.2d 1394 UNITED STATES of America, Petitioner,v.Victor CALAMARO. No. 304. Argued March 4, 1957. Decided June 17, 1957. Mr. Leonard B. Sand, for the petitioner. Mr. Raymond ,. Bradley, Philadelphia, Pa., for the respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 The question before us is whether the respondent, a so-called 'pick-up man' in a type of lottery called the 'numbers game,' is subject to the annual $50 special occupational tax enacted by Subchapter B of Chapter 27A (Wagering Taxes) of the Internal Revenue Code of 1939, 65 Stat. 529, 530, 26 U.S.C. § 3285 et seq., 26 U.S.C.A. § 3285 et seq. 2 As will be seen from the statute, whose material parts are printed in the margin,1 this Chapter of the 1939 Code enacts two kinds of wagering taxes: (1) An excise tax, imposed by § 3285(d) on persons 'engaged in the business of accepting wagers,' and (2) a special occupational tax, imposed by § 3290 not only on persons who are subject to the excise tax, being 'engaged in the business,' but also on those who are 'engaged in receiving wagers' on behalf of one subject to the excise tax. By definition the 'numbers game' is among the wagering transactions included in the statute. 3 At the outset we must understand some professional gambling terminology which has been given us by the parties. A numbers game involves three principal functional types of individuals: (1) the 'banker,' who deals in the numbers and against whom the player bets; (2) the 'writer,' who, for the banker, does the actual selling of the numbers to the public, and who records on triplicate slips the numbers sold to each player and the amount of his wager; and (3) the 'pick-up man,' who collects wagering slips2 from the writer and delivers them to the banker. If there are witnnings to be distributed, the banker delivers the required amount to the writer, who in turn pays off the successful players. 4 The respondent here was a pick-up man for a Philadelphia banker, receiving for his services a salary of $40 a week, but having no proprietary interest in this numbers enterprise. He was convicted, after a jury trial in the United States District Court for the Eastern District of Pennsylvania, of failing to pay the § 3290 occupational tax, and was fined $1,000.3 The Court of Appeals reversed by a divided court, 236 F.2d 182, and upon the Government's petition we granted certiorari, 352 U.S. 864, 77 S.Ct. 97, 1 L.Ed.2d 75, to resolve the conflict between the decision below and that of the Court of Appeals for the Fifth Circuit in Sagonias v. United States, 223 F.2d 146, as to the scope of § 3290. For reasons given hereafter we consider that the Court of Appeals in this case took the correct view of this statute. 5 The nub of the Court of Appeals' holding was put in the following language, with which we agree: 6 'In normal usage of familiar language, 'receiving wagers' is what someone on the 'banking' side of gambling does in dealing with a bettor. Placing and receiving a wager are opposite sides of a single coin. You can't have one without the other. (The court here referred to the definition of 'wager' contained in § 3285(b)(1)(C); note 1, supra.) Before the pick-up man enters the picture, in such a case as we have here, the wager has been received physically by the writer and, in legal contemplation, by the writer's principal as well. The government recognizes—and in an appropriate case no doubt would insist—that what the writer does in relation to the bettor amounts to 'receiving a wager.' Thus, the government has to argue that the wager is received a second time when the writer hands the yellow slip to the pick-up man. But we think this ignores the very real difference between a wager and a record of a wagering transaction. It is the banking record and not the wager which the pick-up man receives from the writer and transmits to the bank. The pick-up man no more receives wagers than a messenger, who carries records of customer transactions from a branch bank to a central office, receives deposits.' 236 F.2d at pages 184—185. 7 We do not think that either the language or purpose of this statute, as revealed by its legislative history, supports the position of the Government. When the phrase 'receiving wagers' is read in conjunction with § 3285(b)(1), which defines 'wager' in terms of the 'placing' of a bet in connection with any of the kinds of wagering transactions embraced in the statute,4 it seems evident that the Court of Appeals was quite correct in regarding the 'placing' and 'receiving' of a wager as being 'opposite sides of a single coin.'5 In other words, we think that as used in § 3290 the term 'receiving' a wager is synonymous with 'accepting' a wager;6 that it is the making of a gambling contract, not the transportation of a piece of paper, to which the statute refers; and hence that, in such a case as this, it is the writer and not the pick-up man who is 'engaged in receiving wagers' within the meaning of § 3290. 8 We consider the legislative history of the statute, such as it is, to be fully consistent with this interpretation of § 3290. In the Senate and House Reports on the bill, it is stated: 9 '* * * A person is considered to be in the business of accepting wagers if he is engaged as a principal who, in accepting wagers, does so on his own account. The principals in such transactions are commonly referred to as 'bookmakers,' although it is not intended that any technical definition of 'bookmaker,' such as the maintenance of a handbook or other device for the recording of wagers, be required. It is intended that a wager be considered as 'placed' with a principal when it has been placed with another person acting for him. Persons who receive bets for principals are sometimes known as 'bookmakers' agents' or as 'runners.' * * * 10 'As in the case of bookmaking transactions, a wager will be considered as 'placed' in a pool or in a lottery whether placed directly with the person who conducts the pool or lottery or with another person acting for such a person.' H.R.Rep. No. 586, 82d Cong., 1st Sess. 56; S.Rep. No. 781, 82d Cong., 1st Sess. 114, U.S.Code Congressional and Administrative News 1951, vol. 2, p. 2091 (emphasis added). 11 Again, in the case of a numbers game, this indicates that Congress regarded the 'placing' or a wager as being complemented by its 'receipt' by the banker or by one acting for him in that transaction, that is, the writer and not the pick-up man. 12 Nor, contrary to what the Government contends, can we see anything in the registration provisions of § 3291 which points to the pick-up man as being considered a 'receiver' of wagers. Those provisions simply provide that one liable for any tax imposed by the statute must register his name and address with the collector of the district, and require in addition, (a) as to those subject to the § 3285 excise tax, the registration of the name and address 'of each person who is engaged in receiving wagers for him or on his behalf,' and (b) as to those subject to the § 3290 occupational tax, the registration of the name and address of each person for whom they are 'engaged in receiving wagers.'7 It is doubtless true that these provisions, as well as the occupational tax itself,8 were designed at least in part to facilitate collection of the excise tax. It is likewise plausible to suppose, as the Government suggests, that the more participants in a gambling enterprise are swept within these provisions, the more likely it is that information making possible the collection of excise taxes will be secured. The fact remains, however, that Congress did not choose to subject all employees of gambling enterprises to the tax and reporting requirements, but was content to impose them on persons actually 'engaged in receiving wagers.' Neither we nor the Commissioner may rewrite the statute simply because we may feel that the scheme it creates could be improved upon.9 13 We can give no weight to the Government's suggestion that holding the pick-up man to be no subject to this tax will defeat the policy of the statute because its enactment was 'in part motivated by a congressional desire to suppress wagering.'10 The statute was passed, and its constitutionality was upheld, as a revenue measure, United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754, and, apart from all else, in construing it we would not be justified in resorting to collateral motives or effects which, standing apart from the federal taxing power, might place the constitutionality of the statute in doubt. See Id., 345 U.S. at page 31, 73 S.Ct. at page 514. 14 Finally, the Government points to the fact that the Treasury Regulations relating to the statute purport to include the pick-up man among those subject to the § 3290 tax,11 and argues (a) that this constitutes an administrative interpretation to which we should give weight in construing the statute, particularly because (b) section 3290 was carried over in haec verba into § 4411 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4411. We find neither argument persuasive. In light of the above discussion, we cannot but regard this Treasury Regulation as no more than an attempted addition to the statute of something which is not there.12 As such the regulation can furnish no sustenance to the statute. Koshland v. Helvering, 298 U.S. 441, 446—447, 56 S.Ct. 767, 769—770, 80 L.Ed. 1268. Nor is the Government helped by its argument as to the 1954 Code. The regulation had been in effect for only three years,13 and there is nothing to indicate that it was ever called to the attention of Congress. The re-enactment of § 3290 in the 1954 Code was not accompanied by any congressional discussion which throws light on its intended scope. In such circumstances we consider the 1954 re-enactment to be without significance. Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 476, 99 L.Ed. 483. 15 In conclusion, we cannot accept the alternative reasoning of the dissenting judge below who, relying on that part of the opinion in Daley v. United States, 1 Cir., 231 F.2d 123, 128, relating to the trial court's charge to the jury in a prosecution for failing to pay the § 3285 excise tax,14 regarded the respondent's conviction here as sustainable also on the theory that he was a person 'engaged in the business of accepting wagers' within the meaning of § 3285(d). The Government disclaims this ground for upholding the respondent's conviction, as indeed it must, in light of the unambiguous legislative history showing that the excise tax applies only to one who is 'engaged in the business of accepting wagers' as a 'principal * * * on his own account.'15 In this instance, that means the banker, as the Government concedes. 16 We hold, therefore, that the occupational tax imposed by § 3290 does not apply to this respondent as a pick-up man, and that the judgment below must accordingly be affirmed. 17 Affirmed. 18 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 19 Mr. Justice BURTON, dissenting. 20 For the reasons stated in Sagonias v. United States, 5 Cir., 223 F.2d 146, I believe that the respondent pickup man was 'engaged in receiving wagers for and on behalf' of the banker, within the meaning of §§ 3290 and 3291(a)(3), and therefore was required to pay the occupational tax and to register not only his name and place of residence, but that of the banker. 21 The language of § 3290 does not limit the occupational tax to persons 'accepting wagers' in a contractual sense. Instead, it imposes the tax on 'each person * * * who is engaged in receiving wagers for or on behalf of any person so liable (for the excise tax).' Those words readily include a pickup man for he is engaged in receiving for the banker the slips which provide the banker with the sole evidence of the wagers made. 22 The legislative history contains specific references that indicate that the section was to apply to bookmakers' agents or runners.1 It shows that the occupational tax was enacted not only as a revenue measure on its own account, but as a measure to help enforce the much larger excise tax placed by § 3285 upon the principal operator of the gambling enterprise.2 To this end, § 3291(a)(1) and (3) requires each person who is subject to the occupational tax to register not only his own name and place of residence, but also that of the person for whom he is receiving wagers. Registration of the pickup man aids the Government in tracking these gambling operations to their headquarters and is essential to the enforcement of the excise tax. Since the 'receiving wagers' phrase in the registration provisions includes the pickup man, it must have the same meaning in the identical provisions imposing the occupational tax. 23 Furthermore, the administrative interpretation of § 3290 is significant. Since the enactment of the section in 1951, there has been in effect the following explanation of its scope in Treasury Regulations 132: 24 'Example (2). B operates a numbers game. He has an arrangement with ten persons, who are employed in various capacities, such as bootblacks, elevator operators, news dealers, etc., to receive wagers from the public on his behalf. B also employs a person to collect from his agents the wagers received on his behalf. 25 'B, his ten agents, and the employee who collects the wagers received on his behalf are each liable for the special tax.' (Emphasis supplied.) 26 CFR, 1957 Cum. Pocket Supp., § 325.41. 26 This regulation should not be disregarded unless shown to be plainly inconsistent with the statute. Commissioner of Internal Revenue v. Wheeler, 324 U.S. 542, 547, 65 S.Ct. 799, 802, 89 L.Ed. 1166; Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 117, 74 L.Ed. 457. Moreover, Congress re-enacted § 3290 in 1954 as 26 U.S.C. (Supp. II) § 4411, 26 U.S.C.A. § 4411. It thus impliedly accepted this established interpretation of the scope of the section. Corn Products Refining Co. v. Commissioner of Internal Revenue, 350 U.S. 46, 53, 76 S.Ct. 20, 24, 100 L.Ed. 29; Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52. 1 'Subchapter A—Tax on Wagers § 3285. Tax '(a) Wagers. There shall be imposed on wagers, as defined in subsection (b), an excise tax equal to 10 per centum of the amount thereof. '(b) Definitions. For the purposes of this chapter— '(1) The term 'wager' means (A) any wager with respect to a sports event or a contest placed with a person engaged in the business of accepting such wagers, (B) any wager placed in a wagering pool with respect to a sports event or a contest, if such pool is conducted for profit, and (C) any wager placed in a lottery conducted for profit. '(2) The term 'lottery' includes the numbers game * * *. '(d) Persons liable for tax. Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subchapter on all wagers placed in such pool or lottery. 'Subchapter B—Occupational Tax § 3290. Tax 'A special tax of $50 per year shall be paid by each person who is liable for tax under subchapter A or who is engaged in receiving wagers for or on behalf of any person so liable. § 3291. Registration '(a) Each person required to pay a special tax under this subchapter shall register with the collector of the district— '(1) his name and place of residence; '(2) if he is liable for tax under subchapter A, each place of business where the activity which makes him so liable is carried on, and the name and place of residence of each person who is engaged in receiving wagers for him or on his behalf; and '(3) if he is engaged in receiving wagers for or on behalf of any person liable for tax under subchapter A, the name and place of residence of each such person. § 3294. Penalties '(a) Failure to pay tax. Any person who does any act which makes him liable for special tax under this subchapter, without having paid such tax, shall, besides being liable to the payment of the tax, be fined not less than $1,000 and not more than $5,000.' 65 Stat. 529, 530, 26 U.S.C. §§ 3285—3294, 26 U.S.C.A. §§ 3285—3294. 2 The pick-up man collects the 'yellow' copy. The 'tissue' copy is given to the player when he places his bet, and the 'white' copy is retained by the writer. 3 137 F.Supp. 816. 4 See note 1, supra. 5 That the 'placing' and 'receiving' of a wager should be regarded as simply complementing one another is recognized by Treasury Regulations 132, § 325.24(a) of which states: '* * * Any wager or contribution received by an agent or employee on behalf of such person (one in the business of accepting wagers or operating a wagering pool or lottery) shall be considered to have been accepted by and placed with such person.' 26 CFR, 1957 Cum. Pocket Supp., § 325.24(a). 6 Indeed, the information filed against the respondent, which charged him with failing to pay the § 3290 occupational tax, alleged that he 'did accept,' not that he 'did receive,' wagers. 137 F.Supp., at page 817, note 1. 7 See note 1, supra. 8 H.R.Rep. No. 586, 82d Cong., 1st Sess. 60; S.Rep. No. 781, 82d Cong., 1st Sess. 118 (1951). 9 We do not consider as illuminating, on the issue before us, the statement in the House and Senate Reports cited in note 8, supra, to the effect that 'Enforcement of a tax on wagers frequently will necessitate the tracing of transactions through complex business relationships, thus requiring the identification of the various steps involved.' This general statement, not necessarily referring to the numbers game or to mere delivery systems, as distinguished from arrangements for the 'lay-off' of bets by gambling principals, is not helpful in interpreting § 3290 in relation to the numbers game and 'pick-up men.' Cf. Federal Communications Commission v. Columbia Broadcasting System of Calif., Inc., 311 U.S. 132, 136, 61 S.Ct. 152, 153, 85 L.Ed. 87. We think the same is true of the statements of Representative Reed, 97 Cong.Rec. 6896, and of Senator Kefauver, 97 Cong.Rec. 12231—12232, relied on by the Government. The significance of Senator Kefauver's statement is further limited by the fact that he was an opponent of the bill. See Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 288, 76 S.Ct. 349, 360, 100 L.Ed. 309. 10 See 97 Cong.Rec. 6892, 12236, referred to in United States v. Kahriger, 345 U.S. 22, 27, note 3, 73 S.Ct. 510, 512, 97 L.Ed. 754. 11 Treas.Reg. 132, § 325.41, Example 2 (26 CFR, 1957 Cum. Pocket Supp.), which was issued on November 1, 1951 (16 Fed.Reg. 11211, 11222), provides as follows: 'B operates a numbers game. He has an arrangement with ten persons, who are employed in various capacities, such as bootblacks, elevator operators, newsdealers, etc., to receive wagers from the public on his behalf. B also employs a person to collect from his agents the wagers received on his behalf. 'B, his ten agents, and the employee who collects the wagers received on his behalf are each liable for the special tax.' 12 Apart from this, the force of this Treasury Regulations as an aid to the interpretation of the statute is impaired by its own internal inconsistency. Thus, while Example 2 of that regulation purports to make the pick-up man liable for the § 3290 occupational tax, Example 1 of the same regulation provides that 'a secretary and bookkeeper' of one 'engaged in the business of accepting horse race bets' are not liable for the occupational tax 'unless they also receive wagers' for the person so engaged in business, although those who 'receive wagers by telephone' are so liable. Thus in this instance a distinction seems to be drawn between the 'acceptance' of the wager, and its 'receipt' for recording purposes. But if this be proper, it is not apparent why the same distinction is not also valid between a writer, who 'accepts' or 'receives' a bet from a numbers player, and a pick-up man, who simply 'receives' a copy of the slips on which the writer has recorded the bet, and passes it along to the banker. 13 See note 11, supra. 14 See the dissenting judge's opinion below, 236 F.2d 182, 185—186. The sufficiency of the instructions to the jury in Daley apparently was not challenged on appeal. In any event, the Daley case was not concerned with a pick-up man, nor was the legislative history quoted, 354 U.S. 356, 77 S.Ct. at page 1142, supra, brought to the court's attention. The court in the Sagonias case, supra, which accepted the Government's contention as to the meaning of 'receiving wagers,' rejected the construction of the statute embodied in the instructions to the jury quoted in Daley. 15 See 354 U.S. 356, 77 S.Ct. 1142, supra. 1 H.R.Rep. No. 586, 82d Cong., 1st Sess. 56; S.Rep. No. 781, 82d Cong., 1st Sess. 114; 97 Cong.Rec. 6896 (Representative Reed); id., at 12231—12232 (Senator Kefauver). In this connection, it should be noted that the opinion of the court below states that 'The 'numbers banker', even as bankers and brokers in reputable commerce, employs salaried runners and messengers. These couriers are called 'pick-up men." (Emphasis supplied.) 236 F.2d 182, 184. 2 H.R.Rep. No. 586, 82d Cong., 1st Sess. 60; S.Rep. No. 781, 82d Cong., 1st Sess. 118.

1112

354 U.S. 278 77 S.Ct. 1274 1 L.Ed.2d 1342 Delvaille H. THEARD, Petitioner,v.UNITED STATES of America. No. 68. Argued Dec. 13, 1956. Decided June 17, 1957. Mr. Delvaille H. Theard, New Orleans, La., pro se. Mr. Edward H. Hickey, Washington, D.C., for the respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Because of petitioner's disbarment by the Supreme Court of Louisiana, the United States District Court for the Eastern District of Louisiana struck him from its roll of attorneys, and the Court of Appeals for the Fifth Circuit affirmed the order. 228 F.2d 617. The case raises an important question regarding disbarment by a federal court on the basis of disbarment by a state court and so we granted certiorari. 351 U.S. 961, 76 S.Ct. 1030, 100 L.Ed. 1482. 2 A proceeding for disbarment of a lawyer is always painful. The circumstances of this case make it puzzling as well as painful. The facts are few and clear. It is undisputed that petitioner, in 1935, forged a promissory note and collected its proceeds. Criminal prosecution and action for disbarment were duly initiated but both were aborted because the petitioner was 'suffering under an exceedingly abnormal mental condition, some degree of insanity' at the time of this behavior, to such a degree that he was committed to an insane asylum and was under a decree of interdiction until 1948. Years after, criminal prosecution was unsuccessfully revived, State v. Theard, 212 La. 1022, 34 So.2d 248. The disbarment proceedings, which led to the order in the federal court now under review, got under way in 1950 and the Supreme Court of Louisiana, acting on the findings of a committee of the Louisiana State Bar Association, overruled exceptions to the petition for disbarment. In so doing, the court met the plea of insanity against the claim of misconduct with the statement that it did not 'view the mental deficiency of a lawyer at the time of his misconduct to be a valid defense to his disbarment.' Louisiana State Bar Ass'n v. Theard, 222 La. 328, 334, 62 So.2d 501, 503. The next year, 'after issue had been joined,' the Supreme Court of Louisiana appointed a Commissioner to take evidence and to report to that court his findings of fact and conclusions of law. The Commissioner did so and reported to the Supreme Court this fact that we deem vital to the issue before us: 'It must then, from the record, be held that the respondent was suffering under an exceedingly abnormal mental condition, some degree of insanity.' 225 La. 98, 104, 105, 72 So.2d 310, 312. The Commissioner deemed himself, however, bound by 'the law of the case' as announced by the Supreme Court in 222 La. 328, 334, 62 So.2d 501, 503, supra, according to which it was immaterial to disbarment that the petitioner 'was probably suffering from amnesia and other mental deficiencies at the time of his misdeeds.' Ibid. The Supreme Court of Louisiana in its second decision approved the Commissioner's view about 'the law of the case,' and added that, were the doctrine otherwise, it would not change its previous ruling. 225 La. 98, 108, 72 So.2d 310, 313. 3 The state proceedings thus establish that petitioner was disbarred in 1954 for an action in 1935, although at the time of the fateful conduct he was concededly in a condition of mental irresponsibility so pronounced that for years he was in an insane asylum under judicial restraint. The proceedings also establish that as an active practitioner for six years preceding disbarment, after recovering his capacity, including the argument of thirty-six cases before the Louisiana Supreme Court and the Court of Appeals for the Parish of Orleans, no charge of misconduct or impropriety was brought against him. 4 It is not for this Court, except within the narrow limits for review open to this Court, as recently canvassed in Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, and Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, to sit in judgment on Louisiana disbarments, and we are not in any event sitting in review of the Louisiana judgment. While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route. The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included. The court's control over a lawyer's professional life derives from his relation to the responsibilities of a court. The matter was compendiously put by Mr. Justice Cardozo, while Chief Judge of the New York Court of Appeals. "Membership in the bar is a privilege burdened with conditions.' (Matter of Rouss, (221 N.Y. 81, 84, 116 N.E. 782, 783)). The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itslef, an instrument or agency to advance the ends of justice.' People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470—471, 162 N.E. 487, 489, 60 A.L.R. 851. The power of disbarment is necessary for the protection of the public in order to strip a man of the implied representation by courts that a man who is allowed to hold himself out to practice before them is in 'good standing' so to do. 5 The rules of the various federal courts, more particularly the District Court which disbarred this petitioner, have provisions substantially like the present Rule 8 of this Court, 28 U.S.C.A., dealing with disbarment. 'Where it is shown to the court that any member of its bar has been disbarred from practice in any State, Territory, District, Commonwealth, or Possession, or has been guilty of conduct unbecoming a member of the bar of this court, he will be forthwith suspended from practice before this court. He will thereupon by afforded the opportunity to show good cause, within forty days, why he should not be disbarred.' Disbarment being the very serious business that it is, ample opportunity must be afforded to show cause why an accused practitioner should not be disbarred. If the accusation rests on disbarment by a state court, such determination of course brings title deeds of high respect. But it is not convlusively binding on the federal courts. The recognition that must be accorded such a state judgment and the extent of the responsibility that remains in the federal judiciary were authoritatively expounded in Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585. The short of it is that disbarment by federal courts does not automatically flow from disbarment by state courts. Of the conditions that qualify such a state court judgment, the one here relevant is that some 'grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar except upon the conviction that, under the principles of right and justice, we were constrained so to do.' Id., 243 U.S. at page 51, 37 S.Ct. at page 379. 6 We do not think that 'the principles of right and justice' require a federal court to enforce disbarment of a man eighteen years after he had uttered a forgery when concededly he 'was suffering under an exceedingly abnormal mental condition, some degree of insanity.' Neither considerations relating to 'the law of the case,' cf. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152, nor the temptation to get bogged down in the quagmire of controversy about the M'Naghten rule, require automatic acceptance by a federal court of the state disbarment in the circumstances of this case. The District Court apparently felt itself so bound. This we deem error. The case must therefore be remanded to that court for disposition of the motion for disbarment under that court's Rule 1(f) of its General Rules, in accordance with the standards defined in Selling v. Radford, supra, and this opinion. 7 It is so ordered. 8 Case remanded. 9 The CHIEF JUSTICE and Mr. Justice BLACK concur in the result. 10 Mr. Justice WHITTAKER took no part in the consideration or decision of this case.

56

354 U.S. 234 77 S.Ct. 1203 1 L.Ed.2d 1311 Paul M. SWEEZY, Appellant,v.STATE OF NEW HAMPSHIRE by Louis C. WYMAN, Attorney General. No. 175. Argued March 5, 1957. Decided June 17, 1957. Mr. Thomas I. Emerson, for the appellant. Mr. Louis C. Wyman, Atty. Gen. of New Hampshire, Manchester, N.H., for the appellee. Mr. Chief Justice WARREN announced the judgment of the Court and delivered an opinion, in which Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join. 1 This case, like Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, brings before us a question concerning the constitutional limits of legislative inquiry. The investigation here was conducted under the aegis of a state legislature, rather than a House of Congress. This places the controversy in a slightly different setting from that in Watkins. The ultimate question here is whether the investigation deprived Sweezy of due process of law under the Fourteenth Amendment. For the reasons to be set out in this opinion, we conclude that the record in this case does not sustain the power of the State to compel the disclosures that the witness refused to make. 2 This case was brought here as an appeal under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). Jurisdiction was alleged to rest upon contentions, rejected by the state courts, that a statute of New Hampshire is repugnant to the Constitution of the United States. We postponed a decision on the question of jurisdiction until consideration of the merits. 352 U.S. 812, 77 S.Ct. 49. The parties neither briefed nor argued the jurisdictional question. The appellant has thus failed to meet his burden of showing that jurisdiction by appeal was properly invoked. The appeal is therefore dismissed. Treating the appeal papers as a petition for writ of certiorari, under 28 U.S.C. § 2103, 28 U.S.C.A. § 2103, the petition is granted. Cf. Union National Bank of Wichita, Kan. v. Lamb, 337 U.S. 38, 39—40, 69 S.Ct. 911, 912, 93 L.Ed. 1190. 3 The investigation in which petitioner was summoned to testify had its origins in a statute passed by the New Hampshire legislature in 1951.1 It was a comprehensive scheme of regulation of subversive activities. There was a section defining criminal conduct in the nature of sedition. 'Subversive organizations' were declared unlawful and ordered dissolved. 'Subversive persons' were made ineligible for employment by the state government. Included in the disability were those employed as teachers or in other capacities by any public educational institution. A loyalty program was instituted to eliminate 'subversive persons' among government personnel. All present employees, as well as candidates for elective office in the future, were required to make sworn statements that they were not 'subversive persons.' 4 In 1953, the legislature adopted a 'Joint Resolution Relating to the Investigation of Subversive Activities.'2 It was resolved: 5 'That the attorney general is hereby authorized and directed to make full and complete investigation with respect to violations of the subversive activities act of 1951 and to determine whether subversive persons as defined in said act are presently located within this state. The attorney general is authorized to act upon his own motion and upon such information as in his judgment may be reasonable or reliable * * *. 6 'The attorney general is directed to proceed with criminal prosecutions under the subversive activities act whenever evidence presented to him in the course of the investigation indicates violations thereof, and he shall report to the 1955 session on the first day of its regular session the results of this investigation, together with his recommendations, if any, for necessary legislation.'3 7 Under state law, this was construed to constitute the Attorney General as a one-man legislative committee.4 He was given the authority to delegate any part of the investigation to any member of his staff. The legislature conferred upon the Attorney General the further authority to subpoena witnesses or documents. He did not have power to hold witnesses in contempt, however. In the event that coercive or punitive sanctions were needed, the Attorney General could invoke the aid of a State Superior Court which could find recalcitrant witnesses in contempt of court.5 8 Petitioner was summoned to appear before the Attorney General on two separate occasions. On January 5, 1954, petitioner testified at length upon his past conduct and associations. He denied that he had ever been a member of the Communist Party or that he had ever been part of any program to overthrow the government by force or violence. The interrogation ranged over many matters, from petitioner's World War II military service with the Office of Strategic Services to his sponsorship, in 1949, of the Scientific and Cultural Conference for World Peace, at which he spoke. 9 During the course of the inquiry, petitioner declined to answer several questions. His reasons for doing so were given in a statement he read to the Committee at the outset of the hearing.6 He declared he would not answer those questions which were not pertinent to the subject under inquiry as well as those which transgress the limitations of the First Amendment. In keeping with this stand, he refused to disclose his knowledge of the Progressive Party in New Hampshire or of persons with whom he was acquainted in that organization.7 No action was taken by the Attorney General to compel answers to these questions. 10 The Attorney General again summoned petitioner to testify on June 3, 1954. There was more interrogation about the witness' prior contacts with Communists. The Attorney General lays great stress upon an article which petitioner had co-authored. It deplored the use of violence by the United States and other capitalist countries in attempting to preserve a social order which the writers thought must inevitably fall. This resistance, the article continued, will be met by violence from the oncoming socialism, violence which is to be less condemned morally than that of capitalism since its purpose is to create a 'truly human society.' Petitioner affirmed that he styled himself a 'classical Marxist' and a 'socialist' and that the article expressed his continuing opinion. 11 Again, at the second hearing, the Attorney General asked, and petitioner refused to answer, questions concerning the Progressive Party, and its predecessor, the Progressive Citizens of America. Those were: 12 'Was she, Nancy Sweezy, your wife, active in the formation of the Progressive Citizens of America?' 13 'Was Nancy Sweezy then working with individuals who were then members of the Communist Party?' 14 'Was Charles Beebe active in forming the Progressive Citizens of America?' 15 'Was Charles Beebe active in the Progressive Party in New Hampshire?' 16 'Did he work with your present wife—Did Charles Beebe work with your present wife in 1947?' 17 'Did it (a meeting at the home of Abraham Walenko in Weare during 1948) have anything to do with the Progressive Party?' 18 The Attorney General also turned to a subject which had not yet occurred at the time of the first hearing. On March 22, 1954, petitioner had delivered a lecture to a class of 100 students in the humanities course at the University of New Hampshire. This talk was given at the invitation of the faculty teaching that course. Petitioner had addressed the class upon such invitations in the two preceding years as well. He declined to answer the following questions: 19 'What was the subject of your lecture?' 20 'Didn't you tell the class at the University of New Hampshire on Monday, March 22, 1954, that Socialism was inevitable in this country?' 'Did you advocate Marxism at that time?' 21 'Did you express the opinion, or did you make the statement at that time that Socialism was inevitable in America?' 22 'Did you in this last lecture on March 22 or in any of the former lectures espouse the theory of dialectical materialism?' 23 Distinct from the categories of questions about the Progressive Party and the lectures was one question about petitioner's opinions. He was asked: 'Do you believe in Communism?' He had already testified that he had never been a member of the Communist Party, but he refused to answer this or any other question concerning opinion or belief. 24 Petitioner adhered in this second proceeding to the same reasons for not answering he had given in his statement at the first hearing. He maintained that the questions were not pertinent to the matter under inquiry and that they infringed upon an area protected under the First Amendment. 25 Following the hearings, the Attorney General petitioned the Superior Court of Merrimack County, New Hampshire, setting forth the circumstances of petitioner's appearance before the Committee and his refusal to answer certain questions.8 The petition prayed that the court propound the questions to the witness. After hearing argument, the court ruled that the questions set out above were pertinent.9 Petitioner was called as a witness by the court and persisted in his refusal to answer for constitutional reasons. The court adjudged him in contempt and ordered him committed to the county jail until purged of the contempt. 26 The New Hampshire Supreme Court affirmed. 100 N.H. 103, 121 A.2d 783. Its opinion discusses only two classes of questions addressed to the witness: those dealing with the lectures and those about the Progressive Party and the Progressive Citizens of America. No mention is made of the single question concerning petitioner's belief in Communism. In view of what we hold to be the controlling issue of the case, however, it is unnecessary to resolve affirmatively that that particular question was or was not included in the decision by the State Supreme Court. 27 There is no doubt that legislative investigations, whether on a federal or state level, are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community. Responsibility for the proper conduct of investigations rests, of course, upon the legislature itself. If that assembly chooses to authorize inquiries on its behalf by a legislatively created committee, that basic responsibility carries forward to include the duty of adequate supervision of the actions of the committee. This safeguard can be nullified when a committee is invested with a broad and ill-defined jurisdiction. The authorizing resolution thus becomes especially significant in that it reveals the amount of discretion that has been conferred upon the committee. 28 In this case, the investigation is governed by provisions in the New Hampshire Subversive Activities Act of 1951.10 The Attorney General was instructed by the legislature to look into violations of that Act. In addition, he was given the far more sweeping mandate to find out if there were subversive persons, as defined in that Act, present in New Hampshire. That statute, therefore, measures the breadth and scope of the investigation before us. 29 'Subversive persons' are defined in many gradations of conduct. Our interest is in the minimal requirements of that definition since they will outline its reach. According to the statute, a person is a 'subversive person' if he, by any means, aids in the commission of any act intended to assist in the alteration of the constitutional form of government by force or violence.11 The possible remoteness from armed insurrection of conduct that could satisfy these criteria is obvious from the language. The statute goes well beyond those who are engaged in efforts designed to alter the form of government by force or violence. The statute declares, in effect, that the assistant of an assistant is caught up in the definition. This chain of conduct attains increased significance in light of the lack of a necessary element of guilty knowledge in either stage of assistants. The State Supreme Court has held that the definition encompasses persons engaged in the specified conduct '* * * whether or not done 'knowingly and willfully * * *." Nelson v. Wyman, 99 N.H. 33, 39, 105 A.2d 756, 763. The potential sweep of this definition extends to conduct which is only remotely related to actual subversion and which is done completely free of any conscious intent to be a part of such activity. 30 The statute's definition of 'subversive organizations' is also broad. An association is said to be any group of persons, whether temporarily or permanently associated together, for joint action or advancement or views on any subject.12 An organization is deemed subversive if it has a purpose to abet, advise or teach activities intended to assist in the alteration of the constitutional form of government by force or violence. 31 The situation before us is in many respects analogous to that in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. The Court held there that a loyalty oath prescribed by the State of Oklahoma for all its officers and employees violated the requirements of the Due Process Clause because it entailed sanctions for membership in subversive organizations without scienter. A State cannot, in attempting to bar disloyal individuals from its employ, exclude persons solely on the basis of organizational membership, regardless of their knowledge concerning the organizations to which they belonged. The Court said: 32 'There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. Especially is this so in time of cold war and hot emotions when 'each man begins to eye his neighbor as a possible enemy.' Yet under the Oklahoma Act, the fact of association alone determines disloyalty and disqualification; it matters not whether association existed innocently or knowingly. To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief sources.' 344 U.S. at pages 190—191, 73 S.Ct. at page 218. 33 The sanction emanating from legislative investigations is of a different kind than loss of employment. But the stain of the stamp of disloyalty is just as deep. The inhibiting effect in the flow of democratic expression and controversy upon those directly affected and those touched more subtly is equally grave. Yet here, as in Wieman, the program for the rooting out of subversion is drawn without regard to the presence or absence of guilty knowledge in those affected. 34 The nature of the investigation which the Attorney General was authorized to conduct is revealed by this case. He delved minutely into the past conduct of petitioner, thereby making his private life a matter of public record. The questioning indicates that the investigators had thoroughly prepared for the interview and were not acquiring new information as much as corroborating data already in their possession. On the great majority of questions, the witness was cooperative, even though he made clear his opinion that the interrogation was unjustified and unconstitutional. Two subjects arose upon which petitioner refused to answer: his lectures at the University of New Hampshire, and his knowledge of the Progressive Party and its adherents. 35 The state courts upheld the attempt to investigate the academic subject on the ground that it might indicate whether petitioner was a 'subversive person.' What he taught the class at a state university was found relevant to the character of the teacher. The State Supreme Court carefully excluded the possibility that the inquiry was sustainable because of the state interest in the state university. There was no warrant in the authorizing resolution for that. 100 N.H. at page 110, 121 A.2d at pages 789, 790. The sole basis for the inquiry was to scrutinize the teacher as a person, and the inquiry must stand or fall on that basis. 36 The interrogation on the subject of the Progressive Party was deemed to come within the Attorney General's mandate because that party might have been shown to be a 'subversive organization.' The State Supreme Court held that the '* * * questions called for answers concerning the membership or participation of named persons in the Progressive Party which, if given, would aid the Attorney General in determining whether that party and its predecessor are or were subversive organizations.' 100 N.H. at page 112, 121 A.2d at page 791. 37 The New Hampshire court concluded that the '* * * right to lecture and the right to associate with others for a common purpose, be it political or otherwise, are individual liberties guaranteed to every citizen by the State and Federal Constitutions but are not absolute rights * * *. The inquiries authorized by the Legislature in connection with this investigation concerning the contents of the lecture and the membership, purposes and activities of the Progressive Party undoubtedly interfered with the defendant's free exercise of those liberties.' 100 N.H. at page 113, 121 A.2d at pages 791, 792. 38 The State Supreme Court thus conceded without extended discussion that petitioner's right to lecture and his right to associate with others were constitutionally protected freedoms which had been abridged through this investigation. These conclusions could not be seriously debated. Merely to summon a witness and compel him, against his will, to disclose the nature of his past expressions and associations in a measure of governmental interference in these matters. These are rights which are safeguarded by the Bill of Rights and the Fourteenth Amendment. We believe that there unquestionably was an invasion of petitioner's liberties in the areas of academic freedom and political expression—areas in which government should be extremely reticent to tread. 39 The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. 40 Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society. 41 Notwithstanding the undeniable importance of freedom in the areas, the Supreme Court of New Hampshire did not consider that the abridgment of petitioner's rights under the Constitution vitiated the investigation. In the view of that court, 'the answer lies in a determination of whether the object of the legislative investigation under consideration is such as to justify the restriction thereby imposed upon the defendant's liberties.' 100 N.H. at pages 113—114, 121 A.2d at pages 791, 792. It found such justification in the legislature's judgment, expressed by its authorizing resolution, that there exists a potential menace from those who would overthrow the government by force and violence. That court concluded that the need for the legislature to be informed on so elemental a subject as the self-preservation of government outweighed the deprivation of constitutional rights that occurred in the process. 42 We do not now conceive of any circumstance wherein a state interest would justify infringement of rights in these fields. But we do not need to reach such fundamental questions of state power to decide this case. The State Supreme Court itself recognized that there was a weakness in its conclusion that the menace of forcible overthrow of the government justified sacrificing constitutional rights. There was a missing link in the chain of reasoning. The syllogism was not complete. There was nothing to connect the questioning of petitioner with this fundamental interest of the State. Petitioner had been interrogated by a one-man legislative committee, not by the legislature itself. The relationship of the committee to the full assembly is vital, therefore, as revealing the relationship of the questioning to the state interest. 43 In light of this, the state court emphasized a factor in the authorizing resolution which confined the inquiries which the Attorney General might undertake to the object of the investigation. That limitation was thought to stem from the authorizing resolution's condition precedent to the institution of any inquiry. The New Hampshire legislature specified that the Attorney General should act only when he had information which '* * * in his judgment may be reasonable or reliable.' The state court construed this to mean that the Attorney General must have something like probable cause for conducting a particular investigation. It is not likely that this device would prove an adequate safeguard against unwarranted inquiries. The legislature has specified that the determination of the necessity for inquiry shall be left in the judgment of the investigator. In this case, the record does not reveal what reasonable or reliable information led the Attorney General to question petitioner. The state court relied upon the Attorney General's description of prior information that had come into his possession.13 44 The respective roles of the legislature and the investigator thus revealed are of considerable significance to the issue before us. It is eminently clear that the basic discretion of determining the direction of the legislative inquiry has been turned over to the investigative agency. The Attorney General has been given such a sweeping and uncertain mandate that it is his decision which picks out the subjects that will be pursued, what witnesses will be summoned and what questions will be asked. In this circumstance, it cannot be stated authoritatively that the legislature asked the Attorney General to gather the kind of facts comprised in the subjects upon which petitioner was interrogated. 45 Instead of making known the nature of the data it desired, the legislature has insulated itself from those witnesses whose rights may be vitally affected by the investigation. Incorporating by reference provisions from its subversive activities act, it has told the Attorney General, in effect to screen the citizenry of New Hampshire to bring to light anyone who fits into the expansive definitions. 46 Within the very broad area thus committed to the discretion of the Attorney General there may be many facts which the legislature might find useful. There would also be a great deal of data which that assembly would not want or need. In the classes of information that the legislature might deem to desirable to have, there will be some which it could not validly acquire because of the effect upon the constitutional rights of individual citizens. Separating the wheat from the chaff, from the standpoint of the legislature's object, is the legislature's responsibility because it alone can make that judgment. In this case, the New Hampshire legislature has delegated that task to the Attorney General. 47 As a result, neither we nor the state courts have any assurance that the questions petitioner refused to answer fall into a category of matters upon which the legislature wanted to be informed when it initiated this inquiry. The judiciary are thus placed in an untenable position. Lacking even the elementary fact that the legislature wants certain questions answered and recognizing that petitioner's constitutional rights are in jeopardy, we are asked to approve or disapprove his incarceration for contempt. 48 In our view, the answer is clear. No one would deny that the infringement of constitutional rights of individuals would violate the guarantee of due process where no state interest underlies the state action. Thus, if the Attorney General's interrogation of petitioner were in fact wholly unrelated to the object of the legislature in authorizing the inquiry, the Due Process Clause would preclude the endangering of constitutional liberties. We believe that an equivalent situation is presented in this case. The lack of any indications that the legislature wanted the information the Attorney General attempted to elicit from petitioner must be treated as the absence of authority. It follows that the use of the contempt power, notwithstanding the interference with constitutional rights, was not in accordance with the due process requirements of the Fourteenth Amendment. 49 The conclusion that we have reached in this case is not grounded upon the doctrine of separation of powers. In the Federal Government, it is clear that the Constitution has conferred the powers of government upon three major branches: the Executive, the Legislative and the Judicial. No contention has been made by petitioner that the New Hampshire legislature, by this investigation, arrogated to itself executive or judicial powers. We accept the finding of the State Supreme Court that the employment of the Attorney General as the investigating committee does not alter the legislative nature of the proceedings. Moreover, this Court has held that the concept of separation of powers embodied in the United States Constitution is not mandatory in state governments. Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; but cf. Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 789, 95 L.Ed. 1019. Our conclusion does rest upon a separation of the power of a state legislature to conduct investigations from the responsibility to direct the use of that power insofar as that separation causes a deprivation of the constitutional rights of individuals and a denial of due process of law. 50 The judgment of the Supreme Court of New Hampshire is reversed. 51 Reversed. 52 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 53 Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, concurring in the result. 54 For me this is a very different case from Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173. This case comes to us solely through the limited power to review the action of the States conferred upon the Court by the Fourteenth Amendment. Petitioner claims that respect for liberties guaranteed by the Due Process Clause of that Amendment precludes the State of New Hampshire from compelling him to answer certain questions put to him by the investigating arm of its legislature. Ours is the narrowly circumscribed but exceedingly difficult task of making the final judicial accommodation between the competing weighty claims that underlie all such questions of due process. 55 In assessing the claim of the State of New Hampshire to the information denied it by petitioner, we cannot concern ourselves with the fact that New Hampshire chose to make its Attorney General in effect a standing committee of its legislature for the purpose of investigating the extent of 'subversive' activities within its bounds. The case must be judged as though the whole body of the legislature had demanded the information of petitioner. It would make the deepest inroads upon our federal system for this Court now to hold that it can determine the appropriate distribution of powers and their delegation within the forty-eight States. As the earlier Mr. Justice Harlan said for a unanimous Court in Dreyer v. People of State of Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79: 56 'Whether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the State. And its determination one way or the other cannot be an element in the inquiry whether the due process of law prescribed by the Fourteenth Amendment has been respected by the State or its representatives when dealing with matters involving life or liberty.' Whether the state legislature should operate largely by committees, as does the Congress, or whether committees should be the exception, as is true of the House of Commons, whether the legislature should have two chambers or only one, as in Nebraska, whether the State's chief executive should have the pardoning power, whether the State's judicial branch must provide trial by jury, are all matters beyond the reviewing powers of this Court. Similarly, whether the Attorney General of New Hampshire acted within the scope of the authority given him by the state legislature is a matter for the decision of the courts of that State, as it is for the federal courts to determine whether an agency to which Congress has delegated power has acted within the confines of its mandate. See United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. Sanction of the delegation rests with the New Hampshire Supreme Court, and its validation in Nelson v. Wyman, 99 N.H. 33, 105 A.2d 756, is binding here. 57 Pursuant to an investigation of subversive activities authorized by a joint resolution of both houses of the New Hampshire legislature, the State Attorney General subpoenaed petitioner before him on January 8, 1954, for extensive questioning. Among the matters about which petitioner was questioned were: details of his career and personal life, whether he was then or ever had been a member of the Communist Party, whether he had ever attended its meetings, whether he had ever attended meetings that he knew were also attended by Party members, whether he knew any Communists in or out of the State, whether he knew named persons with alleged connections with organizations either on the United States Attorney General's list or cited by the Un-American Activities Committee of the United States House of Representatives or had ever attended meetings with them, whether he had ever taught or supported the overthrow of the State by force or violence or had ever known or assisted any persons or groups that had done so, whether he had ever been connected with organizations on the Attorney General's list, whether he had supported or written in behalf of a variety of allegedly subversive, named causes, conferences, periodicals, petitions, and attempts to raise funds for the legal defense of certain persons, whether he knew about the Progressive Party, what positions he had held in it, whether he had been a candidate for Presidential Elector for that Party, whether certain persons were in that Party, whether Communists had influenced or been members of the Progressive Party, whether he had sponsored activities in behalf of the candidacy of Henry A. Wallace, whether he advocated replacing the capitalist system with another economic system, whether his conception of socialism involved force and violence, whether by his writings and actions he had ever attempted to advance the Soviet Union's 'propaganda line,' whether he had ever attended meetings of the Liberal Club at the University of New Hampshire, whether the magazine of which he was co-editor was 'a Communist-line publication,' and whether he knew named persons. 58 Petitioner answered most of these questions, making it very plain that he had never been a Communist, never taught violent overthrow of the Government, never knowingly associated with Communists in the State, but was a socialist believer in peaceful change who had at one time belonged to certain organizations on the list of the United States Attorney General (which did not include the Progressive Party) or cited by the House Un-American Activities Committee. He declined to answer as irrelevant or violative of free speech guaranties certain questions about the Progressive Party and whether he knew particular persons. He stated repeatedly, however, that he had no knowledge of Communists or of Communist influence in the Progressive Party, and he testified that he had been a candidate for that Party, signing the required loyalty oath, and that he did not know whether an alleged Communist leader was active in the Progressive Party. 59 Despite the exhaustive scope of this inquiry, the Attorney General again subpoenaed petitioner to testify on June 3, 1954, and the interrogation was similarly sweeping. Petitioner again answered virtually all questions, including those concerning the relationship of named persons to the Communist Party or other causes deemed subversive under state laws, alleged Communist influence on all organizations with which he had been connected including the Progressive Party, and his own participation in organizations other than the Progressive Party and its antecedent, the Progressive Citizens of America. He refused, however, to answer certain questions regarding (1) a lecture given by him at the University of New Hampshire, (2) activities of himself and others in the Progressive political organizations, and (3) 'opinions and beliefs,' invoking the constitutional guarantees of free speech. 60 The Attorney General then petitioned the Superior Court to order petitioner to answer questions in these categories. The court ruled that petitioner had to answer those questions pertaining to the lectures and to the Progressive Party and its predecessor but not those otherwise pertaining to 'opinions and beliefs.' Upon petitioner's refusal to answer the questions sanctioned by the court, he was found in contempt of court and ordered committed to the county jail until purged of contempt. 61 The Supreme Court of New Hampshire affirmed the order of the Superior Court. It held that the questions at issue were relevant and that no constitutional provision permitted petitioner to frustrate the State's demands. 100 N.H. 103, 121 A.2d 783. 62 The questions that petitioner refused to answer regarding the university lecture, the third given by him in three years at the invitation of the faculty for humanities, were: 63 'What was the subject of your lecture?' 64 'Didn't you tell the class at the University of New Hampshire on Monday, March 22, 1954, that Socialism was inevitable in this country?' 65 'Did you advocate Marxism at that time?' 66 'Did you express the opinion, or did you make the statement at that time that Socialism was inevitable in America?' 67 'Did you in this last lecture on March 22 or in any of the former lectures espouse the theory of dialectical materialism?' 68 'I have in the file here a statement from a person who attended your class, and I will read it in part because I don't want you to think I am just fishing. 'His talk this time was on the inevitability of the Socialist program. It was a glossed-over interpretation of the materialist dialectic.' Now, again I ask you the original question.' 69 In response to the first question of this series, petitioner had said at the hearing: 70 'I would like to say one thing in this connection, Mr. Wyman. I stated under oath at my last appearance that, and I now repeat it, that I do not advocate or in any way furher the aim of overthrowing constitutional government by force and violence. I did not so advocate in the lecture I gave at the University of New Hampshire. In fact I have never at any time so advocated in a lecture anywhere. Aside from that I have nothing I want to say about the lecture in question.' 71 The New Hampshire Supreme Court, although recognizing that such inquiries (100 N.H. 113, 114, 121 A.2d 792) 'undoubtedly interfered with the defendant's free exercise' of his constitutionally guaranteed right to lecture, justified the interference on the ground that it would occur 'in a limited area in which the legislative committee may reasonably believe that the overthrow of existing government by force and violence is being or has been taught, advocated or planned, an area in which the interest of the State justifies this intrusion upon civil liberties.' According to the court, the facts that made reasonable the committee's belief that petitioner had taught violent overthrow in his lecture were that he was a Socialist with a record of affiliation with groups cited by the Attorney General of the United States or the House Un-American Activities Committee and that he was co-editor of an article stating that, although the authors hated violence, it was less to be deplored when used by the Soviet Union than by capitalist countries. 72 When weighed against the grave harm resulting from governmental intrusion into the intellectual life of a university, such justification for compelling a witness to discuss the contents of his lecture appears grossly inadequate. Particularly is this so where the witness has sworn that neither in the lecture nor at any other time did he ever advocate overthrowing the Government by force and violence. 73 Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people's well-being, except for reasons that are exigent and obviously compelling. 74 These pages need not be burdened with proof, based on the testimony of a cloud of impressive witnesses, of the dependence of a free society on free universities. This means the exclusion of governmental intervention in the intellectual life of a university. It matters little whether such intervention occurs avowedly or through action that inevitably tends to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor. One need only refer to the address of T. H. Huxley at the opening of Johns Hopkins University, the Annual Reports of President A. Lawrence Lowell of Harvard, the Reports of the University Grants Committee in Great Britain, as illustrative items in a vast body of literature. Suffice it to quote the latest expression on this subject. It is also perhaps the most poignant because its plea on behalf of continuing the free spirit of the open universities of South Africa has gone unheeded. 75 'In a university knowledge is its own end, not merely a means to an end. A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates—'to follow the argument where it leads.' This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university. The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself. 76 'Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge. A sense of freedom is also necessary for creative work in the arts which, equally with scientific research, is the concern of the university. 77 '* * * It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.' The Open Universities in South Africa 10—12. (A statement of a conference of senior scholars from theUniversity of Cape Town and the University of the Witwatersrand, including A. v. d. S. Centlivres and Richard Feetham, as Chancellors of the respective universities.1) 78 I do not suggest that what New Hampshire has here sanctioned bears any resemblance to the policy against which this South African remonsttrance was directed. I do say that in these matters of the spirit inroads on legitimacy must be resisted at their incipiency. This kind of evil grows by what it is allowed to feed on. The admonition of this Court in another context is applicable here. 'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746. 79 Petitioner stated, in response to questions at the hearing, that he did not know of any Communist interest in, connection with, influence over, activity in, or manipulation of the Progressive Party. He refused to answer, despite court order, the following questions on the ground that, by inquiring into the activities of a lawful political organization, they infringed upon the inviolability of the right to privacy in his political thoughts, actions and associations: 80 'Was she, Nancy Sweezy, your wife, active in the formation of the Progressive Citizens of America?' 81 'Was Nancy Sweezy then working with individuals who were then members of the Communist Party?'2 82 'Was Charles Beebe active in forming the Progressive Citizens of America?' 83 'Did he work with your present wife—Did Charles Beebe work with your present wife in 1947?' 84 'Did it (a meeting at the home of one Abraham Walenko) have anything to do with the Progressive Party?' The Supreme Court of New Hampshire justified this intrusion upon his freedom on the same basis that it upheld questioning about the university lecture, namely, that the restriction was limited to situations where the Committee had reason to believe that violent overthrow of the Government was being advocated or planned. It ruled: 85 '* * * That he (the Attorney General) did possess information which was sufficient to reasonably warrant inquiry concerning the Progressive Party is evident from his statement made during the hearings held before him that 'considerable sworn testimony has been given in this investigation to the effect that the Progressive Party in New Hampshire has been heavily infiltrated by members of the Communist Party and that the policies and purposes of the Progressive Party have been directly influenced by members of the Communist Party." (100 N.H. 111, 121 A.2d 790.) 86 For a citizen to be made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling. Inquiry pursued in safeguarding a State's security against threatened force and violence cannot be shut off by mere disclaimer, though of course a relevant claim may be made to the privilege against self-incrimination. (The New Hampshire Constitution guarantees this privilege.) But the inviolability of privacy belonging to a citizen's political loyalties has so overwhelming an importance to the well-being of our kind of society that it cannot be constitutionally encroached upon on the basis of so meagre a countervailing interest of the State as may be argumentatively found in the remote, shadowy threat to the security of New Hampshire allegedly presented in the origins and contributing elements of the Progressive Party and in petitioner's relations to these. 87 In the political realm, as in the academic, thought and action are presumptively immune from inquisition by political authority. It cannot require argument that inquiry would be barred to ascertain whether a citizen had voted for one or the other of the two major parties either in a state or national election. Until recently, no difference would have been entertained in regard to inquiries about a voter's affiliations with one of the various so-called third parties that have had their day, or longer, in our political history. This is so, even though adequate protection of secrecy by way of the Australian ballot did not come into use till 1888. The implications of the United States Constitution for national elections and 'the concept of ordered liberty' implicit in the Due Process Clause of the Fourteenth Amendment as against the States, Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 82 L.Ed. 288, were not frozen as of 1789 or 1868, respectively. While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning. See Hurtado v. People of State of California, 110 U.S. 516, 528—529, 4 S.Ct. 111, 117, 292, 28 L.Ed. 232; McCulloch v. State of Maryland, 4 Wheat. 316, 4 L.Ed. 579. Whatever, on the basis of massive proof and in the light of history, of which this Court may well take judicial notice, be the justification for not regarding the Communist Party as a conventional political party, no such justification has been afforded in regard to the Progressive Party. A foundation in fact and reason would have to be established far weightier than the intimations that appear in the record to warrant such a view of the Progressive Party.3 This precludes the questioning that petitioner resisted in regard to that Party. 88 To be sure, this is a conclusion based on a judicial judgment in balancing two contending principles—the right of a citizen to political privacy, as protected by the Fourteenth Amendment, and the right of the State to self- protection. And striking the balance implies the exercise of judgment. This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court. It must not be an exercise of whim or will. It must be an overriding judgment founded on something much deeper and more justifiable than personal preference. As far as it lies within human limitations, it must be an impersonal judgment. It must rest on fundamental presuppositions rooted in history to which widespread acceptance may fairly be attributed. Such a judgment must be arrived at in a spirit of humility when it counters the judgment of the State's highest court. But, in the end, judgment cannot be escaped—the judgment of this Court. See concurring opinions in Haley v. State of Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224; State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 466, 470—471, 67 S.Ct. 374, 377, 379—380, 91 L.Ed. 422; Malinski v. People of State of New York, 324 U.S. 401, 412, 414—417, 65 S.Ct. 781, 786, 787—789, 89 L.Ed. 1029. 89 And so I am compelled to conclude that the judgment of the New Hampshire court must be reversed. 90 Mr. Justice CLARK, with whom Mr. Justice BURTON joins, dissenting. 91 The Court today has denied the State of New Hampshire the right to investigate the extent of 'subversive activities' within its boundaries in the manner chosen by its legislature. Unfortunately there is no opinion for the Court, for those who reverse are divided and they do so on entirely different grounds. Four of my Brothers join in what I shall call the principal opinion. They hold that the appointment of the Attorney General to act as a committee for the legislature results in a separation of its power to investigate from its 'responsibility to direct the use of that power' and thereby 'causes a deprivation of the constitutional rights of individuals and a denial of due process * * *.' This theory was not raised by the parties and is, indeed, a novel one. 92 My Brothers FRANKFURTER and HARLAN do not agree with this opinion because they conclude, as do I, that the internal affairs of the New Hampshire State Government are of no concern to us. See Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79. They do join in the reversal, however, on the ground that Sweezy's rights under theFirst Amendment have been violated. I agree with neither opinion. 93 The principal opinion finds that 'The Attorney General has been given such a sweeping and uncertain mandate that it is his decision which picks out the subjects that will be pursued, what witnesses will be summoned and what questions will be asked.' The New Hampshire Act clearly indicates that it was the legislature that determined the general subject matter of the investigation, subversive activities; the legislature's committee, the Attorney General, properly decided what witnesses should be called and what questions should be asked. My Brothrs surely would not have the legislature as a whole make these decisions. But they conclude, nevertheless, that it cannot be said that the legislature 'asked the Attorney General to gather the kind of facts comprised in the subjects upon which petitioner was interrogated.' It follows, says this opinion, that there is no 'assurance that the questions petitioner refused to answer fall into a category of matters upon which the legislature wanted to be informed * * *.' But New Hampshire's Supreme Court has construed the state statute. It has declared the purpose to be to investigate 'subversive' activities within the State; it has approved the use of the 'one-man' technique; it has said the questions were all relevant to the legislative purpose. In effect the state court says the Attorney General was 'directed' to inquire as he did. Furthermore, the legislature renewed the Act in the same language twice in the year following Sweezy's interrogation. N.H.Laws 1955, c. 197. In ratifying the Attorney General's action it used these words: 'The investigation * * * provided for by chapter 307 of the Laws of 1953, as continued by a resolution approved January 13, 1955, is hereby continued in full force and effect, in form, manner and authority as therein provided * * *.' (Emphasis added.) We are bound by the state court findings. We have no right to strike down the state action unless we find not only that there has been a deprivation of Sweezy's constitutional rights, but that the interest in protecting those rights is greater than the State's interest in uncovering subversive activities within its confines. The majority has made no such findings. 94 The short of it is that the Court blocks New Hampshire's effort to enforce its law. I had thought that in Common-wealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, we had left open for legitimate state control any subversive activity leveled against the interest of the State. I for one intended to suspend state action only in the field of subversion against the Nation and thus avoid a race to the court-house door between federal and state prosecutors. Cases concerning subversive activities against the National Government have such interstate ramifications that individual state action might effectively destroy a prosecution on the national level. I thought we had left open a wide field for state action, but implicit in the opinions today is a contrary conclusion. They destroy the fact-finding power of the State in this field and I dissent from this wide sweep of their coverage. 95 The principal opinion discusses, by way of dictum, due process under the Fourteenth Amendment. Since the basis of the opinion is not placed on this ground, I would not think it necessary to raise it here. However, my Brothers say that the definition of 'subversive person' lacks 'a necessary element of guilty knowledge * * *.' Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, is heavily depended upon as authority for the view expressed. I do not so regard it. I authored that opinion. It was a loyalty oath case in which Oklahoma had declared ipso facto disqualified any employee of the State who failed to take a prescribed oath that, inter alia, he belonged to no subversive organizations. We struck down the Act for lack of a requirement of scienter. We said there that 'constitutional protection * * * extend(s) to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' Id., 344 U.S. at page 192, 73 S.Ct. at page 219. But Sweezy is not charged as a 'subversive person' and the Committee has made no finding that he is. In fact, had he been found to be such a person, there is no sanction under the Act. New Hampshire is invoking no statute like Oklahoma's. Its Act excludes no one from anything. Updegraff stands for no such broad abstraction as the principal opinion suggests. 96 Since the conclusion of a majority of those reversing is not predicated on the First Amendment questions presented, I see no necessity for discussing them. But since the principal opinion devotes itself largely to these issues I believe it fair to ask why they have been given such an elaborate treatment when the case is decided on an entirely different ground. It is of no avail to quarrel with a straw man. My view on First Amendment problems in this type of case is expressed in my dissent in Watkins, decided today. Since a majority of the Court has not passed on these problems here, and since I am not convinced that the State's interest in investigating subversive activities for the protection of its citizens is outweighed by any necessity for the protection of Sweezy I would affirm the judgment of the New Hampshire Supreme Court. 1 N.H.Laws 1951, c. 193; now N.H.Rev.Stat.Ann.1955, c. 588, §§ 1—16. 2 N.H.Laws 1953, c. 307. 3 The authority of the Attorney General was continued for another two-year period by N.H.Laws 1955, cc. 197, 340. 4 'Having determined that an investigation should be conducted concerning a proper subject of action by it, the Legislature's choice of the Attorney General as its investigating committee, instead of a committee of its own members or a special board or commission, was not in and of itself determinative of the nature of the investigation. His position as the chief law enforcement officer of the State did not transform the inquiry which was otherwise legislative into executive action.' Nelson v. Wyman, 99 N.H. 33, 38, 105 A.2d 756, 762, 763. The Attorney General of New Hampshire is appointed to office by the Governor and the State Council, a group of five persons who share some of the executive responsibilities in the State Government. The principal duties of the Attorney General are set forth in N.H.Rev.Stat.Ann.1955, c. 7, §§ 6—11. He represents the State in all cases before the State Supreme Court. He prosecutes all criminal cases in which the accused is charged with an offense punishable by twenty-five years in prison or more. All other criminal cases are under his general supervision. He gives opinions on questions of law to the legislature, or to state boards, departments, commissions, officers, etc., on questions relating to their official duties. 5 'Whenever any official or board is given the power to summon witnesses and take testimony, but has not the power to punish for contempt, and any witness refuses to obey such summons, either as to his appearance or as to the production of things specified in the summons, or refuses to testify or to answer any question, a petition for an order to compel him to testify or his compliance with the summons may be filed in the superior court, or with some justice thereof.' N.H.Rev.Stat.Ann.1955, c. 491, § 19. 'Upon such petition the court or justice shall have authority to proceed in the matter as though the original proceeding had been in the court, and may make orders and impose penalties accordingly.' Id., § 20. See State v. Uphaus, 100 N.H. 1, 116 A.2d 887. 6 'Those called to testify before this and other similar investigations can be classified in three categories. 'First there are Communists and those who have reason to believe that even if they are not Communists they have been accused of being and are in danger of harassment and prosecution. 'Second, there are those who approve of the purposes and methods of these investigations. 'Third, there are those who are not Communists and do not believe they are in danger of being prosecuted, but who yet deeply disapprove of the purposes and methods of these investigations. 'The first group will naturally, and I think wholly justifiably, plead the constitutional privilege of not being witnesses against themselves. 'The second group will equally naturally be cooperative witnesses. 'The third group is faced with an extremely difficult dilemma. I know because I belong to this third group, and I have been struggling with its problems for many weeks now. I would like to explain what the nature of that dilemma is. I think it is important that both those conducting these inquiries and the public should understand. 'It is often said: If a person is not a Communist and has nothing to fear, why should he not answer whatever questions are put to him and be done with it? The answer, of course, is that some of us believe these investigations are evil and dangerous, and we do not want to give our approval to them, either tacitly or otherwise. On the contrary, we want to oppose them to the best of our ability and persuade others to do likewise, with the hope of eventually abolishing them altogether. 'Our reasons for opposing these investigations are not captious or trivial. They have deep roots in principle and conscience. Let me explain with reference to the present New Hampshire investigation. The official purpose of the inquiry is to uncover and lay the basis for the prosecution of persons who in one way or another promote the forcible overthrow of constitutional forms of government. Leaving aside the question of the constitutionality of the investigation, which is now before the courts, I think it must be plain to any reasonable person who is at all well informed about conditions in New Hampshire today that strict adherence to this purpose would leave little room for investigation. It is obvious enough that there are few radicals or dissenters of any kind in New Hampshire; and if there are any who advocate use of force and violence, they must be isolated crackpots who are no danger to anyone, least of all to the constitutional form of government of state and nation. The Attorney General should be able to check these facts quickly and issue a report satisfying the mandate laid upon him by the legislature. 'But this is not what he has done. We do not know the whole story, but enough has come out to show that the Attorney General has issued a considerable number of subpoenas and has held hearings in various parts of the state. And so far as the available information allows us to judge, most of those subpoenaed have fallen into one or both of two groups: first professors at Dartmouth and the University of New Hampshire who have gained a reputation for liberal or otherwise unorthodox views, and, second, people who have been active in the Progressive Party. It should be specially noted that whatever may be thought of the Progressive Party in any other respect, it was certainly not devoted to violent overthrow of constitutional forms of government but on the contrary to effecting reforms through the very democratic procedures which are the essence of constitutional forms of government. 'The pattern I have described is no accident. Whatever their official purpose, these investigations always end up by inquiring into the politics, ideas, and beliefs of people who hold what are, for the time being, unpopular views. The federal House Committee on Un-American Activities, for example, is supposed to investigate various kinds of propaganda and has no other mandate whatever. Over the years, however, it has spent almost no time investigating propaganda and has devoted almost all of its energies to 'exposing' people and their ideas, their affiliations, their associations. Similarly, this New Hampshire investigation is supposed to be concerned with violent overthrow of government, but it is actually turning out to be concerned with what few manifestations of political dissent have made themselves felt in the state in recent years. 'If all this is so, and if the very first principle of the American constitutional form of government is political freedom which I take to include freedoms of speech, press, assembly, and association—then I do not see how it can be denied that these investigations are a grave danger to all that Americans have always claimed to cherish. No rights are genuine if a person, for exercising them, can be hauled up before some tribunal and forced under penalties of perjury and contempt to account for his ideas and conduct. 'Let us now return to the problem of the witness who would have nothing to fear from being what is nowadays styled a 'friendly' witness, but who feels deeply that to follow such a course would be a betrayal of his principles and repugnant to his conscience. What other courses are open to him? 'He can claim the privilege not to be a witness against himself and thus avoid a hateful inquisition. I respect the decision of those who elect to take this course. My own reason for rejecting it is that, with public opinion in its present state, the exercise of the privilege is almost certain to be widely misinterpreted. One of the noblest and most precious guarantees of freedom, won in the course of bitter struggles and terrible suffering, has been distorted in our own day to mean a confession of guilt, the more sinister because undefined and indeed undefinable. It is unfortunate, but true, that the public at large has accepted this distortion and will scarcely listen to those who have invoked the privilege. 'Alternatively, the witness can seek to uphold his principles and maintain his integrity, not by claiming the protection of the Fifth Amendment (or the Fifteenth Article of the New Hampshire Bill of Rights), but by contesting the legitimacy of offensive questions on other constitutional and legal grounds. 'Just how far the First Amendment limits the right of legislative inquiry has not been settled. The Supreme Court of the United States is at this very moment considering a case (the Emspak case (349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997)) which may do much to settle the question. But even before the Court has handed down its decision in the Emspak case, it is quite certain that the First Amendment does place some limitations on the power of investigation, and it is always open to a witness to challenge a question on the ground that it transgresses these limitations and, if necessary, to take the issue to the courts for decision. 'Moreover, a witness may not be required to answer questions unless they are 'pertinent to the matter under inquiry' (the words are those of the United States Supreme Court). 'What is the 'matter under inquiry' in the present investigation? According to the Act of the New Hampshire legislature directing the investigation, its purpose is twofold: (1) 'to make full and complete investigation with respect to violations of the subversive activities act of 1951,' and (2) 'to determine whether subversive persons as defined in said act are presently located within this state.' 'I have studied the subversive activities act of 1951 with care, and I am glad to volunteer the information that I have absolutely no knowledge of any violations of any of its provisions; further, that I have no knowledge of subversive persons presently located within the state. 'That these statements may carry full conviction, I am prepared to answer certain questions about myself, though in doing so I do not mean to concede the right to ask them. I am also prepared to discuss my views relating to the use of force and violence to overthrow constitutional forms of government. 'But I shall respectfully decline to answer questions concerning ideas, beliefs, and associations which could not possibly be pertinent to the matter here under inquiry and/or which seem to me to invade the freedoms guaranteed by the First Amendment to the United States Constitution (which, of course, applies equally to the several states).' 7 The Progressive Party offered a slate of candidates for national office in the 1948 presidential election. Henry A. Wallace, former Vice President of the United States, was the party's selection for the presidency. Glen Taylor, former United States Senator, was the vice-presidential nominee of the party. Nationwide, the party received a popular vote of 1,156,103. Of this total, 1,970 votes for Progressive Party candidates were cast in New Hampshire. Statistics of the Presidential and Congressional Election of November 2, 1948, pp. 24, 48—49. 8 See note 5, supra. 9 The court made a general ruling that questions concerning the opinions or beliefs of the witness were not pertinent. Nevertheless, it did propound to the witness the one question about his belief in Communism. 10 See Note 1, supra. 11 "Subversive person' means any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches, by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of New Hampshire, or any political subdivision of either of them, by force, or violence; or who is a member of a subversive organization or a foreign subversive organization.' N.H.Rev.Stat.Ann.1955, c. 588, § 1. 12 'For the purpose of this chapter 'organization' means an organization, corporation, company, partnership, association, trust, foundation, fund, club, society, committee, political party, or any group of persons, whether or not incorporated, permanently or temporarily associated together for joint action or advancement of views on any subject or subjects. "Subversive organization' means any organization which engages in or advocates, abets, advises, or teachers, or a purpose of which is to engage in or advocate, abet, advise, or teach activities intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of New Hampshire, or of any political subdivision of either of them, by force, or violence.' Ibid. 13 The State Supreme Court illustrated the 'reasonable or reliable' information underlying the inquiries on the Progressive Party by quoting from a remark made by the Attorney General at the hearing in answer to petitioner's objection to a line of questions. The Attorney General had declared that he had '* * * considerable sworn testimony * * * to the effect that the Progressive Party in New Hampshire has been heavily infiltrated by members of the Communist Party and that the policies and purposes of the Progressive Party have been directly influenced by members of the Communist Party.' 100 N.H. at page 111, 121 A.2d at pages 790, 791. None of this testimony is a part of the record in this case. Its existence and weight were not independently reviewed by the state courts. The court did not point to anything that supported the questioning on the subject of the lecture. It stated that the Attorney General could inquire about lectures only if he '* * * possesses reasonable or reliable information indicating that the violent overthrow of existing government may have been advocated or taught, either 'knowingly and wilfully' or not.' 100 N.H. at page 110, 121 A.2d at pages 789, 790. What, if anything, indicated that petitioner knowingly or innocently advocated or taught violent overthrow of existing government does not appear. At one point in the hearing, the Attorney General said to petitioner: 'I have in the file here a statement from a person who attended your class, and I will read it in part because I don't want you to think I am just fishing. 'His talk this time was on the inevitability of the Socialist program. It was a glossed-over interpretation of the materialist dialectic." R. 107. The court did not cite this statement. 1 The Hon. A. v. d. S. Centlivres only recently retired as Chief Justice of South Africa, and the Hon. Richard Feetham is also an eminent, retired South African judge. 2 Inclusion of this question among the unanswered questions appears to have been an oversight in view of the fact that petitioner attempted to answer it at the hearing by stating that he had never to his knowledge known members of the Communist Party in New Hampshire. In any event, petitioner's brief states that he is willing to repeat the answer to this question if the Attorney General so desires. This is consistent with his demonstrated willingness to answer all inquiries regarding the Communist Party, including its relation to the Progressive Party. 3 The Progressive Party was on the ballot in forty-four States, including New Hampshire, in 1948, and in twenty-six States in 1952.

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354 U.S. 284 77 S.Ct. 1166 1 L.Ed.2d 1347 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 695, A.F.L., et al., Petitioners,v.VOGT, Inc. No. 79. Argued Feb. 26, 1957. Decided June 17, 1957. Rehearing Denied July 11, 1957. See 354 U.S. 945, 77 S.Ct. 1423. Mr. David Previant, Milwaukee, Wis., for the petitioners. Mr. Leon B. Lamfrom, Milwaukee, Wis., for the respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This is one more in the long series of cases in which this Court has been required to consider the limits imposed by the Fourteenth Amendment on the power of a State to enjoin picketing. The case was heard below on the pleadings and affidavits, the parties stipulating that the record contained 'all of the facts and evidence that would be adduced upon a trial on the merits * * *.' Respondent owns and operates a gravel pit in Oconomowoc, Wisconsin, where it employs 15 to 20 men. Petitioner unions sought unsuccessfully to induce some of respondent's employees to join the unions and commenced to picket the entrance to respondent's place of business with signs reading, 'The men on this job are not 100% affiliated with the A.F.L.' 'In consequence,' drivers of several trucking companies refused to deliver and haul goods to and from respondent's plant, causing substantial damage to respondent. Respondent thereupon sought an injunction to restrain the picketing. 2 The trial court did not make the finding, requested by respondent, 'That the picketing of plaintiff's premises has been engaged in for the purpose of coercing, intimidating and inducing the employer to force, compel, or induce its employees to become members of defendant labor organizations, and for the purpose of injuring the plaintiff in its business because of its refusal to in any way interfere with the rights of its employees to join or not to join a labor organization.' It nevertheless held that by virtue of Wis.Stat. § 103.535, prohibiting picketing in the absence of a 'labor dispute,' the petitioners must be enjoined from maintaining any pickets near respondent's place of business, from displaying at any place near respondent's place of business signs indicating that there was a labor dispute between respondent and its employees or between respondent and any of the petitioners, and from inducing others to decline to transport goods to and from respondent's business establishment. 3 On appeal, the Wisconsin Supreme Court at first reversed, relying largely on A.F.L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855, to hold § 103.535 unconstitutional, on the ground that picketing could not constitutionally be enjoined merely because of the absence of a 'labor dispute.' 270 Wis. 315, 71 N.W.2d 359. 4 Upon reargument, (270 Wis. 315, 74 N.W.2d 749, 753) however, the court withdrew its original opinion. Although the trial court had refused to make the finding requested by respondent, the Supreme Court, noting that the facts as to which the request was made were undisputed, drew the inference from the undisputed facts and itself made the finding. It canvassed the whole circumstances surrounding the picketing and held that 'One would be credulous, indeed, to believe under the circumstances that the union had no thought of coercing the employer to interfere with its employees in their right to join or refuse to join the defendant union.' Such picketing, the court held, was for 'an unlawful purpose,' since Wis.Stat. § 111.06(2)(b) made it an unfair labor practice for an employee individually or in concert with others to 'coerce, intimidate or induce any employer to interfere with any of his employes in the enjoyment of their legal rights * * * or to engage in any practice with regard to his employes which would constitute an unfair labor practice if undertaken by him on his own initiative.' Relying on Building Service Employees, etc. v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045, and Pappas v. Stacey, 151 Me. 36, 116 A.2d 497, the Wisconsin Supreme Court therefore affirmed the granting of the injunction on this different ground. 270 Wis. 321a, 74 N.W.2d 749. 5 We are asked to reverse the judgment of the Wisconsin Supreme Court, which to a large extent rested its decision on that of the Supreme Judicial Court of Maine in Pappas v. Stacey, supra. When an appeal from that decision was filed here, this Court granted appellee's motion to dismiss for lack of a substantial federal question. 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770. Since the present case presents a similar question, we might well have denied certiorari on the strength of our decision in that case. In view of the recurrence of the question, we thought it advisable to grant certiorari, 352 U.S 817, 77 S.Ct. 31, 1 L.Ed.2d 44, and to restate the principles governing this type of case. 6 It is inherent in the concept embodied in the Due Process Clause that its scope be determined by a 'gradual process of judicial inclusion and exclusion,' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. Inevitably, therefore, the doctrine of a particular case 'is not allowed to end with its enunciation and * * * an expression in an opinion yields later to the impact of facts unforeseen.' Jaybird Mining Co. v. Weir, 271 U.S. 609, 619, 46 S.Ct. 592, 595, 70 L.Ed. 1112 (Brandeis, J., dissenting). It is not too surprising that the response of States—legislative and judicial—to use of the injunction in labor controversies should have given rise to a series of adjudications in this Court relating to the limitations on state action contained in the provisions of the Due Process Clause of the Fourteenth Amendment. It is also not too surprising that examination of these adjudications should disclose an evolving, not a static, course of decision. 7 The series begins with Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, in which a closely divided Court found it to be violative of the Equal Protection Clause—not of the Due Process Clause for a State to deny use of the injunction in the special class of cases arising out of labor conflicts. The considerations that underlay that case soon had to yield, through legislation and later through litigation, to the persuasiveness of undermining facts. Thus, to remedy the abusive use of the injunction in the federal courts, see Frankfurter and Greene, The Labor Injunction, the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101, 29 U.S.C.A. § 101, withdrew, subject to qualifications, jurisdiction from the federal courts to issue injunctions in labor disputes to prohibit certain acts. Its example was widely followed by state enactments. 8 Apart from remedying the abuses of the injunction in this general type of litigation, legislatures and courts began to find in one of the aims of picketing an aspect of communication. This view came to the fore in Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, where the Court held that the Fourteenth Amendment did not prohibit Wisconsin from authorizing peaceful stranger picketing by a union that was attempting to unionize a shop and to induce an employer to refrain from working in his business as a laborer. 9 Although the Court had been closely divided in the Senn case, three years later, in passing on a restrictive instead of a permissive state statute, the Court made sweeping pronouncements about the right to picket in holding unconstitutional a statute that had been applied to ban all picketing, with 'no exceptions based upon either the number of persons engaged in the proscribed activity, the peaceful character of their demeanor, the nature of their dispute with an employer, or the restrained character and the accurateness of the terminology used in notifying the public of the facts of the dispute.' Thornhill v. Alabama, 310 U.S. 88, 99, 60 S.Ct. 736, 743, 84 L.Ed. 1093. As the statute dealt at large with all picketing, so the Court broadly assimilated peaceful picketing in general to freedom of speech, and as such protected against abridgment by the Fourteenth Amendment. 10 These principles were applied by the Court in A.F.L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855, to hold unconstitutional an injunction against peaceful picketing, based on a State's common-law policy against picketing when there was no immediate dispute between employer and employee. On the same day, however, the Court upheld a generalized injunction against picketing where there had been violence because 'it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful.' Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 294, 61 S.Ct. 552, 555, 85 L.Ed. 836. 11 Soon, however, the Court came to realize that the broad pronouncements, but not the specific holding, of Thornhill had to yield 'to the impact of facts unforeseen,' or at least not sufficiently appreciated. Cf. People v. Charles Schweinler Press, 214 N.Y. 395, 108 N.E. 639, L.R.A. 1918A, 1124; 28 Harv.L.Rev. 790. Cases reached the Court in which a State had designed a remedy to meet a specific situation or to accomplish a particular social policy. These cases made manifest that picketing, even though 'peaceful,' involved more than just communication of ideas and could not be immune from all state regulation. 'Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.' Bakery and Pastry Drivers Local v. Wohl, 315 U.S. 769, 776, 62 S.Ct. 816, 819, 86 L.Ed. 1178 (concurring opinion); see Carpenters and Joiners Union, etc. v. Ritter's Cafe, 315 U.S. 722, 725—728, 62 S.Ct. 807, 808—810, 86 L.Ed. 1143. 12 These latter two cases required the Court to review a choice made by two States between the competing interests of unions, employers, their employees, and the public at large. In the Ritter's Cafe case, Texas had enjoined as a violation of its antitrust law picketing of a restaurant by unions to bring pressure on its owner with respect to the use of nonunion labor by a contractor of the restaurant owner in the construction of a building having nothing to do with the restaurant. The Court held that Texas could, consistent with the Fourteenth Amendment, insulate from the dispute a neutral establishment that industrially had no connection with it. This type of picketing certainly involved little, if any, 'communication.' 13 In Bakery and Pastry Drivers Local v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178, in a very narrowly restricted decision, the Court held that because of the impossibility of otherwise publicizing a legitimate grievance and because of the slight effect on 'strangers' to the dispute, a State could not constitutionally prohibit a union from picketing bakeries in its efforts to have independent peddlers, buying from bakers and selling to small stores, conform to certain union requests. Although the Court in Ritter's Cafe and Wohl did not question the holding of Thornhill, the strong reliance on the particular facts in each case demonstrated a growing awareness that these cases involved not so much questions of free speech as review of the balance struck by a State between picketing that involved more than 'publicity' and competing interests of state policy. (See also Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58, where the Court reviewed a New York injunction against picketing by a union of a restaurant that was run by the owners without employees. The New York court appeared to have justified an injunction on the alternate grounds that there was no 'labor dispute' under the New York statute or that use of untruthful placards justified the injunction. We held, in a brief opinion, that the abuses alleged did not justify an injunction against all picketing and that A.F.L. v. Swing governed the alternate ground for decision.) 14 The implied reassessments of the broad language of the Thornhill case were finally generalized in a series of cases sustaining injunctions against peaceful picketing, even when arising in the course of a labor controversy, when such picketing was counter to valid state policy in a domain open to state regulation. The decisive reconsideration came in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. A union, seeking to organize peddlers, picketed a wholesale dealer to induce it to refrain from selling to nonunion peddlers. The state courts, finding that such an agreement would constitute a conspiracy in restraint of trade in violation of the state antitrust laws, enjoined the picketing. This Court affirmed unanimously. 15 'It is contended that the injunction against picketing adjacent to Empire's place of business is an unconstitutional abridgment of free speech because the picketers were attempting peacefully to publicize truthful facts about a labor dispute. * * * But the record here does not permit this publicizing to be treated in isolation. For according to the pleadings, the evidence, the findings, and the argument of the appellants, the sole immediate object of the publicizing adjacent to the premises of Empire, as well as the other activities of the appellants and their allies, was to compel Empire to agree to stop selling ice to nonunion peddlers. Thus all of appellants' activities * * * constituted a single and integrated course of conduct, which was in violation of Missouri's valid law. In this situation, the injunction did no more than enjoin an offense against Missouri law, a felony.' Id., 336 U.S. at pages 497—498, 69 S.Ct. at page 688. 16 The Court therefore concluded that it was 'clear that appellants were doing more than exercising a right of free speech or press. * * * They were exercising their economic power together with that of their allies to compel Empire to abide by union rather than by state regulation of trade.' Id., 336 U.S. at page 503, 69 S.Ct. at page 691. 17 The following Term, the Court decided a group of cases applying and elaborating on the theory of Giboney. In Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985, the Court held that the Fourteenth Amendment did not bar use of the injunction to prohibit picketing of a place of business solely to secure compliance with a demand that its employees be hired in percentage to the racial origin of its customers. 'We cannot construe the Due Process Clause as prohibiting California from securing respect for its policy against involuntary employment on racial lines by prohibiting systematic picketing that would subvert such policy.' Id., 339 U.S. at page 466, 70 S.Ct. at page 722. The Court also found it immaterial that the state policy had been expressed by the judiciary rather than by the legislature. 18 On the same day, the Court decided International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, holding that a State was not restrained by the Fourteenth Amendment from enjoining picketing of a business, conducted by the owner himself without employees, in order to secure compliance with a demand to become a union shop. Althouth there was no one opinion for the Court, its decision was another instance of the affirmance of an injunction against picketing because directed against a valid public policy of the State. 19 A Third case, Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045, was decided the same day. Following an unsuccessful attempt at unionization of a small hotel and refusal by the owner to sign a contract with the union as bargaining agent, the union began to picket the hotel with signs stating that the owner was unfair to organized labor. The State, finding that the object of the picketing was in violation of its statutory policy against employer coercion of employees' choice of bargaining representative, enjoined picketing for such purpose. This Court affirmed, rejecting the argument that 'the Swing case, supra, is controlling. * * * In that case this Court struck down the State's restraint of picketing based solely on the absence of an employer-employee relationship. An adequate basis for the instant decree is the unlawful objective of the picketing, namely, coercion by the employer of the employees' selection of a bargaining representative. Peaceful picketing for any lawful purpose is not prohibited by the decree under review.' Id., 339 U.S. at page 539, 70 S.Ct. at page 788. 20 A similar problem was involved in Local Union No. 10, United Ass'n of Journeymen, Plumbers and Steamfitters, etc. v. Graham, 345 U.S. 192, 73 S.Ct. 585, 587, 97 L.Ed. 946, where a state court had enjoined, as a violation of its 'Right to Work' law, picketing that advertised that nonunion men were being employed on a building job. This Court found that there was evidence in the record supporting a conclusion that a substantial purpose of the picketing was to put pressure on the general contractor to eliminate nonunion men from the job and, on the reasoning of the cases that we have just discussed, held that the injunction was not in conflict with the Fourteenth Amendment. 21 This series of cases, then, established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy. 22 In the light of this background, the Maine Supreme Judicial Court in 1955 decided, on an agreed statement of facts, the case of Pappas v. Stacey, 151 Me. 36, 42, 116 A.2d 497, 500. From the statement, it appeared that three union employees went on strike and picketed a restaurant peacefully 'for the sole purpose of seeking to organize other employees of the Plaintiff, ultimately to have the Plaintiff enter into collective bargaining and negotiations with the Union * * *.' Maine had a statute providing that workers should have full liberty of self-organization, free from restraint by employers or other persons. (R.S.1954, c. 30, § 15) The Maine Supreme Judicial Court drew the inference from the agreed statement of facts that 'there is a steady and exacting pressure upon the employer to interfere with the free choice of the employees in the matter of organization. To say that the picketing is not designed to bring about such action is to forget an obvious purpose of the picketing to cause economic loss to the business during noncompliance by the employees with the request of the union.' It therefore enjoined the picketing, and an appeal was taken to this Court. 23 The whole series of cases discussed above allowing, as they did, wide discretion to a State in the formulation of domestic policy, and not involving a curtailment of free speech in its obvious and accepted scope, led this Court, without the need of further argument, to grant appellee's motion to dismiss the appeal in that it no longer presented a substantial federal question. 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770. 24 The Stacey case is this case. As in Stacey, the present case was tried without oral testimony. As in Stacey, the highest state court drew the inference from the facts that the picketing was to coerce the employer to put pressure on his employers to join the union, in violation of the declared policy of the State. (For a declaration of similar congressional policy, see § 8 of the National Labor Relations Act, 61 Stat. 140, 29 U.S.C. § 158, 29 U.S.C.A. § 158.) The cases discussed above all hold that, consistent with the Fourteenth Amendment, a State may enjoin such conduct. 25 Of course, the mere fact that there is 'picketing' does not automatically justify its restraint without an investigation into its conduct and purposes. State courts, no more than state legislatures, can enact blanket prohibitions against picketing. Thornhill v. Alabama and A.F.L. v. Swing, supra. The series of cases following Thornhill and Swing demonstrate that the policy of Wisconsin enforced by the prohibition of this picketing is a valid one. In this case, the circumstances set forth in the opinion of the Wisconsin Supreme Court afford a rational basis for the inference it drew concerning the purpose of the picketing. No question was raised here concerning the breadth of the injunction, but of course its terms must be read in the light of the opinion of the Wisconsin Supreme Court, which justified it on the ground that the picketing was for the purpose of coercing the employer to coerce his employees. 'If astuteness may discover argumentative excess in the scope of the (injunction) beyond what we constitutionally justify by this opinion, it will be open to petitioners to raise the matter, which they have not raised here, when the (case) on remand (reaches) the (Wisconsin) court.' International Brotherhood of Teamsters Union v. Hanke, 339 U.S., at pages 480—481, 70 S.Ct. at page 779. 26 Therefore, having deemed it appropriate to elaborate on the issues in the case, we affirm. 27 Affirmed. 28 Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 29 Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting. 30 The Court has now come full circle. In Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093, we struck down a state ban on picketing on the ground that 'the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.' Less than one year later, we held that the First Amendment protected organizational picketing on a factual record which cannot be distinguished from the one now before us. A.F.L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. Of course, we have always recognized that picketing has aspects which make it more than speech. Bakery and Pastry Drivers Local v. Wohl, 315 U.S. 769, 776 777, 62 S.Ct. 816, 819, 820, 86 L.Ed. 1178 (concurring opinion). That difference underlines our decision in Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. There, picketing was an essential part of 'a single and integrated course of conduct, which was in violation of Missouri's valid law.' Id., 336 U.S. at page 498, 69 S.Ct. at page 688. And see National Labor Relations Board v. Virginia Elec. & Power Co., 314 U.S. 469, 477—478, 62 S.Ct. 344, 348, 86 L.Ed. 348. We emphasized that 'there was clear danger, imminent and immediate, that unless restrained, appellants would succeed in making (the state) policy a dead letter * * *.' 336 U.S. at page 503, 69 S.Ct. at page 691. Speech there was enjoined because it was an inseparable part of conduct which the State constitutionally could and did regulate. 31 But where, as here, there is no rioting, no mass picketing, no violence, no disorder, no fisticuffs, no coercion—indeed nothing but speech—the principles announced in Thornhill and Swing should give the advocacy of one side of a dispute First Amendment protection. 32 The retreat began when, in International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, four members of the Court announced that all picketing could be prohibited if a state court decided that that picketing violated the State's public policy. The retreat became a rout in Local Union No. 10, United Ass'n of Journeymen, Plumbers and Steamfitters, etc. v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946. It was only the 'purpose' of the picketing which was relevant. The state court's characterization of the picketers' 'purpose' had been made wellnigh conclusive. Considerations of the proximity of picketing to conduct which the State could control or prevent were abandoned, and no longer was it necessary for the state court's decree to be narrowly drawn to prescribe a specific evil. Id., 345 U.S. at pages 201—205, 73 S.Ct. at pages 589—591 (dissenting opinion). 33 Today, the Court signs the formal surrender. State courts and state legislatures cannot fashion blanket prohibitions on all picketing. But, for practical purposes, the situation now is as it was when Senn v. Tile Layers Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, was decided. State courts and state legislatures are free to decide whether to permit or suppress any particular picket line for any reason other than a blanket policy against all picketing. I would adhere to the principle announced in Thornhill. I would adhere to the result reached in Swing. I would return to the test enunciated in Giboney—that this form of expression can be regulated or prohibited only to the extent that it forms an essential part of a course of conduct which the State can regulate or prohibit. I would reverse the judgment below.

23

354 U.S. 271 77 S.Ct. 1099 1 L.Ed.2d 1337 UNITED STATES of America, Petitioner,v.Walter KORPAN. No. 596. Argued April 25, 1957. Decided June 17, 1957. Rehearing Denied July 11, 1957. See 354 U.S. 945, 77 S.Ct. 1423. Mr. John F. Davis, Washington, D.C., for the petitioner. Mr. Robert A. Sprecher, Washington, D.C., for the respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 The respondent, Walter Korpan, was indicted in a Federal District Court in Illinois for willfully failing to pay the $250 per device tax imposed by 26 U.S.C. (Supp. IV) § 4461, 26 U.S.C.A. § 4461 on any person who maintains for use any gaming device. For purposes of this tax, 26 U.S.C. (Supp. IV) § 4462(a), 26 U.S.C.A. § 4462(a) defines gaming devices as: 2 'so-called 'slot' machines which operate by means of insertion of a coin * * * and which, by application of the element of chance, may deliver, or entitle the person playing * * * the machine to receive cash, premiums, merchandise, or tokens.'1 3 The evidence at the trial showed that Korpan maintained on his premises a number of coin-operated gambling machines. These machines were played by inserting a coin into the machine through a slot. The player was then able to shoot several balls onto a playing surface which was interspersed with pockets or holes. If he succeeded in getting balls into certain holes he received a varying number of free games. He had the option of either playing the free games or of cashing them in at a designated rate. By inserting extra coins the player could sometimes secure additional balls or increased 'odds' (in other words, increase the number of free games he could win). The machines were equipped with electrical devices which over a period of time controlled the number of free games won. 4 The district Judge found respondent guilty as charged and fined him $750. The Court of Appeals for the Seventh Circuit reversed, holding that respondent's machines did not come within the definition laid down by § 4462(a)(2). 237 F.2d 676. On the Government's petition we granted certiorari because the case raised important questions in the administration of the revenue laws. 352 U.S. 980, 77 S.Ct. 382, 1 L.Ed. 364. The issue before us is whether the machines maintained by petitioner were included within the definition given by § 4462(a) (2).2 For the reasons stated hereafter we believe that they were within that definition and that the judgment of the Court of Appeals setting aside Korpan's conviction on the ground that they were not must be reversed. 5 It is clear that respondent's machines were operated by the insertion of a coin and that persons playing them could receive cash for any free games won. The machines also involved an element of chance sufficient to meet the requirements of § 4462(a)(2), although skill may have had some part in playing them successfully. In short, they were 'slot-machine' gambling devices. 6 Respondent argues, however, that when Congress used the phrase 'so-called 'slot' machines' in § 4462(a)(2) it intended to restrict the scope of that section to those 'slot machines' gambling devices colloquially known as 'one-armed bandits.' He describes the latter as machines in which the insertion of a coin releases a lever or handle which, in turn, when pulled activates a series of spring-driven drums or reels with various insignia painted thereon, usually bells and fruit, and which automatically dispense coins to a player when certain combinations of these insignia are aligned. The Government, on the other hand, takes the position that Congress intended to cover all 'slot machines' which come within the specific requirements of § 4462(a)(2). It argues that the qualifying phrase 'so-called' was added because (1) the draftsmen were apprehensive that the term 'slot-machine' might be a slang expression not accepted as proper English or (2) they wanted to cover every gambling device operated by the insertion of coins through a slot even though the device might go under a label other than 'slot machine.' 7 On its face the language of § 4462(a)(2) and related sections does not manifest an intent to limit the application of the otherwise broad terms of § 4462(a)(2) to any particular kind of 'slot-machine' gambling device. The phrase 'so-called 'slot' machine' is, if anything, more consistent with the position advanced by the Government than that taken by Korpan. And the remainder of § 4462(a)(2), as well as § 4462(c), has language which affirmatively suggests that § 4462(a)(2) was designed to include all sorts of coin-operated gambling devices regardless or their particular structure or the method by which they paid off players. 8 This interpretation is supported by the relevant legislative history. Apart from the amount of tax imposed, § 4462(a)(2) is substantially the same as its original predecessor, § 3267 of the Internal Revenue Code of 1939, as amended, 55 Stat. 722, 26 U.S.C.A. § 3267. Senator Clark, the sponsor of the amendment which became § 3267, declared during the Senate debates on his amendment that his objective was to impose a heavy tax on 'any machine which returns any sort of a premium, and that was the intention of the amendment, and it was the intention of the committee in adopting it.'3 The Senate report which accompanied Clark's amendment stated: 9 'The House bill places a special tax of $25 per year upon each coin-operated amusement or gaming device maintained for use on any premises. 10 'Your committee divides these devices into two categories. Upon so-called pinball or other amusement devices operated by the insertion of a coin or token, the tax is reduced to $10 per year. Upon so-called slot machines, however, the tax is placed at $200 per year.'4 (Emphasis added.) 11 Respondent contends that this report as well as similar language in other parts of the legislative history is indicative of an intent on the part of Congress to draw a distinction between 'one-armed bandits' and other coin-operated gambling or amusement machines.5 We interpret this history, however, as demonstrating a congression purpose to place a heavy tax on all 'slot-machine' gambling devices, regardless of their particular structure, and a substantially smaller tax on machines played purely for amusement which offered the player no expectation of receiving 'cash, premiums, merchandise, or tokens.' 12 The administrative interpretation of § 4462(a)(2) and its predecessors adds additional strength to this view. In 1942 the Treasury Department published interpretative regulations which included so-called 'pin-ball' gambling machines under § 4462(a)(2).6 This administrative ruling was publicized in the trade paper of the coin-operated machine industry. In both 1942 and 1954 the representatives of that industry complained to Congress about the Treasury's interpretation, which is still in effect, and asked that § 4462(a) (2) be amended so that it expressly excluded 'pin-ball' gambling machines.7 In each instance Congress left the existing provisions of § 4462(a)(2) standing, although, at the request of others in the industry, it did provide an exception for certain penny-operated gambling machines.8 13 If the respondent's position were adopted § 4462(a)(2) would be restricted to a peculiar type of gambling device—the so-called 'one-armed bandit'—even though ingenuity, a desire to avoid taxes, and technological progress provide a multitude of new devices which permit substantially the same kind of gambling but only with a different kind of coin-operated machine. We are convinced that Congress had no such purpose and meant only to distinguish between 'slot-machines' operated as gambling devices and 'slot-machines' which were used exclusively for amusement. 14 Reversed. 15 Mr. Justice DOUGLAS dissents from the conclusion that here pinball machines are games of chance within the meaning of the statute. 1 In full the pertinent statutory provisions read as follows: § 4461. Imposition of tax. 'There shall be imposed a special tax to be paid by every person who maintains for use or permits the use of, on any place or premises occupied by him, a coin-operated amusement or gaming device at the following rates: '(1) $10 a year, in the case of a device defined in paragraph (1) of section 4462(a); '(2) $250 a year, in the case of a device defined in paragraph (2) of section 4462(a); and '(3) $10 or $250 a year, as the case may be, for each additional device so maintained or the use of which is so permitted. If one such device is replaced by another, such other device shall not be considered an additional device. § 4462. Definition of coin-operated amusement or gaming device. '(a) In general. 'As used in sections 4461 to 4463, inclusive, the term 'coin-operated amusement or gaming device' means— '(1) any amusement or music machine operated by means of the insertion of a coin, token, or similar object, and '(2) so-called 'slot' machines which operate by means of insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash, premiums, merchandise, or tokens. '(b) Exclusion. 'The term 'coin-operated amusement or gaming device' does not include bona fide vending machines in which are not incorporated gaming or amusement features. '(c) 1-cent vending machine. 'For purposes of sections 4461 to 4463, inclusive, a vending machine operated by means of the insertion of a 1-cent coin, which, when it dispenses a prize, never dispenses a prize of a retail value of, or entitles a person to receive a prize of a retail value of, more than 5 cents, and if the only prize dispensed is merchandise and not cash or tokens, shall be classified under paragraph (1) and not under paragraph (2) of subsection (a).' 2 Respondent contends that § 4462(a)(2) as interpreted by the District Court is unconstitutionally vague. This contention is without merit. 3 87 Cong.Rec. 7301. 4 S.Rep. No. 673, 77th Cong., 1st Sess. 21. 5 For the legislative history of what became § 3267 see: H.R.Rep. No. 1040, 77th Cong., 1st Sess. 60; H.R.Rep. No. 1203, 77th Cong., 1st Sess. 18; S.Rep. No. 673, 77th Cong., 1st Sess. 21; 87 Cong.Rec. 6476, 7297—7307. 6 59 Treas.Reg. § 323.22, as amended by T.D. 5203, 7 Fed.Reg. 10835, Dec. 22, 1942. 7 See Hearings before the House Committee on Ways and Means on Revenue Revision of 1942, 77th Cong., 2d Sess. 2055—2061, 2682 2688; Hearings before the Senate Committee on Finance on H.R. 7378, 77th Cong., 2d Sess. 1132—1141; Hearings before House Committee on Ways and Means on General Revision of the Internal Revenue Code, 83d Cong., 1st Sess. 2505—2522; Hearings before Senate Committee on Finance on H.R. 8300, 83d Cong., 2d Sess. 1874 1879. 8 56 Stat. 978—979.

01

354 U.S. 298 77 S.Ct. 1064 1 L.Ed.2d 1356 Oleta O'Connor YATES, Henry Steinberg, Loretta Starvus Stack, et al., Petitioners,v.UNITED STATES of America. William SCHNEIDERMAN, Petitioner, v. UNITED STATES of America. AI RICHMOND and Philip Marshall Connelly, Petitioners, v. UNITED STATES of America. Nos. 6, 7 and 8. Argued Oct. 8 and 9, 1956. Decided June 17, 1957. [Syllabus from pages 298-299 intentionally omitted] Mr. Ben Margolis, Los Angeles, Cal., for the petitioners in no. 6. Mr. Robert W. Kenny, Los Angeles, Cal., for the petitioner in No. 7. Mr. Augustin Donovan, Oakland, Cal., for the petitioners in No. 8. Mr. Philip R. Monahan, Washington, D.C., for respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 We brought these cases here to consider certain questions arising under the Smith Act which have not heretofore been passed upon by this Court, and otherwise to review the convictions of these petitioners for conspiracy to violate that Act. Among other things, the convictions are claimed to rest upon an application of the Smith Act which is hostile to the principles upon which its constitutionality was upheld in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. 2 These 14 petitioners stand convicted, after a jury trial in the United States District Court for the Southern District of California, upon a single count indictment charging them with conspiring (1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach, all with the intent of causing the overthrow of the Government by force and violence as speedily as circumstances would permit. Act of June 28, 1940, § 2(a)(1) and (3), 54 Stat. 670, 671, 18 U.S.C. §§ 371, 2385, 18 U.S.C.A. §§ 371, 2385.1 The conspiracy is alleged to have originated in 1940 and continued down to the date of the indictment in 1951. The indictment charged that in carrying out the conspiracy the defendants and their co-conspirators would (a) become members and officers of the Communist Party, with knowledge of its unlawful purposes, and assume leadership in carrying out its policies and activities; (b) cause to be organized units of the Party in California and elsewhere; (c) write and publish, in the 'Daily Worker' and other Party organs, articles on the proscribed advocacy and teaching; (d) conduct schools for the indoctrination of Party members in such advocacy and teaching, and (e) recruit new Party members, particularly from among persons employed in the key industries of the nation. Twenty-three overt acts in furtherance of the conspiracy were alleged. 3 Upon conviction each of the petitioners was sentenced to five years' imprisonment and a fine of $10,000. The Court of Appeals affirmed. 9 Cir., 225 F.2d 146. We granted certiorari for the reasons already indicated. 350 U.S. 860, 76 S.Ct. 104, 100 L.Ed. 763. 4 In the view we take of this case, it is necessary for us to consider only the following of petitioners' contentions: (1) that the term 'organize' as used in the Smith Act was erroneously construed by the two lower courts; (2) that the trial court's instructions to the jury erroneously excluded from the case the issue of 'incitement to action'; (3) that the evidence was so insufficient as to require this Court to direct the acquittal of these petitioners; and (4) that petitioner Schneiderman's conviction was precluded by this Court's judgment in Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, under the doctrine of collateral estoppel.2 For reasons given hereafter, we conclude that these convictions must be reversed and the case remanded to the District Court with instructions to enter judgments of acquittal as to certain of the petitioners, and to grant a new trial as to the rest. 5 I. The Term 'Organize.' 6 One object of the conspiracy charged was to violate the third paragraph of 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, which provides: 7 'Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any (government in the United States) by force or violence * * * (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both * * *.'3 8 Petitioners claim that 'organize' means to 'establish,' 'found,' or 'bring into existence,' and that in this sense the Communist Party4 was organized by 1945 at the latest.5 On this basis petitioners contend that this part of the indictment, returned in 1951, was barred by the three-year statute of limitations.6 The Government, on the other hand, says that 'organize' connotes a continuing process which goes on throughout the life of an organization, and that, in the words of the trial court's instructions to the jury, the term includes such things as 'the recruiting of new members and the forming of new units, and the regrouping or expansion of existing clubs, classes and other units of any society, party, group or other organization.' The two courts below accepted the Government's position. We think, however, that petitioners' position must prevail, upon principles stated by Chief Justice Marshall more than a century ago in United States v. Wiltberger, 5 Wheat. 76, 95—96, 5 L.Ed. 37, as follows: 9 'The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment. 10 'It is said, that notwithstanding this rule, the intention of the law maker must govern in the construction of penal, as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.' 11 The statute does not define what is meant by 'organize.' Dictionary definitions are of little help, for, as those offered us sufficiently show, the term is susceptible of both meanings attributed to it by the parties here.7 The fact that the Communist Party commprises various components and activities, in relation to which some of the petitioners bore the title of 'Organizer,' does not advance us towards a solution of the problem. The charge here is that petitioners conspired to organize the Communist Party, and, unless 'organize' embraces the continuing concept contended for by the Government, the establishing of new units within in the Party and similar activities, following the Party's initial formation in 1945, have no independent significance or vitality so far as the 'organizing' charge is involved. Nor are we here concerned with the quality of petitioners' activities as such, that is, whether particular activities may properly be categorized as 'organizational.' Rather, the issue is whether the term 'organize' as used in this statute is limited by temporal concepts. Stated most simply, the problem is to choose between two possible answers to the question: when was the Communist Party 'organized'? Petitioners contend that the only natural answer to the question is the formation date—in this case, 1945. The Government would have us answer the question by saying that the Party today is still not completely 'organized'; that 'organizing' is a continuing process that does not end until the entity is dissolved. 12 The legislative history of the Smith Act is no more revealing as to what Congress meant by 'organize' than is the statute itself. The Government urges that 'organize' should be given a broad meaning since acceptance of the term in its narrow sense would require attributing to Congress the intent that this provision of the statute should not apply to the Communist Party as it then existed. The argument is that since the Communist Party as it then existed had been born in 1919 and the Smith Act was not passed until 1940, the use of 'organize' in its narrow sense would have meant that these provisions of the statute would never have reached the act of organizing the Communist Party, except for the fortuitous rebirth of the Party in 1945—an occurrence which, of course, could not have been foreseen in 1940. This, says the Government, could hardly have been the congressional purpose since the Smith Act as a whole was particularly aimed at the Communist Party, and its 'organizing' provisions were especially directed at the leaders of the movement. 13 We find this argument unpersuasive. While the legislative history of the Smith Act does show that concern about communism was a strong factor leading to this legislation, it also reveals that the statute, which was patterned on state anti-sedition laws directed not against Communists but against anarchists and syndicalists, was aimed equally at all groups falling within its scope.8 More important, there is no evidence whatever to support the thesis that the organizing provision of the statute was written with particular reference to the Communist Party. Indeed, the congressional hearings indicate that it was the 'advocating and teaching' provision of the Act, rather than the 'organizing' provision, which was especially thought to reach Communist activities.9 14 Nor do there appear to be any other reasons for ascribing to 'organize' the Government's broad interpretation. While it is understandable that Congress should have wished to supplement the general provisions of the Smith Act by a special provision directed at the activities of those responsible for creating a new organization of the proscribed type, such as was the situation involved in the Dennis case, we find nothing which suggests that the 'organizing' provision was intended to reach beyond this, that is, to embrace the activities of those concerned with carrying on the affairs of an already existing organization. Such activities were already amply covered by other provisions of the Act, such as the 'membership' clause,10 and the basic prohibition of 'advocacy' in conjunction with the conspiracy provision, and there is thus no need to stretch the 'organizing' provision to fill any gaps in the statute. Moreover, it is difficult to find any considerations, comparable to those relating to persons responsible for creating a new organization, which would have led the Congress to single out for special treatment those persons occupying so-called organizational positions in an existing organization, especially when this same section of the statute proscribes membership in such an organization without drawing any distinction between those holding executive office and others. 15 On the other hand, we also find unpersuasive petitioners' argument as to the intent of Congress. In support of the narrower meaning of 'organize,' they argue that the Smith Act was patterned after the California Criminal Syndicalism Act;11 that the California courts have consistently taken 'organize' in that Act in its narrow sense;12 and that under such cases as Willis v. Eastern Trust & Banking Co., 169 U.S. 295, 304, 309, 18 S.Ct. 347, 351, 353, 42 L.Ed. 752, and Joines v. Patterson, 274 U.S. 544, 549, 47 S.Ct. 706, 708, 71 L.Ed. 1194, it should be presumed that Congress in adopting the wording of the California Act intended 'organize' to have the same meaning as that given it by the California courts. As the hearings on the Smith Act show, however, its particular prototype was the New York Criminal Anarchy Act,13 not the California statute, and the 'organizing' provisions of the New York Act have never been construed by any court. Moreover, to the extent that the language of the California statute, which itself was patterned on the earlier New York legislation, might be significant, we think that little weight can be given to these California decisions. The 'general rule that adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretation of the wording * * * is a presumption of legislative intention * * * which varies in strength with the similarity of the language, the established character of the decisions in the jurisdiction from which the language was adopted and the presence or lack of other indicia of intention.' Carolene Products Co. v. United States, 323 U.S. 18, 26, 65 S.Ct. 15, 89 L.Ed. 15. Here, the three California cases relied on by petitioners were all decisions of lower courts, and, in the absence of anything in the legislative history indicating that they were called to its attention, we should not assume that Congress was aware of them. 16 We are thus left to determine for ourselves the meaning of this provision of the Smith Act, without any revealing guides as to the intent of Congress. In these circumstances we should follow the familiar rule that criminal statutes are to be strictly construed and give to 'organize' its narrow meaning, that is, that the word refers only to acts entering into the creation of a new organization, and not to acts thereafter performed in carrying on its activities, even though such acts may loosely be termed 'organizational.' See United States v. Wiltberger, supra; United States v. Lacher, 134 U.S. 624, 628, 10 S.Ct. 625, 626, 33 L.Ed. 1080; United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857; Fasulo v. United States, 272 U.S. 620, 628, 47 S.Ct. 200, 201, 71 L.Ed. 443. Such indeed is the normal usage of the word 'organize,'14 and until the decisions below in this case the federal trial courts in which the question had arisen uniformly gave it that meaning. See United States v. Flynn, unreported (D.C.S.D.N.Y.), No. C. 137—37, affirmed, 2 Cir., 216 F.2d 354, 358; Mesarosh v. United States, D.C., 116 F.Supp. 345, affirmed, 3 Cir., 223 F.2d 449, 465 (dissenting opinion of Hastie, J.); see also United States v. Dennis, unreported (D.C.S.D.N.Y.), No. C. 128—87, affirmed, 2 Cir., 183 F.2d 201; Id., 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.15 17 We too think this statute should be read 'according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending its operation.' United States v. Temple, 105 U.S. 97, 99, 26 L.Ed. 967. 18 The Government contends that even if the trial court was mistaken in its construction of the statute, the error was harmless because the conspiracy charged embraced both 'advocacy' of violent overthrow and 'organizing' the Communist Party, and the jury was instructed that in order to convict it must find a conspiracy extending to both objectives. Hence, the argument is, the jury must in any event be taken to have found petitioners guilty of conspiring to advocate, and the convictions are supportable on that basis alone. We cannot accept this proposition for a number of reasons. The portions of the trial court's instructions relied on by the Government are not sufficiently clear or specific to warrant our drawing the inference that the jury understood it must find an agreement extending to both 'advocacy' and 'organizing' in order to convict.16 Further, in order to convict, the jury was required, as the court charged, to find an overt act which was 'knowingly done in furtherance of an object or purpose of the conspiracy charged in the indictment,' and we have no way of knowing whether the overt act found by the jury was one which it believed to be in furtherance of the 'advocacy' rather than the 'organizing' objective of the alleged conspiracy. The character of most of the overt acts alleged associates them as readily with 'organizing' as with 'advocacy.'17 In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected. Stromberg v. People of State of California, 283 U.S. 359, 367—368, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Williams v. State of North Carolina, 317 U.S. 287, 291—292, 63 S.Ct. 207, 209—210, 87 L.Ed. 279; Cramer v. United States, 325 U.S. 1, 36, 65 S.Ct. 918, 935, note 45, 89 L.Ed. 1441. 19 We conclude, therefore, that since the Communist Party came into being in 1945, and the indictment was not returned until 1951, the three-year statute of limitations had run on the 'organizing' charge, and required the withdrawal of that part of the indictment from the jury's consideration. Samuel v. United States, 9 Cir., 169 F.2d 787, 798. See also Haupt v. United States, 330 U.S. 631, 641, note 1, 67 S.Ct. 874, 878, 91 L.Ed. 1145; Stromberg v. People of State of California, supra, 283 U.S. at page 368, 51 S.Ct. at page 535. 20 II. Instructions to the Jury. 21 Petitioners contend that the instructions to the jury were fatally defective in that the trial court refused to charge that, in order to convict, the jury must find that the advocacy which the defendants conspired to promote was of a kind calculated to 'incite' persons to action for the forcible overthrow of the Government. It is argued that advocacy of forcible overthrow as mere abstract doctrine is within the free speech protection of the First Amendment; that the Smith Act, consistently with that constitutional provision, must be taken as proscribing only the sort of advocacy which incites to illegal action; and that the trial court's charge, by permitting conviction for mere advocacy, unrelated to its tendency to produce forcible action, resulted in an unconstitutional application of the Smith Act. The Government, which at the trial also requested the court to charge in terms of 'incitement,' now takes the position, however, that the true constitutional dividing line is not between inciting and abstract advocacy of forcible overthrow, but rather between advocacy as such, irrespective of its inciting qualities, and the mere discussion or exposition of violent overthrow as an abstract theory. 22 We print in the margin the pertinent parts of the trial court's instructions.18 After telling the jury that it could not convict the defendants for holding or expressing mere opinions, beliefs, or predictions relating to violent overthrow, the trial court defined the content of the proscribed advocacy or teaching in the following terms, which are crucial here: 23 'Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government of the United States is not within the issue of the indictment here and can constitute no basis for any finding against the defendants. 24 'The kind of advocacy and teaching which is charged and upon which your verdict must be reached is not merely a desirability but a necessity that the Government of the United States be overthrown and destroyed by force and violence and not merely a propriety but a duty to overthrow and destroy the Government of the United States by force and violence.' 25 There can be no doubt from the record that in so instructing the jury the court regarded as immaterial, and intended to withdraw from the jury's consideration, any issue as to the character of the advocacy in terms of its capacity to stir listeners to forcible action. Both the petitioners and the Government submitted proposed instructions which would have required the jury to find that the proscribed advocacy was not of a mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to such action.19 The trial court rejected these proposed instructions on the ground that any necessity for giving them which may have existed at the time the Dennis case was tried20 was removed by this Court's subsequent decision in that case. The court made it clear in colloquy with counsel that in its view the illegal advocacy was made out simply by showing that what was said dealt with forcible overthrow and that it was uttered with a specific intent to accomplish that purpose,21 insisting that all such advocacy was punishable 'whether it is language of incitement or not.' The Court of Appeals affirmed on a different theory, as we shall see later on. 26 We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not. 27 The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v. State of Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; and Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470.22 This distinction was heavily underscored in Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, in which the statute involved23 was nearly identical with the one now before us, and where the Court, despite the narrow view there taken of the First Amendment,24 said: 28 'The statute does not penalize the utterance or publication of abstract 'doctrine' or academic discussion having no quality of incitement to any concrete action. * * * It is not the abstract 'doctrine' of overthrowing organized government by unlawful means which is denounced by the statute, but the advocacy of action for the accomplishment of that purpose. * * * This (Manifesto) * * * is (in) the language of direct incitement. * * * That the jury were warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to that end, is clear. * * * That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear.' Id., 268 U.S. at pages 664 669, 45 S.Ct. at pages 629—631. 29 We need not, however, decide the issue before us in terms of constitutional compulsion, for our first duty is to construe this statute. In doing so we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked, or that it used the words 'advocate' and 'teach' in their ordinary dictionary meanings when they had already been construed as terms of art carrying a special and limited connotation. See Willis v. Eastern Trust & Banking Co., supra; Joins v. Patterson, supra; James v. Appel, 192 U.S. 129, 135, 24 S.Ct. 222, 223, 48 L.Ed. 377. The Gitlow case and the New York Criminal Anarchy Act there involved, which furnished the prototype for the Smith Act, were both known and adverted to by Congress in the course of the legislative proceedings.25 Cf. Carolene Products Co. v. United States, supra. The legislative history of the Smith Act and related bills shows beyond all question that Congress was aware of the distinction between the advocacy or teaching of abstract doctrine and the advocacy or teaching of action, and that it did not intend to disregard it.26 The statute was aimed at the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action. 30 The Government's reliance on this Court's decision in Dennis is misplaced. The jury instructions which were refused here were given there,27 and were referred to by this Court as requiring 'the jury to find the facts essential to establish the substantive crime.' 341 U.S. at page 512, 71 S.Ct. at page 869 (emphasis added). It is true that at one point in the late Chief Justice's opinion it is stated that the Smith Act 'is directed at advocacy, not discussion,' id., 341 U.S. at page 502, 71 S.Ct. at page 863, but it is clear that the reference was to advocacy of action, not ideas, for in the very next sentence the opinion emphasizes that the jury was properly instructed that there could be no conviction for 'advocacy in the realm of ideas.' The two concurring opinions in that case likewise emphasize the distinction with which we are concerned. Id., 341 U.S. at pages 518, 534, 536, 545, 546, 547, 571, 572, 71 S.Ct. at pages 871, 880, 881, 885, 886, 898. 31 In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. It seems to have considered that, since 'inciting' speech is usually thought of as something calculated to induce immediate action, and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy, irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a specific intent to accomplish overthrow. In other words, the District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action.28 32 This misconceives the situation confronting the Court in Dennis and what was held there. Although the jury's verdict, interpreted in light of the trial court's instructions,29 did not justify the conclusion that the defendants' advocacy was directed at, or created any danger of, immediate overthrow, it did establish that the advocacy was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time. In such circumstances, said Chief Justice Vinson, the Government need not hold its hand 'until the putsch is about to be executed the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.' 341 U.S. at page 509, 71 S.Ct. at page 867. The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence as 'a rule or principle of action,' and employing 'language of incitement,' id., 341 U.S. at pages 511—512, 71 S.Ct. at page 868, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. This is quite a different thing from the view of the District Court here that mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis. As one of the concurring opinions in Dennis put it: 'Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken.' Id., 341 U.S. at page 545, 71 S.Ct. at page 885. There is nothing in Dennis which makes that historic distinction obsolete. 33 The Court of Appeals took a different view from that of the District Court. While seemingly recognizing that the proscribed advocacy must be associated in some way with action, and that the instructions given the jury here fell short in that respect, it considered that the instructions which the trial court refused were unnecessary in this instance because establishment of the conspiracy, here charged under the general conspiracy statute, required proof of an overt act, whereas in Dennis, where the conspiracy was charged under the Smith Act, no overt act was required.30 In other words, the Court of Appeals thought that the requirement of proving an overt act was an adequate substitute for the linking of the advocacy to action which would otherwise have been necessary.31 This, of course, is a mistaken notion, for the overt act will not necessarily evidence the character of the advocacy engaged in, nor, indeed, is an agreement to advocate forcible overthrow itself an unlawful conspiracy if it does not call for advocacy of action. The statement in Dennis that 'it is the existence of the conspiracy which creates the danger,' 341 U.S. at page 511, 71 S.Ct. at page 868, does not support the Court of Appeals. Bearing in mind that Dennis, like all other Smith Act conspiracy cases thus far, including this one, involved advocacy which had already taken place, and not advocacy still to occur, it is clear that in context the phrase just quoted referred to more than the basic agreement to advocate. 'The mere fact that (during the indictment period) petitioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with * * * world conditions, * * * disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. * * * If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.' 341 U.S. at pages 510—511, 71 S.Ct. at page 868 (emphasis supplied). The reference of the term 'conspiracy,' in context, was to an agreement to accomplish overthrow at some future time, implicit in the jury's findings under the instructions given, rather than to an agreement to speak. Dennis was thus not concerned with a conspiracy to engage at some future time in seditious advocacy, but rather with a conspiracy to advocate presently the taking of forcible action in the future. It was action, not advocacy, that was to be postponed until 'circumstances' would 'permit.' We intimate no views as to whether a conspiracy to engage in advocacy in the future, where speech would thus be separated from action by one further removed, is punishable under the Smith Act. 34 We think, thus, that both of the lower courts here misconceived Dennis. 35 In light of the foregoing we are unable to regard the District Court's charge upon this aspect of the case as adequate. The jury was never told that the Smith Act does not denounce advocacy in the sense of preaching abstractly the forcible overthrow of the Government. We think that the trial court's statement that the proscribed advocacy must include the 'urging,' 'necessity,' and 'duty' of forcible overthrow, and not merely its 'desirability' and 'propriety,' may not be regarded as a sufficient substitute for charging that the Smith Act reaches only advocacy of action for the overthrow of government by force and violence. The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something. At best the expressions used by the trial court were equivocal, since in the absence of any instructions differentiating advocacy of abstract doctrine from advocacy of action, they were as consistent with the former as they were with the latter. Nor do we regard their ambiguity as lessened by what the trial court had to say as to the right of the defendants to announce their beliefs as to the inevitability of violent revolution, or to advocate other unpopular opinions. Especially when it is unmistakable that the court did not consider the urging of action for forcible overthrow as being a necessary element of the proscribed advocacy, but rather considered the crucial question to be whether the advocacy was uttered with a specific intent to accomplish such overthrow,32 we would not be warranted in assuming that the jury drew from these instructions more than the court itself intended them to convey. 36 Nor can we accept the Government's argument that the District Court was justified in not charging more than it did because the refused instructions proposed by both sides specified that the advocacy must be of a character reasonably calculated to 'incite' to forcible overthrow, a term which, it is now argued, might have conveyed to the jury an implication that the advocacy must be of immediate action. Granting that some qualification of the proposed instructions would have been permissible to dispel such an implication, and that it was not necessary even that the trial court should have employed the particular term 'incite,' it was nevertheless incumbent on the court to make clear in some fashion that the advocacy must be of action and not merely abstract doctrine. The instructions given not only do not employ the word 'incite,' but also avoid the use of such terms and phrases as 'action,' 'call for action,' 'as a rule or principle of action,' and so on, all of which were offered in one form or another by both the petitioners and the Government.33 37 What we find lacking in the instructions here is illustrated by contrasting them with the instructions given to the Dennis jury, upon which this Court's sustaining of the convictions in that case was bottomed. There the trial court charged: 38 'In further construction and interpretation of the statute (the Smith Act) I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired * * * to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow * * * as speedily as circumstances would permit.' (Emphasis added.) United States v. Foster, D.C., 9 F.R.D. 367, 391; Dennis v. United States, 341 U.S. at pages 511—512, 71 S.Ct. at page 868. 39 We recognize that distinctions between advocacy or teaching of abstract doctrines, with evil intent, and that which is directed to stirring people to action, are often subtle and difficult to grasp, for in a broad sense, as Mr. Justice Holmes said in his dissenting opinion in Gitlow, supra, 268 U.S. at page 673, 45 S.Ct. at page 632: 'Every idea is an incitement.' But the very subtlety of these distinctions required the most clear and explicit instructions with reference to them, for they concerned an issue which went to the very heart of the charges against these petitioners. The need for precise and understandable instructions on this issue is further emphasized by the equivocal character of the evidence in this record, with which we deal in Part III of this opinion. Instances of speech that could be considered to amount to 'advocacy of action' are so few and far between as to be almost completely overshadowed by the hundreds of instances in the record in which overthrow, if mentioned at all, occurs in the course of doctrinal disputation so remote from action as to be almost wholly lacking in probative value. Vague references to 'revolutionary' or 'militant' action of an unspecified character, which are found in the evidence, might in addition be given too great weight by the jury in the absence of more precise instructions. Particularly in light of this record, we must regard the trial court's charge in this respect as furnishing wholly inadequate guidance to the jury on this central point in the case. We cannot allow a conviction to stand on such 'an equivocal direction to the jury on a basic issue.' Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350. 40 III. The Evidence. 41 The determinations already made require a reversal of these convictions. Nevertheless, in the exercise of our power under 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, to 'direct the entry of such appropriate judgment * * * as may be just under the circumstances,' we have conceived it to be our duty to scrutinize this lengthy record34 with care, in order to determine whether the way should be left open for a new trial of all or some of these petitioners. Such a judgment, we think, should, on the one hand, foreclose further proceedings against those of the petitioners as to whom the evidence in this record would be palpably insufficient upon a new trial, and should, on the other hand, leave the Government free to retry the other petitioners under proper legal standards, especially since it is by no means clear that certain aspects of the evidence against them could not have been clarified to the advantage of the Government had it not been under a misapprehension as to the burden cast upon it by the Smith Act. In judging the record by these criteria we do not apply to these cases the rigorous standards of review which, for example, the Court of Appeals would be required to apply in reviewing the evidence if any of these petitioners are convicted upon a retrial. Compare Dennis v. United States, supra, 341 U.S. at page 516, 71 S.Ct. at page 870. Rather, we have scrutinized the record to see whether there are individuals as to whom acquittal is unequivocally demanded. We do this because it is in general too hypothetical and abstract an inquiry to try to judge whether the evidence would have been inadequate had the cases been submitted under a proper charge, and had the Government realized that all its evidence must be channeled into the 'advocacy' rather that the 'organizing' charge. We think we may do this by drawing on our power under 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, because under that statute we would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal. See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335. 42 On this basis we have concluded that the evidence against petitioners Connelly, Kusnitz, Richmond, Spector, and Steinberg is so clearly insufficient that their acquittal should be ordered, but that as to petitioners Carlson, Dobbs, Fox, Healey (Mrs. Connelly), Lambert, Lima, Schneiderman, Stack, and Yates, we would not be justified in closing the way to their retrial. We proceed to the reasons for these conclusions. 43 At the outset, in view of the conclusions reached in Part I of this opinion, we must put aside as against all petitioners the evidence relating to the 'organizing' aspect of the alleged conspiracy, except insofar as it bears upon the 'advocacy' charge. That, indeed, dilutes in a substantial way a large part of the evidence, for the record unmistakably indicates that the Government relied heavily on its 'organizing' charge. Two further general observations should also be made about the evidence as to the 'advocacy' charge. The first is that both the Government and the trial court evidently proceeded on the theory that advocacy of abstract doctrine was enough to offend the Smith Act, whereas, as we have held, it is only advocacy of forcible action that is proscribed. The second observation is that both the record and the Government's brief in this Court make it clear that the Government's thesis was that the Communist Party, or at least the Communist Party of California, constituted the conspiratorial group, and that membership in the conspiracy could therefore be proved by showing that the individual petitioners were actively identified with the Party's affairs and thus inferentially parties to its tenets. This might have been well enough towards making out the Government's case if advocacy of the abstract doctrine of forcible overthrow satisfied the Smith Act, for we would at least have little difficulty in saying on this record that a jury could justifiably conclude that such was one of the tenets of the Communist Party; and there was no dispute as to petitioners' active identification with Party affairs. But when it comes to Party advocacy or teaching in the sense of a call to forcible action at some future time we cannot but regard this record as strikingly deficient. At best this voluminous record shows but a half dozen or so scattered incidents which, even under the loosest standards, could be deemed to show such advocacy. Most of these were not connected with any of the petitioners, or occurred many years before the period covered by the indictment. We are unable to regard this sporadic showing as sufficient to justify viewing the Communist Party as the nexus between these petitioners and the conspiracy charged. We need scarcely say that however much one may abhor even the abstract preaching of forcible overthrow of government, or believe that forcible overthrow is the ultimate purpose to which the Communist Party is dedicated, it is upon the evidence in the record that the petitioners must be judged in this case. 44 We must, then, look elsewhere than to the evidence concerning the Communist Party as such for the existence of the conspiracy to advocate charged in the indictment. As to the petitioners Connelly, Kusnitz, Richmond, Spector, and Steinberg we find no adequate evidence in the record which would permit a jury to find that they were members of such a conspiracy. For all purposes relevant here, the sole evidence as to them was that they had long been members, officers or functionaries of the Communist Party of California; and that standing alone, as Congress has enacted in § 4(f) of the Internal Security Act of 1950,35 makes out no case against them. So far as this record shows, none of them has engaged in or been associated with any but what appear to have been wholly lawful activities,36 or has ever made a single remark or been present when someone else made a remark, which would tend to prove the charges against them. Connelly and Richmond were, to be sure, the Los Angeles and Executive Editors, respectively, of the Daily People's World, the West Coast Party organ, but we can find nothing in the material introduced into evidence from that newspaper which advances the Government's case. 45 Moreover, apart from the inadequacy of the evidence to show, at best, more than the abstract advocacy and teaching of forcible overthrow by the Party, it is difficult to perceive how the requisite specific intent to accomplish such overthrow could be deemed proved by a showing of mere membership or the holding of office in the Communist Party. We therefore think that as to these petitioners the evidence was entirely too meagre to justify putting them to a new trial, and that their acquittal should be ordered. 46 As to the nine remaining petitioners, we consider that a different conclusion should be reached. There was testimony from the witness Foard, and other evidence, tying Fox, Healey, Lambert, Lima, Schneiderman, Stack, and Yates to Party classes conducted in the San Francisco area during the year 1946, where there occurred what might be considered to be the systematic teaching and advocacy of illegal action which is condemned by the statute. It might be found that one of the purposes of such classes was to develop in the members of the group a readiness to engage at the crucial time, perhaps during war or during attack upon the United States from without, in such activities as sabotage and street fighting, in order to divert and diffuse the resistance of the authorities and if possible to seize local vantage points. There was also testimony as to activities in the Los Angeles area, during the period covered by the indictment, which might be considered to amount to 'advocacy of action,' and with which petitioners Carlson and Dobbs were linked. From the testimony of the witness Scarletto, it might be found that individuals considered to be particularly trustworthy were taken into an 'underground' apparatus and there instructed in tasks which would be useful when the time for violent action arrived. Scarletto was surreptitiously indoctrinated in methods, as he said, of moving 'masses of people in time of crisis.' It might be found, under all the circumstances, that the purpose of this teaching was to prepare the members of the underground apparatus to engage in, to facilitate, and to cooperate with violent action directed against government when the time was ripe. In short, while the record contains evidence of little more than a general program of educational activity by the Communist Party which included advocacy of violence as a theoretical matter, we are not prepared to say, at this stage of the case, that it would be impossible for a jury, resolving all conflicts in favor of the Government and giving the evidence as to these San Francisco and Los Angeles episodes its utmost sweep, to find that advocacy of action was also engaged in when the group involved was thought particularly trustworthy, dedicated, and suited for violent tasks. 47 Nor can we say that the evidence linking these nine petitioners to that sort of advocacy, with the requisite specific intent, is so tenuous as not to justify their retrial under proper legal standards. Fox, Healey, Lambert, Lima, Schneiderman, Stack, and Yates, as members of the State and San Francisco County Boards, were shown to have been closely associated with Ida Rothstein, the principal teacher of the San Francisco classes, who also during this same period arranged in a devious and conspiratorial manner for the holding of Board meetings at the home of the witness Honig, which were attended by these petitioners. It was also shown that from time to time instructions emanated from the Boards or their members to instructors of groups at lower levels. And while none of the written instructions produced at the trial were invidious in themselves, it might be inferred that additional instructions were given which were not reduced to writing. Similarly, there was evidence of close association between petitioners Carlson and Dobbs and associates or superiors of the witness Scarletto, which might be taken as indicating that these two petitioners had knowledge of the apparatus in which Scarletto was active. And finally, all of these nine petitioners were shown either to have made statements themselves, or apparently approved statements made in their presence, which a jury might take as some evidence of their participation with the requisite intent in a conspiracy to advocate illegal action. 48 As to these nine petitioners, then, we shall not order an acquittal. 49 Before leaving the evidence, we consider it advisable, in order to avoid possible misapprehension upon a new trial, to deal briefly with petitioners' contention that the evidence was insufficient to prove the overt act required for conviction of conspiracy under 18 U.S.C. § 371, 18 U.S.C.A. § 371. Only 2 of the 11 overt acts alleged in the indictment to have occurred within the period of the statute of limitations were proved. Each was a public meeting held under Party auspices at which speeches were made by one or more of the petitioners extolling leaders of the Soviet Union and criticizing various aspects of the foreign policy of the United States. At one of the meetings an appeal for funds was made. Petitioners contend that these meetings do not satisfy the requirement of the statute that there be shown an act done by one of the conspirators 'to effect the object of the conspiracy.' The Government concedes that nothing unlawful was shown to have been said or done at these meetings, but contends that these occurrences nonetheless sufficed as overt acts under the jury's findings. 50 We think the Government's position is correct. It is not necessary that an overt act be the substantive crime charged in the indictment as the object of the conspiracy. Pierce v. United States, 252 U.S. 239, 244, 40 S.Ct. 205, 207, 64 L.Ed. 542; United States v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 684, 59 L.Ed. 1211. Nor, indeed, need such an act, taken by itself, even be criminal in character. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23. The function of the overt act in a conspiracy prosecution is simply to manifest 'that the conspiracy is at work,' Carlson v. United States, 10 Cir., 187 F.2d 366, 370, and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence. The substantive offense here charged as the object of the conspiracy is speech rather than the specific action that typically constitutes the gravamen of a substantive criminal offense. Were we to hold that some concrete action leading to the overthrow of the Government was required, as petitioners appear to suggest, we would have changed the nature of the offense altogether. No such drastic change in the law can be drawn from Congress' perfunctory action in 1948 bringing Smith Act cases within 18 U.S.C. § 371, 18 U.S.C.A. § 371. 51 While upon a new trial the overt act must be found, in view of what we have held, to have been in furtherance of a conspiracy to 'advocate,' rather than to 'organize,' we are not prepared to say that one of the episodes relied on here could not be found to be in furtherance of such an objective, if, under proper instructions, a jury should find that the Communist Party was a vehicle through which the alleged conspiracy was promoted. While in view of our acquittal of Steinberg, the first of these episodes, in which he is alleged to have been involved, may no longer be relied on as an overt act, this would not affect the second episode, in which petitioner Schneiderman was alleged and proved to have participated. 52 For the foregoing reasons we think that the way must be left open for a new trial to the extent indicated. IV. Collateral Estoppel. 53 There remains to be dealt with petitioner Schneiderman's claim based on the doctrine of collateral estoppel by judgment. Petitioner urges that in Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, a denaturalization proceeding in which he was the prevailing party, this Court made determinations favorable to him which are conclusive in this proceeding under the doctrine of collateral estoppel. Specifically, petitioner contends that the Schneiderman decision determined, for purposes of this proceeding, (1) that the teaching of Marxism-Leninism by the Communist Party was not necessarily the advocacy of violent overthrow of government; (2) that at least one tenable conclusion to be drawn from the evidence was that the Communist Party desired to achieve its goal of socialism through peaceful means; (3) that it could not be presumed, merely because of his membership or officership in the Communist Party, that Schneiderman adopted an illegal interpretation of Marxist doctrine; and finally, (4) that absent proof of overt acts indicating that Schneiderman personally adopted a reprehensible interpretation, the Government had failed to establish its burden by the clear and unequivocal evidence necessary in a denaturalization case. In the courts below, petitioner urged unsuccessfully that these determinations were conclusive in this proceeding under the doctrine of collateral estoppel, and entitled him either to an acquittal or to special instructions to the jury. He makes the same contentions here. 54 We are in agreement with petitioner that the doctrine of collateral estoppel is not made inapplicable by the fact that this is a criminal case, whereas the prior proceedings were civil in character. United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. We agree further that the nonexistence of a fact may be established by a judgment no less than its existence; that, in other words, a party may be precluded under the doctrine of collateral estoppel from attempting a second time to prove a fact that he sought unsuccessfully to prove in a prior action. Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. Nor need we quarrel with petitioner's premise that the standard of proof applicable in denaturalization cases is at least no greater than that applicable in criminal proceedings. Compare Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917; Murphy v. United States, 272 U.S. 630, 47 S.Ct. 218, 71 L.Ed. 446. We assume, without deciding, that substantially the same standards of proof are applicable in the two types of cases. Cf. Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384, 389, 93 L.Ed. 266. Nevertheless, for reasons that will appear, we think that the doctrine of collateral estoppel does not help petitioner here. 55 We differ with petitioner, first of all, in his estimate of what the Schneiderman case determined for purposes of the doctrine of collateral estoppel. That doctrine makes conclusive in subsequent proceedings only determinations of fact, and mixed fact and law, that were essential to the decision. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 601—602, 68 S.Ct. 715, 721, 92 L.Ed. 898; Tait v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405; The Evergreens v. Nunan, 2 Cir., 141 F.2d 927, 928, 152 A.L.R. 1187. As we read the Schneiderman opinion, the only determination essential to the decision was that Schneiderman had not, prior to 1927, adopted an interpretation of the Communist Party's teachings featuring 'agitation and exhortation calling for present violent action.' 320 U.S. at pages 157—159, 63 S.Ct. at pages 1352—1353. If it be accepted that the holding extended in the alternative to the character of advocacy engaged in by the Communist Party, then the essential finding was that the Party had not, in 1927, engaged in 'agitation and exhortation calling for present violent action.' Ibid. The Court in Schneiderman certainly did not purport to determine what the doctrinal content of 'Marxism-Leninism' might be at all times and in all places. Nor did it establish that the books and pamphlets introduced against Schneiderman in that proceeding could not support in any way an inference of criminality, no matter how or by whom they might thereafter be used. At most, we think, it made the determinations we have stated, limited to the time and place that were then in issue. 56 It is therefore apparent that the determinations made by this Court in Schneiderman could not operate as a complete bar to this proceeding. Wholly aside from the fact that the Court was there concerned with the state of affairs existing in 1927, whereas we are concerned here with the period 1948—1951, the issues in the present case are quite different. We are not concerned here with whether petitioner has engaged in 'agitation and exhortation calling for present violent action,' whether in 1927 or later. Even if it were conclusively established against the Government that neither petitioner nor the Communist Party had ever engaged in such advocacy, that circumstance would constitute no bar to a conviction under 18 U.S.C. § 371, 18 U.S.C.A. § 371, of conspiring to advocate forcible overthrow of government in violation of the Smith Act. It is not necessary for conviction here that advocacy of 'present violent action' be proved. Petitioner's demand for judgment of acquittal must therefore be rejected. The decision in Federal Trade Commission v. Cement Institute, 333 U.S. 683, 708 709, 68 S.Ct. 793, 807, 92 L.Ed. 1010, is precisely in point and is controlling. 57 What we have said we think also disposes of petitioner's contention that the trial court should have instructed the jury that certain evidentiary or subordinate issues must be taken as conclusively determined in his favor. The argument is that the determinations made in the Schneiderman case are not wholly irrelevant to this case, even if they do not conclude it, and hence that petitioner should be entitled to an instruction giving those determinations such partial conclusive effect as they might warrant. We think, however, that the doctrine of collateral estoppel does not establish any such concept of 'conclusive evidence' as that contended for by petitioner. The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or 'mediate' facts are concerned, the doctrine of collateral estoppel is inoperative. The Evergreens v. Nunan, 2 Cir., 141 F.2d 927, 152 A.L.R. 1187; Restatement, Judgments § 68, comment p. Whether there are any circumstances in which the giving of limiting instructions such as those requested here might be necessary or proper, we need not now determine. Cf. Bordonaro Bros. Theatres, Inc., v. Paramount Pictures, Inc., 2 Cir., 203 F.2d 676, 678. It is sufficient for us to hold that in this case the matters of fact and mixed fact and law necessarily determined by the prior judgment, limited as they were to the year 1927, were so remote from the issues as to justify their exclusion from evidence in the discretion of the trial judge. 58 Since there must be a new trial, we have not found it necessary to deal with the contentions of the petitioners as to the fairness of the trial already held. The judgment of the Court of Appeals is reversed, and the case remanded to the District Court for further proceedings consistent with this opinion. 59 It is so ordered. 60 Judgment of Court of Appeals reversed and case remanded to District Court with instructions. 61 Mr. Justice BURTON, concurring in the result. 62 I agree with the result reached by the Court, and with the opinion of the Court except as to its interpretation of the term 'organize' as used in the Smith Act. As to that, I agree with the interpretation given it by the Court of Appeals. 9 Cir., 225 F.2d 146. 63 Mr. Justice BRENNAN and Mr. Justice WHITTAKER took no part in the consideration or decision of this case. 64 Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring in part and dissenting in part. I. 65 I would reverse every one of these convictions and direct that all the defendants be acquitted. In my judgment the statutory provisions on which these prosecutions are based abridge freedom of speech, press and assembly in violation of the First Amendment to the United States Constitution. See my dissent and that of Mr. Justice Douglas in Dennis v. United States, 341 U.S. 494, 579, 581, 71 S.Ct. 857, 902, 903, 95 L.Ed. 1137. Also see my opinion in American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 707, 94 L.Ed. 925. 66 The kind of trials conducted here are wholly dissimilar to normal criminal trials. Ordinarily these 'Smith Act' trials are prolonged affairs lasting for months. In part this is attributable to the routine introduction in evidence of massive collections of books, tracts, pamphlets, newspapers, and manifestoes discussing Communism, Socialism, Capitalism, Feudalism and governmental institutions in general, which, it is not too much to say, are turgid, diffuse, abstruse, and just plain dull. Of course, no juror can or is expected to plow his way through this jungle of verbiage. The testimony of witnesses is comparatively insignificant. Guilt or innocence may turn on what Marx or Engels or someone else wrote or advocated as much as a hundred or more years ago. Elaborte, refined distinctions are drawn between 'Communism,' 'Marxism,' 'Leninism,' 'Trotskyism,' and 'Stalinism.' When the propriety of obnoxious or unorthodox views about government is in reality made the crucial issue, as it must be in cases of this kind, prejudice makes conviction inevitable except in the rarest circumstances. II. 67 Since the Court proceeds on the assumption that the statutory provisions involved are valid, however, I feel free to express my views about the issues it considers. 68 First.—I agree with Part I of the Court's opinion that deals with the statutory term, 'organize,' and holds that the organizing charge in the indictment was barred by the three-year statute of limitations. 69 Second.—I also agree with the Court insofar as it holds that the trial judge erred in instructing that persons could be punished under the Smith Act for teaching and advocating forceful overthrow as an abstract principle. But on the other hand, I cannot agree that the instruction which the Court indicates it might approve is constitutionally permissible. The Court says that persons can be punished for advocating action to overthrow the Government by force and violence, where those to whom the advocacy is addressed are urged 'to do something, now or in the future, rather than merely to believe in something.' Under the Court's approach, defendants could still be convicted simply for agreeing to talk as distinguished from agreeing to act. I believe that the First Amendment forbids Congress to punish people for talking about public affairs, whether or not such discussion incites to action, legal or illegal. See Meiklejohn, Free Speech and Its Relation to Self-Government. Cf. Chafee, Book Review, 62 Harv.L.Rev. 891. As the Virginia Assembly said in 1785, in its 'Statute for Religious Liberty,' written by Thomas Jefferson, 'it is time enough for the rightful purposes of civil government, for its officers to interfers when principles break out into overt acts against peace and good order * * *.'* Cf. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 501—502, 69 S.Ct. 684, 690, 93 L.Ed. 834; Labor Board v. Virginia Electric & P. Co., 314 U.S. 469, 476—480, 62 S.Ct. 344, 347, 348, 86 L.Ed. 348; Virginia Electric & P. Co. v. National Labor Relations Board, 319 U.S. 533, 539, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568. 70 Third.—I also agree with the Court that petitioners, Connelly, Kusnitz, Richmond, Spector, and Steinberg, should be ordered acquitted since there is no evidence that they have ever engaged in anything but 'wholly lawful activities.' But in contrast to the Court, I think the same action should also be taken as to the remaining nine defendants. The Court's opinion summarizes the strongest evidence offered against these defendants. This summary reveals a pitiful inadequacy of proof to show beyond a reasonable doubt that the defendants were guilty of conspiring to incite persons to act to overthrow the Government. The Court says: 71 'In short, while the record contains evidence of little more than a general program of educational activity by the Communist Party which included advocacy of violence as a theoretical matter, we are not prepared to say, at this stage of the case, that it would be impossible for a jury, resolving all conflicts in favor of the Government and giving the evidence as to these San Francisco and Los Angeles episodes its utmost sweep, to find that advocacy of action was also engaged in when the group involved was thought particularly trustworthy, dedicated, and suited for violent tasks.' 72 It seems unjust to compel these nine defendants, who have just been through one four-month trial, to go through the ordeal of another trial on the basis of such flimsy evidence. As the Court's summary demonstrates, the evidence introduced during the trial against these defendants was insufficient to support their conviction. Under such circumstances, it was the duty of the trial judge to direct a verdict of acquittal. If the jury had been discharged so that the Government could gather additional evidence in an attempt to convict, such a discharge would have been a sound basis for a plea of former jeopardy in a second trial. See Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, and cases cited there. I cannot agree that 'justice' requires this Court to send these cases back to put these defendants in jeopardy again in violation of the spirit if not the letter of the Fifth Amendment's provision against double jeopardy. 73 Fourth.—The section under which this conspiracy indictment was brought, 18 U.S.C. § 371, 18 U.S.C.A. § 371, requires proof of an overt act done 'to effect the object of the conspiracy.' Originally, 11 such overt acts were charged here. These 11 have now dwindled to 2, and as the Court says: 74 'Each was a public meeting held under Party auspices at which speeches were made by one or more of the petitioners extolling leaders of the Soviet Union and criticizing various aspects of the foreign policy of the United States. At one of the meetings an appeal for funds was made. Petitioners contend that these meetings do not satisfy the requirement of the statute that there be shown an act done by one of the conspirators 'to effect the object of the conspiracy.' The Government concedes that nothing unlawful was shown to have been said or done at these meetings, but contends that these occurrences nonetheless sufficed as overt acts under the jury's findings.' 75 The Court holds that attendance at these lawful and orderly meetings constitutes an 'overt act' sufficient to meet the statutory requirements. I disagree. 76 The requirement of proof of an overt act in conspiracy cases is no mere formality, particularly in prosecutions like these which in many respects are akin to trials for treason. Article III, § 3, of the Constitution provides that 'No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.' One of the objects of this provision was to keep people from being convicted of disloyalty to government during periods of excitement when passions and prejudices ran high, merely because they expressed 'unacceptable' views. See Cramer v. United States, 325 U.S. 1, 48, 65 S.Ct. 918, 941, 89 L.Ed. 1441. The same reasons that make proof of overt acts so important in treason cases apply here. The only overt act which is now charged against these defendants is that they went to a constitutionally protected public assembly where they took part in lawful discussion of public questions, and where neither they nor anyone else advocated or suggested overthrow of the United States Government. Many years ago this Court said that 'The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.' United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588. And see De Jonge v. State of Oregon, 299 U.S. 353, 364—365, 57 S.Ct. 255, 259—260, 81 L.Ed. 278. In my judgment defendants' attendance at these public meetings cannot be viewed as an overt act to effectuate the object of the conspiracy charged. III. 77 In essence, petitioners were tried upon the charge that they believe in and want to foist upon this country a different and to us a despicable form of authoritarian government in which voices criticizing the existing order are summarily silenced. I fear that the present type of prosecutions are more in line with the philosophy of authoritarian government than with that expressed by our First Amendment. 78 Doubtlessly, dictators have to stamp out causes and beliefs which they deem subversive to their evil regimes. But governmental suppression of causes and beliefs seems to me to be the very antithesis of what our Constitution stands for. The choice expressed in the First Amendment in favor of free expression was made against a turbulent background by men such as Jefferson, Madison, and Mason—men who believed that loyalty to the provisions of this Amendment was the best way to assure a long life for this new nation and its Government. Unless there is complete freedom for expression of all ideas, whether we like them or not, concerning the way government should be run and who shall run it, I doubt if any views in the long run can be secured against the censor. The First Amendment provides the only kind of security system that can preserve a free government—one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us. 79 Mr. Justice CLARK, dissenting. 80 The petitioners, principal organizers and leaders of the Communist Party in California, have been convicted for a conspiracy covering the period 1940 to 1951. They were engaged in this conspiracy with the defendants in Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. The Dennis defendants, named as co-conspirators but not indicted with the defendants here, were convicted in New York under the former conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) § 11. They have served or are now serving prison terms as a result of their convictions. 81 The conspiracy charged here is the same as in Dennis, except that here it is geared to California conditions, and brought, for the period 1948 to 1951, under the general conspiracy statute, 18 U.S.C. § 371, 18 U.S.C.A. § 371, rather than the old conspiracy section of the Smith Act. The indictment charges petitioners with a conspiracy to violate two sections of the Smith Act, as recodified in 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, by knowingly and wilfully (1) teaching and advocating the violent overthrow of the Government of the United States, and (2) organizing in California through the creation of groups, cells, schools, assemblies of persons, and the like, the Communist Party, a society which teaches or advocates violent overthrow of the Government. 82 The conspiracy includes the same group of defendants as in the Dennis case though petitioners here occupied a lower echelon in the party hierarchy. They, nevertheless, served in the same army and were engaged in the same mission. The convictions here were based upon evidence closely paralleling that adduced in Dennis and in United States v. Flynn, 2 Cir., 1954, 216 F.2d 354, both of which resulted in convictions. This Court laid down in Dennis the principles governing such prosecutions and they were closely adhered to here, although the nature of the two cases did not permit identical handling. 83 I would affirm the convictions. However, the Court has freed five of the convicted petitioners and ordered new trials for the remaining nine. As to the five, it says that the evidence is 'clearly insufficient.' I agree with the Court of Appeals, the District Court, and the jury that the evidence showed guilt beyond a reasonable doubt.1 It paralleled that in Dennis and Flynn and was equally as strong. In any event, this Court should not acquit anyone here. In its long history I find no case in which an acquittal has been ordered by this Court solely on the facts. It is somewhat late to start in now usurping the function of the jury, especially where new trials are to be held covering the same charges. It may be—although after today's opinion it is somewhat doubtful—that under the new theories announced by the Court for Smith Act prosecutions sufficient evidence might be available on remand. To say the least, the Government should have an opportunity to present its evidence under these changed conditions. 84 I cannot agree that half of the indictment against the remaining nine petitioners should be quashed as barred by the statute of limitations. I agree with my Brother BURTON that the Court has incorrectly interpreted the term 'organize' as used in the Smith Act. The Court concludes that the plain words of the Act,2 'Whoever organizes or helps or attempts to organize any society, group, or assembly of persons' (emphasis added) embodies only those 'acts entering into the creation of a new organization.' As applied to the Communist Party, the Court holds that it refers only to the reconstitution of the Party in 1945 and a part of the prosecution here is, therefore, barred by the three-year statute of limitations. This construction frustrates the purpose of the Congress for the Act was passed in 1940 primarily to curb the growing strength and activity of the Party.3 Under such an interpretation all prosecution would have been barred at the very time of the adoption of the Act for the Party was formed in 1919. If the Congress had been concerned with the initial establishment of the Party it would not have used the words 'helps or attempts,' nor the phrase 'group, or assembly of persons.' It was concerned with the new Communist fronts, cells, schools, and other groups, as well as assemblies of persons, which were being created nearly every day under the aegis of the Party to carry on its purposes. This is what the indictment here charges and the proof shows beyond doubt was in fact done. The decision today prevents for all time any prosecution of Party members under this subparagraph of the Act. 85 While the holding of the Court requires a reversal of the case and a retrial, the Court very properly considers the instructions given by the trial judge. I do not agree with the conclusion of the Court regarding the instructions, but I am highly pleased to see that it disposes of this problem so that on the new trial instructions will be given that will at least meet the views of the Court. I have studied the section of the opinion concerning the instructions and frankly its 'artillery of words' leaves me confused as to why the majority concludes that the charge as given was insufficient. I thought that Dennis merely held that a charge was sufficient where it requires a finding that 'the Party advocates the theory that there is a duty and necessity to overthrow the Government by force and violence * * * not as a prophetic insight or as a bit of * * * speculation, but as a program for winning adherents and as a policy to be translated into action' as soon as the circumstances permit. 341 U.S. at pages 546—547, 71 S.Ct. at page 886 (concurring opinion). I notice however that to the majority 86 'The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence 'as a rule or principle of action,' and employing 'language of incitement,' id., 341 U.S. at pages 511—512, 71 S.Ct. at page 868, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur.' 87 I have read this statement over and over but do not seem to grasp its meaning for I see no resemblance between it and what the respected Chief Justice wrote in Dennis, nor do I find any such theory in the concurring opinions. As I see it, the trial judge charged in essence all that was required under the Dennis opinions, whether one takes the view of the Chief Justice or of those concurring in the judgment. Apparently what disturbs the Court now is that the trial judge here did not give the Dennis charge although both the prosecution and the defense asked that it be given. Since he refused to grant these requests I suppose the majority feels that there must be some difference between the two charges, else the one that was given in Dennis would have been followed here. While there may be some distinctions between the charges, as I view them they are without material difference. I find, as the majority intimates, that the distinctions are too 'subtle and difficult to grasp.' 88 However, in view of the fact that the case must be retried, regardless of the disposition made here on the charges, I see no reason to engage in what becomes nothing more than an exercise in semantics with the majority about this phase of the case. Certainly if I had been sitting at the trial I would have given the Dennis charge, not because I consider it any more correct, but simply because it had the stamp of approval of this Court. Perhaps this approach is too practical. But I am sure the trial judge realizes now that practicality often pays. 89 I should perhaps add that I am in agreement with the Court in its holding that petitioner Schneiderman can find no aid from the doctrine of collateral estoppel. 1 The Smith Act, as enacted in 1940, provided in pertinent part as follows: 'Sec. 2. (a) It shall be unlawful for any person— '(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence * * *; '(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; '(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof. 'Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of this title. 'Sec. 5. (a) Any person who violates any of the provisions of this title shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than ten years, or both.' Effective September 1, 1948, the Smith Act was repealed, and substantially reenacted as 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, as part of the 1948 recodification. 62 Stat. 808. Section 2385 provided in pertinent part as follows: 'Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States * * * by force or violence * * *; or 'Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advo- cating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence * * *; or 'Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— 'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both * * *.' For convenience the original Smith Act and § 2385 will both be referred to in this opinion as 'the Smith Act.' It will be noted that the recodification did not carry into § 2385 the conspiracy section of the Smith Act (§ 3). The latter provision, however, was in substance restored to § 2385 on July 24, 1956, to apply to offenses committed on or after that date. 70 Stat. 623. The conspiracy charged in this case was laid under § 3 of the Smith Act for the period 1940 to September 1, 1948, and for the period thereafter, down to the filing of the indictment in 1951, under the general conspiracy statute, 18 U.S.C. § 371, 18 U.S.C.A. § 371, providing in pertinent part as follows: 'If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such persons doany act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.' 2 We find it unnecessary to consider the petitioners' contention with respect to the District Court's alleged failure to apply the 'clear and present danger' rule, as well as the contention that their motions for a new trial and a continuance were erroneously denied. 3 See note 1, supra, 354 U.S. 302, 77 S.Ct. 1068. 4 Except where otherwise indicated, throughout this opinion 'Communist Party' refers to the present Communist Party of the United States. 5 It is not disputed that the Communist Party, as referred to in the indictment, came into being no later than July 1945, when the Communist Political Association was disbanded and reconstituted as the Communist Party of the United States. The original Party was founded in this country in 1919. 6 62 Stat. 828, 18 U.S.C. § 3282, 18 U.S.C.A. § 3282. 7 Both petitioners and the Government cite the following definitions of 'organize' from Webster's New International Dictionary (2d ed.): '1. To furnish with organs; to give an organic structure to * * *.' 2. To arrange or constitute in interdependent parts, each having a special function, act, office, or relation with respect to the whole; to systematize; to get into working order; as, to organize an army; to organize recruits.' The Government also gives us the following from Funk & Wagnall's New Standard Dictionary (1947): '1. To bring into systematic connection and cooperation as parts of a whole, or to bring the various parts of into effective correlation and cooperation; as, to organize the peasants into an army.' And petitioners cite Black's Law Dictionary, as follows: 'To establish or furnish with organs; to systematize; to put into working order; to arrange in order for the normal exercise of its appropriate functions.' 8 Representative John W. McCormack, one of the leading proponents of the Smith Act, stated before the Subcommittee of the Committee on the Judiciary, House of Representatives: 'And by the way, this bill is not alone aimed at Communists; this bill is aimed at anyone who advocates the overthrow of government by violence and force.' Hearing before Subcommittee No. 2 of the House Committee on the Judiciary on H.R. 4313 and H.R. 6427, 74th Cong., 1st Sess., May 22, 1935, Serial 5, p. 3. 9 Id., passim. 10 The 'organizing' section, supra, 354 U.S. 301, 77 S.Ct. 1067, note 1, also makes it an offense 'to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.' 11 Cal.Stat.1919, c. 188, West's Ann.Cal. Codes, Penal Code, § 11401. 12 See People v. Thurman, 62 Cal.App. 147, 216 P. 394; People v. Thornton, 63 Cal.App. 724, 219 P. 1020; People v. Ware, 67 Cal.App. 81, 226 P. 956. 13 N.Y.Laws 1902, c. 371, McKinney's Consol.N.Y.Laws, c. 40, Penal Law, § 161. 14 In other contexts state courts have given the term that meaning. See State ex rel. Childs v. School District, 54 Minn. 213, 55 N.W. 1122; Whitmire v. Cass, 213 S.Ct. 230, 236, 49 S.E.2d 1, 3; Warren v. Barber Asphalt Pav. Co., 115 Mo. 572, 576—577, 22 S.W. 490—491; Commonwealth v. Wm. Mann Co., 150 Pa. 64, 70, 24 A. 601, 602. 15 Following the decision of the Court of Appeals for the Ninth Circuit in this case, 'organize' has been given its wider meaning by two District Courts in that circuit, United States v. Fujimoto, reported on another point, 107 F.Supp. 865, and United States v. Huff, now pending on appeal to the Court of Appeals. The Court of Appeals for the Sixth Circuit, following the Ninth Circuit, has likewise given the term its broader meaning. Wellman v. United States, 227 F.2d 757. 16 The trial court did no more on this score than to charge, in the language of the indictment, that the conspiracy had two objects, namely, to advocate and teach forcible overthrow and to organize the Communist Party as a vehicle for that purpose, and then instruct the jury that it must find that 'the conspiracy charged in the indictment' had been proved beyond a reasonable doubt. 17 Of the 23 overt acts charged, 20 alleged attendance of various defendants at meetings or conventions, and 3 alleged the issuance and circulation of 'directives' by certain of the defendants. Only two of the acts alleged were proved. Both were Party meetings unmarked by any advocacy of the type that the petitioners were allegedly conspiring to promote. 18 The trial court charged: 'As used in the Smith Act and the indictment: '(1) the word 'advocate' means to urge or 'to plead in favor of; * * * to support, vindicate, or recommend publicly * * *'; '(2) the word 'teach' means 'to instruct * * * show how * * * to guide the studies of * * *'; 'The holding of a belief or opinion does not constitute advocacy or teaching. Hence the Smith Act does not prohibit persons who may believe that the violent overthrow and destruction of the Government of the United States is probable or inevitable from expressing that belief. Whether such belief be reasonable or unreasonable is immaterial. Prediction or prophecy is not advocacy. 'Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government of the United States is not within the issue of the indictment here and can constitute no basis for any finding against the defendants. 'The kind of advocacy and teaching which is charged and upon which your verdict must be reached is not merely a desirability but a necessity that the Government of the United States be overthrown and destroyed by force and violence and not merely a propriety but a duty to overthrow and destroy the Government of the United States by force and violence. 'The word 'wilfully,' as used in the indictment, means a statement or declaration made or other act done with the specific intent to cause or bring about the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit. 'The defendants, in common with all other persons living under our Constitution, have a general right protected by the First Amendment to hold, express, teach and advocate opinions, even though their opinions are rejected by the overwhelming majority of the American people; and have the further right to organize or combine peaceably with other persons for the purpose of spreading and promoting their opinions more effectively. 'Whether you agree with these opinions or whether they seem to you reasonable, unreasonable, absurd, distasteful or hateful has no bearing whatever on the right of other persons to maintain them and to seek to persuade others of their validity. 'No inference that any of the defendants knowingly and wilfully conspired as charged in the indictment, or intended to cause or bring about the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit, may be drawn from the advocacy or teaching of socialism or other economic or political or social doctrines, by reason of any unpopularity of such doctrines or by reason of any opinion you may hold with respect to whether such doctrines, or the opinions or beliefs of any of the defendants, are unreasonable, distasteful, absurd or hateful. 'The defendants, in common with other persons living under our Constitution, have the right protected by the First Amendment to criticize our system of Government and the Government itself, even though the speaking or writing of such criticism may undermine confidence in the Government or cause or increase discontent. They have the right also to criticize the foreign policy of the United States and the role being played by this country in international affairs; and to praise the foreign policy of other governments and the role being played by those governments in international affairs. 'The right of the defendants to enjoy such freedom of expression is unaffected by whether or not the opinions spoken or published may seem to you to be crudely intemperate, or to contain falsehoods, or to be designed to embarrass the Government. No inference of conspiracy to advocate and teach the necessity and duty of overthrow and destruction of the Government of the United States by force and violence, or of intent to cause or bring about the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit, may be drawn from such expressions alone.' 19 Petitioners' proposed instructions were: 'Where the Smith Act, the statute which these defendants are charged with conspiring to violate, speaks of advocating and teaching the duty and necessity of overthrowing the Government by force and violence, this refers only to statements which, in the language of incitement to action, urge immediate action to overthrow the then existing government under the then existing circumstances. A statement on the other hand, that, if our form of government should change in the future, violent overthrow of the government would then become necessary and right, is not within the Smith Act's prohibition and would not constitute any basis for a finding against the defendants here. 'For purposes of this trial, a person can be said to teach or advocate the overthrow and destruction of the Government of the United States by force and violence only when his expressions are designed to induce action, rather than discussion or belief, and only when they are expressed in language which, under the circumstances in which it is used, is reasonably and ordinarily calculated to incite persons to such action, rather than merely to discussion or belief. 'The burden is on the prosecution to show beyond a reasonable doubt that a common understanding existed among the alleged co-conspirators as to the specific content of expressions amounting to advocacy of the overthrow and destruction of the Government by force and violence. The Government must further show that this understanding included an understanding that such advocacy would be in language amounting to incitement to action and that it would take place under circumstances such as to lead to a probability that it would inspire persons to take action toward violent overthrow. 'The Government's burden is not met by proof that the defendant shared certain beliefs and made joint efforts to persuade other persons to adopt them, no matter what you may find the content of such beliefs to have been, or whether you may agree or disagree with such beliefs.' The Government's proposed instruction was: 'In further construction and interpretation of the statute I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and assembly of persons who teach and advocate the overthrow or destruction of the Government of the United States by force and violence and to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit.' 20 The Government's proposed instruction was that given by the trial court in the Dennis case, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. See 354 U.S. 326, 77 S.Ct. 1080, infra. 21 Having stated that all advocacy and teaching of forcible overthrow of Government was punishable 'whether it is language of incitement or not,' so long as it was done with the requisite intent, the court added, 'It seems to me this question of 'incitement to' is involved around the question of sufficiency of evidence to indicate intent. The language used is language of philosophy and theory and academic treatment, rather than language * * * (of) 'incitement to action.' If the jury should convict on that sort of language, (the) argument would be the evidence was insufficient to sustain the conviction * * *.' 22 For discussion of the principal cases in this Court on the subject, see the several opinions in Dennis v. United States, supra. 23 The New York Criminal Anarchy Act, note 13, supra. 24 See Dennis v. United States, supra, 341 U.S. at page 541, 71 S.Ct. at page 883. 25 Hearings on H.R. 4313 and H.R. 6427, May 22, 1935, cited in note 8, supra, at pp. 5, 6. 26 At the hearing cited in note 8, supra, Representative McCormack repeatedly emphasized that the proscribed advocacy was inciting advocacy. For example, he stated: '* * * the word 'advocacy' means 'in a manner to incite,' as construed by the Supreme Court in the Gitlow case * * *.' (P. 5.) '* * * Government has a right to make it a crime for a person to use language specifically inciting to the commission of illegal acts. * * * (I)t is advocacy in the manner to incite, knowingly to advocate in a manner to incite to the overthrow of the Government * * *.' (P. 15.) See also pp. 4, 8, 11. 27 See 354 U.S. 326, 77 S.Ct. 1080, infra. 28 See United States v. Schneiderman, D.C., 106 F.Supp. 906, 923. 29 The writ of certiorari in Dennis did not bring up the sufficiency of the evidence. 340 U.S. 863, 71 S.Ct. 91, 95 L.Ed. 630. 30 See note 1, supra. 31 The Court of Appeals stated, 9 Cir., 225 F.2d at page 151: 'Finally, (referring to Dennis) the opinion of the Court of Appeals and a concurring opinion in the Supreme Court gave approval of instructions of the trial judge in Dennis requiring the jury to find 'language of incitement' was used by the conspirators there. Another phrase given approval is that the doctrine of destruction had become a 'rule of action.' In conjunction with an indictment based upon such a statute proscribing organization for the purpose of teaching and advocating overthrow, but which required neither proof of overt acts nor a specifically planned objective, such precautionary instructions were well enough. But these expressions of the judges in instructions in connection with the original statute established no unalterable requirement that such phrases themselves be used ipsissimis verbis where the changes in the basic law and an entirely different indictment predicated upon the conspiracy statute have rendered admonitions to a jury in such language supererogatory.' And further at page 162: 'The gist of the substantive crime of conspiracy is that an unlawful combination and agreement becomes a positive crime only when some of the proved conspirators enter the field of action pursuant to the criminal design. Therefore, if the conspiracy did not become a rule of action pursuant to the proscribed intent, there would have been no violation of the conspiracy statute. The use of such phrases (as incitement) in instructions might have been well enough where a violation of the Smith Act alone was charged in its original form. It would be folly to command imperatively that these specific phrases be each used in instructions after a trial on an indictment such as the present one.' It may also be noted that for the period 1940 to September 1, 1948 (see note 1, supra), the conspiracy charge here was laid under the old Smith Act. 32 See 354 U.S. 317, 318, 77 S.Ct. 1076, supra. 33 See note 19, supra. 34 The record consists of some 14,000 typewritten pages. 35 64 Stat. 987, 50 U.S.C. § 783(f), 50 U.S.C.A. § 783(f): 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.' 36 While there was evidence that might tend to link petitioner Richmond to 'the conspiracy,' i.e., evidence of association by him with other petitioners, and with an individual who might be found by the jury to have engaged during the same period in the proscribed advocacy, see 354 U.S. 332, 333, 77 S.Ct. 1084, infra, we think that without more such evidence would not justify refusal to direct an acquittal. * 12 Hening's Stat. (Virginia 1823), c. 34, p. 85. 1 Petitioners Richmond, Connelly, Kusnitz, Steinberg, and Spector are set free. Richmond at the time of his indictment had for many years been the editor-inchief of the Daily People's World, the official organ of the Party on the West Coast. He had joined the Party in 1931 and received his indoctrination in Communist technique at the offices of the Daily Worker, the official Party paper on the East Coast. In 1937 he was chosen by the Party's Central Committee to be managing editor of the Daily People's World and was transferred to California. From 1946 through 1948 he regularly attended secret meetings of the state and county boards of the Party, admission to which was by identification from a special list of Party members prepared by the Party chairman or its security chief. Party strategy was mapped out at 'very secret meetings' attended by Richmond and the core of the Party machinery, including at least seven of the petitioners here. Richmond served on a special committee to help develop 'preconvention discussion' with petitioner Yates; he represented the state committee at the 1950 convention; he addressed many Party meetings preaching the 'vanguard role' of the Party and the importance of the People's World in the Communist movement; and his articles in the paper urged the 'Leninist and Marxist approach.' Connelly, a Party member since at least 1938, was the Los Angeles editor of the People's World. During the mobilization effort early in World War II he devoted his efforts to 'building up sentiment against * * * the war effort' among steel, aircraft, and shipyard workers. He attended the same secret meetings attended by Richmond. There can be no question that the proof sustained the charges against Richmond and Connelly in the conspiracy. Their newspaper was the conduit through which the Party announced its aims, policies, and decisions, sought its funds, and recruited its members. It is the height of naivete to claim that the People's World does not publish appeals to its readers to follow Party doctrine in seeking the overthrow of the Government by force, but it is stark reality to conclude that such a publication provides an incomparable means of promoting the Party's aim of forcible seizure when the time is ripe. Petitioner Spector has been active in the California Party since the early 1930's. He taught 'Marxism-Leninism' in Party schools and was 'division organizer' in Los Angeles County. He attended 'underground meetings' with petitioners Lambert, Dobbs, Healy, Carlson, and Schneiderman. The witness Rosser testified that these meetings were 'so hid that you couldn't get to them unless you were invited and taken there.' In 1946 he 'conducted classes' for Party members in Hollywood, and in 1947 as a member of a committee of three Party officials examined the witness Russell, a student in one of his classes, on charges of being a Party 'police spy.' Petitioner Kusnitz, following an organizational indoctrination period in New York City, became a Party leader in California in 1946, served as 'section organizer,' and later as 'organizational secretary' in Los Angeles. Her position was directly below that of the local chairman in Party hierarchy. She attended many secret meetings and was present at a Party meeting with petitioner Yates when Yates advocated the necessity of 'Soviet support' and 'Marxist-Leninist training' as a means of bringing about the Soviet 'type of government * * * all over the world.' She contributed articles to Communist publications and was very active in the 'regrouping of * * * clubs into smaller units'; conducting a 'six session leadership training seminar'; carrying on campaigns for subscriptions to the People's World; and leading the 'Party Building drive' for the recruitment of members. Petitioner Henry Steinberg, active in the Young Communist League, and associated with the Party since 1936, was the 'educational director.' He took part in the creation of the program for the Party's training schools in Los Angeles County. His 'education department' sponsored several meetings, one honoring the 25th anniversary of the death of Lenin. He worked with petitioner Schneiderman, the Party Chairman in California, attended meetings regularly, was active in circulation drives for the People's World, and was the principal speaker at many meetings. 2 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. 3 Congressman McCormack's remarks on the floor of the House of Representatives on July 29, 1939, during the debate on the Smith Act reflect the underlying purpose behind that Act. He stated, inter alia: 'We all know that the Communist movement has as its ultimate objective the overthrow of government by force and violence or by any means, legal or illegal, or a combination of both. That testimony was indisputably produced before the special committee of which I was chairman, and came from the lips not of those who gave hearsay testimony, but of the actual official records of the Communist Party of the United States, presented to our committee by the executive secretary of the Communist Party and the leader of the Communist Party in the United States, Earl Browder. * * * Therefore, a Communist is one who intends knowingly or willfully to participate in any actions, legal or illegal, or a combination of both, that will bring about the ultimate overthrow of our Government. He is the one we are aiming at. * * *' (Emphasis added.) 84 Cong.Rec. 10454. See also Hearings before Subcommittee No. 3 of the House Committee on the Judiciary on H.R. 5138, 76th Cong., 1st Sess. 84.

23

354 U.S. 393 77 S.Ct. 1098 1 L.Ed.2d 1423 Jesse BLACKBURN, Petitioner,v.STATE OF ALABAMA. No. 426. Argued May 2, 1957. Decided June 17, 1957. Mr. Truman Hobbs, Montgomery, Ala., for the petitioner. Mr. Paul T. Gish, Jr., Asst. Atty. Gen. of Alabama, Montgomery, Ala., for the respondent. PER CURIAM. 1 The record in this case leaves us uncertain whether petitioner's claim to the protection of the Due Process Clause of the Fourteenth Amendment to the United States Constitution was passed upon by the Court of Appeals of Alabama. 38 Ala.App. 143, 88 So.2d 199. Accordingly, we vacate the judgment of the Court of Appeals and remand the cause to that court in order that it may pass upon this claim. State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920. 2 Judgment vacated and cause remanded. 3 Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting. 4 Petitioner has made as strong a showing as possible that he signed the confession when he was insane. Throughout the whole proceeding he has claimed that the confession was involuntary. The Judgment should therefore be reversed. See Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.

89

354 U.S. 363 77 S.Ct. 1152 1 L.Ed.2d 1403 John S. SERVICE, Petitioner,v.John Foster DULLES et al. No. 407. Argued April 2 and 3, 1957. Decided June 17, 1957. [Syllabus from pages 363-364 intentionally omitted] Mr. C. Edward Rhetts, Washington, D.C., for the petitioner. Mr. Donald B. MacGuineas, Washington, D.C., for the respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 On December 14, 1951, petitioner, John S. Service, was discharged by the then Secretary of State, Dean Acheson, from his employment as a Foreign Service Officer in the Foreign Service of the United States. This case brings before us the validity of that discharge. 2 At the time of his discharge in 1951, Service had been a Foreign Service Officer for some sixteen years, during ten of which, 1935—1945, he had served in various capacities in China. In April 1945, shortly after his return to this country, Service became involved in the so-called Amerasia investigation through having furnished to one Jaffe, the editor of the Amerasia magazine, copies of certain of his Foreign Service reports. Two months later, Service, Jaffe and others were arrested and charged with violating the Espionage Act,1 but the grand jury, in August 1945, refused to indict Service. He was thereupon restored to active duty in the Foreign Service, from which he had been on leave of absence since his arrest, and returned to duty in the Far East. 3 From then on Service's loyalty and standing as a security risk were under recurrent investigation and review by a number of governmental agencies under the provisions of Executive Order No. 9835,2 establishing the President's Loyalty Program, and otherwise. He was accorded successive 'clearances' by the State Department in each of the years 1945, 1946 and 1947,3 and a fourth clearance in 1949 by that Department's Loyalty Security Board, which, however, was directed by the Loyalty Review Board of the Civil Service Commission, when the case was examined by it on 'post-audit,'4 to prefer charges against Service and conduct a hearing thereon. This was done, and on October 6, 1950, after extensive hearings, the Department Board concluded that 'reasonable grounds do not exist for belief that * * * Service is disloyal to the Government of the United States * * *,' and that '* * * he does not constitute a security risk to the Department of State.' These findings were approved by the Duputy Under Secretary of State, acting pursuant to authority delegated to him by the Secretary.5 Again, however, the Loyalty Review Board, on post-audit, remanded the case to the Department Board for further consideration.6 Such consideration was had, this time under the more stringent loyalty standard established by Executive Order No. 10241,7 amending the earlier Executive Order No. 9835, and again the Department Board, on July 31, 1951, decided favorably to Service. This determination was likewise approved by the Deputy Under Secretary. However, on a further post-audit, the Loyalty Review Board decided to conduct a new hearing itself, which resulted this time in the Board's finding that there was a reasonable doubt as to Service's loyalty, and in its advising the Secretary of State, on December 13, 1951, that in the Board's opinion Service 'should be forthwith removed from the rolls of the Department of State' and that 'the Secretary should approve and adopt the proceedings' had before the Board.8 On the same day the Department notified Service of his discharge, effective at the close of business on the following day. 4 The authority and basis upon which the Secretary acted in discharging petitioner are set forth in an affidavit later filed by Mr. Acheson in the present litigation, in which he states: 5 '2. On December 13, 1951, I received a letter from the Chairman of the Loyalty Review Board of the Civil Service Commission submitting to me that Board's opinion, dated December 12, 1951, in the case of John S. Service, a Foreign Service officer of the Department of State and the plaintiff in this action. 6 '3. On that same day I considered what action should be taken in the light of the opinion of the Loyalty Review Board, recognizing that whatever action taken would be of utmost importance to the administration of the Government Employees Loyalty Program. I understood that the responsibility was vested in me to make the necessary determination under both Executive Order No. 9835, as amended, and under Section 103 of Public Law 188, 82d Congress, as to what action to take. 7 '4. Acting in the exercise of the authority vested in me as Secretary of State by Executive Order 9835, as amended by Executive Order 10241, and also by Section 103 of Public Law 188, 82d Congress (65 Stat. 575, 581), I made a determination to terminate the services of Mr. Service as a Foreign Service Officer in the Foreign Service of the United States. 8 '5. I made that determination solely as the result of the finding of the Loyalty Review Board and as a result of my review of the opinion of that Board. In making this determination, I did not read the testimony taken in the proceedings in Mr. Service's case before the Loyalty Review Board of the Civil Service Commission. I did not make any independent determination of my own as to whether on the evidence submitted before those boards there was reasonable doubt as to Mr. Service's loyalty. I made no independent judgment on the record in this case. There was nothing in the opinion of the Loyalty Review Board which would make it incompatible with the exercise of my responsibilities as Secretary of State to act on it. I deemed it appropriate and advisable to act on the basis of the finding and opinion of the Loyalty Review Board. In determining to terminate the employment of Mr. Service, I did not consider that I was legally bound or required by the opinion of the Loyalty Review Board to take such action. On the contrary, I considered that the opinion of the Loyalty Review Board was merely an advisory recommendation to me and that I was legally free to exercise my own judgment as to whether Mr. Service's employment should be terminated and I did so exercise that judgment.' Section 103 of Public Law 188, 82d Congress,9 upon which the Secretary thus relied, was the so-called McCarran Rider, first enacted as a rider to the Appropriation Act for 1947, which provided: 9 'Notwithstanding the provisions of * * * any other law, the Secretary of State may, in his absolute discretion, * * * terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States * * *.'10 10 Similar provisions were re-enacted in each subsequent appropriation act until 1953.11 11 After an attempt to secure further administrative review of his discharge proved unsuccessful, petitioner brought this action, in which he sought a declaratory judgment that his discharge was invalid; an order directing the respondents to expunge from their records all written statements reflecting that his employment had been terminated because there was a reasonable doubt as to his loyalty; and an order directing the Secretary to reinstate him to his employment and former grade in the Foreign Service, with full restoration of property rights and payment of accumulated salary. 12 While cross-motions for summary judgment were pending before the District Court, this Court rendered its decision in Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129, holding that under Executive Order No. 9835, the Loyalty Review Board had no authority to review, on post-audit, determinations favorable to employees made by department or agency authorities, or to adjudicate individual cases on its own motion. On the authority of that decision, the District Court declared the finding and opinion of the Loyalty Review Board respecting Service to be a nullity, and directed the Civil Service Commission to expunge from its records the Board's finding that there was reasonable doubt as to his loyalty. But since petitioner's removal rested not only upon Executive Order No. 9835, as amended, but also upon the McCarran Rider, the District Court sustained petitioner's discharge as a valid exercise of the 'absolute discretion' conferred upon the Secretary by the latter provision, and granted summary judgment in favor of respondents in all other respects.12 The Court of Appeals affirmed, 98 U.S.App.D.C. 268, 235 F.2d 215, and this Court granted certiorari, 352 U.S. 905, 77 S.Ct. 147, 1 L.Ed.2d 115, because of the importance of the questions involved to federal administrators and employees alike. 13 Petitioner here attacks the validity of the termination of his employment on two separate grounds: First, he contends that the Secretary's exercise of discretion was invalid since the findings and opinion of the Loyalty Review Board, upon which alone the Secretary acted, were void, because they were rendered without jurisdiction13 and were based upon procedures assertedly contrary to due process of law. Even conceding that the Secretary's powers under the McCarran Rider were such that he was not required to state the grounds for his decision, petitioner urges, his decision cannot stand because he did in fact rely upon grounds that are invalid. See Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626; Perkins v. Elg. 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. Second, petitioner contends that the Secretary's action is subject to attack under the principles established by this Court's decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, namely, that regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature. Regulations relating to 'loyalty and security of employees' which had been promulgated by the Secretary, petitioner asserts, were intended to govern discharges effected under the McCarran Rider as well as those effected under Executive Order No. 9835, as amended, and because those regulations were violated by the Secretary in this case, so petitioner claims, him dismissal by the Secretary cannot stand. Since, for reasons discussed hereafter, we have concluded that petitioner's second contention must be sustained, we do not reach the first. 14 The questions to which we address ourselves therefore are as follows: (1) Were the departmental Regulations here involved applicable to discharges effected under the McCarran Rider? and (2) Were those Regulations violated in this instance? We do not understand the respondents to dispute that the principle of Accardi v. Shaughnessy, supra, is controlling, if we find that the Regulations were indeed applicable and were violated. We might also add that we are not here concerned in any wise with the merits of the Secretary's action in terminating the petitioner's employment. I. 15 We think it is not open to serious question that the departmental Regulations upon which petitioner relies were applicable to McCarran Rider discharges as well as to those effected pursuant to the Loyalty-Security program. The terms of the Regulations, the fact that the Department itself proceeded in this very case under those Regulations down to the point of petitioner's discharge, representations made by the State Department to Congress relating to its practices under the McCarran Rider, and the announced wish of the President to the effect that McCarran Rider authority should be exercised subject to procedural safeguards designed to protect 'the personal liberties of employees,' all combine to lead to that conclusion. We also think it clear that these Regulations were valid, so far as their validity is put in issue by the respondents in this case. 16 A. The Regulations. 17 When the Department's proceedings against the petitioner, which resulted in the 'clearances' of October 6, 1950, and July 31, 1951, were begun, the Regulations in effect were those of March 11, 1949, entitled 'Regulations and Procedures relating to Loyalty and Security of Employees, U.S. Department of State.'14 Section 391 stated the 'Authority and General Policy' of the Regulations in three subsections. Subsection 391.1 stated that it was 'highly important to the interests of the United States that no person be employed in the Department who is disloyal or who constitutes a security risk.' Subsection 391.2 stated that so far as the Regulations related to the handling of loyalty cases, they were promulgated in accordance with Executive Order No. 9835, which had recognized the 'necessity for removing disloyal employees from the Federal service and for refusing employment therein to disloyal persons,' and the 'obligation to protect employees and applicants from unfounded accusations of disloyalty.' Subsection 391.3 referred to the language of the McCarran Rider, noting that the Secretary of State had been granted by Congress the right, in his absolute discretion, 'to terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States.' 'In the exercise of this right,' the subsection concluded, 'the Department will, so far as possible,15 afford its employees the same protection as those provided under the Loyalty Program.' And, as we shall see hereafter, the Regulations made no provision for action by the Secretary himself, under the McCarran Rider or otherwise, except following unfavorable action in the employee's case by the Department Loyalty Security Board, after full hearing before that Board on the charges against him, and approval of the Board's action by the Deputy Under Secretary.16 18 In May and September 1951, prior to the time of petitioner's discharge, the Regulations were revised, and the amended § 391 provided even more explicitly than the original that the procedures and standards established were intended to govern exercise of the authority granted by the McCarran Rider. After stating in the first subsection17 that the Regulations were adopted to implement the Department's policy that 'no person be employed in the Department18 who is disloyal or who constitutes a security risk,' the section continues in the next two subsections19 to state in effect that the Regulations relating to the handling of loyalty cases were promulgated in accordance with Executive Order No. 9835, and that those relating to security cases were promulaged under the authority of the Act of August 26, 195020 and the McCarran Rider.21 The phrase 'so far as possible,' in reference to McCarran Rider authority, was deleted. The Regulations thus drew upon all the sources of authority available to the Secretary with reference to such cases, and purported to set forth definitively the procedures and standards to be followed in their handling. 19 The administrative proceedings held in petitioner's case were unquestionably conducted on the premise that the Regulations were applicable in this instance. The charges were based on the Regulations, and a copy of the Regulations was sent to Service along with the letter of charges. The hearing was scheduled under § 395 of the 1949 Regulations. In its opinion exonerating Service, the Department Board noted, following the Regulations, that 'the issues here are (1) loyalty, and (2) security risk.' The Board's favorable recommendations came twice before the Deputy Under Secretary for review under §§ 395.6 and 396.7 of these Regulations, and were approved by him. Later, before the Civil Service Commission's Loyalty Review Board, an additional charge was added to the Department's original charges by stipulation of the parties, and the stipulation expressly referred to §§ 392.2 and 393.1a of the Regulations. Indeed, at no time during any of the administrative proceedings in this case was there any suggestion that the Regulations were not applicable to the entire proceedings and binding upon all parties to the case. 20 C. The Department's Representations to Congress. 21 In the spring of 1950, the Department of State submitted to an investigating subcommittee of the Senate Foreign Relations Committee a comprehensive report on the procedures and standards used by the Department in dealing with employee loyalty and security problems. After describing the procedures utilized by the Department in the early post-war period, the report continued as follows: 22 '* * * The policy of the Department prior to the passage of the McCarran rider was that if there was reasonable doubt as to an employee's loyalty, his employment was required to be terminated. The McCarran rider freed the hands of the Department in making this policy effective. Basically any reasonable doubt of an employee's loyalty if based on substantial evidence was to be resolved in favor of the Government. After enactment of the McCarran rider the Department did not contemplate that the legislation required or that the people of this country would countenance the use of 'Gestapo' methods or harassment or persecution of loyal employees who were American citizens on flimsy evidence or hearsay and innuendo. The Department proceeded to develop appropriate procedures designed to implement fully and properly the authority granted the Department under the McCarran rider. 23 'The McCarran rider * * * was the first of a series of provisions included in each subsequent appropriation act which authorized the Secretary of State in his absolute discretion to 'terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States.' Accordingly, effective during the 1947 fiscal year, and each fiscal year thereafter, the Department considered the McCarran rider as an additional standard for dealing with security problems in the Department. * * * In (its) considered view the McCarran rider was subject to procedural limitations. The McCarran rider was not interpreted as permitting reckless discharge or the exercise of arbitrary whims. 24 'The President's loyalty order of March 21, 1947, prescribed a comprehensive set of standards governing the executive branch as a whole. It was deemed applicable to the Department of State, as well as to other agencies. The unique powers conferred on the Department as a result of continuous reenactment of the McCarran rider led the Department to promulgate regulations which would encompass its duties and powers both under the Executive order and under the McCarran rider.'22 25 That the policy of the Secretary to subject his plenary powers under the McCarran Rider to procedural limitations was deliberately adopted, and rested on decisions taken at the highest level, is evidenced by a letter dated September 6, 1950, from President Truman to the Secretary of State, which was made a part of the record below. In that letter, the President advised the Secretary that he had just approved H.R. 7786, the General Appropriation Act, 1951, 69 Stat. 595, 768, § 1213 of which re-enacted the McCarran Rider for the current fiscal year. The President continued: 26 'I am sure you will agree that in exercising the discretion conferred upon you by Section 1213, every effort should be made to protect the national security without unduly jeopardizing the personal liberties of the employees within your jurisdiction. Procedures designed to accomplish these two objectives are set forth in Public Law 733, 81st Congress, which authorizes the summary suspension of civilian officers and employees of various departments and agencies of the Government, including the Department of State. 27 'In order that officers and employees of the Department of State may be afforded the same protection as that afforded by Public Law 733, it is my desire that you follow the procedures set forth in that law in carrying out the provisions of section 1213 of the General Appropriations Act.' 28 In view of the terms of the Regulations, the course of proceudre followed by the Department, and the background materials we have noted, we think that there is no room for doubt that the departmental Regulations for the handling of loyalty and security cases were both intended and considered by the Department to apply in this instance. We cannot accept either of the respondents' present arguments to the contrary. The first argument, as put by the District Court, whose language was adopted by the Court of Appeals,23 is: 29 '* * * It was not the intent of Congress that the Secretary of State bind himself to follow the provisions of Executive Order 9835 in dismissing employees under Public Law 188. This power of summary dismissal would not have been granted the Secretary of State by the Congress if the Congress was satisfied that the interests of this country were adequately protected by Executive Order 9835.' 30 We gather from this that the lower courts though that the Secretary was powerless to bind himself by these Regulations as to McCarran Rider discharges based on loyalty or security grounds. We do not think this is so. Although Congress was advised in unmistakable terms that the Secretary had seen fit to limit by regulations the discretion conferred upon him, see 354 U.S. 377, 378, 77 S.Ct. 1159, supra, it continued to re-enact the McCarran Rider without change for several succeeding years.24 Cf. National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340, 95 L.Ed. 337; Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1375. Nor do we see any inconsistency between this statute and the effect of the Regulations upon the Secretary under Accardi v. Shaughnessy, already discussed, 354 U.S. 372—373, 77 S.Ct. 1157, supra. Accardi, indeed, involved statutory authority as broad as that involved here.25 31 The respondents' second agrument is that the Regulations refer explicitly to discharges based on loyalty and security grounds, but make no reference to discharges deemed 'necessary or advisable in the interests of the United States'—the sole McCarran Rider standard—and hence were not applicable to such discharges. But, as has already been demonstrated, both the Regulations and their historical context show that the Regulations were applicable to McCarran Rider discharges, at least to the extent that they were based on loyalty or security grounds, and we do not see how it could seriously be considered, as the respondents now seem to urge, that Service was not discharged on such grounds. The Secretary's affidavit,26 and also the Department's formal notice to Service of his discharge,27 both of which, among other things, refer to Executive Order No. 9835 as well as to the McCarran Rider as authority for the Secretary's action, unmistakably show that the discharge was based on such grounds. 32 We now turn to the question whether the manner of petitioner's discharge was consistent with the Department's Regulations. II. 33 Preliminarily, it must be noted that the parties are in dispute as to which of the two sets of Regulations—those of 1949 or those of 1951—is applicable to petitioner's case, assuming, as we have held, that one or the other must govern. The departmental proceedings against petitioner were begun and were conducted under the 1949 Regulations. However, prior to petitioner's discharge in December 1951, the revised Regulations of May and September 1951 had become effective, and it is under those Regulations, the respondents say, that Service's discharge must be judged.28 On the other hand, the petitioner contends that the 1949 Regulations remained applicable to his case, since he was not advised of the existence of the 1951 Regulations until after his discharge had been accomplished and the present court proceedings had been commenced.29 However, it is unnecessary for us to make a choice between the two sets of Regulations, for we find the manner in which petitioner was discharged to have been inconsistent with both. A. The 1949 Regulations. 34 In terms of the 1949 Regulations, the vice we find in petitioner's discharge is that the Secretary had no right to dismiss the petitioner for loyalty or security reasons unless and until the Deputy Under Secretary, acting upon the findings of the Department's Loyalty Security Board, had recommended such dismissal. In other words, the Deputy Under Secretary in this instance having approved the findings of the Loyalty Security Board favorable to petitioner, the Secretary, consistently with these Regulations, could not, without more, dismiss the petitioner. 35 The basis for this conclusion will appear from a consideration of the procedural scheme established by the 1949 Regulations relating to loyalty and security cases. In outline that scheme involved the following procedural steps: 36 (1) The filing of charges, upon notice to the employee involved, accompanied by adequate factual details as to their basis, and a statement as to the employee's work and pay status pending further action.30 37 (2) A hearing on such charges, if requested by the employee, before the Department's Loyalty Security Board, whose determination, together with the record of the hearings, were then to be forwarded to the Deputy Under Secretary for review.31 38 (3) Upon such review the Deputy Under Secretary was empowered (i) to return the case to the Board for further investigation or action; (ii) to decide in favor of the employee, and to so notify him in writing; or (iii) to decide against the employee, and to notify him of his right to appeal to the Secretary within 10 days thereafter.32 39 (4) In the event of such an appeal, the Secretary was empowered (i) to decide favorably to the employee, and to so notify him in writing; or (ii) to decided against the employee, and to notify him of such decision, and further, in a loyalty case, of his right to appeal to the Loyalty Review Board within 20 days thereafter.33 40 (5) If, upon such an appeal, the Loyalty Review Board decided adversely to the employee and made an 'advisory' recommendation to the Secretary that the employee should be removed from employment under the applicable loyalty standards, the Department was to take prompt administrative action to that end. On the other hand if the Board decided favorably to the employee the Secretary was empowered (i) to restore the employee to duty and 'close the case'; (ii) to permit the employee to resign; or (iii) to terminate his employment under the authority conferred by the McCarran Rider 'or other appropriate authority.'34 41 From this survey, three things appear as to the handling of loyalty and security cases under the 1949 Regulations which are of significance in this case. First, following the decision of the Deputy Under Secretary upon a determination of the Department Loyalty Security Board, there was to be an appeal to the Secretary only if the Deputy's action had been adverse to the employee. In other words, under these Regulations the action of the Deputy Under Secretary, if favorable to the employee, was to be final, the Secretary reserving to himself power to act further only if his Deputy's action was unfavorable to the employee.35 Second, there was likewise an appeal to the Loyalty Review Board from the Secretary's decision only if his action was adverse to the employee. Again, in other words, a decision of the Secretary favorable to the employee was to be final, and immune from further action by the Loyalty Review Board on post-audit, a rule since confirmed by our decision in Peters v. Hobby, supra. Third, the Secretary reserved the right to deal with such a case under his McCarran Rider authority, outside the Regulations, only in instances where, upon an employee's appeal to the Loyalty Review Board from an unfavorable decision by the Secretary, the decision of that body was favorable to the employee. 42 Granted, as the respondents argue, that these Regulations gave the petitioner (a) no right of appeal to the Secretary from the Deputy Under Secretary's favorable decision, and (b) no right of appeal at all from the action of the Loyalty Review Board, it does not follow, as the respondents then argue, that the Secretary was free to dismiss the petitioner. For, as has already been observed, the Regulatiosn left the Secretary functus officio with respect to such cases once the Deputy Under Secretary had made a determination favorable to the employee. So here when the Deputy Under Secretary approved the Loyalty Security Board's action of July 31, 1951, clearing the petitioner, under these Regulations the case against Service was closed.36 Hence Service's subsequent discharge by the Secretary must be deemed to have been in contravention of these 1949 Regulations.37 The situation under the 1949 Regulations was thus closely analogous to that which obtained in Accardi v. Shaughnessy, supra. There, the Attorney General bound himself not to exercise his discretion until he had received an impartial recommendation from a subordinate board. Here, the Secretary bound himself not to act at all in cases such as this, except upon appeal by employees from determinations unfavorable to them. We see no relevant ground for distinction. 43 A similar conclusion must be reached if the 1951 Regulations are deemed applicable to petitioner's case. Section 393.1 of those Regulations provides: 44 'The standard for removal from employment in the Department of State under the authority referred to in section 391.3 shall be that on all the evidence reasonable grounds exist for belief that the removal of the officer or employee involved is necessary or advisable in the interest of national security. The decision shall be reached after consideration of the complete file, arguments, briefs, and testimony presented.' (Emphasis added.) 45 The 'authority referred to in section 391.3,' as we have already noted, included the McCarran Rider.38 In light of the former Secretary's affidavit39 there is no room for dispute that no attempt was made to comply with this section of the Regulations,40 as indeed the respondents' brief virtually concedes. 46 The respondents argue that this provision was not violated in petitioner's case because 'the only decision to which Section 393.1 relates is that the removal of the officer or employee involved is 'necessary or advisable in the interest of national security," the standard laid down in the Act of August 26, 1950,41 and that '(n)othing in this section purports to prescribe the procedure to be followed in determining that removal is 'necessary or advisable in the interests of the United States," the standard contained in the McCarran Rider. But since § 391.3, which is incorporated by reference into § 393.1, specifically subjected the exercise of the Secretary's McCarran Rider authority, in such cases as this, to the operation of the 1951 Regulations, it seems clear that the necessary effect of § 393.1 was to subject the exercise of that authority to the substantive standards prescribed by that section, namely, those established by the Act of August 26, 1950,42 and also to the procedural requirements that such cases must be decided 'on all the evidence' and 'after consideration of the complete file, arguments, briefs, and testimony presented.' The essential meaning of the section, in other words, was that the Secretary's decision was required to be on the merits. While it is of course true that under the McCarran Rider the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards, neither was he prohibited from doing so, as we have already held, and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them. 47 It being clear that § 393.1 was not complied with by the Secretary in this instance, it follows that under the Accardi doctrine petitioner's dismissal cannot stand, regardless of whether the 1951, rather than the 1949, Regulations are deemed applicable in his case.43 48 For the foregoing reasons the judgment of the Court of Appeals must be reversed, and the case remanded to the District Court for further proceedings consistent with this opinion. 49 It is so ordered. 50 Judgment of Court of Appeals reversed and case remanded to District Court with directions. 51 Mr. Justice CLARK took no part in the consideration or decision of this case. 1 Act of June 15, 1917, c. 30, 40 Stat. 217, as amended, now 18 U.S.C.A. §§ 791—794, 2388. 2 12 Fed.Reg. 1935, 5 U.S.C.A. § 631 note. 3 Hearings before the Subcommittee of the House Committee on Appropriations on the Department of State Appropriation Bill for 1950, 81st Cong., 1st Sess. 298. 4 See Peters v. Hobby, 349 U.S. 331, 339—348, 75 S.Ct. 790, 794, 798, 99 L.Ed. 1129, for a discussion of the then-existing 'post-audit' procedure. 5 See 354 U.S. 382—386, 77 S.Ct. 1162—1164 and note 16, infra. 6 This action was based on 'supplementary information * * * received from the Federal Bureau of Investigation,' the nature of which does not appear in the record. 7 16 Fed.Reg. 3690, 5 U.S.C.A. § 631 note. 8 The essence of the Loyalty Review Board's action, and its relation to the prior departmental proceedings with respect to Service, are summarized in the State Department's press release of December 13, 1951, as follows: 'The Department of State announced today that the Loyalty Review Board of the Civil Service Commission has advised the Department that this Board has found a reasonable doubt as to the loyalty of John Stewart Service, Foreign Service Officer. 'Today's decision of the Loyalty Review Board is based on the evidence which was considered by the Department's Board and found to be insufficient on which to base a finding of 'reasonable doubt' as to Mr. Service's loyalty or security. Copies of the Opinions of both Boards are attached. 'The Department of State's Loyalty Security Board, on July 31, 1951, had reaffirmed its earlier findings that Service was neither disloyal nor a security risk, and the case had been referred to the Loyalty Review Board for post-audit on September 4, 1951. The Loyalty Review Board assumed jurisdiction of Mr. Service's case on October 9, 1951. 'The Chairman of the Loyalty Review Board in today's letter to the Secretary (full text attached) noted: "The Loyalty Review Board found no evidence of membership in the Communist Party or in any organization on the Attorney General's list on the part of John Stewart Service. The Loyalty Review Board did find that there is a reasonable doubt as to the loyalty of the employee, John Stewart Service, to the Government of the United States, based on the intentional and unauthorized disclosure of documents and information of a confidential and non-public character within the meaning of subparagraph d of paragraph 2 of Part V, 'Standards,' of Executive Order No. 9835, as amended.' 'The Opinion of the Loyalty Review Board stressed the points made above by the Chairman—that is, it stated that the Board was not required to find and did not find Mr. Service guilty of disloyalty, but it did find that his intentional and unauthorized disclosure of confidential documents raised reasonable doubt as to his loyalty. The State Department Board while censoring (sic) Mr. Service for indiscretions, believed that the experience Mr. Service had been through as a result of his indiscretions in 1945 had served to make him far more than normally security conscious. It found also that no reasonable doubt existed as to his loyalty to the Government of the United States. On this point the State Department Board was reversed. 'The Chairman of the Loyalty Review Board has requested the Secretary of State to advise the Board of the effective date of the separation of Mr. Service. This request stems from the provisions of Executive Orders 9835 and 10241—which established the President's Loyalty Program—and the Regulations promulgated thereon. These Regulations are binding on the Department of State. 'The Department has advised the Chairman of the Loyalty Review Board that Mr. Service's employment has been terminated.' 9 65 Stat. 581. 10 60 Stat. 458. 11 See 61 Stat. 288, 62 Stat. 315, 63 Stat. 456, 64 Stat. 768, 65 Stat. 581, 66 Stat. 555. All of these provisions are referred to in this opinion as 'the McCarran Rider.' 12 The District Court's opinion is unreported. Actually, the Secretary could be considered to have power to discharge petitioner as he did only by virtue of the McCarran Rider. Petitioner was an officer in the Foreign Service of the United States, and as such was entitled to the protection of the Foreign Service Act of 1946, as amended. 22 U.S.C. § 801 et seq., 22 U.S.C.A. § 801 et seq. That statute authorizes the Secretary of State to separate officers from the Foreign Service 'for unsatisfactory performance of duty,' id., § 1007, or for 'misconduct or malfeasance,' id., § 1008. However, under both sections, an officer may not be separated without a hearing before the Board of the Foreign Service established by § 211 of the Act, 22 U.S.C. § 826, 22 U.S.C.A. § 826, and his unsatisfactory performance of duty or misconduct must be established at that hearing. No such hearing was ever afforded petitioner. Executive Order No. 9835 did not vest any additional authority in the heads of administrative agencies to discharge employees. It merely established new standards and procedures for effecting discharges under whatever independent legal authority existed for those discharges. Cf. Cole v. Young, 351 U.S. 536, 543—544, 76 S.Ct. 861, 866, 867, 100 L.Ed. 1396. The only statutory provision which could be deemed to authorize the Secretary to dismiss petitioner without observance of the provisions of the Foreign Service Act was therefore the McCarran Rider. The latter provision thus was an indispensable supplement to the Department's authority if it was to proceed against petitioner under the Loyalty-Security Regulations as it did. See 354 U.S. 376, 77 S.Ct. 1159, infra. 13 See Peters v. Hobby, supra, 349 U.S. at pages 342—343, 75 S.Ct. at pages 795, 796, 99 L.Ed. 1129. 14 U.S. Department of State, Manual of Regulations and Procedures (1949), § 390 et seq. 15 This qualification is without significance here in view of the fact that the petitioner's case before the Department was handled, down to the time of his discharge by the Secretary, under these Regulations. See 354 U.S. 376, 77 S.Ct. 1159, infra. Moreover, this phrase was deleted in the 1951 revision of the Regulations, as we note hereafter, 354 U.S. 376, 77 S.Ct. 1159, infra, and the respondents have insisted here that the 1951 revision is controlling, see 354 U.S. 382, 77 S.Ct. 1162, infra. 16 We follow the parties in this case in using interchangeably the terms 'Deputy Under Secretary' and 'Assistant Secretary—Administration.' When the Department's 1949 Regulations were promulgated, the official charged with duties under them was the 'Assistant Secretary—Administration.' At some time thereafter, however, that official's functions were apparently transferred to a Deputy Under Secretary. Cf. Act of May 26, 1949, §§ 3, 4, 63 Stat. 111, 22 U.S.C.A. § 811a, 5 U.S.C.A. § 151c. To avoid confusion, we have used exclusively the latter title in the text of this opinion, regardless of its technical correctness in the particular instance. 17 '391.1 Policy.' For the Department's 1951 Regulations see U.S. Department of State, Manual of Regulations and Procedures (1951), Vol. I, § 390 et seq. 18 'Department' is defined as including 'the Foreign Service of the United States.' § 391.3. 19 '391.2 Loyalty Authority,' and '391.3 Security Authority.' 20 This statute is referred to in the subsection as 'Public Law 733, 81st Congress,' being the Act of August 26, 1950, 64 Stat. 476, 5 U.S.C. §§ 22—1, 22—3, 5 U.S.C.A. §§ 22—1, 22—3, which gave to the State Department, among other departments and agencies of the Government, suspension and dismissal powers over their civilian employees when deemed necessary 'in the interest of the national security of the United States.' Cf. Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396. 21 Referred to in the subsection as 'General Appropriations Act, 1951, Section 1213, Public Law 759, 81st Congress.' B. The Administrative Proceedings in this Case. 22 S.Rep.No.2108, 81st Cong., 2d Sess., 15—16 (emphasis supplied). D. The President's Letter. 23 98 U.S.App.D.C. 271, 235 F.2d at page 218. 24 See note 11, supra. 25 I.e., § 19(c) of the Immigration Act of 1917, as amended: 'In the case of any alien (other than one to whom subsection (d) is applicable) who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may * * * suspend deportation of such alien if he is not ineligible for naturalization or if ineligible, such ineligibility is solely by reason of his race, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien; or (b) that such alien had resided continuously in the United States for seven years or more and is residing in the United States upon the effective date of this Act.' 62 Stat. 1206, 8 U.S.C. (1946 ed., Supp. V) § 155(c), now 8 U.S.C.A. § 1254. 26 See 354 U.S. 368, 369, 77 S.Ct. 1155, supra. 27 This notice read: 'My Dear Mr. Service: 'The Secretary of State was advised today by the Chairman of the Loyalty Review Board of the U.S. Civil Service Commission that the Loyalty Review Board has found that there is a reasonable doubt as to your loyalty to the Government of the United States. This finding was based on the intentional and unauthorized disclosure of documents and information of a confidential and nonpublic character within the meaning of subparagraph d of Paragraph 2 of Part V of Executive Order 9835, as amended. The Loyalty Review Board further advised that it found no evidence of membership on your part in the Communist Party or in any organizations on the Attorney General's list. 'Pursuant to the foregoing, the Secretary of State, under the authority of Executive Order 9835, as amended, and Section 103 of Public Law 188, 82nd Congress, has directed me to terminate your employment in the Foreign Service of the United States as of the close of business December 14, 1951. 'In view thereof, you are advised that your employment in the Foreign Service of the United States is hereby terminated effective (at the) close of business December 14, 1951.' 28 The respondents argue that the proper rule to be applied is that of Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327, holding that a change in the applicable law after a case has been decided by a nisi prius court, but before decision on appeal, requires the appellate court to apply the changed law. And see Ziffrin, Inc. v. United States, 318 U.S. 73, 63 S.Ct. 465, 87 L.Ed. 621. 29 Petitioner argues that the decisions cited in note 28, supra, are not in point here because, inter alia, the changed regulations were invalid as to him under the Federal Register Act, 49 Stat. 502, 44 U.S.C. § 307, 44 U.S.C.A. § 307, and the Administrative Procedure Act, 60 Stat. 238, 5 U.S.C. § 1002, 5 U.S.C.A. § 1002, because not published in the Federal Register. 30 §§ 394.13, 394.15, 395.1. 31 §§ 395.1, 395.53. 32 §§ 395.6, 396.11. 33 §§ 396.2, 396.3. 34 §§ 396.4, 396.5. 35 That this was understood to be the effect of the Regulations is indicated by Department of State Press Release No. 247, March 13, 1950, which is reprinted in S.Rep. No. 2108, 81st Cong., 2d Sess. 254. Deputy Under Secretary of State John E. Peurifoy is there quoted as stating, in reply to charges made on the floor of the Senate: '* * * I am in full charge of loyalty matters and * * * am fully prepared to deal with these charges. 'Gen. George C. Marshall, as Secretary of State, vested in me full responsibility and authority for carrying out the loyalty and security program of the Department of State, and I have continued to exercise the same responsibility and authority under Secretary Dean Acheson. 'My decisions on matters of loyalty and security within the Department are final, subject, however, under the law, in certain instances to appeal to the Secretary and the President's Loyalty Review Board. Since the loyalty and security program was launched in the Department, however, there has not been a single instance in which a decision made by me has been reversed or overruled in any way by Secretary Acheson.' (Emphasis supplied.) 36 Section 396.7 of the Regulations provided: 'If the Assistant Secretary—Administration or the Secretary of State shall, during his consideration of any case, decide affirmatively that an officer or employee is not disloyal and does not constitute a security risk and that his case should be closed, such officer or employee shall be restored to duty, if suspended, and the record shall show such decision.' In holding as we do we by no means imply that under these Regulations the action of the Deputy Under Secretary had the effect of 'closing' petitioner's case irrevocably and beyond hope of recall. No doubt proper steps could have been taken to reopen it in the Department. But, consistent with his Regulations, we think that the Secretary could in no event have discharged the petitioner, as he did here, without the required action first having been taken by the Department's Loyalty Security Board and the Deputy Under Secretary. 37 In view of this conclusion, it becomes unnecessary to consider the other respects in which petitioner claims that his discharge contravened the 1949 Regulations. B. The 1951 Regulations. 38 See 354 U.S. 375, 376, 77 S.Ct. 1158, supra. 39 See 354 U.S. 368, 369, 77 S.Ct. 1155, supra. 40 We do not, of course, imply that the Regulations precluded the Secretary from discharging any individual without personally reading the 'complete file' and considering 'all the evidence.' No doubt the Secretary could delegate that duty. But nothing of the kind appears to have been done here. 41 See note 20, supra. 42 Sections 393.2 and 393.3 further refined the standard by defining five classes of persons constituting security risks, and listing five factors which were to be taken into account, together with possible mitigating circumstances. 43 Because of this conclusion it is unnecessary to deal with the other respects in which petitioner claims his discharge violated the 1951 Regulations.

23

354 U.S. 416 77 S.Ct. 1360 1 L.Ed.2d 1456 Cornelius VANDERBILT, Jr., Petitioner,v.Patricia W. VANDERBILT and Thomas F. McCoy, Receiver and Sequestrator. No. 302. Argued April 22, 23, 1957. Decided June 24, 1957. Mr. Sol A. Rosenblatt, New York City, for petitioner. Mr. Monroe J. Winsten, New York City, for respondents. Mr. Justice BLACK delivered the opinion of the Court. 1 Cornelius Vanderbilt, Jr., petitioner, and Patricia Vanderbilt, respondent, were married in 1948. They separated in 1952 while living in California. The wife moved to New York where she has resided since February 1953. In March of that year the husband filed suit for divorce in Nevada. This proceeding culminated, in June 1953, with a decree of final divorce which provided that both husband and wife were 'freed and released from the bonds of matrimony and all the duties and obligations thereof. * * *'1 The wife was not served with process in Nevada and did not appear before the divorce court. 2 In April 1954, Mrs. Vanderbilt instituted an action in a New York court praying for separation from petitioner and for alimony. The New York court did not have personal jurisdiction over him, but in order to satisfy his obligations, if any, to Mrs. Vanderbilt, it sequestered his property within the State.2 He appeared specially and, among other defenses to the action, contended that the Full Faith and Credit Clause of the United States Constitution3 compelled the New York court to treat the Nevada divorce as having ended the marriage and as having destroyed any duty of support which he owed the respondent. While the New York court found the Nevada decree valid and held that it had effectively dissolved the marriage, it nevertheless entered an order, under § 1170—b of the New York Civil Practice Act,4 directing petitioner to make designated support payments to respondent. 207 Misc. 294, 138 N.Y.S.2d 222. The New York Court of Appeals upheld the support order. 1 N.Y.2d 342, 135 N.E.2d 553. Petitioner then applied to this Court for certiorari contending that § 1170—b, as applied, is unconstitutional because it contravenes the Full Faith and Credit Clause.5 We granted certiorari, 352 U.S. 820, 77 S.Ct. 67, 1 L.Ed.2d 45. 3 In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, this Court decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband's obligation to provide her support as required in a pre-existing New York separation decree. The factor which distinguishes the present case from Estin is that here the wife's right to support had not been reduced to judgment prior to the husband's ex parte divorce. In our opinion this difference is not material on the question before us. Since the wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of New York to financial support from her husband. It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.6 Here, the Nevada divorce court was as powerless to cut off the wife's support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court's jurisdiction. Therefore, the Nevada decree, to the extent it purported to affect the wife's right to support, was void and the Full Faith and Credit Clause did not obligate New York to give it recognition.7 4 Petitioner claims that this case is governed by Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347. For the reasons given in a concurring opinion in Armstrong v. Armstrong, 350 U.S. 568, 575, at 580—581, 76 S.Ct. 629, 636, 100 L.Ed. 705, the Thompson case, insofar as it held that an ex parte divorce destroyed alimony rights, can no longer be considered controlling. 5 Affirmed. 6 The CHIEF JUSTICE took to part in the consideration or decision of this case. 7 Mr. Justice FRANKFURTER, dissenting. 8 The question in this case is whether Nevada, which was empowered to grant petitioner a divorce without personal jurisdiction over respondent that must be respected, by command of the Constitution, by every other State, Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, was at the same time empowered by virtue of its domiciliary connection with petitioner to make, incidental to its dissolution of the marriage, an adjudication denying alimony to which sister States must also give full faith and credit. Whatever the answer to the question may be, Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, does not supply it. What the Court now states to be 'not material' was crucial to the decision in that case, namely, the prior New York support order, which the Court held Nevada was required to respect by virtue of the Full Faith and Credit Clause, Art. IV, § 1, of the Constitution. That this fact was crucial to the Court's decision in that case is made clear by the Court's reference to the prior New York judgment in its two statements of the question presented more than a half dozen times throughout the course of its opinion. The Court rightly regarded the fact as crucial because of the requirement of Art. IV, § 1, that Nevada give full faith and credit to the prior New York 'judicial Proceedings.' 9 The Court now chooses to regard the existence of a prior New York support order as 'not material,' holding for the first time that 'the Nevada divorce court had no power to extinguish any right which (respondent) had under the law of New York to financial support from her husband. It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant (citing for this proposition, Pennoyer v. Neff, 95 U.S. 714, 726—727, 24 L.Ed. 565).' We have thus reached another stage—one cannot say it is the last—in the Court's tortuous course of constitutional adjudication relating to dissolution of the marriage status. Whereas previously only the State of 'matrimonial domicile' could grant an ex parte divorce and alimony, now any domiciliary State can grant an ex parte divorce, but no State, even if domiciliary, can grant alimony ex parte when it grants a divorce ex parte. 10 It will make for clarity to give a brief review of the singular history of matrimonial law in this Court since the decision in Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794. In that case, the Court held that a sister State had to give full faith and credit to a divorce granted, on the basis of constructive service, by the matrimonial domicile to a deserted husband. In Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, the Court refused to extend Atherton, holding that a State need not give full faith and credit to a divorce granted ex parte to a deserted husband by a domiciliary State other than the matrimonial domicile. These precedents were applied to the incidental claim to alimony in Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347, where the Court held that full faith and credit was to be given to the refusal of the matrimonial domicile to grant alimony when it granted a divorce on the basis of substituted service. Under the pre-Williams law, then, the same jurisdictional rules applied to the dissolution of the marriage tie and to an incidental adjudication denying alimony. Not only the adjudication of divorce but also the adjudication denying alimony by the matrimonial domicile was required to be given full faith and credit despite the lack of personal jurisdiction over the other spouse. 11 In Williams v. State of North Carolina, I, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, the scope of Art. IV, § 1, was found to require full faith and credit to be given to a divorce granted ex parte by any State where one spouse was domiciled. The limitation of ex parte divorces to the matrimonial domicile imposed by Hoddock v. Haddock was rejected as being based on 'fiction.' Williams v. State of North Carolina, II, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, made it clear that full faith and credit was required to be given only if the granting State was actually a domiciliary State, that the finding on this issue could not be foreclosed by the decreeding State, and that it could be readjudicated later by another State. But this restriction of Williams II was considerably weakened when the Court held that a sister State, no matter how great its interest because of its own social policy, was precluded from relitigating the existence of the jurisdictional facts underlying a divorce when both parties had merely made an appearance in the original divorce proceeding. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, and Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451. This was so even if the collateral attack were made by a third party who had not appeared in the original proceeding and who had independent interests. Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552. 12 The decisions from Williams I through Johnson resulted in a broad extension of the scope of the Full Faith and Credit Clause. Haddock v. Haddock was rejected, not because it gave too little respect to the rights of the absent spouse, but rather because it gave too much respect to those rights, and not enough to the rights of the other spouse and his or her domiciliary State. The interests of the absent spouses were subordinated to the interests of the other spouses and their domicile of divorce in Williams I, and the interests of a State that was allegedly both pre-divorce and post-divorce domicile were subordinated to the interest of the temporary 'domicile' of divorce in Sherrer and Coe. 13 One might have expected that since Thompson v. Thompson, supra, was based on Haddock v. Haddock, it would have suffered the same fate. But no. The law is not so logical. The Court shrinks from applying Williams I to Thompson. In fact, we are now told that the vice of Thompson v. Thompson is just the opposite of that of Haddock v. Haddock: Thompson paid too little respect to the rights of the absent spouse and too much to the rights of the other spouse and his domicile. And so, as compensation, the interests of the absent spouse, which the Court subordinated so far as the breaking up of the marital relation was concerned in Williams I, are now to be enlarged, so far as alimony is concerned. The requirement of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, that there must be personal jurisdiction in an action to recover a judgment for personal services rendered, was before the Court in Haddock, in Thompson, and in Williams I. Although it was found in all three cases not to be applicable to the unique interests and factors pertaining to the severance of the marriage status and the incidental determination denying alimony, it is now treated as a controlling precedent. 14 A normal action for divorce comprehends dissolution of the marital relation and, incident thereto, a property arrangement between the parties. I stand on the Williams decisions; and so I start from the proposition that full faith and credit must be given to an ex parte divorce granted by a State that is the domicile of one of the parties. The only legal question for our concern in this case is whether the other aspect of, and indeed an incident to, a proceeding for divorce, the property arrangement, is similar enough to the dissolution of the marital relation, with respect to both the interests of the parties and the nature of what is adjudicated, that constitutionally it may be treated alike. 15 Haddock v. Haddock and Thompson v. Thompson proceeded on the basis that they should be treated alike. The Court, however, solves all with the statement, 'It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.' This is an artful disguise for labeling the action with the question-begging phrase, 'in personam.' A dogmatic, unanalyzed disregard of the difficulties of a problem does not make the problem disappear. Strictly speaking, all rights eventually are 'personal.' For example, a successful suit in admiralty against a ship results of course not in loss to the ship but to its owner. The crucial question is: what is the fair way to proceed against these interests? May a State deal with the dissolution of a marriage comprehensively, or must it chop up the normal incidents of the cause of action for divorce? 16 No explanation is vouchsafed why the dissolution of the marital relation is not so 'personal' as to require personal jurisdiction over an absent spouse, while the denial of alimony incident thereto is. Calling alimony a 'personal claim or obligation' solves nothing. I note this concern for 'property rights,' but I fail to see why the marital relation would not be worthy of equal protection, also as a 'personal claim or obligation.' It may not be translatable into dollars and cents, but that does not make it less valuable to the parties. It cannot be assumed, by judicial notice as it were, that absent spouses value their alimony rights more highly than their marital rights. Factually, therefore, both situations involve the adjudication of valuable rights of an absent spouse,1 and I see no reason to split the cause of action and hold that a domiciliary State can ex parte terminate the marital relation, but cannot ex parte deny alimony. 'Divisible divorce' is just name-calling.2 I would therefore hold that Nevada had jurisdiction to make the determination it made with respect to alimony and that New York must give full faith and credit to the whole Nevada judgment, not just to the whole Nevada judgment, not just to part of it. 17 It should also be noted that the Court's decision, besides turning the constitutional law of marital relations topsyturvy, has created numerous problems whose solution is far from obvious. The absent spouse need no longer appear in the divorcing State in order to be present when an adjudication is made. She (or he) may sue wherever she can serve the other spouse or attach his property. What will happen in States that grant alimony only as incident to a divorce? Most States do not have statutes like the New York statute involved in the present case. Would this Court require any State in which one spouse catches another to entertain a cause of action for alimony? This is a far cry from what was involved in Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212. Also, it is not even settled what the relation of a State to an ex-wife and an ex-husband must be for the State, as a matter of due process, to be able to grant support on the basis that the parties were once man and wife. 18 Another view, agreeing that Nevada can adjudicate alimony ex parte incident to its granting a divorce ex parte, at least for purposes of its own law, would then hold that New York is not compelled to give full faith and credit to the valid Nevada judgment. 'New York's law and policy is,' so the argument runs, 'that the right of a married woman domiciled in New York to support survives an ex parte divorce, whether obtained in New York or elsewhere. * * * The interest of New York in her domiciliaries seems * * * to be of sufficient weight to justify allowing her to apply her own policy on the question of what effect ex parte divorces will be given as against the surviving support rights of her own domiciliaries.' 19 To begin with, it cannot be pretended that New York is not discriminating against alimony adjudications in all out-of-state ex parte divorces, for a divorce granted to a husband in New York against a wife who is not served personally in New York is not ex parte if the wife is a New York domiciliary. Her domicile provides a basis of jurisdiction that would be sufficient in an ordinary non-matrimonial action. See Williams v. State of North Carolina, I, 317 U.S. 287, 298—299, 63 S.Ct. 207, 213, 87 L.Ed. 279; Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278. 20 To go to the heart of the matter, the Full Faith and Credit Clause is itself a constitutional adjustment of the conflicting interests of States, and we are not free, by weighing contending claims in particular cases, to make readjustments of the conflicting interests as if the Full Faith and Credit Clause did not exist. The clause requires that 'Full Faith and Credit shall be given in each State to the * * * Judicial Proceedings of every other State.' See also 28 U.S.C. § 1738, 28 U.S.C.A. s 1738. It is true that the commands of the Full Faith and Credit Clause are not inexorable in the sense that exceptional circumstances may relieve a State from giving full faith and credit to the judgment of a sister State because 'obnoxious' to an overriding policy of its own. But such instances 'have been few and far between, apart from Haddock v. Haddock.' See Williams v. State of North Carolina, I, 317 U.S. 287, 294—295, 63 S.Ct. 207, 211. 21 Of course New York has substantial connection with a domiciliary who has been divorced ex parte in Nevada, but that provides no justification for allowing it to refuse to give full faith and credit to that part of the Nevada judgment denying alimony. A State desiring to deny full faith and credit to the judgment of another State almost always has such a connection. Whatever the unusual circumstances that may justify making an exception to the requirements of the Full Faith and Credit Clause, this case does not present them because, for the reasons I have already stated, no stronger state policy can be urged in this case than was overridden in Williams I. Blanket discrimination against ex parte alimony decrees of sister States therefore subordinates the requirements of the Full Faith and Credit Clause to the policy of New York. 22 To justify the New York law as a 'mere survival of a pre-existing right' is only another proof that 'the word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion.' American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 500, 65 L.Ed. 983. There can be no 'right' until the termination of the marriage, and the whole question in the case is which State shall be able to determine the indicents of the dissolution of the marriage status. Nor is analysis furthered by analogizing the 'right' to alimony to the dower 'right,' thence sliding to the conclusion that since New York would not have to recognize a Nevada decree cutting off dower, it does not have to recognize the Nevada decree cutting off alimony. The differences between a 'right' to alimony and a dower 'right' are so decisive that I need not spell out why an assumed decision with respect to dower does not reach our problem. 23 We are also told that 'the interest of the wife in not becoming single and penniless is greater than her interest in not becoming single.' This is doubtless a correct statement of fact and might furnish a basis for legislation of a kind not at issue in this case, since the New York law is based on its right to disregard all ex parte alimony decrees and not on an interest it may have in the indigent condition of former wives.3 24 For me, the rigorous commands of the Full Faith and Credit Clause are determinative. I cannot say that the Nevada judgment denying alimony is more 'obnoxious' to New York policy (as expressed in § 1170—b of its Civil Practice Act) than its judgment of divorce. Since New York is required to give full faith and credit to the one, it is to the other. 25 Mr. Justice HARLAN, dissenting. 26 The Court holds today, as I understand its opinion, that Nevada, lacking personal jurisdiction over Mrs. Vanderbilt, had no power to adjudicate the question of support, and that any divorce decree purporting so to do is to that extent wholly void presumably in Nevada as well as in New York—under the Due Process Clause of the Fourteenth Amendment, pursuant to the doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. 27 I cannot agree with such a holding. In the first place, as I see this case, there is no necessity to pass on this question at all. Our problem should be, initially at least, not whether this decree, insofar as it affects property, is 'void' for lack of due process, but whether it binds New York under the Full Faith and Credit Clause. In other words, we need not, in the first instance, decide what the Due Process Clause forbids Nevada to do, but merely what the Full Faith and Credit Clause compels New York to do. One of the wisest of our constitutional commentators has warned us to beware the 'constricting necessitarianism' of deeming the two questions to be one and the same: 28 'In a problem so fraught with infelicities whatever mediation is devised, there is wisdom in confining pronouncements closely to what is imperative in the particular case. It is not logically necessary to deny Nevada's mastery within her own boundaries in order to deny her power of projection beyond them. Freedom of home manufacture and consumption does not necessarily entail freedom of export. Only if it is inexorable that what is meant by 'jurisdiction' must be either wholly absent or wholly unlimited need frailty in sister states be conditioned on total impotence at home.' T. R. Powell, And Repent at Leisure, 58 Harv.L.Rev. 930, 936. 29 Were we compelled to reach the question, I would by no means be ready to hold that Nevada, in connection with a valid divorce proceeding, had no power to adjudicate an incident so inextricably knit to the marriage status as is support. I would agree with Judge Fuld, dissenting below, that the denial of power to Nevada rests on the 'erroneous premise that a mere incident of the marital status, which 'in itself furnishes no foundation for a cause of action' * * * is the equivalent of an independent right.'1 Nor does it help to label Mrs. Vanderbilt's claim to support a 'property' right and therefore an in personam, rather than an in rem, matter. If it is due process for Nevada to adjudicate the marriage status of a domiciliary without personal service over the absent spouse (as it clearly is, see Williams v. State of North Carolina, I, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279), I see no reason why Nevada cannot, at least for the purposes of her own law, also adjudicate the incidents of that status. 30 I do not think, however, that this forecloses the issue before us. I revert, therefore, to what, for me, is the real question in this case: must New York respect Nevada's decree insofar as it purports to adjudicate the question of support? The answer to this question, I think, turns squarely on an issue of New York law, namely, whether Mrs. Vanderbilt was domiciled in New York at the time of the divorce. 31 If Mrs. Vanderbilt was a New York domiciliary at the time of the divorce, the situation would seem to me to be as follows: New York's law and policy is that the right of a married woman domiciled in New York to support survives an ex parte divorce, whether obtained in New York or elsewhere. The only question under the Full Faith and Credit Clause is whether New York is compelled to disregard her own law and policy in favor of the law of Nevada on the question of the survival of support rights subsequent to an ex parte divorce. My answer to this question is 'no.' The interest of New York in her domiciliaries seems to me to be of sufficient weight to justify allowing her to apply her own policy on the question of what effect ex parte divorces will be given as against the surviving support rights of her own domiciliaries. In my view it does not follow automatically that merely because New York must recognize the validity of Nevada's ex parte divorce, she must also recognize the effect Nevada would give to that divorce in connection with the wife's rights to support. The two questions are governed by different considerations. I quote again from Professor Powell: 32 'The 'irreconcilable conflict' between two states on the question of marital status is not so insuperable in dealing with matters of money. It is less irksome to support two wives than to go to jail because of them. Though with respect to status one state or the other must yield, with respect to maintenance such yielding is not necessary. 33 '* * * The problem under the full faith and credit clause is to accommodate as fully as possible the conflicting interests of the two States.' The solution is a matter of judgment in each case, judgment based not only on the particularities of the individual case or type of case but upon the desirability of as much generality and predictability as is consistent with a fair degree of control by a state over the conduct and the relationships of persons who in every substantial sense are its own home folks. * * * 34 '(It is argued) that the state where the stay-behind spouse has long been domiciled has an interest in making a quondam husband continue a prior obligation to support her, and that this interest is stronger and more meritorious than any possible opposing interest to prevent it that can be accredited to the state which gave him a divorce after being blindly satisfied that he intended an indefinite stay there. This seems so sensible that is should be obvious to any one who had never become confused by studying law.' Powell, supra, at 952, 954—955. 35 In effect, the situation before us seems to me to be analogous to dower. If New York law should provide that the dower rights of her domiciliaries survive ex parte divorces, I would suppose that New York could give effect to that policy in spite of an ex parte Nevada divorce which purported to cut off the right to dower. The problem in each case is to weigh the policy of giving an ex parte judgment uniform effect throughout the nation, against the interest of a particular State in a particular local policy. Where status is concerned, this Court held that the interest in certainty as to whether one is married or single outweighs the interest of home States in the marital status of their domiciliaries, so that North Carolina was forced to swallow Nevada's views as to what is sufficient cause for divorce even though the North Carolina wife had not appeared in the Nevada proceeding. Williams, I, supra. But I see no reason why we should extend that, for me, already somewhat unpalatable mediation to the limits of its logic in order to hold that Nevada's views as to support as well as divorce must be forced onto other States, and that Nevada can not only compel wives domiciled elsewhere to become single against their will, but to be pauperized against their will as well. Of course, the reason for the distinction is not that the wife's right to support is 'worth' more than her interest in remaining a wife. But the interest of the wife in not becoming single and penniless is greater than her interest in not becoming single. In other words, merely because it is held that the wife must be deprived of one benefit ex parte, in the interest of national uniformity, does not compel us to hold that the other benefit must vanish with it, where the interest in national uniformity is not as compelling.2 36 In deciding this case we must always remember that the reason why the Nevada ex parte divorce has the effect of a judgment in New York even on the question of status is because this Court found, in measuring the competing interests, that uniformity should prevail. It will not do, therefore, to say that once that is done the Court is foreclosed from weighing competing interests in determining the effect of the Nevada adjudication as to questions other than status. One cannot rest on the inexorability that the Nevada decree is a 'judgment' and eliminate the fact that it was held to be a judgment outside Nevada as to status for reasons which do not necessarily apply to the question of support, any more than one can solve the problem by labeling support as a 'property' right.3 37 Quite a different case is presented, it seems to me, where a wife becomes a domiciliary of New York after the ex parte divorce and is then granted support. In such a case New York could not pretend to be assuring the wife the mere survival of a pre-existing right, because the wife could have had no predivorce rights in New York at all. New York would merely be granting the wife a marital right in the teeth of a valid Nevada adjudication that there is no marriage. And, of course, at the time of the divorce New York would have had no interest in the situation of any kind. In such a case, therefore, it seems to me that the Full Faith and Credit Clause would require New York to respect the Nevada judgment as to support rights. Furthermore, even aside from the judgment, as a matter of choice of law I should think New York would be forced to look to the law of a State which had a substantial contact with these parties at the time of the divorce in determining the effect to be given to the divorce decree. It seems to me unfortunate that this Court should permit spouses divorced by valid decrees to comb the country, after the divorce, in search of any State where the divorcing spouse has property and which has favorable support laws, in order there to obtain alimony. I would therefore by no means hold the Nevada adjudication 'void' and therefore of no effect in any State.4 38 Thus decision here, as I see it, turns on the domicile of Mrs. Vanderbilt at the time of the divorce. On this question I am left in some doubt. Section 1165—a of the New York Civil Practice Act makes one year's residence necessary to suits for support. This is amenable to the interpretation that New York would not recognize Mrs. Vanderbilt as domiciled in that State until the lapse of a year, that is, after the decree of divorce here involved. See de Meli v. de Meli, 120 N.Y. 485, 24 N.E. 996. On the other hand, the opinion below intimates that the oneyear residency can be regarded as merely a procedural prerequisite to filing suit under § 1170—b, and does not affect Mrs. Vanderbilt's status as a domiciliary of New York ab initio.5 In view of this uncertainty in the state law, I would remand to the state court for reconsideration in light of the above-stated principles. 1 It seems clear that in Nevada the effect of this decree was to put an end to the husband's duty to support the wife provided, of course, that the Nevada courts had power to do this. Sweney v. Sweeney, 42 Nev. 431, 438—439, 179 P. 638, 639—640; Herrick v. Herrick, 55 Nev. 59, 68, 25 P.2d 378, 380. See Estin v. Estin, 334 U.S. 541, 547, 68 S.Ct. 1213, 1217, 92 L.Ed. 1561. 2 See Pennington v. Fourth Nat. Bank of Cincinnati, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713; Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023. 3 Art. IV, § 1. 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.' Congress has provided that judgments shall have the same force and effect in every court throughout the United States that they have in the State where they were rendered. 28 U.S.C. § 1738, 28 U.S.C.A. § 1738. 4 'In an action for divorce, separation or annulment, * * * where the court refuses to grant such relief by reason of a finding by the court that a divorce * * * declaring the marriage a nullity had previously been granted to the husband in an action in which jurisdiction over the person of the wife was not obtained, the court may, nevertheless, render in the same action such judgment as justice may require for the maintenance of the wife.' Gilbert-Bliss' N.Y. Civ.Prac., Vol. 6A, 1956 Cum.Supp., § 1170—b. 5 The petition for certiorari also raised a number of other contentions. We have considered them and find that they do not justify reversing the decision below. 6 Pennoyer v. Neff, 95 U.S. 714, 726—727, 24 L.Ed. 565. If a defendant has property in a State it can adjudicate his obligations, but only to the extent of his interest in that property. Pennington v. Fourth Nat. Bank of Cincinnati, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713; Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023. 7 A concurring opinion in Armstrong v. Armstrong, 350 U.S. 568, 575, 76 S.Ct. 629, 633, 100 L.Ed. 705, and the authorities collected there, set forth in greater detail the reasons underlying this holding. Cf. Meredith v. Meredith, 96 U.S.App.D.C. 355, 226 F.2d 257, 69 Harv.L.Rev. 1497. 'A state lacks judicial jurisdiction to absolve a spouse from any duty of support which, under the law of a second state, he may owe the other spouse in the absence of personal jurisdiction over the latter.' Restatement, Conflict of Laws, § 116(2) (Tent. Draft No. 1, 1953), and see Comment f to § 116. 1 Custody over children presents an entirely different problem. See May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. The interests of independent human beings, the children, are involved. Also, insofar as the spouses' interests are concerned, the divorce may terminate their relations with each other as husband and wife, but it cannot terminate their relation to their children. They are still parents 2 'The deceptive appeal of the phrase 'divisible divorce' should not be permitted to obscure the basic concepts involved. A finding of divisibility may be appropriate where, as in Estin, the particular right at issue is a distinct property right, embodied in a previously granted judgment, which is no longer dependent, for its recognition or enforcement, upon the marital relationship, or where, as in Armstrong, the court rendering the divorce has itself severed the issue of support and left it subject to separate adjudication in the future. The situation is, however, decidedly different where, as in the case before us, the claim asserted depends for its very existence on the continuance of the marital status and that status and its incidents have both been terminated by a jurisdictionally valid judgment of divorce.' Judge Fuld, dissenting in this case in the New York Court of Appeals, 1 N.Y.2d 342, 356—357, 135 N.E.2d 553, 561. I would add that the concept of 'divisible divorce' is a misnomer. The divorce is not divisible. It is the cause of action for terminating the marital relation and making a property arrangement that is divided. 3 We are not told what a third State is to do if suit is brought there. Does New York or Nevada law control? Since, under this view, the husband's ex parte judgment denying alimony to the wife is a valid one, at least in Nevada, I would suppose that the wife could get a support judgment ex parte in New York. Then, there would be not merely a problem of choice of law in the third State, which has no domicilliary connection with either party, but rather a question of which judgment is entitled to full faith and credit in the third State. 1 1 N.Y.2d 342, 357, 135 N.E.2d 553, 561. 2 'It is easier to have a flat rule than to make distinctions based on judgment. Yet, from the standpoint of partitioning power among the several states, there may well be wisdom in having a gap between what due process will not forbid and what full faith and credit will not require. Certainly in suits over property and money there may be grounds that are thought good enough to justify a state in exerting its power so far as it relies wholly on its own strength and yet not so good that other states should be bound to lend a hand.' Powell, supra, at 936; and see id., n. 14. 3 For the most compendious exposition of the many situations where this Court has held that the Full Faith and Credit Clause does not demand automatic respect in a sister State for a judgment valid in the State where rendered, see the dissent of Mr. Justice Stone and Mr. Justice Cardozo in Yarborough v. Yarborough, 290 U.S. 202, 213, 54 S.Ct. 181, 185, 78 L.Ed. 269. There can hardly be dispute over the proposition that 'in the assertion of rights, defined by a judgment of one state, within the territory of another, there is often an inescapable conflict of interest of the two states, and there comes a point beyond which the imposition of the will of one state beyond its own borders involves a forbidden infringement of some legitimate domestic interest of the other. That point may vary with the circumstances of the case; and in the absence of provisions more specific than the general terms of the congressional enactment, this Court must determine for itself the extent to which one state may qualify or deny rights claimed under proceedings or records of other states.' Id., 290 U.S. at page 215, 54 S.Ct. at page 186 (footnotes omitted). 4 See Morris, Divisible Divorce, 64 Harv.L.Rev. 1287. 5 I draw that implication from the following passage in the opinion of the Court of Appeals: 'But when the husband, abandoning his wife, left their California domicile to establish a Nevada domicile for his own purposes, the abandoned wife had a right to set up a New York domicile for herself and bring the matrimonial domicile to New York with her. * * * That right she exercised in this instance before the Nevada judgment was entered and she satisfied New York's residence requirements before suing for a separation * * *. We need not decide whether she would have the same right to come into New York, even after a foreign-State divorce, to take advantage of section 1170—b.' 1 N.Y.2d at page 351, 135 N.E.2d at page 557.

34

354 U.S. 457 77 S.Ct. 1344 1 L.Ed.2d 1485 Lloyd MOREY, Auditor of Public Accounts of the State of Illinois, Latham Castle, Attorney General of the State of Illinois, and Benjamin S. Adamowski, State's Attorney of Cook County, Illinois, Appellants,v.George W. DOUD et al., Doing Business as Bondified Systems, et al. No. 475. Argued April 24, 1957. Decided June 24, 1957. Mr. William C. Wines, Asst. Atty. Gen. of Illinois, Chicago, Ill., for appellants. Mr. G. Kent Yowell and John J. Yowell, Chicago, Ill., for appellees. Mr. Justice BURTON delivered the opinion of the Court. 1 This case concerns the validity of a provision in the Illinois Community Currency Exchanges Act, as amended,1 excepting money orders of the American Express Company from the requirement that any firm selling or issuing money orders in the State must secure a license and submit to state regulation. The objection raised is that this exception results in a denial of equal protection of the laws, guaranteed by the Fourteenth Amendment to the Constitution of the United States, to those who are subjected to the requirements of the Act. For the reasons hereafter stated, we hold that the Act is invalid as applied to them because of this discriminatory exception. 2 The appellees in this case are Doud, McDonald and Carlson, partners doing business as Bondified Systems, and Derrick, their agent. The partnership has an exclusive right to sell 'Bondified' money orders in Illinois, directly or through agents.2 It contemplates selling these money orders in Illinois through agents principally engaged in operating retail drug or grocery stores. Derrick is the proprietor of a drug store in Illinois and operates a 'Bondified' agency in that store. 3 Fearing enforcement against them of the provisions of the Act, these four individuals instituted this suit in the United States District Court for the Northern District of Illinois against the appellants, who are the Auditor of Public Accounts of the State of Illinois, the Attorney General of that State, and the State's Attorney of Cook County. The complaint alleged that the Act violated the Equal Protection Clause of the Fourteenth Amendment in that it unlawfully discriminated against the complainants and in favor of the American Express Company. An injunction against the enforcement of the Act was sought. Since the complaint attacked the validity of a state statute under the Constitution of the United States, the case was heard by a three-judge District Court, pursuant to 28 U.S.C. §§ 2281, 2284, 28 U.S.C.A. §§ 2281, 2284. 4 After hearing evidence, the District Court dismissed the complaint on the ground that it lacked jurisdiction to determine the constitutional question in the absence of an authoritative determination of that question by the Supreme Court of Illinois. Doud v. Hodge, 127 F.Supp. 853. On appeal, this Court held that the District Court erred in dismissing the case for lack of jurisdiction, and remanded it to the District Court. 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577. 5 On remand, the District Court considered on the merits the evidence previously heard, and unanimously held that the Act violated the Equal Protection Clause and that appellees were entitled to the relief sought. 146 F.Supp. 887.3 The decree enjoined appellants from enforcing the Act against appellees so long as they engage only in the business of issuing and selling money orders. The case came here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we noted probable jurisdiction. Morey v. Doud, 352 U.S. 923, 77 S.Ct. 224, 1 L.Ed.2d 159. 6 During the early 1930's, the closing of many banks in the Chicago area led to the development of simple banking facilities called currency exchanges. The principal activities of these exchanges were the cashing of checks for a fee and the selling of money orders. The fact that many of these exchanges went into business without adequate capital and without sufficient safeguards to protect the public resulted in the enactment of the Illinois Community Currency Exchanges Act in 1943. 7 This Act and its amendments provide a comprehensive scheme for the licensing and regulation of currency exchanges. The operation of a community currency exchange without a license is made a crime. § 32. An applicant for a license must submit specified information and pay an investigation fee of $25. § 34. A license cannot be issued unless the State Auditor determines that its issuance will 'promote the convenience and advantage of the community in which the business of the applicant is proposed to be conducted * * *.' § 34.1.4 A surety bond of between $3,000 and $25,000, and an insurance policy of between $2,500 and $35,000 must be filed. §§ 35, 36. An annual license fee of $50 is required. § 44. 8 A licensed exchange must maintain a minimum of $3,000 available in cash for the uses and purposes of its business, plus an amount of liquid funds sufficient to pay on demand all outstanding money orders issued. § 37. Each exchange must be an entity, financed and conducted as a separate business unit, and not conducted as a department of another business. No community currency exchange 'hereafter licensed for the first time shall share any room with any other business, trade or profession nor shall it occupy any room from which there is direct access to a room occupied by any other business, trade or profession.' § 38. Only one place of business may be maintained under one license, although more than one license may be issued to a licensee. § 43. Annual financial reports must be submitted and the State Auditor has a duty to investigate each exchange at least once a year. A fee of $20 must be paid for each day or part thereof of investigation. § 46. 9 The following definition of a 'community currency exchange' is crucial to this case: 10 "Community currency exchange' means any person, firm, association, partnership or corporation, except banks incorporated under the laws of this State and National Banks organized pursuant to the laws of the United States, engaged at a fixed and permanent place of business, in the business or service of, and providing facilities for, cashing checks, drafts, money orders or any other evidences of money acceptable to such community currency exchange, for a fee or service charge or other consideration, or engaged in the business of selling or issuing money orders under his or their or its name, or any other money orders (other than United States Post Office money orders, American Express Company money order(s), Postal Telegraph Company money orders, or Western Union Telegraph Company money orders), or engaged in both such businesses, or engaged in performing any one or more of the foregoing services.' (Emphasis supplied.) § 31.5 11 As the activities of appellees concededly come within this definition of a 'community currency exchange,' the partnership and its druggist agent are subject to the licensing and regulatory provisions of the Act. Consequently, since the Act bars the sale of money orders as a part of another business, the partnership is precluded from establishing outlets for the sale of 'Bondified' money orders in drug and grocery stores, and Derrick is unable to secure a license for the sale of those money orders in his store. § 38. Even if the partnership establishes outlets which are not a part of other businesses, those outlets will be licensed to sell 'Bondified' money orders only if they show that the 'convenience and advantage of the community' in which they propose to do business will be promoted by the issuance of licenses to them. § 34.1. Finally, any 'Bondified' outlets will each have to pay the specified licensing and inspection fees and each will have to secure the required surety bond and insurance policy. 12 The American Express Company, on the other hand, because its money orders are excepted, is relieved of these licensing and regulatory requirements, and appears to be exempt from any regulation in Illinois. The American Express Company, an unincorporated joint stock association organized in 1868 under the laws of the New York, conducts a world-wide business which includes the sale of money orders. It sells money orders in Illinois in substantially the same manner as is contemplated by the 'Bondified' partnership, through authorized agents located in drug and grocery stores. Since American Express money orders are not subject to the Act, they are sold legally in those stores as a part of their business. American Express outlets may be established without regard to the 'convenience and advantage' of the community in which they operate. Finally, those outlets need not pay licensing and inspection fees nor file surety bonds and insurance policies with the State. 13 In determining the constitutionality of the Act's application to appellees in the light of its exception of American Express money orders, we start with the established proposition that the 'prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. The rules for testing a discrimination have been summarized as follows: 14 '1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not make with mathematical nicety or because in practice it results in some inequality. 15 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78—79, 31 S.Ct. 337, 340, 55 L.Ed. 369. 16 To these rules we add the caution that 'Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.' Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 37—38, 48 S.Ct. 423, 425, 72 L.Ed. 770; Hartford Steam Boiler Inspection & Insurance Co. v. Harrison, 301 U.S. 459, 462, 57 S.Ct. 838, 840, 81 L.Ed. 1223. 17 The Act creates a statutory class of sellers of money orders. The money orders sold by one company, American Express, are excepted from that class. There is but one 'American Express Company.' If the exception is to be upheld, it must be on the basis on which it is cast—an exception of a particular business entity and not of a generic category. 18 The purpose of the Act's licensing and regulatory provisions clearly is to protect the public when dealing with currency exchanges.6 Because the American Express Company is a world-wide enterprise of unquestioned solvency and high financial standing, the State argues that the legislative classification is reasonable. It contends that the special characteristics of the American Express Company justify excepting its money orders from the requirements of an Act aimed at local companies doing local business,7 and that appellees are in no position to complain about competitive disadvantages since the 'Fourteenth Amendment does not protect a business against the hazards of competition,' citing Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 170, 55 S.Ct. 7, 9, 79 L.Ed. 259. 19 That the Equal Protection Clause does not require that every state regulatory statute apply to all in the same business is a truism. For example, where size is an index to the evil at which the law is directed, discriminations between the large and the small are permissible.8 Moreover, we have repeatedly recognized that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.' Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. On the other hand, a statutory discrimination must be based on differences that are reasonably related to the purposes of the Act in which it is found.9 Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264, involved a state statute which required motor vehicles, operating on local highways as carriers for hire, to furnish bonds or insurance policies for the protection of the public against injuries received through negligence in these operations. Acts Fla. 1929 c. 13700. The Act excepted motor vehicles carrying specified products. This Court held that the exception violated the Equal Protection Clause since the statutory purpose of protecting the public could not reasonably support a discrimination between the carrying of exempt products like farm produce and of regulated products like groceries. "Such a classification is not based on anything having relation to the purpose for which it is made." Id., 283 U.S. at page 567, 51 S.Ct. at page 587. 20 Of course, distinctions in the treatment of business entities engaged in the same business activity may be justified by genuinely different characteristics of the business involved.10 This is so even where the discrimination is by name.11 But distinctions cannot be so justified if the 'discrimination has no reasonable relation to these differences.' Hartford Steam Boiler Inspection & Insurance Co. v. Harrison, 301 U.S. 459, 463, 57 S.Ct. 838, 840, 81 L.Ed. 1223. In that case, this Court held that a state statute which permitted mutual insurance companies to act through salaried resident employees, but which excluded stock insurance companies from the same privilege, violated the Equal Protection Clause. 21 The principles controlling in the Smith and Hartford Co. cases, supra, are applicable here. The provisions in the Illinois Act, such as those requiring an annual inspection of licensed community currency exchanges by the State Auditor, make it clear that the statute was intended to afford the public continuing protection. The discrimination in favor of the American Express Company does not conform to this purpose. The exception of its money orders apparently rests on the legislative hypothesis that the characteristics of the American Express Company make it unnecessary to regulate their sales. Yet these sales, by virtue of the exception, will continue to be unregulated whether or not the American Express Company retains its present characteristics. On the other hand, sellers of competing money orders are subject to the Act even though their characteristics are, or become, substantially identical with those the American Express Company now has. Moreover, the Act's blanket exception takes no account of the characteristics of the local outlets that sell American Express money orders, and the distinct possibility that they in themselves may afford less protection to the public than do the retail establishments that sell competing money orders. That the American Express Company is a responsible institution operating on a world-wide basis does not minimize the fact that when the public buys American Express money orders in local drug and grocery stores it relies in part on the reliability of the selling agents. 22 The effect of the discrimination is to create a closed class by singling out American Express money orders. The singling out of the money orders of one company is in a sense the converse of a case like Cotting v. Kansas City Stock-Yards Co., 183 U.S. 79, 114 115, 22 S.Ct. 30, 44, 46 L.Ed. 92. See also, McFarland v. American Sugar Refining Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899. In the Cotting case this Court held that a regulatory statute that in fact applied to only one stockyard in a State violated the Equal Protection Clause. Although statutory discriminators creating a closed class have been upheld,12 a statute which established a closed class was held to violate the Equal Protection Clause where, on its face, it was 'an attempt to give an economic advantage to those engaged in a given business at an arbitrary date as against all those who enter the industry after that date.' Mayflower Farms, Inc., v. Ten Eyck, 297 U.S. 266, 274, 56 S.Ct. 457, 459, 80 L.Ed. 675. The statute involved in that case granted a differential from the regulated price at which dealers could sell milk to those dealers in a specified class who were in business before April 10, 1933. 23 Unlike the American Express Company, appellees and others are barred from selling money orders in retail establishments. Even if competing outlets can successfully be established as separate businesses, their ability to secure licenses depends upon a showing of 'convenience and advantage.' Perhaps such a showing could not be made because the unregulated American Express Company had already established outlets in the community. And even if licenses were secured, the licensees would be required to pay licensing and investigatory fees and purchase surety bonds and insurance policies—costs that the American Express Company and its agents are not required to bear.13 The fact that the activities of the American Express Company are far-flung does not minimize the impact on local affairs and on competitors of its sale of money orders in Illinois. This is not a case in which the Fourteenth Amendment is being invoked to protect a business from the general hazards of competition. The hazards here have their roots in the statutory discrimination. 24 Taking all of these factors in conjunction—the remote relationship of the statutory classification to the Act's purpose or to business characteristics, and the creation of a closed class by the singling out of the money orders of a named company, with accompanying economic advantages—we hold that the application of the Act to appellees deprives them of equal protection of the laws.14 25 The State urges that if the exception of American Express money orders is unconstitutional, the case should be remitted to the Illinois courts for a determination whether the exception can be severed from the Act under its severability clause. § 56.3. However, even if such a procedure is otherwise appropriate,15 we doom it unnecessary here since the Supreme Court of Illinois has indicated rather clearly that the exception is not severable.16 The State also contends that appellees do not come into court with clean hands and have not demonstrated the imminence of irreparable injury, and hence that they are not entitled to equitable relief. These arguments are adequately disposed of in the opinion of the District Court.17 26 The judgment of the District Court is affirmed. 27 Affirmed. 28 Mr. Justice BLACK, dissenting. 29 The Illinois statute involved here provides a state-wide regulatory plan to protect the public from irresponsible and insolvent sellers of money orders. The Act specifically exempts the American Express Company's money orders from its regulatory provisions because, as the Court recognizes, that company 'is a world-wide enterprise of unquestioned solvency and high financial standing.' I cannot agree with the Court that this exemption denies actual and potential competitors of the American Express Company equal protection of the laws within the meaning of the Fourteenth Amendment. Only recently this Court held that '(t)he prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. And here, whatever one may think of the merits of this legislation, its exemption of a company of known solvency from a solvency test applied to others of unknown financial responsibility can hardly be called 'invidious.' Unless state legislatures have power to make distinctions that are not plainly unreasonable, then the ability of the States to protect their citizens by regulating business within their boundaries can be seriously impaired. I feel it necessary to express once again my objection to the use of general provisions of the Constitution to restrict narrowly state power over state domestic economic affairs.1 30 I think state regulation should be viewed quite differently where it touches or involves freedom of speech, press, religion, petition, assembly, or other specific safeguards of the Bill of Rights. It is the duty of this Court to be alert to see that these constitutionally preferred rights are not abridged.2 But the Illinois statute here does not involve any of these basic liberties. And since I believe that it is not 'invidiously discriminatory,' I would not hold it invalid. 31 Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting. 32 The sole question before the Court is whether the Fourteenth Amendment of the United States Constitution, in prohibiting a State from denying any person 'the equal protection of the laws,' has barred Illinois from formulating its domestic policy as it did, in an area concededly within the regulatory power of that State. As is usually true of questions arising under the Equal Protection Clause, the answer will turn on the way in which that clause is conceived. It is because of differences in judicial approach that the divisions in the Court in applying the clause have been frequent and marked. It is, I believe, accurate to summarize the matter by saying that the great divide in the decisions lies in the difference between emphasizing the actualities or the abstractions of legislation. 33 The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities. Statutes, that is, are directed to less than universal situations. Law reflects distinctions that exist in fact or at least appear to exist in the judgment of legislators those who have the responsibility for making law fit fact. Legislation is essentially empiric. It addresses itself to the more or less crude outside world and not to the neat, logical models of the mind. Classification is inherent in legislation; the Equal Protection Clause has not forbidden it. To recognize marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic. 34 The controlling importance of the difference in approach to a problem arising under the Equal Protection Clause is sharply illustrated by one's view of the decisions in cases like Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770, and Hartford Steam Boiler Inspection & Insurance Co. v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 81 L.Ed. 1223. The Court relies on them. For me they are false leads. Both these decisions prevailed by the narrowest margin; both evoked powerful dissents; both manifest the requirement of non-discriminatory classification as an exercise in logical abstractions. They breathe the spirit of decisions like Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679, and Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 80 L.Ed. 299, which were respectively overruled in Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, and Madden v. Commonwealth of Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590. The last two cases heeded the admonition that 'it is important for this court to avoid extracting from the very general language of the Fourteenth Amendment a system of delusive exactness * * *.' Louisville and Nashville R. Co. v. Barber Asphalt Co., 197 U.S. 430, 434, 25 S.Ct. 466, 467, 49 L.Ed. 819. 35 In regulating its banking facilities, Illinois was drawing on one of the oldest and most far-reaching of legislative powers. The public needs to be protected in the issuing and selling of money orders, and people with limited means are especially to be safeguarded. If Illinois chose, the State itself could take over the money order business. See Noble State Bank v. Haskell, 219 U.S. 104, 113, 31 S.Ct. 186, 188, 55 L.Ed. 112. Just as it was found that there was nothing in the Constitution of the United States to bar a State from engaging in the businesses of manufacturing and marketing farm products and of providing homes for its people, Green v. Frazier, 253 U.S. 233, 40 S.Ct. 499, 64 L.Ed. 878, so, surely, there is nothing to prevent Illinois from engaging in this business directly, or through a money dispensary similar to the mode by which some States engage in the liquor business. I know of nothing in the Fourteenth Amendment that would bar the State from discharging its responsibility to its citizens by having the business conducted by what the Court recognizes to be 'a world-wide enterprise of unquestioned solvency and high financial standing,' to wit, the American Express Co. 36 I regretfully find myself unable to appreciate why the State, instead of thus dealing with the problem, may not choose to allow small units to carry on a business so fraught with public interests under the regulations devised by the statute under review, while at the same time it finds such measures of control needless in a case of 'a world-wide enterprise of unquestioned solvency and high financial standing.' The rational differentiation is of course that the latter enterprise contains within itself, in the judgment of Illinois, the necessary safeguards for solvency and reliability in issuing money orders and redeeming them. Surely this is a distinction of significance in fact that the law cannot view with a glass eye. 37 But it is suggested that the American Express Co. may not continue to retain 'its present characteristics,' while sellers of competing money orders may continue to be subject to the Act, even though their characteristics become 'substantially identical with those the American Express Co. now has.' What is this but to deny a State the right to legislate on the basis of circumstances that exist because a State may not in speculatively different circumstances that may never come to pass have such right? Surely there is time enough to strike down legislation when its constitutional justification is gone. Invalidating legislation is serious business and it ought not to be indulged in because in a situation not now before the Court, nor even remotely probable, a valid statute may lose its foundation. The Court has had occasion to deal with such contingency more than once. Regulatory measures have been sustained that later, in changed circumstances, were found to be unconstitutional. Compare Willcox v. Consolidated Gas Co., 212 U.S. 19, 29 S.Ct. 192, 53 L.Ed. 382, with Newton v. Consolidated Gas Co., 258 U.S. 165, 42 S.Ct. 264, 66 L.Ed. 538, and Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, with Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841. 38 "Legislation which regulates business may well make distinctions depend upon the degree of evil.' Heath & Milligan Mfg. Co. v. Worst, 207 U.S. 338, 355, 356, 28 S.Ct. 114 (119), 52 L.Ed. 236, 244. It is true, no doubt, that where size is not an index to an admitted evil the law cannot discriminate between the great and small. But in this case size is an index.' Engel v. O'Malley, 219 U.S. 128, 138, 31 S.Ct. 190, 193, 55 L.Ed. 128. Neither the record nor our own judicial information affords any basis for concluding that Illinois may not put the United States Post Office, the Western Union Co., and the American Express Co. in one class and all the other money order issuers in another. Illinois may not the less relieve the American Express Co. from regulations to which multitudinous small issuers are subject because that company has its own reliabilities that may well be different from those of the United States Post Office and the Western Union Telegraph Co. The vital fact is that the American Express Co. is decisively different from those money order issuers that are within the regulatory scheme. 39 Sociologically one may think what one may of the State's recognition of the special financial position obviously enjoyed by the American Express Co. Whatever one may think is none of this Court's business. In applying the Equal Protection Clause, we must be fastidiously careful to observe the admonition of Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo that we do not 'sit as a super-legislature.' (See their dissenting opinion in the ill-fated case of Colgate v. Harvey, 296 U.S. 404, 441, 56 S.Ct. 252, 264, 80 L.Ed. 299. See also Asbury Hospital v. Cass County, 326 U.S. 207, 214—215, 66 S.Ct. 61, 64—65, 90 L.Ed. 6.) 1 Ill.Rev.Stat.1955, c. 16 1/2, §§ 30—56.3. 2 The registered trade-mark 'Bondified' is owned by Checks, Incorporated, a Minnesota corporation, and the partnership, Bondified Systems, has acquired an exclusive license to use that trade-mark in selling and issuing money orders. 3 In so holding, the District Court declined to follow the Supreme Court of Illinois in sustaining the Act against a similar attack. McDougall v. Lueder, 389 Ill. 141, 58 N.E.2d 899, 156 A.L.R. 1059. It accepted instead the precedent of a three-judge Federal District Court in Wisconsin which had held unconstitutional an identical provision of a Wisconsin statute. St.1947, § 218.05. Currency Services, Inc., v. Matthews, D.C., 90 F.Supp. 40. 4 See Gadlin v. Auditor of Public Accounts, 414 Ill. 89, 110 N.E.2d 234. 5 Appellees do not question the exception from the Act of the money orders of the United States Post Office, the Postal Telegraph Company and the Western Union Telegraph Company. In Currency Services, Inc. v. Matthews, D.C., 90 F.Supp. 40, 43, a three-judge District Court upheld the exception of these money orders from a similar Wisconsin statute. The court concluded that the State was without authority to regulate the sale of the United States Post Office money orders, and that the exception of Western Union money orders was reasonable since that company was regulated both by the Federal Communications Commission and by a state commission. It noted that the Postal Telegraph Company has merged with the Western Union Telegraph Company. 6 See McDougall v. Lueder, 389 Ill. 141, 149—150, 58 N.E.2d 899, 903—904, 156 A.L.R. 1059; Willis v. Fidelity & Deposit Co., 345 Ill.App. 373, 384—385, 103 N.E.2d 513, 518—519. 7 See McDougall v. Lueder, 389 Ill. 141, 151, 58 N.E.2d 899, 904, 156 A.L.R. 1059. 8 See Engel v. O'Malley, 219 U.S. 128, 138, 31 S.Ct. 190, 193, 55 L.Ed. 128 (exception of businesses in which the average sum received for safekeeping or transmission was more than $500 from licensing requirements intended to protect the small depositor); see also, New York, N.H. & H.R. Co. v. People of State of New York, 165 U.S. 628, 17 S.Ct. 418, 41 L.Ed. 853 (exception of railroads less than 50 miles in length from a statute regulating the heating of railroad passenger cars and the placing of guards and guard posts on railroad bridges); Miller v. Strahl, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364 (exception of hotels with less than 50 rooms from a statute requiring hotelkeepers to take certain fire precautions). 9 See F. S. Royster Guano Co. v. Commonwealth of Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989; Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 37, 48 S.Ct. 423, 425, 72 L.Ed. 770. 10 See German Alliance Ins. Co. v. Super-intendent of Ins. of State of Kansas, 233 U.S. 389, 34 S.Ct. 612, 58 L.Ed. 1011 (exception of farmers' mutual insurance companies doing only farm business from a statute establishing rate regulation for fire insurance companies); Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777 (different regulatory requirements for reciprocals and mutual companies). 11 See Erb v. Morasch, 177 U.S. 584, 20 S.Ct. 819, 44 L.Ed. 897 (exception of a named railroad from an ordinance limiting the speed of trains in a city); cf. Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015. 12 See Watson v. State of Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 (exception of physicians who practiced prior to a specified date and treated at least 12 persons within a year prior thereto from examination and certificate requirements); Sampere v. City of New Orleans, 166 La. 776, 117 So. 827, affirmed per curiam, 279 U.S. 812, 49 S.Ct. 262, 73 L.Ed. 971 (exception of existing business establishments from a zoning restriction); Stanley v. Public Utilities Commission, 295 U.S. 76, 55 S.Ct. 628, 79 L.Ed. 1311 (exception of carriers which had furnished adequate, responsible and continuous service over a given route from a specified date in the past from the requirement of showing public convenience and necessity to secure a license). 13 See Currency Services, Inc., v. Matthews, D.C., 90 F.Supp. 40, 44, note 2, to the effect that costs such as these may be prohibitive. 14 In Wedesweiler v. Brundage, 297 Ill. 228, 130 N.E. 520, the Supreme Court of Illinois held that the Equal Protection Clause was violated by a statute which excepted express, steamship and telegraph companies from its prohibition against the transmission of money to foreign countries by natural persons, firms or partnerships. That court concluded that the discrimination 'has no reference to character, solvency, financial responsibility, security, business or monetary facilities, incorporation, method of doing business, public inspection, supervision or report, or any other thing having any relation to the protection of the public from loss by reason of the dishonesty, incompetence, ignorance or irresponsibility of persons engaging in that business.' 297 Ill. at page 237, 130 N.E. at page 523. See also, State, on inf. of Taylor v. Currency Services, Inc., 358 Mo. 983, 218 S.W.2d 600. The Wedesweiler case was distinguished by the Supreme Court of Illinois in McDougall v. Lueder, 389 Ill. 141, 150, 58 N.E.2d 899, 904, 156 A.L.R. 1059, on the ground that in the earlier case the regulated firms were 'in direct competition' with the excepted companies. Apparently the court treated the regulated firm in the McDougall case as not being in direct competition with the American Express Company since the firm was engaged in the business of cashing checks, as well as in that of selling money orders, while the American Express Company merely sold money orders. Such a distinction is not involved in the facts of this case and we express no opinion on it. 15 See Guinn v. United States, 238 U.S. 347, 366, 35 S.Ct. 926, 931, 59 L.Ed. 1340; Myers v. Anderson, 238 U.S. 368, 380—381; 35 S.Ct. 932, 935, 59 L.Ed. 1349; Dorchy v. State of Kansas, 264 U.S. 286, 291, 44 S.Ct. 323, 325, 68 L.Ed. 686. 16 In McDougall v. Lueder, 389 Ill. 141, 151, 58 N.E.2d 899, 904, 156 A.L.R. 1059, the Supreme Court of Illinois stated that 'The General Assembly would surely never have passed the act if they had thought that the said companies (Western Union, Postal Telegraph and American Express) would be made subject to its rules and regulations.' This statement takes on added significance in the light of the court's ruling in the same case that another provision of the Act, which it held invalid, could be severed since 'there is no presumption that the General Assembly would not have enacted the remainder of the statute without' the invalid provision. 389 Ill. at page 155, 58 N.E.2d at page 906. As the question of severability is a question of state law, the judgment of the Supreme Court of Illinois is binding here. See Dorchy v. State of Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686; Chas. Wolff Packing Co. v. Court of Industrial Relations, 267 U.S. 552, 562, 45 S.Ct. 441, 443, 69 L.Ed. 785. 17 See Doud v. Hodge, 146 F.Supp. 887, 889—890. 1 See, e.g., my dissents in H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 562—564, 69 S.Ct. 657, 683—684, 93 L.Ed. 865; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 462, 64 S.Ct. 208, 224, 88 L.Ed. 149; Adamson v. People of State of California, 332 U.S. 46, 79—84, 67 S.Ct. 1672, 1689, 1692, 91 L.Ed. 1903. Cf. Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124; American Sugar Refining Co. v. State of Louisiana. 179 U.S. 89, 92, 21 S.Ct. 43, 44, 45 L.Ed. 102; Slaughter-House Cases, 16 Wall. 36, 81—82, 21 L.Ed. 394. 2 Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155. And see my dissenting opinions in Beauharnais v. People of State of Illinois, 343 U.S. 250, 267, 72 S.Ct. 725, 736, 96 L.Ed. 919, and Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408. Cf. Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093, and my concurring opinion in Oyama v. State of California, 332 U.S. 633, 647, 68 S.Ct. 269, 275, 92 L.Ed. 249.

78

354 U.S. 394 77 S.Ct. 1332 1 L.Ed.2d 1442 Leon F. CARROLL and Daniel J. Stewart, Petitioners,v.UNITED STATES of America. No. 571. Argued April 4, 1957. Decided June 24, 1957. [Syllabus from pages 394-395 intentionally omitted] Mr. Curtis P. Mitchell, Washington, D.C., for petitioners. Mr. Harold H. Greene, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 Petitioners were arrested in February 1954 on John Doe warrants and subsequently were indicted in the United States District Court for the District of Columbia, with two others, for violations of the local lottery laws and for conspiracy to carry on a lottery.1 After indictment each filed a pre-trial motion under Rule 41(e) of the Federal Rules of Criminal Procedure,2 asking for the suppression of evidence seized from his person at the time of his arrest. The District Court granted petitioners' motions to suppress, on the ground that probable cause had been lacking for the issuance of the arrest warrants directed against them.3 United States v. Hall, D.C., 126 F.Supp. 620. The Government appealed the order for suppression to the United States Court of Appeals for the District of Columbia Circuit. The indictment against petitioners had not been dismissed, but the Government informed the Court of Appeals that, without the 'numbers' paraphernalia seized and suppressed, it would lack sufficient evidence to proceed on any of the counts involving petitioners and therefore would have to dismiss the indictment. Petitioners challenged the jurisdiction of the Court of Appeals to hear an appeal by the Government from an order of the District Court granting a motion to suppress that was made while an indictment was pending in the same District Court. The Court of Appeals sustained its jurisdiction on the authority of its prior decision in United States v. Cefaratti,4 and reversed the district judge on the merits, holding that there had been probable cause to justify the issuance of warrants for the arrest of petitioners. 98 U.S.App.D.C. 244, 234 F.2d 679. We granted certiorari, limited to the question of appealability of the suppression order, because of the importance of that question to the administration of the federal criminal laws. 352 U.S. 906, 77 S.Ct. 151, 1 L.Ed.2d 117. 2 The Government contends, most broadly, that the suppression order of any District Court is 'final' and sufficiently separable and collateral to the criminal case to be appealable under the general authority of 28 U.S.C. § 1291, 28 U.S.C.A. § 1291, notwithstanding that such an order is not listed among the few types of orders in criminal cases from which the Government may appeal pursuant to 18 U.S.C. § 3731, 18 U.S.C.A. § 3731.5 More narrowly, failing acceptance of the position just stated, the Government maintains that an order of suppression is, within the criminal case, a 'final' order and thus appealable under the statutory provisions for appeals by the Government in criminal cases that are applicable exclusively in the District of Columbia.6 It will be convenient to discuss the issues in the same order. I. 3 It is axiomatic, as a matter of history as well as doctrine, that the existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute. And since the jurisdictional statutes prevailing at any given time are so much a product of the whole history of both growth and limitation of federal-court jurisdiction since the First Judiciary Act, 1 Stat. 73, they have always been interpreted in the light of that history and of the axiom that clear statutory mandate must exist to found jurisdiction. It suffices to cite as authority for these principles some of the cases in which they have been applied to the general problem now before us, the availability of appellate review sought by the Government in criminal cases. E.g., United States v. More, 3 Cranch 159, 2 L.Ed. 397; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445; In re Heath, 144 U.S. 92, 12 S.Ct. 615, 36 L.Ed. 358; Cross v. United States, 145 U.S. 571, 12 S.Ct. 842, 36 L.Ed. 821; United States v. Burroughs, 289 U.S. 159, 53 S.Ct. 574, 77 L.Ed. 1096.7 4 There is a further principle, also supported by the history of federal appellate jurisdiction, that importantly pertains to the present problem. That is the concept that in the federal jurisprudence, at least,8 appeals by the Government in criminal cases are something unusual, exceptional, not favored. The history shows resistance of the Court to the opening of an appellate route for the Government until it was plainly provided by the Congress, and after that a close restriction of its uses to those authorized by the statute. Indeed, it was 100 years before the defendant in a criminal case, even a capital case, was afforded appellate review as of right.9 And after review on behalf of convicted defendants was made certain by the Acts of 1889 and 1891, the Court continued to withhold an equivalent remedy from the Government, despite the existence of colorable statutory authority for permitting the Government to appeal in those important cases where a preosecution was dismissed upon the trial court's opinion of the proper construction or the constitutional validity of a federal statute.10 When the Congress responded to the problem of such cases, in the Criminal Appeals Act of 1907, now 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, it did so with careful expression of the limited types of orders in criminal cases as to which the Government might thenceforth have review.11 It was as late as 1942 before the Criminal Appeals Act was amended to permit appeals by the Government from decisions, granting dismissal or arrest of judgment, other than those grounded by the trial court upon the construction or invalidity of a statute.12 5 It is true that certain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291, 28 U.S.C.A. § 1291, without regard to the limitations of 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, just as in civil litigation orders of equivalent distinctness are appealable on the same authority without regard to the limitations of 28 U.S.C. § 1292, 28 U.S.C.A. § 1292.13 The instances in criminal cases are very few. The only decision of this Court applying to a criminal case the reasoning of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, held that an order relating to the amount of bail to be exacted falls into this category. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. Earlier cases illustrated, sometimes without discussion, that under certain conditions orders for the suppression or return of illegally seized property are appealable at once, as where the motion is made prior to indictment,14 or in a different district from that in which the trial will occur,15 or after dismissal of the case,16 or perhaps where the emphasis is on the return of property rather than its suppression as evidence.17 In such cases, as appropriate, the Government as well as the moving person has been permitted to appeal from an adverse decision. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. 6 But a motion made by a defendant after indictment and in the district of trial has none of the aspects of independent just noted, as the Court held in Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275. As the opinion by Mr. Justice Brandeis explains, the denial of a pre-trial motion in this posture is interlocutory in form and real effect, and thus not appealable at the instance of the defendant. We think the granting of such a motion also has an interlocutory character, and therefore cannot be the subject of an appeal by the Government. In the present case the Government argues, as it offered to stipulate below, that the effect of suppressing the evidence seized from petitioners at their arrests will be to force dismissal of the indictment for lack of evidence on which to go forward. But that is not a necessary result of a suppression order relating to particular items of evidence, nor have we been shown whether it will be the result in practice in the generality of cases. Appeal rights cannot depend on the facts of a particular case. The Congress necessarily has had to draw the jurisdictional statutes in terms of categories. To fit an order granting suppression before trial in a criminal case into the category of 'final decisions' requires a straining that is not permissible in the light of the principles and the history concerning criminal appeals, especially Government appeals, that are outlined above and more fully set forth in the cases cited.18 Other Courts of Appeals that have considered the problem have concluded that this order is not 'final' or appealable at the behest of the Government.19 7 The Government exhorts us not to exalt form over substance, in contending that the present order has virtually the same attributes as the suppression orders found reviewable in earlier cases. We do not agree that the order entered in a pending criminal case has the same characteristics of independence and completeness as a suppression order entered under other circumstances. Moreover, in a limited sense, form is substance with respect to ascertaining the existence of appellate jurisdiction. While it is always necessary to categorize a situation realistically, to place a given order according to its real effect, it remains true that the categories themselves were defined by the Congress in terms of form. Many interlocutory decisions of a trial court may be of grave importance to a litigant, yet are not amenable to appeal at the time entered, and some are never satisfactorily reviewable. In particular is this true of the Government in a criminal case, for there is no authority today for interlocutory appeals,20 and even if the Government had a general right to review upon an adverse conclusion of a case after trial, much of what it might complain of would have been allowed up in the sanctity of the jury's verdict.21 8 If there is serious need for appeals by the Government from suppression orders, or unfairness to the interests of effective criminal law enforcement in the distinctions we have referred to, it is the function of the Congress to decide whether to initiate a departure from the historical pattern of restricted appellate jurisdiction in criminal cases.22 We must decide the case on the statutes that exist today, in the light of what has been the development of the jurisdiction. It is only through legislative resolution, furthermore, that peripheral questions regarding the conduct of Government appeals in this situation can be regulated. Some of the problems directed at legislative judgment involve such particulars as confinement or bail of the defendant, acceleration of the Government's appeal, and discretionary limitation of the right to take the appeal.23 II. 9 The Court of Appeals sustained its jurisdiction on the basis of statutory provisions peculiar to the District of Columbia. Here again, the jurisdictional statutes are a product of historical development, and must be interpreted in that light. During the century from 1801 to 1901 the Congress several times organized and reorganized the courts of the District of Columbia, independently of the federal courts in the States. It is not necessary here to relate the chronology of shuffled jurisdictions and nomenclature.24 It is sufficient to note that from 1838 on, review of a final judgment of conviction in the criminal trial court was available in the appellate tribunal of the District.25 However, the appellate judgment was not further reviewable in this Court in any manner during this period. In re Heath, 144 U.S. 92, 12 S.Ct. 615, 36 L.Ed. 358; Cross v. United States, 145 U.S. 571, 12 S.Ct. 842, 36 L.Ed. 821. When the Acts of 1889 and 1891 opened up appellate review of criminal convictions in the federal courts throughout the country, at first directly to this Court, it was held that those statutes did not apply to cases originating in the District of Columbia. Ibid. 10 In 1901 the Congress codified the laws of the District of Columbia, including those relating to the judicial system. District of Columbia Code, 31 Stat. 1189. Criminal jurisdiction was vested in the trial court of general jurisdiction, then known as the Supreme Court of the District of Columbia.26 A single section of the statute, § 226, conferred appellate jurisdiction on the Court of Appeals over decisions of the Supreme Court in general terms, apparently including criminal decisions. A party aggrieved could take an appeal from a final order or judgment, and was entitled to allowance of an appeal from an interlocutory order affecting possession of property. In addition, the Court of Appeals could allow an appeal, in its discretion, from any other interlocutory order when it was shown 'that it will be in the interest of justice to allow such appeal.'27 11 Section 935 of the Code of 1901 established this new provision: 12 'In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right to appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.' 31 Stat. 1341. 13 The legislative history of the Code does not indicate why the Government was now given a right of appeal, but we may surmise that the draftsmen of the Code desired to adopt a procedural technique that was then in force in a large number of States.28 The 'same right of appeal that is given to the defendant' would be defined by reference to § 226, of course, in cases coming up from the Supreme Court. After the Congress conferred on the United States a more limited right of appeal from the District Courts in the Criminal Appeals Act of 1907, running directly to this Court, it was held that the 1907 Act was not applicable to cases decided in the Supreme Court of the District of Columbia. There § 935 provided 'the complete appellate system.' United States v. Burroughs, 289 U.S. 159, 164, 53 S.Ct. 574, 576, 77 L.Ed. 1096. When the Criminal Appeals Act was broadened in 1942, it was then first made applicable to the District of Columbia.29 But the text of § 935 was not repealed at that time, nor was it repealed in connection with the 1948 revisions of the Judicial Code and the Criminal Code.30 It may be concluded, then, that even today criminal appeals by the Government in the District of Columbia are not limited to the categories set forth in 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, although as to cases of the type covered by that special jurisdictional statute, its explicit directions will prevail over the general terms of § 935, now found in the District of Columbia Code, 1951 Edition, as § 23—105. United States v. Hoffman, 82 U.S.App.D.C. 153, 161 F.2d 881, decided on merits, 335 U.S. 77, 68 S.Ct. 1413, 92 L.Ed. 1830. 14 Meanwhile, under the general provisions of § 226 of the 1901 Code, the practice had developed of allowing appeals from interlocutory orders in criminal cases. A particular instance disturbed the Congress in 1926, and it immediately passed a statute to eliminate the practice. It is apparent from the legislative history that it was interlocutory appeals for the defendant that were considered anomalous in a federal court and undesirable from the viewpoint of prompt dispatch of criminal prosecutions,31 but the new provision in terms applied equally to the possibility of an interlocutory appeal being allowed to the Government through the combined provisions of § 226 and § 935. The 1926 enactment, as it now reads in the District of Columbia Code, 1951 Edition, § 17—102, states: 15 'Nothing contained in any Act of Congress shall be construed to empower the United States Court of Appeals for the District of Columbia to allow an appeal from any interlocutory order entered in any criminal action or proceeding or to entertain any such appeal heretofore or hereafter allowed or taken.' 44 Stat. 831, as amended. 48 Stat. 926. 16 The allowance of appeal technique no longer exists as to cases coming from the District Court (the former Supreme Court), but if this section does not continue to have life by force of the words 'or hereafter * * * taken,' it does not matter, for § 226 itself was replaced in 194932 by the nationwide appellate jurisdiction provisions of Title 28 of the U.S.Code, § 1291 and § 1292, 28 U.S.C.A. §§ 1291, 1292, which do not authorize interlocutory appeals in criminal cases. 17 Thus the statutory context in which the court below made its ruling is seen to be this: Subject to stated limitations, the Government has the 'same right of appeal' as the defendant in criminal cases in the District Court for the District of Columbia, but no party can appeal an interlocutory order in such cases. In United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13, the Court of Appeals reconciled these rules by holding: 18 'Since defendants may appeal from 'final decisions,' to say that 'the United States * * * shall have the same right of appeal that is given to the defendant * * *' means that * * * the United States may appeal from final decisions. It does not mean that the United States cannot appeal from a final decision unless it so happens that an opposite decision would also have been final.' 91 U.S.App.D.C. at page 302, 202 F.2d at page 17. 19 Applying this reasoning to orders for the suppression of evidence, the Court of Appeals concluded that such an order had the requisite finality and independence of the criminal case to be appealable under 28 U.S.C. § 1291, 28 U.S.C.A. § 1291. In the present case, the court below reaffirmed its Cefaratti analysis. Insofar as these decisions, resting on opinions of this Court,33 imply a reviewability for suppression orders that would be general to cases from all Federal District Courts, we have already indicated our disagreement earlier in this opinion. 20 But the Government contends that appealability under the District of Columbia statutes, though it requires a 'final decision,' does not call for the independent or separable character of the orders in the cases relied on by the Court of Appeals, because here it is not essential to characterize an order as plenary or disassociated from the criminal case, inasmuch as the Government has a comprehensive right of appeal within a criminal case in the District of Columbia. We do not agree that the standard of 'final decisions' as prerequisite to appeal is something less or different under 28 U.S.C. § 1291, 28 U.S.C.A. § 1291, as the successor to § 226 of the District of Columbia Code of 1901 than it is under § 1291 as the successor to the nationally applicable appeal provisions of the Judicial Code. Cf. Stack v. Boyle, 342 U.S. 1, 6, 12, 72 S.Ct. 1, 4, 7. By this we do not mean to say that § 935 of the 1901 Code is no broader than 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, but merely that the underlying concepts of finality are the same in each case. 21 As the outline of the statutory development demonstrates, both this Court and the Congress have been strict in confining rights of appeal in criminal cases in the District of Columbia to those plainly authorized by statute. We do not believe that the combined provisions of the 1901 and 1926 enactments permit the Government to appeal in any situation where the decision against it may have some characteristics of finality, yet does not either terminate the prosecution or pertain to an independent peripheral matter such as would be appealable in other federal courts on the authority of Stack v. Boyle, supra. The 1901 Code gave the Government 'the same right of appeal that is given to the defendant,' while the 1926 amendment to the Code restricted the defendant's right of appeal to those decisions of the Supreme Court (now District Court) that have a 'final' effect, as that term is understood in defining appellate jurisdiction. We conclude that full force cannot be given to the limitations imposed on criminal appeals in the District of Columbia unless the Government is restricted as is the defendant. This is not to say 'that the United States cannot appeal from a final decision unless it so happens that an opposite decision would also have been final,' as the Court of Appeals suggested in Cefaratti. Quite to the contrary, our holding is that the statutory provisions applicable to the District of Columbia, subject to the further limitations stated therein, afford the Government an appeal only from an order against it which terminates a prosecution or makes a decision whose distinct or plenary character meets the standards of the precedents applicable to finality problems in all federal courts.34 22 In thus defining the Government's appeal rights under § 935 of the 1901 Code, we are mindful of the considerations that motivated the Congress to specify in 1926 that interlocutory appeals in criminal cases were not possible: 23 'Promptness in the dispatch of the criminal business of the courts is by all recognized as in the highest degree desirable. Greater expedition is demanded by a wholesome public opinion.' S.Rep. No. 926, 69th Cong., 1st Sess. 24 And cf. H.R.Rep. No. 1363, 69th Cong., 1st Sess. Delays in the prosecution of criminal cases are numerous and lengthy enough without sanctioning appeals that are not plainly authorized by statute. We cannot do so here without a much clearer mandate than exists in the present terms and the historical development of the relevant provisions. Cf. United States v. Burroughs, 289 U.S. 159, 53 S.Ct. 574, 77 L.Ed. 1096; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445. 25 The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for proceedings consistent with this opinion. 26 Reversed. 1 Petitioners were charged with carrying on a lottery known as the 'numbers game,' a violation of D.C.Code, 1951, § 22—1501; with knowing possession of lottery slips, a violation of § 22 1502; and with conspiracy to carry on a lottery, a violation of 18 U.S.C. § 371, 18 U.S.C.A. § 371. Since the substantive offense of carrying on a lottery was a felony under § 22—1501, the conspiracy charge was also a felony, by the terms of 18 U.S.C. § 371, 18 U.S.C.A. § 371. 2 Fed.Rules Crim.Proc., 41, 18 U.S.C.A.: '(e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that * * * (4) there was not probable cause for believing the existence of the grounds of which the warrant was issued, * * *. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial * * *.' 3 Petitioners' individual motions were each captioned 'Motion to Suppress 'Arrest Warrant" and asked only for suppression of the evidence taken from the person at the arrest. The District Court also granted in part a motion, made on behalf of all the defendants, relating to the seizure of evidence under search warrants at two homes. The Government makes some point of characterizing this as a motion for the return of property. It was captioned 'Motion to Suppress Evidence and Return Property,' but the body of the motion asked only that the evidence seized at those places be suppressed. We find it unnecessary to decide whether this was a motion 'for return of property,' or whether that would make a difference in the question of appealability on these facts, for the Court of Appeals, when it reached the merits of the issue of probable cause, dealt only with the warrants for the arrest of petitioners. Hence we limit our consideration of the case to that aspect of the District Court's order for suppression. 4 91 U.S.App.D.C. 297, 202 F.2d 13, as explained in United States v. Stephenson, 96 U.S.App.D.C. 44, 45, 223 F.2d 336, 337. 5 28 U.S.C. § 1291, 28 U.S.C.A. § 1291: 'The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts * * * except where a direct review may be had in the Supreme Court.' 18 U.S.C. § 3731, 18 U.S.C.A. § 3731: 'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: 'From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. 'From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded. ,'from the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy. 'An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances: 'From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direst appeal to the Supreme Court of the United States is provided by this section. 'From a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided by this section. 'The appeal in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted. 'Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be admitted to bail on his own recognizance * * *.' The references in the above statutes to 'courts of appeals' and 'district courts' encompass the United States Court of Appeals for the District of Columbia Circuit and the United States District Court for the District of Columbia. 28 U.S.C. §§ 43, 132, 451, 28 U.S.C.A. §§ 43, 132, 451; 62 Stat. 991, as amended, 63 Stat. 107, 28 U.S.C.A. § 451 note. See also 56 Stat. 271. 6 D.C.Code 1951, § 23—105: 'In all criminal prosecutions the United States * * * shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.' D.C.Code 1951, § 17—102: 'Nothing contained in any Act of Congress shall be construed to empower the United States Court of Appeals for the District of Columbia to allow an appeal from any interlocutory order entered in any criminal action or proceeding or to entertain any such appeal heretofore or hereafter allowed or taken.' 7 See also Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; Baltimore Contractors Inc. v. Bodinger, 348 U.S. 176, 178—182, 75 S.Ct. 249, 250—253, 99 L.Ed. 233. 8 As to the development in state law of statutes in derogation of the common-law principle against appeal by the prosecution, see United States v. Sanges, 144 U.S. 310, 312—318, 12 S.Ct. 609, 612, 36 L.Ed. 445; S.Rep. No. 5650, 59th Cong., 2d Sess.; H.R.Rep. No. 45, 77th Cong., 1st Sess. 2—3. See also Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. 9 The Act of February 6, 1889, 25 Stat. 656, authorized direct review in the Supreme Court by writ of error 'in all cases of conviction of crime the punishment of which provided by law is death, tried before any court of the United States * * *.' Two years later the Circuit Courts of Appeals Act extended the jurisdiction for direct review to all 'cases of conviction of a capital or otherwise infamous crime.' 26 Stat. 827. The burden upon this Court of hearing the large number of criminal cases led, in 1897, to transfer of the jurisdiction over convictions in noncapital cases to the Circuit Courts of Appeals. 29 Stat. 492. Section 238 of the Judicial Code completed the retrenchment in 1911 by eliminating direct review of capital cases. 36 Stat. 1157. See Frankfurter and Landis, The Business of the Supreme Court, 109 113 (1928). Prior to the Acts of 1889 and 1891, there was no jurisdictional provision for appeal or writ of error in criminal cases. United States v. More, 3 Cranch 159, 2 L.Ed. 397; see United States v. Sanges, 144 U.S. 310, 319, 12 S.Ct. 609, 612, 36 L.Ed. 445. A question of law arising in a case tried by a Circuit Court of two judges, if they disagreed on the question, could be brought here upon a certificate of division of opinion, at the request of either party, and (except during one two-year period) without awaiting the final outcome of the case in the Circuit Court. 2 Stat. 159; 17 Stat. 196; R.S. § 651. See United States v. Sanges, supra, 144 U.S. at pages 320-321, 12 S.Ct. at pages 612 613. The availability of this procedure for review, haphazard at best because dependent on disagreement between the two sitting judges, came to be very much diluted by the increasing frequency with which the Circuit Courts were conducted by a single judge. See Frankfurter and Landis, 79, 109. 10 The Act of 1891 included as a category of cases subject to direct review by this Court, 'any case in which the constitutionality of any law of the United States * * * is drawn in question.' 26 Stat. 828. But in United States v. Sanges, supra, the Court related the history of repeated rejections of Government criminal appeals, noted that the Act expressly conferred appellate jurisdiction in 'cases of conviction,' and held that the Act did not sufficiently demonstrate congressional intent to have criminal cases reviewed at the behest of the Government, either in this Court or in the Circuit Courts of Appeals. The Court said: 'It is impossible to presume an intention on the part of congress to make so serious and far-reaching an innovation in the criminal jurisprudence of the United States.' 144 U.S. at page 323, 12 S.Ct. at page 613. Similarly, after review of noncapital convictions was again committed to the Circuit Courts of Appeals in 1897, it was held that upon a reversal of a conviction by that court, the Government could not bring the case here through the certiorari jurisdiction that had also been created by the Act of 1891. United States v. Dickinson, 213 U.S. 92, 29 S.Ct. 485, 53 L.Ed. 711. Section 240 of the Judicial Code later conferred this jurisdiction explicitly. 36 Stat. 1157. 11 The 1907 enactment, 34 Stat. 1246, authorized direct review in this Court by writ of error in the same three classes of cases, roughly speaking, as are listed in the first four paragraphs of the present 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, quoted in note 5, supra. The original Act also included the provisions protective of the defendant in the last two paragraphs quoted there, relating to expedition of the Government appeal and bail on his own recognizance, and the original Act had additional cautionary provisions, commanding precedence for those cases and barring the writ of error 'in any case where there has been a verdict in favor of the defendant.' The legislative history emphasizes the awareness of the Congress that Government appeals in criminal cases were a sharp innovation and congressional concern that such jurisdiction should go no farther at that time than the immediate problem of affording review for trial court opinions as to the construction or validity of federal statutes. In brief, the development of the Criminal Appeals Act was this: The House bill proposed adoption of the language of the District of Columbia Code of 1901, which had given the Government 'the same right of appeal that is given to the defendant * * *.' (Quoted, note 6, supra, and discussed later in this opinion.) The Senate Committee on the Judiciary substituted a more specifically drawn measure, dividing the jurisdiction between this Court and the Circuit Court of Appeals along the line the 1891 Act had drawn for civil cases. After lengthy floor debate, in which various objections to the measure were put forth, it was amended on the floor by narrowing the classes of cases in which the Government could seek review, by limiting the jurisdiction to direct review here, and by adding the protective provisions noted above. The House accepted the Senate product. See H.R.Rep. No. 2119, 59th Cong., 1st Sess.; S.Rep. No. 3922, 59th Cong., 1st Sess.; S.Rep. No. 5650, 59th Cong., 2d Sess.; H.R.Conf.Rep. No. 8113, 59th Cong., 2d Sess.; 40 Cong.Rec. 8695, 9032—9033; 41 Cong.Rec. 2190—2197, 2745—2763, 2818—2825, 3044—3047. See also Frankfurter and Landis, 114—119. 12 56 Stat. 271. See H.R.Rep. No. 45, 77th Cong., 1st Sess. In these new categories of cases the appeal was directed to the Court of Appeals. The present version of the added language is quoted, as the fifth through seventh paragraphs of 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, in note 5, supra. 13 Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545—547, 69 S.Ct. 1221, 1225—1226; Swift & Co. Packers v. Compania Caribe, 339 U.S. 684, 688—689, 70 S.Ct. 861, 864—865, 94 L.Ed. 1206; and cases cited. 14 E.g., Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; GoBart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. 15 Cf. Dier v. Banton, 262 U.S. 147, 43 S.Ct. 533, 67 L.Ed. 915. Rule 41(e) explicitly authorizes making the motion in a different district: 'A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained * * *. The motion to suppress evidence may also be made in the district where the trial is to be had * * *.' 16 E.g., Dickhart v. United States, 57 App.D.C. 5, 16 F.2d 345. That was a motion, after acquittal in a case under the National Prohibition Act, 41 Stat. 305, to regain possession of liquor that had been seized. See also note 17, infra. 17 E.g., Steele v. United States, No. 1, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 51 A.L.R. 416; cf. also Steele v. United States, No. 2, 267 U.S. 505, 45 S.Ct. 417, 69 L.Ed. 761; Dowling v. Collins, 6 Cir., 10 F.2d 62. We do not suggest that a motion made under Rule 41(e) gains or loses appealability simply upon whether it asks return or suppression or both. The cases just cited arose under the National Prohibition Act, which provided an independent proceeding to secure the return of property seized under a search warrant that had been issued wrongfully. 41 Stat. 315, adopting 40 Stat. 228. That factor underlay the discussion of this category of orders as appealable in Cogen v. United States, 278 U.S. 221, 225 227, 49 S.Ct. 118, 119, 120, 73 L.Ed. 275. The 'essential character and the circumstances under which it is made' determine whether a motion is an independent proceeding or merely a step in the criminal case. Id., 278 U.S. at page 225, 49 S.Ct. at page 120; cf. United States v. Wallace & Tiernan Co., 336 U.S. 793, 801 803, 69 S.Ct. 824, 828—829, 93 L.Ed. 1042. We think that a contemporary illustration of this category is United States v. Ponder, 4 Cir., 238 F.2d 825, where the suppression order related to a plenary proceeding that had been brought in order to impound election records for investigation by the Department of Justice and the grand jury. 18 See especially United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445; Cross v. United States, 145 U.S. 571, 12 S.Ct. 842, 36 L.Ed. 821; cf. Kepner v. United States, 195 U.S. 100, 124—134, 24 S.Ct. 797, 802—806, 49 L.Ed. 114. 19 United States v. Rosenwasser, 9 Cir., 145 F.2d 1015, 156 A.L.R. 1200; cf. United States v. Janitz, 3 Cir., 161 F.2d 19 (order made at trial); United States v. Williams, 4 Cir., 227 F.2d 149 (motion made before indictment); see United States v. One 1946 Plymouth Sedan, 7 Cir., 167 F.2d 3, 8—9. The court below has held a pre-trial order suppressing wiretap evidence to be interlocutory, distinguishing its ruling in the Cefaratti case on the basis that the prohibition of Rule 41(e) against reviving the issue of admissibility at the trial does not apply to wiretap evidence. United States v. Stephenson, 96 U.S.App.D.C. 44, 223 F.2d 336. We express no opinion as to this distinction, in view of our disposition of the present case. An appeal by the United States was treated on the merits without discussion of appealability, where the move for return of papers was made after indictment, in United States v. kirschenblatt, 2 Cir., 16 F.2d 202, 51 A.L.R. 416. That proceeding had elements of independent character because of its statutory context under the National Prohibition Act. Likewise, United States v. Ponder, 4 Cir., 238 F.2d 825, which has some broad language favoring appealability for the Government, on its facts was seen by the court as a proceeding independent of the pending criminal case. See note 17, supra. 20 For an earlier technique, see note 9, supra. 21 See United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300; Kepner v. United States, 195 U.S. 100, 124—134, 24 S.Ct. 797, 802—806, 49 L.Ed. 114. Under the District of Columbia Code of 1901, to be discussed later in this opinion, the Government was granted 'the same right of appeal that is given to the defendant, * * * Provided, That if on such appeal it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.' 31 Stat. 1341. It was soon held that the effect of the proviso was to preclude entirely the taking of an appeal by the Government after a verdict for the defendant. United States v. Evans, 30 App.D.C. 58, approved, 213 U.S. 297, 29 S.Ct. 507, 53 L.Ed. 803; see United States v. Martin, D.C.Mun.App., 81 A.2d 651, 652—653. 22 In the Narcotic Control Act of 1956, the Congress enacted the following provision in a new chapter being added to Title 18 of the U.S.Code (Supp. IV, 1957) 18 U.S.C.A.: § 1404. Motion to Suppress—Appeal by the United States. 'In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion for the return of seized property and to suppress evidence made before the trial of a person charged with a violation of— (designated narcotics offenses) This section shall not apply with respect to any such motion unless the United States attorney shall certify, to the judge granting such motion, that the appeal is not taken for purposes of delay. Any appeal under this section shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted.' 70 Stat. 573. The legislative history shows that the Department of Justice expressed a preference for the passage of other bills, which had been introduced to amend 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, so as to authorize Government appeals from suppression orders in all federal prosecutions, and without the qualification requiring certification by the United States Attorney. See S.Rep. No. 1997, 84th Cong., 2d Sess. 19. The need for the enactment of the more limited measure was stated by the respective committees, which were aware of some of the prior court decisions, including those of the District of Columbia Circuit in Cefaratti and the instant case. See id., at 11, 15, 26; S.Rep. No. 2033, 84th Cong., 2d Sess. 16—19, 28; H.R.Rep. No. 2388, 84th Cong., 2d Sess. 5; Hearing before the Subcommittee on Improvements in the Federal Criminal Code of the Senate Committee on the Judiciary on S. 3760, 84th Cong., 2d Sess. 7—11, 38—43. The more general bills referred to by the Department of Justice were S. 3423 and H.R. 9364, of the 84th Congress. In the current session of the 85th Congress, a bill to the same effect, H.R. 263, has been introduced. 23 Thus, the Criminal Appeals Act has provided for bail on the defendant's own recognizance, and the bills listed in note 22, supra, would extend that provision to defendants pending Government appeals from suppression orders, while the appeal section enacted in the Narcotic Control Act of 1956 does not refer to bail. Both Acts and the bills have the same acceleration provision, albeit the 30-day period was much more of a speed-up when the Criminal Appeals Act was drawn in 1907 than it is today. Cf. Fed.Rules Crim.Proc., 37(a)(2); 28 U.S.C. § 2107, 28 U.S.C.A. § 2107. Only the Narcotic Control Act requires an express certification that the Government appeal is not taken for purposes of delay. 24 See Ex parte Bradley, 7 Wall. 364, 366—368, 19 L.Ed. 214; Frankfurter and Landis, 120—124. 25 5 Stat. 307, Dist.Col.R.S. § 845. 26 31 Stat. 1202. There was also a Police Court, given concurrent jurisdiction over misdemeanors, which now is known as the criminal branch of the Municipal Court. 31 Stat. 1196, D.C.Code 1951, § 11—755. In order to simplify the discussion, we shall not refer in this opinion to the appellate jurisdiction that has existed, in changing forms, from the decisions of this inferior court. See D.C.Code 1951, §§ 11—772, 11—773; United States v. Martin, D.C.Mun.App., 81 A.2d 651; United States v. Basiliko, D.C.Mun.App., 35 A.2d 185. 27 31 Stat. 1225. The relevant text of § 226 was: 'Any party aggrieved by any final order, judgment, or decree of the supreme court of the District of Columbia * * * may appeal therefrom to the said court of appeals; * * *. Appeals shall also be allowed to said court of appeals from all interlocutory orders of the supreme court of the District of Columbia * * * whereby the possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like; and also from any other interlocutory order, in the discretion of the said court of appeals, whenever it is made to appear to said court upon petition that it will be in the interest of justice to allow such appeal.' 28 A list of state provisions was submitted to the Congress in 1907 in connection with the Criminal Appeals Act. See S.Rep. No. 5650, 59th Cong., 2d Sess. Also see United States v. Sanges, 144 U.S. 310, 312—318, 12 S.Ct. 609, 609—612, 36 L.Ed. 445. 29 56 Stat. 271. 30 62 Stat. 862, 992; 63 Stat. 110. 31 See S.Rep. No. 926, 69th Cong., 1st Sess.; H.R.Rep. No. 1363, 69th Cong., 1st Sess.; 67 Cong.Rec. 9968. 32 63 Stat. 110. 33 Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528; Swift & Co. Packers v. Compania Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206; Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. 34 Cases cited note 33, supra; see also 77 S.Ct. 1336 to 1340. Since the Court of Appeals relied on precedents of general applicability to finality problems in construing the District of Columbia statutory provisions, we do not consider that this case falls within the policy that ordinarily causes us to adhere to that court's view on local law matters. Cf. Del Vecchio v. Bowers, 296 U.S. 280, 285, 56 S.Ct. 190, 192, 80 L.Ed. 22d; see Griffin v. United States, 336 U.S. 704, 712—718, 69 S.Ct. 814, 817—820, 93 L.Ed. 993.

01

354 U.S. 515 77 S.Ct. 1373 1 L.Ed.2d 1525 UNITED STATES of America, Plaintiff,v.STATE OF LOUISIANA. No. 11, Original. Argued April 8, 1957. Decided June 24, 1957. Solicitor General J. Lee Rankin, Washington, D.C., for the plaintiff. Messrs. Jack P. F. Gremillion, Atty. Gen., Baton Rouge, La., W. Scott Wilkinson, Sp. Asst. Atty. Gen., Shreveport, La., and Victor A. Sachse, Baton Rouge, La., for the defendant. PER CURIAM. 1 The Court has before it the motions of the United States for judgment and of Louisiana for leave to take depositions. As a result of its consideration of these matters, including the representations made by the State of Texas in its amicus curiae brief, the Court is of the opinion that the issues in this litigation are so related to the possible interests of Texas, and other States situated on the Gulf of Mexico, in the subject matter of this suit, that the just, orderly, and effective determination of such issues requires that they be adjudicated in a proceeding in which all the interested parties are before the Court. 2 Accordingly, to that end, the Court, acting pursuant to Rules 9(2) and (6) of its Revised Rules, Rule 21 of the Federal Rules of Civil Procedure, 28 U.S.C.A. and the general equity powers of the Court, grants leave to each of the States of Alabama, Florida, Mississippi, and Texas to intervene in this suit within 60 days from the date of this opinion, with leave to the United States, within 60 days thereafter, to file an amended or supplemental complaint adding as parties to this suit any of such States as shall not have so intervened. The bringing in of such additional parties shall be without prejudice to the present motions of the United States and Louisiana, subject only to shch terms as justice may require vis-a -vis the additional parties. Meanwhile such motions are continued. 3 Motions continued. 4 The CHIEF JUSTICE and Mr. Justice CLARK took no part in the consideration or decision of this case.

89

354 U.S. 476 77 S.Ct. 1304 1 L.Ed.2d 1498 Samuel ROTH, Petitioner,v.UNITED STATES of America. David S. ALBERTS, Appellant, v. STATE OF CALIFORNIA. Nos. 582, 61. Argued April 22, 1957. Decided June 24, 1957. No. 61: [Syllabus from pages 476-478 intentionally omitted] Mr. Stanley Fleishman, Hollywood, Cal., for appellant Alberts. Mr. Fred N. Whichello, Los Angeles, Cal., and Clarence A. Linn, Asst. Atty. Gen. of California, San Francisco, Cal., for appellee State of California. No. 582: Mr. David von G. Albrecht, New York City, and O. John Rogge, Washington, D.C., for petitioner Roth. Mr. Roger D. Fisher, Washington, D.C., for the United States. [Amicus Curiae Information from page 478 intentionally omitted] Mr. Justice BRENNAN delivered the opinion of the Court. 1 The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute1 violates the provision of the First Amendment that 'Congress shall make no law * * * abridging the freedom of speech, or of the press * * * .' In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code2 invade the freedoms of speech and press as they may be incorporated in the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment. 2 Other constitutional questions are: whether these statutes violate due process,3 because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth); and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to establish post offices and post roads, pre-empted the regulation of the subject matter (raised in Alberts). 3 Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit.4 We granted certiorari.5 4 Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District (having waived a jury trial) under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles.6 We noted probable jurisdiction.7 5 The dispositive question is whether obscenity is utterance within the area of protected speech and press.8 Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U.S. 727, 736—737, 24 L.Ed. 877; United States v. Chase, 135 U.S. 255, 261, 10 S.Ct. 756, 758, 34 L.Ed. 117; Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 328, 41 L.Ed. 715; Public Clearing House v. Coyne, 194 U.S. 497, 508, 24 S.Ct. 789, 793, 48 L.Ed. 1092; Hoke v. United States, 227 U.S. 308, 322, 33 S.Ct. 281, 283, 57 L.Ed. 523; Near v. State of Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 768—769, 86 L.Ed. 1031; Hannegan v. Esquire, Inc., 327 U.S. 146, 158, 66 S.Ct. 456, 462, 90 L.Ed. 586; Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840; Beauharnais v. People of State of Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919.9 6 The guaranties of freedom of expression10 in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel,11 and all of those States made either blasphemy or profanity, or both, statutory crimes.12 As early as 1712, Massachusetts made it criminal to publish 'any filthy, obscene, or profane song, pamphlet, libel or mock sermon' in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass. Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses. 7 In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. People of State of Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.13 8 The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec: 9 'The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.' 1 Journals of the Continental Congress 108 (1774). 10 All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.14 But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations,15 in the obscenity laws of all of the 48 States,16 and in the 20 obscenity laws enacted by the Congress from 1842 to 1956.17 This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031: 11 '* * * There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene * * *. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *.' (Emphasis added.) 12 We hold that obscenity is not within the area of constitutionally protected speech or press. 13 It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial judge instructed the jury: 'The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.' (Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853, 855, namely, whether the material has 'a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.' (Emphasis added.) It is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of antisocial conduct,18 or will probably induce its recipients to such conduct.19 But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. People of State of Illinois, supra, 343 U.S. at page 266, 72 S.Ct. at page 735: 14 'Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.' 15 However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.20 The portrayal of sex, e.g., in art, literature and scientific works,21 is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. As to all such problems, this Court said in Thornhill v. State of Alabama, 310 U.S. 88, 101 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093: 16 'The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. * * * Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' (Emphasis added.) 17 The fundamental freedom of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth.22 Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.23 It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. 18 The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin, (1868) L.R. 3 Q.B. 360.24 Some American courts adopted this standard25 but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.26 The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity. 19 Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in ruling on a motion to dismiss, the trial judge indicated that, as the trier of facts, he was judging each item as a whole as it would affect the normal person,27 and in Roth, the trial judge instructed the jury as follows: 20 '* * * The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly-wise and sophisticated indifferent and unmoved. * * * 21 'The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards. 22 'In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious men, women and children.' It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. The federal obscenity statute makes punishable the mailing of material that is 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character.'28 The California statute makes punishable, inter alia, the keeping for sale or advertising material that is 'obscene or indecent.' The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere. 23 Many decisions have recognized that these terms of obscenity statutes are not precise.29 This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * (T)he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficienty definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7—8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark '* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.' Id., 332 U.S. at page 7, 67 S.Ct. at page 1542. See also United States v. Harriss, 347 U.S. 612, 624, note 15, 74 S.Ct. 808, 815, 98 L.Ed. 989; Boyce Motor Lines, Inc., v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367; United States v. Ragen, 314 U.S. 513, 523—524, 62 S.Ct. 374, 378, 86 L.Ed. 383; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Fox v. State of Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232.30 24 In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give mean in acting adequate notice of what is prohibited. 25 Roth's argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment that 'Congress shall make no law * * * abridging the freedom of speech, or of the press * * *.' (Emphasis added.) That argument falls in light of our holding that obscenity is not expression protected by the First Amendment.31 We therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art I, § 8, cl. 7.32 In United Public Workers v. Mitchell, 330 U.S. 75, 95—96, 67 S.Ct. 556, 567, 91 L.Ed. 754, this Court said: 26 '* * * The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail * * *.' 27 Alberts argues that because his was a mail-order business, the California statute is repugnant to Art. 1, § 8, cl. 7, under which the Congress allegedly preempted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal statute deals only with actual mailing; it does not eliminate the power of the state to punish 'keeping for sale' or 'advertising' obscene material. The state statute in no way imposes a burden or interferes with the federal postal functions. '* * * The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions * * *.' Railway Mail Ass'n v. Corsi, 326 U.S. 88, 96, 65 S.Ct. 1483, 1488, 89 L.Ed. 2072. 28 The judgments are affirmed. 29 Affirmed. 30 Mr. Chief Justice WARREN, concurring in the result. 31 I agree with the result reached by the Court in these cases, but, because we are operating in a field of expression and because broad language used here may eventually be applied to the arts and sciences and freedom of communication generally, I would limit our decision to the facts before us and to the validity of the statutes in question as applied. 32 Appellant Alberts was charged with wilfully, unlawfully and lewdly disseminating obscene matter. Obscenity has been construed by the California courts to mean having a substantial tendency to corrupt by arousing lustful desires. People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853. Petitioner Roth was indicted for unlawfully, wilfully and knowingly mailing obscene material that was calculated to corrupt and debauch the minds and morals of those to whom it was sent. Each was accorded all the protections of a criminal trial. Among other things, they contend that the statutes under which they were convicted violate the constitutional guarantees of freedom of speech, press and communication. 33 That there is a social problem presented by obscenity is attested by the expression of the legislatures of the forty-eight States as well as the Congress. To recognize the existence of a problem, however, does not require that we sustain any and all measures adopted to meet that problem. The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments. 34 The line dividing the salacious or pornographic from literature or science is not straight and unwavering. Present laws depend largely upon the effect that the materials may have upon those who receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it reached. But there is more to these cases. It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting. 35 The personal element in these cases is seen most strongly in the requirement of scienter. Under the California law, the prohibited activity must be done 'wilfully and lewdly.' The federal statute limits the crime to acts done 'knowingly.' In his charge to the jury, the district judge stated that the matter must be 'calculated' to corrupt or debauch. The defendants in both these cases were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide. 36 I agree with the Court's decision in its rejection of the other contentions raised by these defendants. 37 Mr. Justice HARLAN, concurring in the result in No. 61, and dissenting in No. 582. 38 I regret not to be able to join the Court's opinion. I cannot do so because I find lurking beneath its disarming generalizations a number of problems which not only leave me with serious misgivings as to the future effect of today's decisions, but which also, in my view, call for different results in these two cases. I. 39 My basic difficulties with the Court's opinion are threefold. First, the opinion paints with such a broad brush that I fear it may result in a loosening of the tight reins which state and federal courts should hold upon the enforcement of obscenity statutes. Second, the Court fails to discriminate between the different factors which, in my opinion, are involved in the constitutional adjudication of state and federal obscenity cases. Third, relevant distinctions between the two obscenity statutes here involved, and the Court's own definition of 'obscenity,' are ignored. 40 In final analysis, the problem presented by these cases is how far, and on what terms, the state and federal governments have power to punish individuals for disseminating books considered to be undesirable because of their nature or supposed deleterious effect upon human conduct. Proceeding from the premise that 'no issue is presented in either case, concerning the obscenity of the material involved,' the Court finds the 'dispositive question' to be 'whether obscenity is utterance within the area of protected speech and press,' and then holds that 'obscenity' is not so protected because it is 'utterly without redeeming social importance.' This sweeping formula appears to me to beg the very question before us. The Court seems to assume that 'obscenity' is a peculiar genus of 'speech and press,' which is as distinct, recognizable, and classifiable as poison ivy is among other plants. On this basis the constitutional question before us simply becomes, as the Court says, whether 'obscenity,' as an abstraction, is protected by the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of 'fact,' to be entrusted to a fact-finder and insulated from independent constitutional judgment. But surely the problem cannot be solved in such a generalized fashion. Every communication has an individuality and 'value' of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves. 41 I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as 'obscene,' for, if 'obscenity' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind. Many juries might find that Joyce's 'Ulysses' or Bocaccio's 'Decameron' was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are 'utterly without redeeming social importance.' In short, I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based. I am very much afraid that the broad manner in which the Court has decided these cases will tend to obscure the peculiar responsibilities resting on state and federal courts in this field and encourage them to rely on easy labeling and jury verdicts as a substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case. 42 My second reason for dissatisfaction with the Court's opinion is that the broad strides with which the Court has proceeded has led it to brush aside with perfunctory ease the vital constitutional considerations which, in my opinion, differentiate these two cases. It does not seem to matter to the Court that in one case we balance the power of a State in this field against the restrictions of the Fourteenth Amendment, and in the other the power of the Federal Government against the limitations of the First Amendment. I deal with this subject more particularly later. 43 Thirdly, the Court has not been bothered by the fact that the two cases involve different statutes. In California the book must have a 'tendency to deprave or corrupt its readers'; under the federal statute it must tend 'to stir sexual impulses and lead to sexually impure thoughts.'1 The two statutes do not seem to me to present the same problems. Yet the Court compounds confusion when it superimposes on these two statutory definitions a third, drawn from the American Law Institute's Model Penal Code, Tentative Draft No. 6: 'A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest.' The bland assurance that this definition is the same as the ones with which we deal flies in the face of the authors' express rejection of the 'deprave and corrupt' and 'sexual thoughts' tests: 44 'Obscenity (in the Tentative Draft) is defined in terms of material which appeals predominantly to prurient interest in sexual matters and which goes beyond customary freedom of expression in these matters. We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which 'tends to corrupt or debase.' If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehavior follows from contact with obscenity. Evidence of such consequences is lacking. * * * On the other hand, 'appeal to prurient interest' refers to qualities of the material itself: the capacity to attract individuals eager for a forbidden look. * * *'2 45 As this passage makes clear, there is a significant distinction between the definitions used in the prosecutions before us, and the American Law Institute formula. If, therefore, the latter is the correct standard, as my Brother BRENNAN elsewhere intimates,3 then these convictions should surely be reversed. Instead, the Court merely assimilates the various tests into one indiscriminate potpourri. 46 I now pass to the consideration of the two cases before us. II. 47 I concur in the judgment of the Court in No. 61, Alberts v. People of State of California. 48 The question in this case is whether the defendant was deprived of liberty without due process of law when he was convicted for selling certain materials found by the judge to be obscene because they would have a 'tendency to deprave or corrupt its readers by exciting lascivious thoughts or arousing lustful desire.' 49 In judging the constitutionality of this conviction, we should remember that our function in reviewing state judgments under the Fourteenth Amendment is a narrow one. We do not decide whether the policy of the State is wise, or whether it is based on assumptions scientifically substantiated. We can inquire only whether the state action so subverts the fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power. See Jackson, J., dissenting in Beauharnais v. People of State of Illinois, 343 U.S. 250, 287, 72 S.Ct. 725, 746, 96 L.Ed. 919. The States' power to make printed words criminal is, of course, confined by the Fourteenth Amendment, but only insofar as such power is inconsistent with our concepts of 'ordered liberty.' Palko v. State of Connecticut, 302 U.S. 319, 324—325, 58 S.Ct. 149, 82 L.Ed. 288. 50 What, then, is the purpose of this California statute? Clearly the state legislature has made the judgment that printed words can 'deprave or corrupt' the reader—that words can incite to anti-social or immoral action. The assumption seems to be that the distribution of certain types of literature will induce criminal or immoral sexual conduct. It is well known, of course, that the validity of this assumption is a matter of dispute among critics, sociologists, psychiatrists, and penologists. There is a large school of thought, particularly in the scientific community, which denies any causal connection between the reading of pornography and immorality, crime, or delinquency. Others disagree. Clearly it is not our function to decide this question. That function belongs to the state legislature. Nothing in the Constitution requires California to accept as truth the most advanced and sophisticated psychiatric opinion. It seems to me clear that it is not irrational, in our present state of knowledge, to consider that pornography can induce a type of sexual conduct which a State may deem obnoxious to the moral fabric of society. In fact the very division of opinion on the subject counsels us to respect the choice made by the State. 51 Furthermore, even assuming that pornography cannot be deemed ever to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cognizance of the States may be protected by the prohibition placed on such materials. The State can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards. And the State has a legitimate interest in protecting the privacy of the home against invasion of unsolicited obscenity. 52 Above all stands the realization that we deal here with an area where knowledge is small, data are insufficient, and experts are divided. Since the domain of sexual morality is pre-eminently a matter of state concern, this Court should be slow to interfere with state legislation calculated to protect that morality. It seems to me that nothing in the broad and flexible command of the Due Process Clause Forbids California to prosecute one who sells books whose dominant tendency might be to 'deprave or corrupt' a reader. I agree with the Court, of course, that the books must be judged as a whole and in relation to the normal adult reader. 53 What has been said, however, does not dispose of the case. It still remains for us to decide whether the state court's determination that this material should be suppressed is consistent with the Fourteenth Amendment; and that, of course, presents a federal question as to which we, and not the state court, have the ultimate responsibility. And so, in the final analysis, I concur in the judgment because, upon an independent perusal of the material involved, and in light of the considerations discussed above, I cannot say that its suppression would so interfere with the communication of 'ideas' in any proper sense of that term that it would offend the Due Process Clause. I therefore agree with the Court that appellant's conviction must be affirmed. III. 54 I dissent in No. 582, Roth v. United States. 55 We are faced here with the question whether the federal obscenity statute, as construed and applied in this case, violates the First Amendment to the Constitution. To me, this question is of quite a different order than one where we are dealing with state legislation under the Fourteenth Amendment. I do not think it follows that state and federal powers in this area are the same, and that just because the State may suppress a particular utterance, it is automatically permissible for the Federal Government to do the same. I agree with Mr. Justice Jackson that the historical evidence does not bear out the claim that the Fourteenth Amendment 'incorporates' the First in any literal sense. See Beauharnais v. People of State of Illinois, supra. But laying aside any consequences which might flow from that conclusion, cf. Mr. Justice Holmes in Gitlow v. People of State of New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138,4 I prefer to rest my views about this case on broader and less abstract grounds. 56 The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many instances, are distinct. And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal. Since under our constitutional scheme the two are not necessarily equivalent, the balancing process must needs often produce different results. Whether a particular limitation on speech or press is to be upheld because it subserves a paramount governmental interest must, to a large extent, I think, depend on whether that government has, under the Constitution, a direct substantive interest, that is, the power to act, in the particular area involved. 57 The Federal Government has, for example, power to restrict seditious speech directed against it, because that Government certainly has the substantive authority to protect itself against revolution. Cf. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. But in dealing with obscenity we are faced with the converse situation, for the interests which obscenity statutes purportedly protect are primarily entrusted to the care, not of the Federal Government, but of the States. Congress has no substantive power over sexual morality. Such powers as the Federal Government has in this field are but incidental to its other powers, here the postal power, and are not of the same nature as those possessed by the States, which bear direct responsibility for the protection of the local moral fabric.5 What Mr. Justice Jackson said in Beauharnais, supra, 343 U.S. at pages 294—295, 72 S.Ct. at page 750, about criminal libel is equally true of obscenity: 58 'The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms. Criminality of defamation is predicated upon power either to protect the private right to enjoy integrity of reputation or the public right to tranquillity. Neither of these are objects of federal cognizance except when necessary to the accomplishment of some delegated power * * *. When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquillity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests.' 59 Not only is the federal interest in protecting the Nation against pornography attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do. It has often been said that one of the great strengths of our federal system is that we have, in the forty-eight States, forty-eight experimental social laboratories. 'State statutory law reflects predominantly this capacity of a legislature to introduce novel techniques of social control. The federal system has the immense advantage of providing forty-eight separate centers for such experimentation.'6 Different States will have different attitudes toward the same work of literature. The same book which is freely read in one State might be classed as obscene in another.7 And it seems to me that no overwhelming danger to our freedom to experiment and to gratify our tastes in literature is likely to result from the suppression of a borderline book in one of the States, so long as there is no uniform nation-wide suppression of the book, and so long as other States are free to experiment with the same or bolder books. 60 Quite a different situation is presented, however, where the Federal Government imposes the ban. The danger is perhaps not great if the people of one State, through their legislature, decide that 'Lady Chatterley's Lover' goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. The prerogative of the States to differ on their ideas of morality will be destroyed, the ability of States to experiment will be stunted. The fact that the people of one State cannot read some of the works of D. H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment. 61 I judge this case, then, in view of what I think is the attenuated federal interest in this field, in view of the very real danger of a deadening uniformity which can result from nation-wide federal censorship, and in view of the fact that the constitutionality of this conviction must be weighed against the First and not the Fourteenth Amendment. So viewed, I do not think that this conviction can be upheld. The petitioner was convicted under a statute which, under the judge's charge,8 makes it criminal to sell books which 'tend to stir sexual impulses and lead to sexually impure thoughts.' I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is 'utterly without redeeming social importance.' Not only did this charge fail to measure up to the standards which I understand the Court to approve, but as far as I can see, much of the great literature of the world could lead to conviction under such a view of the statute. Moreover, in no event do I think that the limited federal interest in this area can extend to mere 'thoughts.' The Federal Government has no business, whether under the postal or commerce power, to bar the sale of books because they might lead to any kind of 'thoughts.'9 62 It is no answer to say, as the Court does, that obscenity is not protected speech. The point is that this statute, as here construed, defines obscenity so widely that it encompasses matters which might very well be protected speech. I do not think that the federal statute can be constitutionally construed to reach other than what the Government has termed as 'hard-core' pornography. Nor do I think the statute can fairly be read as directed only at persons who are engaged in the business of catering to the prurient minded, even though their wares fall short of hard-core pornography. Such a statute would raise constitutional questions of a different order. That being so, and since in my opinion the material here involved cannot be said to be hard-core pornography, I would reverse this case with instructions to dismiss the indictment. 63 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 64 When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment, which by its terms is a restraint on Congress and which by the Fourteenth is a restraint on the States. 65 In the Roth case the trial judge charged the jury that the statutory words 'obscene, lewd and lascivious' describe 'that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.' He stated that the term 'filthy' in the statute pertains 'to that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends to arouse a feeling of disgust and revulsion.' (237 F.2d 799.) He went on to say that the material 'must be calculated to corrupt and debauch the minds and morals' of 'the average person in the community' not those of any particular class. 'You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by presentday standards.' 66 The trial judge who, sitting without a jury, heard the Alberts case and the appellate court that sustained the judgment of conviction, took California's definition of 'obscenity' from People v. Wepplo, 78 Cal.App.2d Supp. 959, 961, 178 P.2d 853, 855. That case held that a book is obscene 'if it has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire.' 67 By these standards punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct. This test cannot be squared with our decisions under the First Amendment. Even the ill-starred Dennis case conceded that speech to be punishable must have some relation to action which could be penalized by government. Dennis v. United States, 341 U.S. 494, 502—511, 71 S.Ct. 857, 863—868, 95 L.Ed. 1137. Cf. Chafee, The Blessings of Liberty (1956), p. 69. This issue cannot be avoided by saying that obscenity is not protected by the First Amendment. The question remains, what is the constitutional test of obscenity? 68 The tests by which these convictions were obtained require only the arousing of sexual thoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways. Nearly 30 years ago a questionnaire sent to college and normal school women graduates asked what things were most stimulating sexually. Of 409 replies, 9 said 'music'; 18 said 'pictures'; 29 said 'dancing'; 40 said 'drama'; 95 said 'books'; and 218 said 'man.' Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 73. 69 The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment. As recently stated by two of our outstanding authorities on obscenity, 'The danger of influencing a change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom.' Lockhart & McClure, Literature, The Law of Obscenity and the Constitution, 38 Minn.L.Rev. 295, 387. 70 If we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards. 71 'There are a number of reasons for real and substantial doubts as to the soundness of that hypothesis. (1) Scientific studies of juvenile delinquency demonstrate that those who get into trouble, and are the greatest concern of the advocates of censorship, are far less inclined to read than those who do not become delinquent. The delinquents are generally the adventurous type, who have little use for reading and other non-active entertainment. Thus, even assuming that reading sometimes has an adverse effect upon moral conduct, the effect is not likely to be substantial, for those who are susceptible seldom read. (2) Sheldon and Eleanor Glueck, who are among the country's leading authorities on the treatment and causes of juvenile delinquency, have recently published the results of a ten year study of its causes. They exhaustively studied approximately 90 factors and influences that might lead to or explain juvenile delinquency, but the Gluecks gave no consideration to the type of reading material, if any, read by the delinquents. This is, of course, consistent with their finding that delinquents read very little. When those who know so much about the problem of delinquency among youth—the very group about whom the advocates of censorship are most concerned—conclude that what delinquents read has so little effect upon their conduct that it is not worth investigating in an exhaustive study of causes, there is good reason for serious doubt concerning the basic hypothesis on which obscenity censorship is defended. (3) The many other influences in society that stimulate sexual desire are so much more frequent in their influence, and so much more potent in their effect, that the influence of reading is likely, at most, to be relatively insignificant in the composite of forces that lead an individual into conduct deviating from the community sex standards. The Kinsey studies show the minor degree to which literature serves as a potent sexual stimulant. And the studies demonstrating that sex knowledge seldom results from reading indicates (sic) the relative unimportance of literature in sex thoughts as compared with other factors in society.' Lockhart & McClure, op. cit. supra, pp. 385—386. 72 The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society's interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control. 73 As noted, the trial judge in the Roth case charged the jury in the alternative that the federal obscenity statute outlaws literature dealing with sex which offends 'the common conscience of the community.' That standard is, in my view, more inimical still to freedom of expression. 74 The standard of what offends 'the common conscience of the community' conflicts, in my judgment, with the command of the First Amendment that 'Congress shall make no law * * * abridging the freedom of speech, or of the press.' Certainly that standard would not be an acceptable one if religion, economics, polities or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned? 75 Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to 'sexual impurity' or has a tendency 'to excite lustful thoughts.' This is community censorship in one of its worst forms. It creates a regime where in the battle between the literati and the Philistines, the Philistines and certain to win. If experience in this field teaches anything, it is that 'censorship of obscenity has almost always been both irrational and indiscriminate.' Lockhart & McClure, op. cit. supra, at 371. The test adopted here accentuates that trend. 76 I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct. 77 I can understand (and at times even sympathize) with programs of civic groups and church groups to protect and depend the existing moral standards of the community. I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be concerned with antisocial conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor. 78 The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test the role of the censor is exalted, and society's values in literary freedom are sacrificed. 79 The Court today suggests a third standard. It defines obscene material as that 'which deals with sex in a manner appealing to prurient interest.'* Like the standards applied by the trial judges below, that standard does not require any nexus between the literature which is prohibited and action which the legislature can regulate or prohibit. Under the First Amendment, that standard is no more valid than those which the courts below adopted. 80 I do not think that the problem can be resolved by the Court's statement that 'obscenity is not expression protected by the First Amendment.' With the exception of Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919, none of our cases has resolved problems of free speech and free press by placing any form of expression beyond the pale of the absolute prohibition of the First Amendment. Unlike the law of libel, wrongfully relief on in Beauharnais, there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment. In fact, the first reported court decision in this country involving obscene literature was in 1821. Lockhart & McClure, op. cit. supra, at 324, n. 200. I reject too the implication that problems of freedom of speech and of the press are to be resolved by weighing against the values of free expression, the judgment of the Court that a particular form of that expression has 'no redeeming social importance.' The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position. 81 Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834; National Labor Relations Board v. Virginia Power Co., 314 U.S. 469, 477—478, 62 S.Ct. 344, 348, 86 L.Ed. 348. As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless. 82 I would give the broad sweep of the First Amendment full support. I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field. 1 The federal obscenity statute provided, in pertinent part: 'Every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character; and—* * * 'Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, * * * whether sealed or unsealed * * * 'Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. 'Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable, or knowingly takes the same from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both.' 18 U.S.C. § 1461, 18 U.S.C.A. § 1461. The 1955 amendment of this statute, 69 Stat. 183, is not applicable to this case. 2 The California Penal Code provides, in pertinent part: 'Every person who wilfully and lewdly, either: '3. Writes, composes, stereotypes, prints, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, or book; or designs, copies, draws, engraves, paints, or otherwise prepares any obscene or indecent picture or print; or molds, cuts, casts, or otherwise makes any obscene or indecent figure; or, '4. Writes, composes, or publishes any notice or advertisement of any such writing, paper, book, picture, print or figure; * * * '6. * * * is guilty of a misdemeanor * * *.' West's Cal. Penal Code Ann., 1955, § 311. 3 In Roth, reliance is placed on the Due Process Clause of the Fifth Amendment, and in Alberts, reliance is placed upon the Due Process Clause of the Fourteenth Amendment. 4 237 F.2d 796. 5 352 U.S. 964, 77 S.Ct. 361, 1 L.Ed.2d 319. Petitioner's application for bail was granted by Mr. Justice Harlan in his capacity as Circuit Justice for the Second Circuit. 77 S.Ct. 17, 1 L.Ed.2d 34. 6 138 Cal.App.2d Supp. 909, 292 P.2d 90. This is the highest state appellate court available to the appellant. Cal. Const., Art. VI, § 5; see Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119. 7 Alberts v. People of State of California, 352 U.S. 962, 77 S.Ct. 349, 1 L.Ed.2d 319. 8 No issue is presented in either case concerning the obscenity of the material involved. 9 See also the following cases in which convictions under obscenity statutes have been reviewed: Grimm v. United States, 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550; Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 799; Andrews v. United States, 162 U.S. 420, 16 S.Ct. 798, 40 L.Ed. 1023; Price v. United States, 165 U.S. 311, 17 S.Ct. 366, 41 L.Ed. 727; Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799; Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583; United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843. 10 Del.Const.1792, Art. I, § 5, Del.C.Ann.; Ga.Const.1777, Art. LXI; Md.Const. 1776, Declaration of Rights, § 38; Mass. Const.1780,. Declaration of Rights, Art. XVI; N.H.Const.1784, Art. 1, § 22; N.C.Const.1776, Declaration of Rights, Art. XV; Pa.Const.1776, Declaration of Rights, Art. XII; S.C.Const.1778, Art. XLIII; Vt.Const.1777, Declaration of Rights, Art. XIV; Va. Bill of Rights, 1776, § 12. 11 Act to Secure the Freedom of the Press (1804), 1 Conn.Pub.Stat.Laws 355 (1808); Del.Const.1792, Art. I, § 5; Ga. Penal Code, Eighth Div., § 8 (1817), Digest of the Laws of Ga. 364 (Prince 1822); Act of 1803, c. 54, II Md.Public General Laws 1096 (Poe 1888); Commonwealth monwealth v. Kneeland, 1838, 20 Pick. 206, 37 Mass. 206, 232; Act for the Punishment of Certain Crimes Not Capital (1791), Laws of N.H. 253 (1792); Act Respecting Libels (1799), N.J.Rev.Laws 411 (1800); People v. Croswell, 1804, 3 Johns.Cas., N.Y., 337; Act of 1803, c. 632, 2 Laws of N.C. 999 (1821); Pa.Const.1790, Art. 9, § 7; R.I.Code of Laws (1647), Proceedings of the First General Assembly and Code of Laws 44—45 (1647); R.I.Const.1842, Art. I, § 20; Act of 1804, 1 Laws of Vt. 366 (Tolman 1808); Commonwealth v. Morris, 1811, 1 Va.Cas. 176, 3 Va. 176. 12 Act for the Punishment of Divers Capital and Other Felonies, Acts and Laws of Conn. 66, 67 (1784); Act Against Drunkenness, Blasphemy, §§ 4, 5 (1737), 1 Laws of Del. 173, 174 (1797); Act to Regulate Taverns (1786), Digest of the Laws of Ga. 512, 513 (Prince 1822); Act of 1723, c. 16, § 1, Digest of the Laws of Md. 92 (Herty 1799); General Laws and Liberties of Mass.Bay, c. XVIII, § 3 (1646), Mass.Bay Colony Charters & Laws 58 (1814); Act of 1782, c. 8, Rev.Stat. of Mass. 741, § 15 (1836); Act of 1798, c. 33, §§ 1, 3, Rev.Stat. of Mass. 741, § 16 (1836); Act for the Punishment of Certain Crimes Not Capital (1791), Laws of N.II. 252, 256 (1792); Act for the Punishment of Profane Cursing and Swearing (1791), Laws of N.II. 258 (1792); Act for Suppressing Vice and Immorality, §§ VIII, IX (1798), N.J.Rev. Laws 329, 331 (1800); Act for Suppressing Immorality, § IV (1788), 2 Laws of N.Y. 257, 258 (Jones & Varick 1777—1789); People v. Ruggles, 1811, 8 Johns., N.Y., 290; Act . . . for the More Effectual Suppression of Vice and Immorality, § III (1741), 1 % n.c.l/aws 52 (Martin Rev.1715—1790); Act to Prevent the Grievous Sins of Cursing and Swearing (1700), II Statutes at Large of Pa. 49 (1700—1712); Act for the Prevention of Vice and Immorality, § II (1794), 3 Laws of Pa. 177, 178 (1791—1802); Act to Reform the Penal Laws, §§ 33, 34 (1798), Laws of R.I. 584, 595 (1798); Act for the More Effectual Suppressing of Blasphemy and Prophaneness (1703), Laws of S.C. 4 (Grimke 1790); Act, for the Punishment of Certain Capital, and Other High Crimes and Misdemeanors, § 20 (1797), 1 Laws of Vt. 332, 339 (Tolman 1808); Act, for the Punishment of Certain Inferior Crimes and Misdemeanors, § 20 (1797), 1 Laws of Vt. 352, 361 (Tolman 1808); Act for the Effectual Suppression of Vice, § 1 (1792), Acts of General Assembly of Va. 286 (1794). 13 Act Concerning Crimes and Punishments, § 69 (1821), Stat.Laws of Conn. 109 (1824); Knowles v. State, 1808, 3 Day, Conn., 103; Rev.Stat. of 1835, c. 130, § 10, Rev.Stat. of Mass. 740 (1836); Commonwealth v. Holmes, 1821, 17 Mass. 335; Rev.Stat. of 1842, c. 113, § 2, Rev.Stat. of N.H. 221 (1843); Act for Suppressing Vice and Immorality, § XII (1798), N.J.Rev.Laws 329, 331 (1800); Commonwealth v. Sharpless, 1815, 2 Serg. & R., Pa., 91. 14 E.g., United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; International Brotherhood Teamsters, etc., Union v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; National Labor Relations Board v. Virginia Elec. & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. 15 Agreement for the Suppression of the Circulation of Obscene Publications, 37 Stat. 1511; Treaties in Force 209 (U.S.Dept.State October 31, 1956). 16 Hearings before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, pursuant to S.Res. 62, 84th Cong., 1st Sess. 49—52 (May 24, 1955). Although New Mexico has no general obscenity statute, it does have a statute giving to municipalities the power 'to prohibit the sale or exhibiting of obscene or immoral publications, prints, pictures, or illustrations.' N.M.Stat.Ann., 1953, §§ 14—21—3, 14 21—12. 17 5 Stat. 548, 566; 11 Stat. 168; 13 Stat. 504, 507; 17 Stat. 302; 17 Stat. 598; 19 Stat. 90; 25 Stat. 187, 188; 25 Stat. 496; 26 Stat. 567, 614—615; 29 Stat. 512; 33 Stat. 705; 35 Stat. 1129, 1138; 41 Stat. 1060; 46 Stat. 688; 48 Stat. 1091, 1100; 62 Stat. 768; 64 Stat. 194; 64 Stat. 451; 69 Stat. 183; 70 Stat. 699, 18 U.S.C.A. §§ 1461—1465, 1718; 39 U.S.C.A. §§ 259a, 259b. 18 Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. This approach is typified by the opinion of Judge Bok (written prior to this Court's opinion in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137), in Commonwealth v. Gordon, 66 Pa.Dist. & Co. R. 101, affirmed, sub nom. Commonwealth v. Feigenbaum, 166 Pa.Super. 120, 70 A.2d 389. 19 Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. This approach is typified by the concurring opinion of Judge Frank in the Roth case, 237 F.2d at page 801. See also Lockhart & McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295 (1954). 20 I.e., material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows: '* * * Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd * * *.' Pruriency is defined, in pertinent part, as follows: '* * * Quality of being prurient; lascivious desire or thought. * * *' See also Mutual Film Corp. v. Industrial Comm., 236 U.S. 230, 242, 35 S.Ct. 387, 390, 59 L.Ed. 552, where this Court said as to motion pictures: '* * * They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to * * *.' (Emphasis added.) We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.: '* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or exerction, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *' See comment, id., at 10, and the discussion at page 29 et seq. 21 See, e.g., United States v. Dennett, 2 Cir., 39 F.2d 564, 76 A.L.R. 1092. 22 Madison's Report on the Virginia Resolutions, 4 Eilliot's Debates 571. 23 See note 14, supra. 24 But see the instructions given to the jury by Mr. Justice Stable in Regina v. Martin Secker Warburg, (1954) 2 All Eng. 683 (C.C.C.). 25 United States v. Kennerley, D.C., 209 F. 119; MacFadden v. United States, 3 Cir., 165 F. 51; United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14,571; United States v. Clarke, D.C., 38 F. 500; Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910, 22 L.R.A.,N.S., 225. 26 E.g., Walker v. Popenoe, 80 U.S.App.D.C. 129, 149 F.2d 511; Parmelee v. United States, 72 App.D.C. 203, 113 F.2d 729; United States v. Levine, 2 Cir., 83 F.2d 156; United States v. Dennett, 2 Cir., 39 F.2d 564, 76 A.L.R. 1092; Khan v. Leo Feist, Inc., D.C., 70 F.Supp. 450, affirmed, 2 Cir., 165 F.2d 188; United States v. One Book Called 'Ulysses,' D.C., 5 F.Supp. 182, affirmed, 2 Cir., 72 F.2d 705; American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334, 121 N.E.2d 585; Commonwealth v. Isenstadt, 318 Mass. 543, 62 N.E.2d 840; State of Missouri v. Becker, 364 Mo. 1079, 272 S.W.2d 283; Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d 519; Bantam Books, Inc., v. Melko, 25 N.J.Super. 292, 96 A.2d 47; Commonwealth v. Gordon, 66 Pa.Dist. & Co.R. 101, affirmed, sub nom., Commonwealth v. Feigenbaum, 166 Pa.Super. 120, 70 A.2d 389; cf. Roth v. Goldman, 2 Cir., 172 F.2d 788, 794—795 (concurrence). 27 In Alberts, the contention that the trial judge did not read the materials in their entirety is not before us because not fairly comprised within the questions presented. Sup.Ct.Rules, 15(1)(c)(1), 28 U.S.C.A. 28 This Court, as early as 1896, said of the federal obscenity statute: '* * * Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this englightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious.' Rosen v. United States, 161 U.S. 29, 42, 16 S.Ct. 434, 438, 480, 40 L.Ed. 606. 29 E.g., Roth v. Goldman, 2 Cir., 172 F.2d 788, 789; Parmelee v. United States, 72 App.D.C. 203, 204, 113 F.2d 729, 730; United States v. 4200 Copies International Journal, D.C., 134 F.Supp. 490, 493; United States v. One Unbound Volume, D.C., 128 F.Supp. 280, 281. 30 It is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U.S. 486, 499—500, 17 S.Ct. 375, 379—380, 41 L.Ed. 799. 31 For the same reason, we reject, in this case, the argument that there is greater latitude for state action under the word 'liberty' under the Fourteenth Amendment than is allowed to Congress by the language of the First Amendment. 32 In Public Clearing House v. Coyne, 194 U.S. 497, 506—508, 24 S.Ct. 789, 793, 48 L.Ed. 1092, this Court said: 'The constitutional principles underlying the administration of the Postoffice Department were discussed in the opinion of the court in Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877, in which we held that the power vested in Congress to establish postoffices and post roads embraced the regulation of the entire postal system of the country; that Congress might designate what might be carried in the mails and what excluded * * *. It may * * * refuse to include in its mails such printed matter or merchandise as may seem objectionable to it upon the ground of public policy * * *. For more than thirty years not only has the transmission of obscene matter been prohibited, but it has been made a crime, punishable by fine or imprisonment, for a person to deposit such matter in the mails. The constitutionality of this law we believe has never been attacked * * *.' 1 In Alberts v. People of State of California, 352 U.S. 962, 77 S.Ct. 349, 1 L.Ed.2d 319, the state definition of 'obscenity' is, of course, binding on us. The definition there used derives from People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853, the question being whether the material has 'a substantive tendency to deprave or corrupt its readers by exciting lascivious thoughts or arousing lustful desire.' In Roth v. United States, our grant of certiorari was limited to the question of the constitutionality of the statute, and did not encompass the correctness of the definition of 'obscenity' adopted by the trial judge as a matter of statutory construction. We must therefore assume that the trial judge correctly defined that term, and deal with the constitutionality of the statute as construed and applied in this case. The two definitions do not seem to me synonymous. Under the federal definition it is enough if the jury finds that the book as a whole leads to certain thoughts. In California, the further inference must be drawn that such thoughts will have a substantive 'tendency to deprave or corrupt'—i.e., that the thoughts induced by the material will affect character and action. See American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207.10(2), Comments, p. 10. 2 Ibid. 3 See dissenting opinion of Mr. Justice Brennan in Kingsley Books, Inc., v. Brown, 354 U.S. 447, 77 S.Ct. 1331. 4 'The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.' 5 The hoary dogma of Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877, and Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092, that the use of the mails is a privilege on which the Government may impose such conditions as it chooses, has long since evaporated. See Brandeis, J., dissenting, in Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 430 433, 41 S.Ct. 352, 360—361, 65 L.Ed. 704; Holmes, J., dissenting, in Leach v. Carlile, 258 U.S. 138, 140, 42 S.Ct. 227, 228, 66 L.Ed. 511; Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609, reversing 7 Cir., 189 F.2d 369; Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d 764. 6 Hart, The Relations Between State and Federal Law, 54 Col.L.Rev. 489, 493. 7 To give only a few examples: Edmund Wilson's 'Memoirs of Hecate County' was found obscene in New York, see Doubleday & Co. v. People of State of New York, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398; a bookseller indicated for selling the same book was acquitted in California. 'God's Little Acre' was held to be obscene in Massachusetts, not obscene in New York and Pennsylvania. 8 While the correctness of the judge's charge is not before us, the question is necessarily subsumed in the broader question involving the constitutionality of the statute as applied in this case. 9 See American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207.10, Comments, p. 20: 'As an independent goal of penal legislation, repression of sexual thoughts and desires is hard to support. Thoughts and desires not manifested in overt antisocial behavior are generally regarded as the exclusive concern of the individual and his spiritual advisors.' * The definition of obscenity which the Court adopts seems in substance to be that adopted by those who drafted the A.L.I., Model Penal Code. § 207.10(2) (Tentative Draft No. 6, 1957). 'Obscenity is defined in terms of material which appeals predominantly to prurient interest in sexual matters and which goes beyond customary freedom of expression in these matters. We reject the prevailing tests of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional as well as practical difficulties.' Id., at 10.

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354 U.S. 521 77 S.Ct. 1371 1 L.Ed.2d 1529 Charles Leo FARLEY, Petitioner,v.UNITED STATES of America. No. Misc. 686. Decided June 24, 1957. PER CURIAM. 1 The petition for writ of certiorari is granted, as is the motion for leave to proceed in forma pauperis. 2 Petitioner was convicted of bank robbery in the United States District Court for the Eastern District of New York and sentenced to 20 years' imprisonment. Under 28 U.S.C. § 1915, 28 U.S.C.A. § 1915, he applied to the District Court for leave to appeal in forma pauperis. Petitioner, who was assisted by court-appointed counsel in preparing his application, contended that the evidence was insufficient to justify his conviction and that the trial court had committed reversible error by permitting the United States Attorney to ask him irrelevant and prejudicial questions about another criminal offense. Petitioner requested that the District Court make available a transcript of the trial record so he could substantiate his claimed errors. In reply the United States Attorney filed an affidavit asserting that the evidence was sufficient to sustain petitioner's conviction. However, the affidavit did not directly controvert petitioner's claim that the prosecuting attorney had been allowed to inject irrelevant and prejudicial matter into the trial. Counsel for petitioner then filed an affidavit in answer supporting petitioner's allegation of errors. 3 The District Court refused the request for a transcript of the trial record and denied the application for leave to appeal in forma pauperis on the ground that the appeal was 'not taken in good faith' because it was 'frivolous and without merit' and '(t)he evidence amply supported the verdict.' Petitioner then asked the Court of Appeals for permission to appeal in forma pauperis but that court denied his request indicating that his claimed errors were without substance. 2 Cir., 242 F.2d 338. And see 2 Cir., 238 F.2d 575. 4 As things now stand conflicting affidavits have been introduced concerning petitioner's contention of errors at the trial. If the allegations made by petitioner and his counsel are correct then it seems quite clear to us that his appeal cannot be characterized as frivolous. Before his allegation of errors can be accurately evaluated, however, to ascertain if they do have any merit he should be furnished with a transcript of the trial record unless counsel can agree on a statement of the relevant facts or some other means are devised to make the minutes of the trial available to petitioner—so that he has an opportunity to substantiate his allegations and point out their significance and so that they can be appraised on a dependable record. Cf. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. In our judgment petitioner has not yet been afforded an adequate opportunity to show the Court of Appeals that his claimed errors are not frivolous so as to enable that court to review properly the District Court's certification that the appeal was in bad faith. Accordingly the judgment below must be vacated and the case remanded to the Court of Appeals for further proceedings not inconsistent with this opinion. 5 It is so ordered. 6 Mr. Justice CLARK and Mr. Justice HARLAN dissent.

12

354 U.S. 436 77 S.Ct. 1325 1 L.Ed.2d 1469 KINGSLEY BOOKS, Inc., Louis Finkelstein, Doing Business as Times Book Shop, et al., Appellants,v.Peter Campbell BROWN, Corporation Counsel of the City of New York. No. 107. Argued April 22, 1957. Decided June 24, 1957. Mr. Emanuel Redfield, New York City, for appellants. Mr. Seymour B. Quel, New York City, for appellee. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 This is a proceeding under § 22—a of the New York Code of Criminal Procedure (L.1941, c. 925), as amended in 1954 (L.1954, c. 702). This section supplements the existing conventional criminal provision dealing with pornography by authorizing the chief executive, or legal officer, of a municipality to invoke a 'limited injunctive remedy,' under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene, and to obtain an order for the seizure, in default of surrender, of the condemned publications.1 2 A complaint dated September 10, 1954, charged appellants with displaying for sale paper-covered obscene booklets, fourteen of which were annexed, under the general title of 'Nights of Horror.' The complaint prayed that appellants be enjoined from further distribution of the booklets,that they be required to surrender to the sheriff for destruction all copies in their possession, and, upon failure to do so, that the sheriff be commanded to seize and destroy those copies. The same day the appellants were ordered to show cause within four days why they should not be enjoined pendente lite from distributing the booklets. Appellants consented to the granting of an injunction pendente lite and did not bring the matter to issue promptly, as was their right under subdivision 2 of the challenged section, which provides that the persons sought to be enjoined 'shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial.' After the case came to trial, the judge, sitting in equity, found that the booklets annexed to the complaint and introduced in evidence were clearly obscene—were 'dirt for dirt's sake'; he enjoined their further distribution and ordered their destruction. He refused to enjoin 'the sale and distribution of later issues' on the ground that 'to rule against at volume not offered in evidence would * * * impose an unreasonable prior restraint upon freedom of the press.' 208 Misc. 150, 167, 142 N.Y.S.2d 735, 750. 3 Not challenging the construction of the statute or the finding of obscenity, appellants took a direct appeal to the New York Court of Appeals, a proceeding in which the constitutionality of the statute was the sole question open to them. That court (one judge not sitting) found no constitutional infirmity: three judges supported the unanimous conclusion by detailed discussion, the other three deemed a brief disposition justified by 'ample authority.' 1 N.Y.2d 177, 189, 151 N.Y.S.2d 639, 134 N.E.2d 461, 468. A claim under the Due Process Clause of the Fourteenth Amendment made throughout the state litigation brought the case here on appeal. 352 U.S. 962, 77 S.Ct. 350, 1 L.Ed.2d 319. 4 Neither in the New York Court of Appeals, nor here, did appellants assail the legislation insofar as it outlaws obscenity. The claim they make lies within a very narrow compass. Their attack is upon the power of New York to employ the remedial scheme of § 22—a. Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which '(a) dequate notice, judicial hearing, (and) fair determination' are assured, 208 Misc. 150, 164, 142 N.Y.S.2d 735, 747, is a safeguard against frustration of the public interest in effectuating judicial condemnation of obscene matter. It is a brake on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions, sale by sale, of a publication already condemned as obscene. New York enacted this procedure on the basis of study by a joint legislative committee. Resort to this injunctive remedy, it is claimed, is beyond the constitutional power of New York in that it amounts to a prior censorship of literary product and as such is violative of that 'freedom of thought, and speech' which has been 'withdrawn by the Fourteenth Amendment from encroachment by the states.' Palko v. State of Connecticut, 302 U.S. 319, 326—327, 58 S.Ct. 149, 152—153, 82 L.Ed. 288. Reliance is particularly placed upon Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. 5 In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that 'the primary requirements of decency may be enforced against obscene publications.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. And so our starting point is that New York can constitutionally convict appellants of keeping for sale the booklets incontestably found to be obscene. Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304. The immediate problem then is whether New York can adopt as an auxiliary means of dealing with such obscene merchandising the procedure of § 22—a. 6 We need not linger over the suggestion that something can be drawn out of the Due Process Clause of the Fourteenth Amendment that restricts New York to the criminal process in seeking to protect its people against the dissemination of pornography. It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature's range of choice. See Tigner v. State of Texas, 310 U.S. 141, 148, 60 S.Ct. 879, 882, 84 L.Ed. 1124. If New York chooses to subject persons who disseminate obscene 'literature' to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. State of Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that 'Liberty of speech, and of the press, is also not an absolute right,' 283 U.S. at page 708, 51 S.Ct. at page 628, it likewise made clear that 'the protection even as to previous restraint is not absolutely unlimited.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. To be sure, the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship. 7 The judicial angle of vision in testing the validity of a statute like § 22—a is 'the operation and effect of the statute in substance.' Id., 283 U.S. at page 713, 51 S.Ct. at page 630. The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: 'What is needed,' writes Professor Paul A. Freund, 'is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.' The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539. 8 Wherein does § 22—a differ in its effective operation from the type of statute upheld in Alberts? Section 311 of California's Penal Code provides that 'Every person who wilfully and lewdly * * * keeps for sale * * * any obscene * * * book * * * is guilty of a misdemeanor * * *.' Section 1141 of New York's Penal Law, McKinney's Consol. Laws, c. 40 is similar. One would be bold to assert that the in terrorem effect of such statutes less restrains booksellers in the period before the law strikes than does § 22—a. Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity. Until then, he may keep the book for sale and sell it on his own judgment rather than steer 'nervously among the treacherous shoals.' Warburg, Onward And Upward With The Arts, The New Yorker, April 20, 1957, pp. 98, 101, in connection with R. v. Martin Secker Warburg, Ltd., (1954) 2 All Eng. 683 (C.C.C.). 9 Criminal enforcement and the proceeding under § 22—a interfere with a book's solicitation of the public precisely at the same stage. In each situation the law moves after publication; the book need not in either case have yet passed into the hands of the public. The Alberts record does not show that the matter there found to be obscene had reached the public at the time that the criminal charge of keeping such matter for sale was lodged, while here as a matter of fact copies of the booklets whose distribution was enjoined had been on sale for several weeks when process was served. In each case the bookseller is put on notice by the complaint that sale of the publication charged with obscenity in the period before trial may subject him to penal consequences. In the one case he may suffer fine and imprisonment for violation of the criminal statute, in the other, for disobedience of the temporary injunction. The bookseller may of course stand his ground and confidently believe that in any judicial proceeding the book could not be condemned as obscene, but both modes of procedure provide an effective deterrent against distribution prior to adjudication of the book's content—the threat of subsequent penalization.2 10 The method devised by New York in § 22—a for determining whether a publication is obscene does not differ in essential procedural safeguards from that provided under many state statutes making the distribution of obscene publications a misdemeanor. For example, while the New York criminal provision brings the State's criminal procedure into operation, a defendant is not thereby entitled to a jury trial. In each case a judge is the conventional trier of fact; in each, a jury may as a matter of discretion be summoned. Compare N.Y. City Criminal Courts Act, § 31, Sub. 1(c) and Sub. 4, with N.Y. Civil Practice Act, § 430. (Appellants, as a matter of fact, did not request a jury trial, they did not attack the statute in the courts below for failure to require a jury, and they did not bring that issue to this Court.) Of course, the Due Process Clause does not subject the States to the necessity of having trial by jury in misdemeanor prosecutions. 11 Nor are the consequences of a judicial condemnation for obscenity under § 22—a more restrictive of freedom of expression than the result of conviction for a misdemeanor. In Alberts, the defendant was fined $500, sentenced to sixty days in prison, and put on probation for two years on condition that he not violate the obscenity statute. Not only was he completely separated from society for two months but he was also seriously restrained from trafficking in all obscene publications for a considerable time. Appellants, on the other hand, were enjoined from displaying for sale or distributing only the particular booklets theretofore published and adjudged to be obscene. Thus, the restraint upon appellants as merchants in obscenity was narrower than that imposed on Alberts. 12 Section 22—a's provision for the seizure and destruction of the instruments of ascertained wrongdoing expresses resort to a legal remedy sanctioned by the long history of Anglo-American law. See Holmes, The Common Law, 24—26; Van Oster v. State of Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354; Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 510—511, 41 S.Ct. 189, 190—191, 65 L.Ed. 376; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385, and see United States v. Urbuteit, 335 U.S. 355, 69 S.Ct. 112, 93 L.Ed. 61, dealing with misbranded articles under § 304(a) of the Food, Drug, and Cosmetic Act, 52 Stat. 1044, 21 U.S.C.A. § 334(a). It is worth noting that although the Alberts record does not reveal whether the publications found to be obscene were destroyed, provision is made for that by §§ 313 and 314 of the California Penal Code. Similarly, § 1144 of New York's Penal Law provides for destruction of obscene matter following conviction for its dissemination. 13 It only remains to say that the difference between Near v. State of Minnesota, supra, and this case is glaring in fact. The two cases are no less glaringly different when judged by the appropriate criteria of constitutional law. Minnesota empowered its courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive. In the language of Mr. Chief Justice Hughes, 'This is of the essence of censorship.' 283 U.S. at page 713, 51 S.Ct. at page 630. As such, it was found unconstitutional. This was enough to condemn the statute wholly apart from the fact that the proceeding in Near involved not obscenity but matters deemed to be derogatory to a public officer. Unlike Near, § 22—a is concerned solely with obscenity and, as authoritatively construed, it studiously withholds restraint upon matters not already published and not yet found to be offensive. 14 The judgment is affirmed. 15 Affirmed. 16 Mr. Chief Justice WARREN, dissenting. 17 My views on the right of a State to protect its people against the purveyance of obscenity were expressed in Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304. Here we have an entirely different situation. 18 This is not a criminal obscenity case. Nor is it a case ordering the destruction of materials disseminated by a person who has been convicted of an offense for doing so, as would be authorized under provisions in the laws of New York and other States. It is a case wherein the New York police, under a different state statute, located books which, in their opinion, were unfit for public use because of obscenity and then obtained a court order for their condemnation and destruction. 19 The majority opinion sanctions this proceeding. I would not. Unlike the criminal cases decided today, this New York law places the book on trial. There is totally lacking any standard in the statute for judging the book in context. The personal element basic to the criminal laws is entirely absent. In my judgment, the same object may have wholly different impact depending upon the setting in which it is placed. Under this statute, the setting is irrelevant. 20 It is the manner of use that should determine obscenity. It is the conduct of the individual that should be judged, not the quality of art or literature. To do otherwise is to impose a prior restraint and hence to violate the Constitution. Certainly in the absence of a prior judicial determination of illegal use, books, pictures and other objects of expression should not be destroyed. It savors too much of book burning. 21 I would reverse. 22 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting, announced by Mr. Justice BRENNAN. 23 There are two reasons why I think this restraining order should be dissolved. 24 First, the provision for an injunction pendente lite gives the State the paralyzing power of a censor. A decree can issue ex parte—without a hearing and without any ruling or finding on the issue of obscenity. This provision is defended on the ground that it is only a little encroachment, that a hearing must be promptly given and a finding of obscenity promptly made. But every publisher knows what awful effect a decree issued in secret can have. We tread here on First Amendment grounds. And nothing is more devastating to the rights that it guarantees than the power to restrain publication before even a hearing is held. This is prior restraint and censorship at its worst. 25 Second, the procedure for restraining by equity decree the distribution of all the condemned literature does violence to the First Amendment. The judge or jury which finds the publisher guilty in New York City acts on evidence that may be quite different from evidence before the judge or jury that finds the publisher not guilty in Rochester. In New York City the publisher may have been selling his tracts to juveniles, while in Rochester he may have sold to professional people. The nature of the group among whom the tracts are distributed may have an important bearing on the issue of guilt in any obscenity prosecution. Yet the present statute makes one criminal conviction conclusive and authorizes a statewide decree that subjects the distributor to the contempt power. I think every publication is a separate offense which entitles the accused to a separate trial. Juries or judges may differ in their opinions, community by community, case by case. The publisher is entitled to that leeway under our constitutional system. One is entitled to defend every utterance on its merits and not to suffer today for what he uttered yeaterday. Free speech is not to be regulated like diseased cattle and impure butter. The audience (in this case the judge or the jury) that hissed yesterday may applaud today, even for the same performance. 26 The regime approved by the Court goes far toward making the censor supreme. It also substitutes punishment by contempt for punishment by jury trial. In both respects it transgresses constitutional guarantees. 27 I would reverse this judgment and direct the restraining order to be dissolved. 28 Mr. Justice BRENNAN, dissenting. 29 I believe the absence in this New York obscenity statute of a right to jury trial is a fatal defect. Provision for jury trials in equity causes is made by § 430 of the New York Civil Practice Act,1 but only for discretionary jury trials, and advisory verdicts, to be followed or rejected by the trial judge as he deems fit and proper.2 30 In Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304, the Court held to be constitutional the following standard for judging obscenity—whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The statutes there involved allowed a jury trial of right, and we did not reach the question whether the safeguards necessary for securing the freedoms of speech and press for material not obscene included a jury determination of obscenity. 31 The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person's application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, i.e., that reasonable men may differ whether the material is obscene.3 32 I would reverse the judgment and direct the restraining order to be dissolved. 1 '§ 22—a. Obscene prints and articles; jurisdiction. The supreme court has jurisdiction to enjoin the sale or distribution of obscene prints and articles, as hereinafter specified: '1. The chief executive officer of any city, town or village or the corporation counsel, or if there be none, the chief legal officer of any city, town, or village, in which a person, firm or corporation sells or distributes or is about to sell or distribute or has in his possession with intent to sell or distribute or is about to acquire possession with intent to sell or distribute any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure, image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting, or which contains an article or instrument of indecent or immoral use or purports to be for indecent or immoral use or purpose; or in any other respect defined in section eleven hundred forty-one of the penal law, may maintain an action for an injunction against such person, firm or corporation in the supreme court to prevent the sale or further sale or the distribution or further distribution or the acquisition or possession of any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter of an indecent character, herein described or described in section eleven hundred forty-one of the penal law. '2. The person, firm or corporation sought to be enjoined shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial. '3. In the event that a final order or judgment of injunction be entered in favor of such officer of the city, town or village and against the person, firm or corporation sought to be enjoined, such final order of judgment shall contain a provision directing the person, firm or corporation to surrender to the sheriff of the county in which the action was brought any of the matter described in paragraph one hereof and such sheriff shall be directed to seize and destroy the same. '4. In any action brought as herein provided such officer of the city, town or village shall not be required to file any undertaking before the issuance of an injunction order provided for in paragraph two hereof, shall not be liable for costs and shall not be liable for damages sustained by reason of the injunction order in cases where judgment is rendered in favor of the person, firm or corporation sought to be enjoined. '5. Every person, firm or corporation who sells, distributes, or acquires possession with intent to sell or distribute any of the matter described in paragraph one hereof, after the service upon him of a summons and complaint in an action brought by such officer of any city, town or village pursuant to this section is chargeable with knowledge of the contents thereof.' 2 This comparison of remedies takes note of the fact that we do not have before us a case where, although the issue of obscenity is ultimately decided in favor of the bookseller, the State nevertheless attempts to punish him for disobedience of the interim injunction. For all we know, New York may impliedly condition the temporary injunction so as not to subject the bookseller to a charge of contempt if he prevails on the issue of obscenity. 1 Gilbert-Bliss' N.Y.Civil Practice Act, Vol. 3B, 1942, § 430. 2 Learned v. Tillotson, 97 N.Y. 1; Bolognino v. Bolognino, 136 Misc. 656, 241 N.Y.S. 445 (S.Ct.), affirmed 231 App.Div. 817, 246 N.Y.S. 883. 3 Parmelee v. United States, 72 App.D.C. 203, 205, 113 F.2d 729, 731; United States v. Dennett, 2 Cir., 39 F.2d 564, 568, 76 A.L.R. 1092.

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354 U.S. 517 77 S.Ct. 1398 1 L.Ed.2d 1534 Theodore C. McBRIDE, petitioner,v.TOLEDO TERMINAL RAILROAD COMPANY. No. 972. Supreme Court of the United States June 24, 1957 On petition for writ of certiorari to the Supreme Court of Ohio. PER CURIAM. 1 The petition for writ of certiorari is granted, the judgment of the Supreme Court of Ohio is reversed, and the cause is remanded. Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. 2 Mr. Justice FRANKFURTER, dissenting. 3 In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, I gave my reasons for deeming it an abuse of the Court's discretionary certiorari jurisdiction to make cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., a class exception to the Court's principle against granting certiorari when all that is involved is the evaluation of evidence. The circumstances of the present case vividly emphasize the objections to such an exception. 4 All that is to be determined in this case is whether there were sufficient facts to warrant a jury in finding that the lighting in the situation in which petitioner worked, assumed to be inadequate, caused in whole or in part the injury to petitioner. The trial judge in the Court of Common Please thought not. On review, the Court of Appeals of Lucas County reversed: two judges thought there were enough facts to justify a jury's finding of causation while the dissenting judge agreed with the trial court. On review of this reversal, the Supreme Court of Ohio, with one of its seven judges not sitting, unanimously reversed the Court of Appeals and restored the judgment of the trial court. 166 Ohio St. 129, 140 N.E.2d 319. Thus, this issue of the sufficiency of evidence for a jury's finding of relevant causation was passed on by the three courts in the hierarchy of Ohio's judiciary. Of the ten judges, eight found the evidence insufficient for a jury to guess at and two thought they should be allowed to guess—for determination of causation is inescapably guessing, informed guessing if you will, but guessing. 5 Congress saw fit to give the state courts jurisdiction of the rights it created by the Federal Employers' Liability Act. Presumably, it had confidence in the state courts for enforcement of these rights. It emphasized this confidence by a special Act, passed more than forty years ago, which withdrew from this Court what theretofore had been appealiability as of right of judgments of state courts in Federal Employers' Liability Act cases. It left adjudications brought in the state courts with the state courts, except in instances applicable generally to the jurisdiction on writ of certiorari, to be exercised, that is, 'only where there are special and important reasons therefor.' Rule 19 of the Revised Rules of this Court, 28 U.S.C.A. 6 It cannot be too often repeated. This Court has said again and again that a difference of opinion in weighing evidence is not included among 'special and important reasons' for granting certiorari. One would suppose that an examination of the evidence by three courts and ten judges of Ohio would be proof that the facts in the case have been conscinentiously canvassed. A different case would be presented were this Court to find that the Ohio Supreme Court applied wrong legal standards to the particular facts before it or evinced hostility to the federal statute. Either one of these grounds would present a fair basis in which to seek review here of the decision of the Ohio Supreme Court. But that is not the basis on which review was sought and on which it is granted. In agreeing to take the case, the Court merely accedes to the natural desire of an unsuccessful plaintiff to have one more court guess whether there were enough facts on which the jury should be allowed to do its guessing. And so the nine members of the highest tribunal in the land, proccupied with more than enough cases involving the gravest issues of national importance, are asked to take on the task of making an independent study of the record below (for I must assume that those who review the merits have examined the 294 pages of the record), the four opinions below, and the briefs of parties, after three courts and ten judges of Ohio have conscientiously dealt with questions that are not specialized questions of federal law and indeed constitute probably the most recurring staple business of the courts throughout the country. 7 I must respectfully decline to assume this task. This Court from time to time is compelled to hold that a federal court has abused some discretionary judicial power. Abuse of judicial discretion is a technical phrase to express a misconception of the judicial function as exercised in a particular situation. There is no appeal from such abuse of judicial discretion by this Court. When there is such a misuse of power, as I deem it to be in making an exception, in effect if not formally, of cases under the Federal Employers' Liability Act that turn merely on evaluation of evidence, only the individual conscience remains. Since this case underscores the reasons for declining to associate myself in what I regard as a misuse of the power properly vested in a minority of this Court in granting certiorari, I have no choice but to conclude that the writ of certiorari in this case has been improvidently granted and, having been granted, should be dismissed. 8 Mr. Justice BURTON, dissenting. 9 For the reasons stated by the Supreme Court of Ohio, 166 Ohio St. 129, 140 N.E.2d 319, I believe that petitioner's injuries were not caused, 'in whole or in part,' by the possible inadequacy of the lighting. 10 Mr. Justice HARLAN, with whom Mr. Justice WHITTAKER joins, dissents for the reasons given in his opinion in Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 559, 77 S.Ct. 443.

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354 U.S. 449 77 S.Ct. 1356 1 L.Ed.2d 1479 Andrew R. MALLORY, Petitioner,v.UNITED STATES of America. No. 521. Argued April 1, 1957. Decided June 24, 1957. Mr. William B. Bryant, Washington, D.C., for the petitioner. Mr. Edward L. Barrett, Jr., Sp. Asst. to the Atty. Gen., for the respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Petitioner was convicted of rape in the United States District Court for the District of Columbia, and, as authorized by the District Code, the jury imposed a death sentence. The Court of Appeals affirmed, one judge dissenting. 98 U.S.App.D.C. 406, 236 F.2d 701. Since an important question involving the interpretation of the Federal Rules of Criminal Procedure, 18 U.S.C.A., was involved in this capital case, we granted the petition for certiorari. 352 U.S. 877, 77 S.Ct. 103, 1 L.Ed.2d 79. 2 The rape occurred at six p.m. on April 7, 1954, in the basement of the apartment house inhabited by the victim. She had descended to the basement a few minutes previous to wash some laundry. Experiencing some difficulty in detaching a hose in the sink, she sought help from the janitor, who lived in a basement apartment with his wife, two grown sons, a younger son and the petitioner, his nineteen-year-old half-brother. Petitioner was alone in the apartment at the time. He detached the hose and returned to his quarters. Very shortly thereafter, a masked man, whose general features were identified to resemble those of petitioner and his two grown nephews, attacked the woman. She had heard no one descend the wooden steps that furnished the only means of entering the basement from above. 3 Petitioner and one of his grown nephews disappeared from the apartment house shortly after the crime was committed. The former was apprehended the following afternoon between two and two-thirty p.m. and was taken, along with his older nephews, also suspects, to police headquarters. At least four officers questioned him there in the presence of other officers for thirty to forty-five minutes, beginning the examination by telling him, according to his testimony, that his brother had said that he was the assailant. Petitioner strenuously denied his guilt. He spent the rest of the afternoon at headquarters, in the company of the other two suspects and his brother a good part of the time. About four p.m. the three suspects were asked to submit to 'lie detector' tests, and they agreed. The officer in charge of the polygraph machine was not located for almost two hours, during which time the suspects received food and drink. The nephews were then examined first. Questioning of petitioner began just after eight p.m. Only he and the polygraph operator were present in a small room, the door to which was closed. 4 Following almost an hour and one-half of steady interrogation, he 'first stated that he could have done this crime, or that he might have done it. He finally stated that he was responsible. * * *' (Testimony of polygraph operator, R. 70.) Not until ten p.m., after petitioner had repeated his confession to other officers, did the police attempt to reach a United States Commissioner for the purpose of arraignment. Failing in this, they obtained petitioner's consent to examination by the deputy coroner, who noted no indicia of physical or psychological coercion. Petitioner was then confronted by the complaining witness and '(p)ractically every man in the Sex Squad,' and in response to questioning by three officers, he repeated the confession. Between eleven-thirty p.m. and twelve-thirty a.m. he dictated the confession to a typist. The next morning he was brought before a Commissioner. At the trial, which was delayed for a year because of doubt about petitioner's capacity to understand the proceedings against him, the signed confession was introduced in evidence. 5 The case calls for the proper application of Rule 5(a) of the Federal Rules of Criminal Procedure, promulgated in 1946, 327 U.S. 821. That Rule provides: 6 '(a) Appearance before the Commissioner. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith.' 7 This provision has both statutory and judicial antecedents for guidance in applying it. The requirement that arraignment be 'without unnecessary delay' is a compendious restatement, without substantive change, of several prior specific federal statutory provisions. (E.g., 20 Stat. 327, 341; 48 Stat. 1008; also 28 Stat. 416.) See Dession, The New Federal Rules of Criminal Procedure I, 55 Yale L.J. 694, 707. Nearly all the States have similar enactments. 8 In McNabb v. United States, 318 U.S. 332, 343—344, 63 S.Ct. 608, 614, 87 L.Ed. 819, we spelled out the important reasons of policy behind this body of legislation: 9 'The purpose of this impressively pervasive requirement of criminal procedure is plain. * * * The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard—not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the 'third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime.' 10 Since such unwarranted detention led to tempting utilization of intensive interrogation, easily gliding into the evils of 'the third degree,' the Court held that police detention of defendants beyond the time when a committing magistrate was readily accessible constituted 'wilful disobedience of law.' In order adequately to enforce the congressional requirement of prompt arraignment, it was deemed necessary to render inadmissible incriminating statements elicited from defendants during a period of unlawful detention. 11 In Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, which came here after the Federal Rules of Criminal Procedure had been in operation, the Court made it clear that Rule 5(a)'s standard of 'without unnecessary delay' implied no relaxation of the McNabb doctrine. 12 The requirement of Rule 5(a) is part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforcement. Provisions related to Rule 5(a) contemplate a procedure that allows arresting officers little more leeway than the interval between arrest and the ordinary administrative steps required to bring a suspect before the nearest available magistrate. Rule 4(a) provides: 'If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue * * *.' Rule 4(b) requires that the warrant 'shall command that the defendant be arrested and brought before the nearest available commissioner.' And Rules 5(b) and (c) reveal the function of the requirement of prompt arraignment: 13 '(b) Statement by the Commissioner. The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in these rules. 14 '(c) Preliminary Examination. The defendant shall not be called upon the plead. If the defendant waives preliminary examination, the commissioner shall forthwith hold him to answer in the district court. If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him. The commissioner shall admit the defendant to bail as provided in these rules.' 15 The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on 'probable cause.' The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be 'booked' by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt. 16 The duty enjoined upon arresting officers to arraign 'without unnecessary delay' indicates that the command does not call for mechanical or automatic obedience. Circumstances may justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession. 17 The circumstances of this case preclude a holding that arraignment was 'without unnecessary delay.' Petitioner was arrested in the early afternoon and was detained at headquarters within the vicinity of numerous committing magistrates. Even though the police had ample evidence from other sources than the petitioner for regarding the petitioner as the chief suspect, they first questioned him for approximately a half hour. When this inquiry of a nineteen-year-old lad of limited intelligence produced no confession, the police asked him to submit to a 'lie-detector' test. He was not told of his rights to counsel or to a preliminary examination before a magistrate, nor was he warned that he might keep silent and 'that any statement made by him may be used against him.' After four hours of further detention at headquarters, during which arraignment could easily have been made in the same building in which the police headquarters were housed, petitioner was examined by the lie-detector operator for another hour and a half before his story began to waver. Not until he had confessed, when any judicial caution had lost its purpose, did the police arraign him. 18 We cannot sanction this extended delay, resulting in confession, without subordinating the general rule of prompt arraignment to the discretion of arresting officers in finding exceptional circumstances for its disregard. In every case where the police resort to interrogation of an arrested person and secure a confession, they may well claim, and quite sincerely, that they were merely trying to check on the information given by him. Against such a claim and the evil potentialities of the practice for which it is urged stands Rule 5(a) as a barrier. Not is there an escape from the constraint laid upon the police by that Rule in that two other suspects were involved for the same crime. Presumably, whomever the police arrest they must arrest on 'probable cause.' It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on 'probable cause.' 19 Reversed and remanded.

01

354 U.S. 524 77 S.Ct. 1409 1 L.Ed. 1544 Charles E. WILSON, Secretary of Defense, et al., Petitioners,v.William S. GIRARD, United States Army Specialist 3/C. William S. GIRARD, Petitioner, v. Charles E. WILSON, et al. Nos. 1103, 1108. Argued July 8, 1957. Decided July 11, 1957. Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for petitioners in No. 1103 and for the respondents in No. 1108. Messrs. Joseph S. Robinson and Earl J. Carroll, New York City, for respondent in No. 1103 and for the petitioner in No. 1108. PER CURIAM. 1 Japan and the United States became involved in a controversy whether the respondent Girard should be tried by a Japanese court for causing the death of a Japanese woman. The basis for the dispute between the two Governments fully appears in the affidavit of Robert Dechert, General Counsel of the Department of Defense, an exhibit to a government motion in the court below, and the joint statement of Secretary of State John Foster Dulles and Secretary of Defense Charles E. Wilson, printed as appendices to this opinion. 2 Girard, a Specialist Third Class in the United States Army, was engaged on January 30, 1957, with members of his cavalry regiment in a small unit exercise at Camp Weir range area, Japan. Japanese civilians were present in the area, retrieving expended cartridge cases. Girard and another Specialist Third Class were ordered to guard a machine gun and some items of clothing that had been left nearby. Girard had a grenade launcher on his rifle. He placed an expended 30-caliber cartridge case in the grenade launcher and projected it by firing a blank. The expended cartridge case penetrated the back of a Japanese woman gathering expended cartridge cases and caused her death. 3 The United States ultimately notified Japan that Girard would be delivered to the Japanese authorities for trial. Thereafter, Japan indicted him for causing death by wounding. Girard sought a writ of habeas corpus in the United States District Court for the District of Columbia. The writ was denied, but Girard was granted declaratory relief and an injunction against his delivery to the Japanese authorities. 152 F.Supp. 21. The petitioners appealed to the Court of Appeals for the District of Columbia, and, without awaiting action by that court on the appeal, invoked the jurisdiction of this Court under 28 U.S.C. § 1254(1), 28 U.S.C.A. § 1254(1). Girard filed a cross-petition for certiorari to review the denial of the writ of habeas corpus. We granted both petitions. 354 U.S. 928, 77 S.Ct. 1390. U.S. Supreme Court Rule 20, 28 U.S.C.A. 4 A Security Treaty between Japan and the United States, signed September 8, 1951, was ratified by the Senate on March 20, 1952, and proclaimed by the President effective April 28, 1952.1 Article III of the Treaty authorized the making of Administrative Agreements between the two Governments concerning '(t)he conditions which shall govern the disposition of armed forces of the United States of America in and about Japan * * *.' Expressly acting under this provision, the two Nations, on February 28, 1952, signed an Administrative Agreement covering, among other matters, the jurisdiction of the United States over offenses committed in Japan by members of the United States armed forces, and providing that jurisdiction in any case might be waived by the United States.2 This Agreement became effective on the same date as the Security Treaty (April 28, 1952) and was considered by the Senate before consent was given to the Treaty. 5 Article XVII, paragraph 1, of the Administrative Agreement provided that upon the coming into effect of the 'Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces,'3 signed June 19, 1951, the United States would conclude with Japan an agreement on criminal jurisdiction similar to the corresponding provisions of the NATO Agreement. The NATO Agreement became effective August 23, 1953, and the United States and Japan signed on September 29, 1953, effective October 29, 1953, a Protocol Agreement4 pursuant to the covenant in paragraph 1 of Article XVII. 6 Paragraph 3 of Article XVII, as amended by the Protocol, dealt with criminal offenses in violation of the laws of both Nations and provided: 7 '3. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply: 8 '(a) The military authorities of the United States shall have the primary right to exercise jurisdiction over members of the United States armed forces or the civilian component in relation to 9 '(i) offenses solely against the property or security of the United States, or offenses solely against the person or property of another member of the United States armed forces or the civilian component or of a dependent; 10 '(ii) offenses arising out of any act or omission done in the performance of official duty. 11 '(b) In the case of any other offense the authorities of Japan shall have the primary right to exercise jurisdiction. 12 '(c) If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.' 13 Article XXVI of the Administrative Agreement established a Joint Committee of representatives of the United States and Japan to consult on all matters requiring mutual consultation regarding the implementation of the Agreement; and provided that if the Committee '* * * is unable to resolve any matter, it shall refer that matter to the respective governments for further consideration through appropriate channels.' 14 In the light of the Senate's ratification of the Security Treaty after consideration of the Administrative Agreement, which had already been signed, and its subsequent ratification of the NATO Agreement, with knowledge of the commitment to Japan under the Administrative Agreement, we are satisfied that the approval of Article III of the Security Treaty authorized the making of the Administrative Agreement and the subsequent Protocol embodying the NATO Agreement provisions governing jurisdiction to try criminal offenses. 15 The United States claimed the right to try Girard upon the ground that his act, as certified by his commanding officer, was 'done in the performance of official duty' and therefore the United States had primary jurisdiction. Japan insisted that it had proof that Girard's action was without the scope of his official duty and therefore that Japan had the primary right to try him. 16 The Joint Committee, after prolonged deliberations, was unable to agree. The issue was referred to higher authority, which authorized the United States representatives on the Joint Committee to notify the appropriate Japanese authorities, in accordance with paragraph 3(c) of the Protocol, that the United States had decided not to exercise, but to waive, whatever jurisdiction it might have in the case. The Secretary of State and the Secretary of Defense decided that this determination should be carried out. The President confirmed their joint conclusion. 17 A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction. The Schooner Exchange v. M'Faddon, 7 Cranch 116, 136, 3 L.Ed. 287. Japan's cession to the United States of jurisdiction to try American military personnel for conduct constituting an offense against the laws of both countries was conditioned by the covenant of Article XVII, section 3, paragraph (c) of the Protocol that 18 '* * * The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.' The issue for our decision is therefore narrowed to the question whether, upon the record before us, the Constitution or legislation subsequent to the Security Treaty prohibited the carrying out of this provision authorized by the Treaty for waiver of the qualified jurisdiction granted by Japan. We find no constitutional or statutory barrier to the provision as applied here. In the absence of such encroachments, the wisdom of the arrangement is exclusively for the determination of the Executive and Legislative Branches. 19 The judgment of the District Court in No. 1103 is reversed, and its judgment in No. 1108 is affirmed. 20 Mr. Justice DOUGLAS took no part in the consideration or decision of this case. Appendix A.* In the United States District Court for 21 the District of Columbia William S. Girard 22 United States Army Specialist 3/C, Petitioner vs. H. C. 47-57 Charles E. Wilson Secretary of Defense 23 et al., Respondents Affidavit With Respect to Facts Commonwealth of Pennsylvania SS. City and County of Philadelphia 24 In the United States District Court for the District of Columbia 25 William S. Girard United States Army Specialist 3/C, Petitioner 26 vs. 27 Charles E. Wilson Secretary of Defense et al., Respondents H.C. 47—57 Affidavit With Respect to Facts Commonwealth of Pennsylvania City and County of Philadelphia SS. 28 Robert Dechert, being first duly sworn, deposes and says: 29 I am the General Counsel of the Department of Defense. Personnel of my office collect, collate, and maintain files on the arrangements with regard to the exercise of criminal jurisdiction entered into between the United States and foreign countries. I have reviewed and am familiar with the various communications relating to the incident involving Specialist Third Class William S. Girard which occurred in Japan on 30 January 1957 and state, as a result of such review, and upon information and belief, that the facts surrounding that incident are as follows: The Situation at Camp Weir Firing Range, January 30. 30 On the afternoon of 30 January 1957, about 30 members of Company F, 8th Cavalry Regiment, were engaged in a small unit exercise at Camp Weir range area, Japan, involving an attack by one squad on a hill defended by another squad. Specialist 3/C William S. Girard was in the 'attacking' force. The Commanding Officer of the 8th Cavalry Regiment, Colonel Herbert A. Jordan, states that during the morning he was appalled at the large numbers of Japanese civilian trespassers present in the area and interfering with the conduct of the exercise. He estimates that their number was in excess of 150. In one case a group of six to eight civilians pounced on a machine gun position as soon as the gun ceased firing and, before the gunner could clear his weapon, physically pushed him away from the gun in order to retrieve expended cartridge cases. 31 The maneuver area consists of approximately eight square miles. It is provided by the Japanese Government for part time use of United States forces. The Japanese Defense Force uses the same area about 40% of the time. When the area is not in use by either the United States or Japanese armed forces, Japanese civilians are permitted to farm or otherwise use the area. The Japanese civilians of the local village follow the practice of scavenging the expended brass cartridge cases from the maneuver area. 32 Upon the failure of efforts of military personnel to move the trespassers out of the danger area, Col. Jordan directed that all ball ammunition be withdrawn from the troops, and that blank ammunition be substituted in the afternoon exercise. He also directed that the Japanese police be contacted for assistance in clearing trespassers from the area, so that normal field training might be resumed. Up until the early afternoon, when the shooting incident occurred, this assistance was not forthcoming. The Shooting Incident. 33 After one squad had attacked the hill and before the squads had changed their respective positions so that the attacking force became the defending force, and vice versa, two soldiers, Girard and Specialist 3/C Victor N. Nickel, of the 'defending' force, were ordered by their platoon leader, Second Lieutenant Billy M. Mahon, who was personally directing their activities to guard a machine gun and some items of personal clothing that had been left on a nearby ridge. 34 Girard in an early statement made during the course of the investigation, stated that he was ordered to get the Japanese away. He is quoted as having stated that he did not receive orders to fire at them to get them away. There is no evidence, other than the st tement of Girard, that he was ordered to get the Japanese away. 35 Lieut. Mahon stated that he was advised that a machine gun and several field jackets had been left on the other side of Hill 655 and that he instructed Specialist 3/C Girard and Specialist 3/C Nickel to guard the machine gun and keep the Japanese from stealing personal equipment. There were about 20 or 30 Japanese in the area; some were near the machine gun. Specialist 3/C Victor N. Nickel said the Japanese were 'just collecting the cartridges, so there was no need of chasing them away'. 36 Girard had a grenade launcher on his rifle. He had been armed with this same weapon during the morning exercises in which he had participated and during which he had fired 80 rounds of ball ammunition. After the two soldiers had arrived on the ridge, Girard, on two occasions, placed an expended 30-caliber cartridge case in the grenade launcher and projected it by firing a blank. At his second shot, a Japanese woman, Mrs. Naka Sakai, fell. An autopsy disclosed that an expended 30-caliber cartridge case had penetrated her back in an upward direction to a depth of 3 1/2—4 inches, causing her death. The exact distance between Girard and the victim at the time of the incident is uncertain. The Japanese witnesses put it about eighteen meters (approximately 20 yards). On one occasion, Girard stepped off what he thought to be the distance and found it to be 29 feet; on other occasions, he has estimated it to be 20—30 yards. Nickel puts it as 25—30 yards. Girard has stated that he did not intentionally point the rifle at the woman and did not believe the cartridge case would injure anyone if it hit them. 37 According to the U.S. military authorities in Japan, the act of firing an empty shell case from a grenade launcher is not authorized. 38 Onosaki, a Japanese witness, stated that Girard, after enticing him and the victim toward Girard by throwing some brass on the ground and indicating that it was all right for them to pick it up, suddenly shouted for them to get out and thereupon fired one shot in the direction of Onosaki. As the victim was running away, Onosaki stated that Girard, holding his rifle at the waist, fired a second shot at the victim at a distance of about eight to ten meters. This testimony is corroborated in part by other Japanese who were located at a distance of from 100—150 meters. 39 Both Girard and Nickel have made a number of statements. Nickel at first denied knowing anything about the incident. Girard admitted only that he had fired one round over the heads of the Japanese. Both gradually changed their testimony. Nickel, but not Girard, admits to throwing brass on the ground. Girard admits that he knew his weapon, fired in the manner in which he fired it, was fairly accurate at short ranges, but denies that he knew of its striking power; he further states that he fired from the waist over the woman's head and did not intend to hit or wound her, but only to scare the Japanese away. 40 In one statement, Nickel, after admitting that he had collected a pile of empty cartridges and had on about five occasions thrown them toward the Japanese, the nearest of whom was a little over 10 yards away, has this to say: 'To tell you the truth I don't know if Girard had told you this or not, but Girard told me to throw those cartridges. The purpose was to scare the Japanese off by firing over their heads when they came to pick up the cartridges.' After stating that about six Japanese came down to pick up the cartridges, Nickel concludes: 'He (Girard) stood up carrying the gun, and went about two feet to my right. Japanese people started to run away, probably thinking that they were being chased. This one Mama-San also ran. Then Girard fired holding the gun at his hip * * * he held the gun at the hip and fired in the direction of the woman * * * at an angle of about 45 degrees from his body. He fired over the head of this person * * * I regard myself as a friend of Girard in my company. If I said I saw (the incident), I would be letting him down, so I lied. Then I went to Camp Drew and received various advice from an investigator there. Then I decided to tell the truth. One other reason is that Girard told the investigator that Nickel was watching.' 41 In this connection, Girard says: '* * * while I was going toward the machine gun, I did talk to Nickel. I do not recall what I talked to him about * * * but I am positive that nothing was spoken about cartridges * * * I do not remember telling him to throw some carttridges. If I said I did not positively talk to him about it I'd be telling a lie * * * what I want to say is, as far as I can remember, I do not recall talking about it.' Girard states that he has qualified as a marksman (average shot) and a sharpshooter (better than average shot) with the M—1 with which he was armed on the day in question, and that he twice has qualified as an expert with the .45 caliber pistol; that he has been soldiers fire empty cartridges out of a grenade launcher on about 10 occasions; and he said, 'I did not have an exact idea how far an empty cartridge would travel, but I knew that it travelled quite a ways * * * prior to that incident I knew that the empty cartridge fired like that would travel straight forward.' 42 At a later time Specialist 3/C Nickel requested that he be permitted to make a further statement with respect to the case. Upon this occasion he stated that Girard had asked him to gather up some empty cartridge cases for the purpose of luring the Japanese people closer to their position; that he and Girard were in a foxhole together and that at Girard's request, in order to draw the Japanese closer, he, Nicke, threw empty cartridge cases from the foxhole; that Girard said, 'throw the brass a little closer'; that Girard motioned with his hands for the brass pickers to come closer and said, 'Daijobu', which meant for them to come closer; that Girard fired at the Japanese man, and then fired at the Japanese woman and shot her; that Girard was in a standing position and fired from the shoulder; that he (Girard) tried to get the Japanese to take the woman's body away after he shot her; and that Girard told him (Nichel) that is 'they' asked how he held his weapon to say he fired from the waist and also to say that 'We did not throw any brass.' The Certificate as to Official Duty. 43 On 7 February 1957 Girard's commanding officer filed a certificate of official duty with the local Japanese authorities. That certificate read as follows: Company F 8th Cavalry Regiment 7 February 1957 Subject: Certificate as to Official Duty Thru: Provost Marshal Regional Camp Whittington APO 201 To: Chief Procurator Maebashi District Maebashi City, Honshu, Japan 44 1. Pursuant to the provisions of paragraph 43 of the Agreed Views of the Criminal Jurisdiction Subcommittee with respect to the Protocol amending Article XVII of the Administrative Agreement between the United States and Japan, I certify that Girard, William S, RA 16 452 809, Specialist Third Class, Company F. 8th Cavalry Regiment, APO 201, was in the performance of his official duty at 1350 hours, 30 January 1957, Camp Weir Range Area, when he was involved in the following incident: On 30 January 1957, 2nd Battalion, 8th Cavalry Regiment, was engaged in routine training at Camp Weir Range Area. Company F was conducting blank firing exercises. Specialist Third Class William S. Girard was instructed by his platoon leader to move near a position near an unguarded machine gun to guard the machine gun and items of field equipment that were in the immediate area. Girard, following instructions, moved to the designated position near the machine gun. While performing his duties as guard, he fired an expended cartridge case, as a warning, which struck and killed Sakai, Naka, Kami-Shinden, Somamura, Gumma Prefecture, who had entered the range area for the purpose of gathering expended cartridge cases. 45 2. The United States will exercise jurisdiction in this case, unless notification is given immediately that proof to the contrary exists. 46 3. Should this incident result in trial of the above individual by general court-martial, you will be notified of the date of trial in accordance with the provisions of paragraph 45 of the above mentioned Agreed Views. Carl C. Alligood 1st Lt. Infantry Commanding 47 The Japanese Notice of 'Existence of Contrary Proof'. 48 On 9 February 1957 the local Japanese authorities notified the United States commanding officer who had issued the certificate of official duty that they considered that proof contrary to the certificate existed. This notification stated: 49 Maebashi District Public Procurator's Office Maebashi, 9 February 1957 50 To: Mr. Carl C. Alligood, 51 1st Lt Infantry, Command, F Co., 2nd Bn 8th Cavalry Regiment 52 Re: Notification of the existence of the contrary proof. Dear Sir: 53 Reference is made to the letter from you dated on 8 February 1957, regarding to the 'On Duty' status of the case involving SP3 Girard S. William, which we received on 8 February 1957. 54 This is to inform you that this office considers the proof contrary thereto exists, basing upon our examinations. 55 /s/ Nagami Sakai Chief Procurator Maebashi Public Procurator's Office 56 The Japanese Statement in the Criminal Jurisdiction_ Sub-committee of the Joint Committee. 57 In accordance with the provisions of Agreed View No. 43, on 16 February 1957 the Japanese brought the matter up in the Joint Committee and requested that it be referred to the Criminal Jurisdiction Subcommittee. On 7 March 1957 the United States representative agreed to this procedure. The matter was discussed in the Subcommittee on 12 March 1957 at which time the Japanese submitted a summary which contained the following: 58 'He (Girard) and Nickel went to the gun and, about 13.15 hrs he picked up and threw expended cartridge cases in the direction of the slope south of the hill, and, beckoning Hidehara Onozeki (male) and Naka Sakai (female) who had been at a place in the south-west of Hill 655 to gather empty cartridge cases, etc., cried out to them 'Papa-San, Daijobu', 'Mama-San, Daijobu' ('Old man, O.K., old lady, O.K.'), etc. in Japanese and thus let the 2 Japanese pick up expended cartridge cases he had thrown. Then he, pointing to the nearby hole for Naka Sakai, cried out to her in Japanese 'Mama-San, Takusan-Ne' ('Old lady, plenty more!'), and hinting thereby that there remained some expended cartridge cases in it, induced her to go to the hole. But, at that moment, Hideharu Onozeki who was picking up expended cartridge cases on the said slope became suspicious of the suspects behaviour and tried to run away. Then the suspect suddenly shouted to Onoseki 'Ge-Rou! Hey!' and fired a blank shot towards him, placing an expended cartridge case in the grenade launcher attached to the rifle which he had carried with him. Then he cried out 'Ge-Rou! Hey!' to Naka Sakai who was in the hole, and, when he saw her running off towards the north slope of the hill, he, holding the stock of the rifle under his arm, fired standing a blank shot toward her about eight (8) meters away with an expended cartridge case put in the grenade launcher, just in the same manner as he had done to Hideharu Onozeki, as the result of which he made her sustain a penetrating wound on the left side of her back which proved fatal on the spot because of the loss of blood resulting from a cut in the main artery.' 59 The Japanese conclusion was stated as follows: 60 'Sp—3 William S. Girard, the suspect in this case, had been instructed to guard a machine gun and equipment at the time of occurrence of the case. It is evident, however, as shown in the above finding of facts, that the incident arose when he, materially deviating from the performance of such duty of his, wilfully threw expended cartridge cases away towards Naka Sakai and Hideharu Onozeki, and, thus inviting them to come near to im, he fired towards them. Therefore, the incident is not considered to have arisen out of an act or 61 omission done in the performance of official duty.' Discussions in the Criminal Jurisdiction Subcommittee of the Joint Committee. 62 At the same time the following exchange occurred: 63 U.S.: Do you agree that Girard was on duty as a guard, and that the incident arose while he was on such duty? 64 Japan: We admit that he was on duty, but it is our position that the shooting had no connection with his duty of guarding the machine gun. The act of Girard in throwing out brass and enticing the victim toward him had no connection with guarding the machine gun. 65 U.S.: Your statement of fact does not take into account Girard's statement of his intent. That is, that he fired for the purpose of scaring the Japanese away and thus insure the safety of the machine gun. 66 Japan: The evidence shows that there was no danger to the machine gun. Nickel made a statement to this effect. Thus, we do not consider that Girard actually fired to protect the machine gun. The Japanese were only picking up brass in the vicinity; they were not interfering in any way with Girard's mission to guard the machine gun. There was thus no necessity or reason for Girard to shoot at them to insure the safety of the machine gun. Its safety was never in danger. Further, according to the statement of Lt. Mahon, firing an empty cartridge from a grenade launcher is not authorized, and any superior of Girard's observing such an action by Girard would have been obliged to interfere and prevent Girard from firing his weapon in this manner. 67 U.S.: However, if we give full weight to Girard's statement, we must conclude that he did, in fact, fire to scare the Japanese away and thus insure safety of the machine gun. He may have been mistaken in believing that it was necessary to act in this manner, but we cannot escape the fact that, according to his own statement, he fired for this purpose. If you were to believe Girard's statement, would you consider that he was acting in the performance of official duty? 68 Japan: Your question is based on a supposition that is not supported by the evidence, and we are not prepared to answer it. 69 U.S.: In determining official duty in this case, is it not important to consider Girard's intent as disclosed by his own statement? 70 Japan: In determining that the incident did not arise in the performance of official duty, we considered all the evidence. A number of Japanese witnesses were interrogated immediately after the incident. We considered their testimony as well as the testimony of Girard and Nickel. In determining Girard's intent, it is necessary to consider all the evidence, not just his version of the incident. When all of the evidence is considered, it appears that Girard's statement that he fired to scare the Japanese away and thus protect the machine gun is not worthy of belief, as the weight of the evidence contradicts Girard's statement. It is our position that the evidence shows that the firing had no significant connection with the guarding of the machine gun. 71 Investigation of the Incident. 72 Investigations of the facts relating to the alleged offense were conducted by both the U.S. Army in Japan, and the local Japanese authorities. Interpretation of 'Official Duty'. 73 The following interpretation of the term 'official duty' appears in a circular of the United States Armed Forces, Far East which was published in January 1956: 74 'The term 'official duty' as used in Article XVII, Official Minutes, and the Agreed Views is not meant to include all acts by members of the armed forces and civilian component during periods while they are on duty, but is meant to apply only to acts which are required to be done as a function of those duties which the individuals are performing. Thus, a substantial departure from the acts person is required to perform in a particular duty usually will indicate an act outside of his ' fficial duty." 75 Action in the Joint Committee. 76 As a result of lengthy discussions extending from early March to mid-May 1957, it was finally agreed in the Joint Committee that the United States military authorities would notify the appropriate Japanese authorities, in accordance with paragraph 3c of Article XVII of the Administrative Agreement, that the United States had decided not to exercise jurisdiction in the case. This action was thereafter taken. 77 The Action of the Secretary of Defense and the Secretary of State. 78 On June 4, 1957 the Secretary of State John Foster Dulles and Secretary of Defense Charles E. Wilson announced that after careful review of all available facts in the case, they had concluded that the Joint Committee's agreement that Girard be tried in the courts of Japan was reached in full accord with procedures established by the Treaty and Agreement, and that in order to preserve the integrity of the pledges of the U.S., this determination by the Joint Committee must be carried out. 79 Present Status of Girard. 80 At the present time Specialist 3/C Girard is administratively restricted to the limits of Camp Whittington. 81 Girard voluntarily enlisted in the Regular Army on October 28, 1954 for a three year term which will expire on October 27, 1957. 82 /s/ Robert Dechert Robert Dechert General Counsel Department of Defense 83 Subscribed and sworn to before me this 8th day of June 1957. 84 My commission expires: March 6, 1961. 85 (Seal) /s/ Laura E. Litchard Notary Public Appendix B. 86 Joint Statement of Secretary of State, John Foster Dulles and Secretary ofDefense, Charles E. Wilson 87 The case of U.S. Army Specialist 3rd Class William S. Girard has far-reaching implications, involving as it does the good faith of the United States in carrying out a joint decision reached under procedures established by treaty and agreement with Japan. 88 The case involves actions by Girard which caused the death of Naka Sakai, a Japanese woman, on January 30, 1957. The issue arose as to whether or not Girard should be tried by U.S. court-martial or by a Japanese court. After careful deliberation in the Joint U.S. Japan Committee established by the two Governments pursuant to treaty arrangements, the U.S. representative on this Committee was authorized to agree, and on May 16, 1957, did agree, that the United States would not exercise its asserted right of primary jurisdiction in this case. In view of this completed action, attempting to prolong the dispute over the jurisdictional issue would create a situation which could basically affect U.S. relations not only with Japan, but also with many other nations. 89 For these reasons, Secretary of State John Foster Dulles and Secretary of Defense Charles E. Wilson have carefully reviewed all the available facts in the case. They have now concluded that the Joint Committee's agreement that Girard be tried in the courts of Japan was reached in full accord with procedures established by the Treaty and Agreement, and that in order to preserve the integrity of the pledges of the United States, this determination by the Joint Committee must be carried out. 90 The Secretaries' review disclosed the following: 91 The incident occurred in a maneuver area provided by the Japanese Government for part-time use of United States forces. The Japanese Defense Force uses the same area about 40% of the time. When the area is not in use by either the United States or Japanese armed forces, Japanese civilians are permitted to farm or otherwise use the area. 92 Efforts to keep civilians away from the area during such military exercises have not proved effective. In this particular case, red boundary flags were, as customary, erected as a warning to civilians to keep off, and local authorities were notified of the proposed exercises. But, as was frequently the case, a number of Japanese civilians were in the area gathering empty brass cartridge cases at the time of the incid nt. These civilians had created such a risk of injury to themselves in the morning exercises when live ammunition was used that the American officer in charge withdrew live ammunition from the troops prior to the afternoon exercises. In the interval between two simulated attacks during the afternoon, Girard and another soldier, Specialist 3rd Class Victor M. Nickel, were ordered by their platoon leader, a Lieutenant, to guard a machine gun and several field jackets at the top of a hill. Girard and Nickel were not issued live ammunition for this duty. 93 It was while these soldiers were performing this duty that the incident occurred. Mrs. Naka Sakai, a Japanese civilian, died a few moments after being hit in the back by an empty brass rifle shell case fired by Girard from his rifle grenade launcher. She was not over 30 yards from Girard and was going away from him when he fired the rifle. Girard had previously fired similarly in the vicinity of a Japanese man, who was not hit. 94 Girard's action in firing empty shell cases from the rifle grenade launcher was not authorized. He asserted that he fired from the waist, intending only to frighten the Japanese civilians. Others stated, but Girard denied, that empty shell cases were thrown out to entice the Japanese to approach. 95 Under the U.S.-Japanese Security Treaty and Article XVII of the Administrative Agreement under that Treaty, as established by the Protocol adopted September 23, 1953, the authorities of Japan have the prior right to jurisdiction to try members of the United States armed forces for an injury caused to a Japanese national, unless such injury is one 'arising out of any act or omission done in the performance of official duty.' 96 The Japanese authorities have taken the position that Girard's action in firing the shell cases was outside the scope of his guard duty and was, therefore, not 'done in the performance of official duty.' 97 This Commanding General of Girard's division certified that Girard's action was done in the performance of official duty. 98 In accordance with the procedure established under the Treaty and Administrative Agreement, the disputed matter was, on March 7, 1957, taken before the Joint U.S.-Japan Committee established under the provisions of the Treaty and Administrative Agreement previously referred to. 99 Various meetings were held between the United States and Japanese representatives on the Joint Committee. As is customary, a representative of the American Embassy in Tokyo also attended these meetings in the capacity of observer. Both sides continued to press their respective claims to primary jurisdiction, and the Committee was unable to reach agreement. 100 The Commanding General, Far East Command, reported the facts to the Department of the Army, the executive agent for the Department of Defense. The Department of Defense considered having the Joint Committee refer the matter in dispute to the two Governments for settlement, but rejected this procedure as inadvisable under the circumstances. Department of Defense instructions were accordingly issued, through the Department of the Army, to the Far East Command to the effect that the U.S. representative on the Joint Committee should continue to press the claim for jurisdiction, but that, in case of continued deadlock, he was authorized to waive jurisdiction to Japan. After three weeks of additional negotiations, the U.S. representative waived jurisdiction in the name of the United States. 101 Girard was subsequently indicted by the Japanese judicial authorities for causing a death by wounding—the least serious homicide charge for which he could have been indicted under Japanese law. In determining whether Girard's actions were in violation of law, all the facts, as presented by both sides, must now be weighed by the Japanese court, just as they would by a U.S. court-martial, if trial were held under U.S. jurisdiction. 102 In accordance with Public Law 777 of the 84th Congress, 50 U.S.C.A. § 751 et seq., th United States Government will pay for counsel chosen by Girard to defend him in this trial. Pursuant to the Administrative Agreement under the Japanese Treaty, Girard will be guaranteed a prompt trial, the right to have representation by counsel satisfactory to him, full information as to all charges against him, the right to confront all witnesses, the right to have his witnesses compelled to attend court, the right to have a competent interpreter, the right of communication with United States authorities, and the presence of a United States representative as an official observer at the trial. This observer is required to report to United States authorities on all aspects of the trial and the fairness of the court proceedings. 103 The U.S. authorities will, of course, see that all evidence is available to Girard and his counsel, and will render every proper assistance to him and his counsel in protection of his rights. 104 United States troops are stationed in many countries as part or our own national defense and to help strengthen the Free World struggle against Communist imperialism. The matter of jurisdiction in cases of offenses against the laws of host countries, whether by our servicemen abroad or by servicemen of other countries in the United States, is dealt with by mutual agreements. 105 In the operation of this system in Japan there has been the greatest measure of mutual trust and cooperation. Since the present arrangement became effective in October 1953, Japan, in the overwhelming majority of the cases in which it had primary right to try American personnel, has waived that right in favor of U.S. action. There is every reason to believe that trial of U.S. Army Specialist 3rd Class William S. Girard in the Japanese courts will be conducted with the utmost fairness. 1 3 U.S. Treaties and other International Agreements 3329; T.I.A.S. No. 2491. 2 3 U.S. Treaties and Other International Agreements 3341; T.I.A.S. No. 2492. 3 4 U.S. Treaties and Other International Agreements 1792; T.I.A.S. No. 2846. 4 4 U.S. Treaties and Other International Agreements 1846; T.I.A.S. No. 2848. * This affidavit was offered by the Government and accepted by the court below under seal. In this posture it is part of the record before us. At the oral argument no objection was made by the Government or counsel for Girard against removing the seal. As the Court considers that the issues in this case should be decided on a fully disclosed record, the affidavit is ordered unsealed.

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355 U.S. 1 78 S.Ct. 9 2 L.Ed.2d 19 Junius Irving SCALES, petitioner,v.UNITED STATES of America. No. 3. Supreme Court of the United States October 14, 1957 Mr. Telford Taylor, for petitioner. Solicitor General Rankin (Assistant Attorney General Tompkins, Messrs. Harold D. Koffsky, Kevin T. Maroney, William F. O'Donnell and Philip T. White, on the brief) for the United States. Mr. Barent Ten Eyck, for American Civil Liberties Union, as amicus curiae. On writ of certiorari to the United States Court of Appeals for the Fourth Circuit. PER CURIAM. 1 Upon consideration of the entire record and the confession of error by the Solicitor General, and judgment of the United States Court of Appeals for the Fourth Circuit is reversed. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.

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355 U.S. 2 78 S.Ct. 10 2 L.Ed.2d 19 Claude Mack LIGHTFOOT, petitioner,v.UNITED STATES of America. No. 4. Supreme Court of the United States October 14, 1957 Mr. John J. Abt, for petitioner. Solicitor General Rankin (Assistant Attorney General Tompkins, Messrs. Harold D. Koffsky and William F. O'Donnell, on the brief), for the United States. Mr. Barent Ten Eyck, for American Civil Liberties Union, as amicus curiae. On writ of certiorari to the United States Court of Appeals for the Seventh Circuit. PER CURIAM. 1 Upon consideration of the entire record and the confession of error by the Solicitor General, the judgment of the United States Court of Appeals for the Seventh Circuit is reversed. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.

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355 U.S. 18 78 S.Ct. 2 2 L.Ed.2d 1 See 355 U.S. 900, 78 S.Ct. 258. Jay Lee GIBSON, Petitioner, v.Guy A. THOMPSON, Trustee, New Orleans, Texas & Mexico Railway Company. No. 142. Rehearing Denied Dec. 9, 1957. Messrs. Doerner, Rhinehart & Stuart, Tulsa, Okl., Fred Parks, Houston, Tex., for petitioner. Messrs. Woodul, Arterbury & Wren, Walter F. Woodul, Houston, Tex., for respondent. PER CURIAM. 1 The petition for certiorari is granted, and the judgment of the Supreme Court of Texas is reversed and the case is remanded. We hold that the proofs justified with reason the jury's conclusion that employer negligence played a part in producing the petitioner's injury. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503; Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511; Shaw v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718; Deen v. Gulf, C. & S.F. Ry. Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Thomson v. Texas & Pacific Ry. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.Ed.2d 722; Arnold v. Panhandle & S.F. Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed. 889; Ringhiser v. Chesapeake & O. Ry. Co., 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; McBride v. Toledo Terminal R. Co., 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534. 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 is improvidently granted. 2 Memorandum of Mr. Justice HARLAN, with whom Mr. Justice BURTON and Mr. Justice WHITTAKER join. For reasons elaborated by Mr. Justice FRANKFURTER at the last Term, 352 U.S. 521, 524, 77 S.Ct. 457, 459, 1 L.Ed.2d 511, I think that certiorari should have been denied. However, I continue in the view, expressed at the last Term, 352 U.S. 559, 77 S.Ct. 478, that once certiorari has been granted in such cases, we disbelievers, consistent with the Court's certiorari procedure, should consider them on the merits. Further, much as I disagree, 352 U.S. 559, 562—564, 77 S.Ct. 478 481, with the reasoning and philosophy of the Rogers case, which strips the historical role of the judge in a jury trial of all meaningful significance, I feel presently bound to bow to it. Applying Rogers to the present cases, I am forced to concur in judgments of reversal in Nos. 142 and 350.

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355 U.S. 20 78 S.Ct. 1 2 L.Ed.2d 3 Pasquale PALERMO, Petitioner,v.LUCKENBACH STEAMSHIP COMPANY, Inc. No. 350. Decided Oct. 21, 1957. Rehearing Denied Nov. 25, 1957. See 355 U.S. 886, 78 S.Ct. 147. Order Amended Jan. 6, 1958. See 355 U.S. 910, 78 S.Ct. 337. Mr. Philip F. Di Costanzo, Brooklyn, N.Y. (Mr. Robert Klonsky on the brief), for petitioner. Messrs. Eugene Underwood, William M. Kimball, New York City, for respondent. PER CURIAM. 1 The petition for certiorari is granted, and the judgment of the Court of Appeals is reversed and the case is remanded.* We hold that the trial court did not commit reversible error in refusing to charge respondent's request No. 12. The petitioner's alleged choice of a more dangerous route did not, under the proofs, operate to bar recovery as a matter of law. The jury was properly instructed that the petitioner's negligence, if any, was to be considered in mitigation of damages under the rule applicable in actions for personal injuries arising from maritime torts. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 408—409, 74 S.Ct. 202, 204—205, 98 L.Ed. 143; cf. Socony-Vacuum Oil Co. v Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265. For 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 is improvidently granted. 2 Memorandum of Mr. Justice HARLAN, with whom Mr. Justice BURTON and Mr. Justice WHITTAKER join. For reasons elaborated by Mr. Justice Frankfurter at the last Term, 352 U.S. 521, 524, 77 S.Ct. 457, I think that certiorari should have been denied. However, I continue in the view, expressed at the last Term, 35 U.S. 559, 77 S.Ct. 478, that once certiorari has been granted in such cases, we disbelievers, consistent with the Court's certiorari procedure, should consider them on the merits. Further, much as I disagree, 352 U.S. 559, 562—564, 77 S.Ct. 478—481, with the reasoning and philosophy of the Rogers case, which strips the historic role of the judge in a jury trial of all meaningful significance, I feel presently bound to bow to it. Applying Rogers to the present cases, I am forced to concur in judgments of reversal in Nos. 142 and 350. * Order amended Jan. 6, 1958, 78 S.Ct. 337, case remanded to Court of Appeals.

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355 U.S. 28 78 S.Ct. 103 2 L.Ed.2d 9 alvaro ALCORTA, Petitioner,v.The STATE OF TEXAS. No. 139. Argued Oct. 23, 1957. Decided Nov. 12, 1957. Messrs. Fred A. Semaan and Raul Villarreal, San Antonio, Tex., for petitioner. Messrs. Roy R. Barrera and Hubert W. Green, Jr., San Antonio, Tex., for respondent. PER CURIAM. 1 Petitioner, Alvaro Alcorta, was indicted for murder in a Texas state court for stabbing his wife to death. Vernon's Tex.Pen.Code, 1948, Art. 1256. He admitted the killing but claimed it occurred in a fit of passion when he discovered his wife, whom he had already suspected of marital infidelity, kissing one Castilleja late at night in a parked car. Petitioner relied on Texas statutes which treat killing under the influence of a 'sudden passion arising from an adequate cause * * * as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection' as murder without malice punishable by a maximum sentence of five years' imprisonment. Vernon's Tex.Pen.Code, 1948, Arts. 1257a, 1257b, 1257c. The jury, however, found him guilty of murder with malice and, acting under broad statutory authority to determine the extent of punishment, sentenced him to death. The judgment and sentence were affirmed by the Texas Court of Criminal Appeals. 165 Tex.Cr.R. —-, 294 S.W.2d 112. 2 Castilleja, the only eye witness to the killing, testified for the State at petitioner's trial. In response to inquiries by the prosecutor about his relationship with the petitioner's wife, Castilleja said that he had simply driven her home from work a couple of times, and in substance testified that his relationship with her had been nothing more than a casual friendship. He stated that he had given her a ride on the night she was killed and was parked in front of her home with his car lights out at two o'clock in the morning because of engine trouble. The prosecutor then asked what had transpired between Castilleja and petitioner's wife in the parked car: 3 'Q. Did you have a conversation with Herlinda? A. Yes; she opened the door. She was going to get off (sic) and, then, she told me to tell my sister to come and pick her up in the morning so she could go to church. 4 'Q. To tell your sister, Delfina Cabrera, to come pick her up in the morning so she could go to church? A. Yes.' At the conclusion of Castilleja's testimony the following colloquy took place between him and the prosecutor: 5 'Q. Natividad (Castilleja), were you in love with Herlinda? A. No. 6 'Q. Was she in love with you? A. No. 7 'Q. Had you ever talked about love? A. No. 8 'Q. Had you ever had any dates with her other than to take her home? A. No. Well, just when I brought her from there. 9 'Q. Just when you brought her from work? A. Yes.' 10 All this testimony was quite plainly inconsistent with petitioner's claim that he had come upon his wife kissing Castilleja in the parked car. 11 Some time after petitioner's conviction had been affirmed Castilleja issued a sworn statement in which he declared that he had given false testimony at the trial. Relying on this statement petitioner asked the trial court to issue a writ of habeas corpus. He contended that he had been denied a fair trial in violation of State and Federal Constitutions because Castilleja had testified falsely, with the knowledge of the prosecutor, that his relationship with petitioner's wife had been only 'that of a friend and neighbor, and that he had had no 'dates,' nor other relations with her, when in truth and in fact the witness had been her lover and paramour, and had had sexual intercourse with her on many occasions * * *.' Petitioner further alleged that he had no knowledge of this illicit intercourse at the time of his trial. 12 A hearing was held on the petition for habeas corpus. Castilleja was called as a witness. He confessed having sexual intercourse with petitioner's wife on five or six occasions within a relatively brief period before her death. He testified that he had informed the prosecutor of this before trial and the prosecutor had told him he should not volunteer any information about such intercourse but if specifically asked about it to answer truthfully. The prosecutor took the stand and admitted that these statements were true. He conceded that he had not told petitioner about Castilleja's illicit intercourse with his wife. He also admitted that he had not included this information in a written statement taken from Castilleja prior to the trial but instead had noted it in a separate record. At the conclusion of the hearing the trial judge denied the petition for habeas corpus. Petitioner then applied to the Texas Court of Criminal Appeals for a writ of habeas corpus but that court, acting on the record made at the hearing before the trial curt, also refused to issue the writ. We granted certiorari, 353 U.S. 972, 77 S.Ct. 1063, 1 L.Ed.2d 1135. Texas concedes that petitioner has exhausted all remedies available to him under state law. 13 Under the general principles laid down by this Court in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, and Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214, petitioner was not accorded due process of law. It cannot seriously be disputed that Castilleja's testimony, taken as a whole, gave the jury the false impression that his relationship with petitioner's wife was nothing more than that of casual friendship. This testimony was elicited by the prosecutor who knew of the illicit intercourse between Castilleja and petitioner's wife. Undoubtedly Castilleja's testimony was seriously prejudicial to petitioner. It tended squarely to refute his claim that he had adequate cause for a surge of 'sudden passion' in which he killed his wife. If Castilleja's relationship with petitioner's wife had been truthfully portrayed to the jury, it would have, apart from impeaching his credibility, tended to corroborate petitioner's contention that he had found his wife embracing Castilleja. If petitioner's defense had been accepted by the jury, as it might well have been if Castilleja had not been allowed to testify falsely, to the knowledge of the prosecutor, his offense would have been reduced to 'murder without malice' precluding the death penalty now imposed upon him. 14 The judgment is reversed and the cause is remanded to the Court of Criminal Appeals of the State of Texas for further proceedings not inconsistent with this opinion. 15 It is so ordered. 16 Reversed and remanded.

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355 U.S. 24 78 S.Ct. 106 2 L.Ed.2d 5 Joseph F. BLACK, Assistant Regional Commissioner, Alcohol and Tobacco Tax Division (Dallas Region), Internal Revenue Service, Petitioner,v.MAGNOLIA LIQUOR COMPANY, Inc., No. 14. Argued Oct. 17, 1957. Decided Nov. 12, 1957. Mr. Daniel M. Friedman, Washington, D.C., for petitioner. Mr. Moise S. Steeg, Jr., New Orleans, La., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Petitioner seeks to suspend respondent's wholesale liquor permit issued under the Federal Alcohol Administration Act (49 Stat. 977, 27 U.S.C. § 201, 27 U.S.C.A. § 201 et seq.) for having made 'quota' sales of alcoholic beverages in violation of § 5(a) and (b) of the Act. The agency ordered suspension of the permit for 15 days for that violation. The Court of Appeals set the order aside, 5 Cir., 231 F.2d 941. The case is here on a petition for a writ of certiorari, which we granted (352 U.S. 877, 77 S.Ct. 103, 1 L.Ed.2d 79) because of a conflict between the decision below and Distilled Brands, Inc., v. Dunigan, 222 F.2d 867, from the Second Circuit. 2 Section 5 makes it unlawful for a wholesaler to induce a retailer to purchase distilled spirits 'to the exclusion in whole or in part of distilled spirits' offered by other persons 'by requiring the retailer to take and dispose of a certain quota of any of such products,' where, inter alia, the effect is 'substantially to restrain or prevent transactions in interstate or foreign commerce in any such products.' 3 The facts are that during the period in question Johnny Walker Scotch and Seagram's V. O. Whiskey were in short supply, while Seagram's Ancient Bottle Gin and Seagram's 7-Crown Whiskey were plentiful, Ancient Bottle being a poor seller. Respondent, in order to increase its sales of Ancient Bottle Gin and 7-Crown Whiskey, compelled retailers to buy them, which they did not desire, in order to obtain the other two whiskeys which they did desire. The agency found that respondent's sales were 'quota' sales within the meaning of the Act, that they affected adversely the sales of competing brands, and 'excluded, in whole or in part, distilled spirits * * * offered for sale by other persons in interstate commerce'—all to the end of substantially restraining and preventing commerce. The Court of Appeals concluded that the transactions complained of, although tie-in sales, did not violate § 5 of the Act. 4 Tying agreements by which the sale of one commodity is conditioned on the purchase of another have been repeatedly condemned under the antitrust laws, since they serve no purpose beyond the suppression of competition. Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 305—306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371; United States v. Paramount Pictures, 334 U.S. 131, 156—159, 68 S.Ct. 915, 928—929, 92 L.Ed. 1260; International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Mercoid Corp. v. Minneapolis Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396. One aim of Congress by the present legislation was to prohibit practices that were 'analogous to those prohibited by the antitrust laws,' (see H.R.Rep. No. 1542, 74th Cong., 1st Sess., p. 12). The tie-in sales involved here seem to us to run afoul of that policy, since the retailer is coerced into buying distilled spirits he would otherwise not have purchased at that time, and other sellers of the products are to that extent excluded from the market that would exist when the demand arose. A wholesaler who compels a retailer to buy an unwanted inventory as a condition to acquisition of needed articles exacts a 'quota' from the retailer and excludes sales by competing wholesalers in the statutory sense. 5 The court below relied on two countervailing considerations. It noted that § 5(a) is headed 'Exclusive outlet' and § 5(b) 'Tied house.' These titles were enough, it thought, to raise doubts concerning the meaning of the statutory clauses, since the retailer in question was not a 'tied house' or 'exclusive outlet,' but only the victim of these particular tied-in sales. The court was constrained to read the Act narrowly, as it conceived it to be penal in nature when it forfeited a permit to do business. But we deal here with remedial legislation whose language should be given hospitable scope. See Securities and Exchange Commission v. C. M. Joiner Leasing Corp., 320 U.S. 344, 353, 355, 64 S.Ct. 120, 124, 125, 88 L.Ed. 88. The will of Congress would be thwarted if we gave the language in question the strictest construction possible. The fair meaning of the Act is our guide; and it seems too clear for extended argument that the tied-in sale, though it falls short of creating an exclusive outlet and a permanently 'tied house,' violates the Act. 6 The other consideration relied upon by the Court of Appeals was a letter written by the agency to Congress in 1947 asking for an amendment to § 5 because it had doubt 'whether violations of the statute could be established through the 'tie-in' sales.' The administrative practice, we are advised, has quite consistently reflected the view that such sales are banned by the Act. See Annual Report, Commissioner of Internal Revenue 1946, pp. 45—46; id., 1947, p. 49. The fact that the agency sought a clarifying amendment is, therefore, of no significance. See Wong Yang Sung v. McGrath, 339 U.S. 33, 47, 70 S.Ct. 445, 452, 94 L.Ed. 616; United States v. Turley, 352 U.S. 407, 415, note 14, 77 S.Ct. 397, 401, note 14, 1 L.Ed.2d 430. The judgment is reversed and the case is remanded to the Court of Appeals for proceedings in conformity with this opinion. 7 Reversed.

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355 U.S. 49 78 S.Ct. 109 2 L.Ed.2d 87 G. Mennen WILLIAMS, Governor of the State of Michigan and Thomas M. Kavanagh, Attorney General of the State of Michigan, Petitioners,v.Honorable Charles C. SIMONS, Chief Judge, United States Court of Appeals for the Sixth Circuit, et al. No. 74, Misc. Decided Nov. 18, 1957. Messrs. G. Mennen Williams, Governor of Michigan, Thomas M. Kavanagh, Atty. Gen., Edmund E. Shepherd, former Sol. Gen., Samuel J. Torina, Sol. Gen., and Joseph A. Sullivan, Deputy Atty. Gen., for petitioners. PER CURIAM. 1 It appearing that this case has become moot, the rule to show cause is discharged and the motion for leave to file petition for writ of mandamus or in the alternative prohibition and mandamus is denied. 2 Memorandum by Mr. Justice FRANKFURTER, in which Mr. Justice BRENNAN joins. 3 In view of the disposition the Court makes of this unusual litigation, it seems desirable to set forth the facts. 4 (1) Inquiry Into Municipal Officers' Wrongdoing. 5 Aug. 1956—The Attorney General of Michigan and the Prosecuting Attorney of Wayne County, Michigan, filed with the Circuit Court of the Third Judicial Circuit for Wayne County an application for a judicial investigation of criminal offenses and unlawful practices in the City of Ecorse and other governmental units in Wayne County. In re Kavanagh, Misc. No. 83258. 6 That court entered an order appointing Theodore R. Bohn, Circuit Judge, to conduct an inquiry pursuant to Mich.Comp.Laws, 1948, §§ 767.3 and 767.4, as amended by Mich.Pub.Acts 1949, No. 311, Mich.Pub.Acts 1951, No. 276.1 7 Sept. 1956—Inquiry conducted by Judge Bohn pursuant to §§ 767.3 and 767.4. 8 Oct. 17, 1956—Warrant signed by Judge Bohn for the arrest of William Voisine, mayor of the City of Ecorse, and Albert Buday and Francis Labadie, members of the city council of Ecorse. The warrant recites that there is probable cause to believe that Voisine, Buday, Labadie, and others have conspired to obstruct justice by knowingly permitting illegal gambling to flourish in return for bribes and gratuities. A separate warrant issued, evidently on October 22d, charging Elmer Korn, also a member of the city council, with accepting bribes. 9 Oct. 23, 1956—Judge Bohn signed and transmitted to G. Mennen Williams, Governor of Michigan, findings of probable cause to believe Voisine, Labadie, and Buday guilty of misfeasance in office, and of other offenses constituting grounds for removal, and recommended that the Governor, the official empowered to do so, take steps to remove them from office. Similar findings were transmitted to the Governor concerning Elmer Korn. 10 (2) Criminal Proceedings 11 Nov. 1956—Preliminary examination held by Justice of the Peace, and accused officers bound over for trial in the Circuit Court on criminal charges. 12 Dec. 21, 1956—Information filed in the Circuit Court for Wayne County against Voisine, Buday, Labadie, and others, by the Attorney General, charging a conspiracy to obstruct justice by knowingly permitting illegal gambling in return for bribes and gratuities. Arraignment set for January 15, 1967. People v. Voisine, No. 34092. 13 Jan. 11, 1957—Information filed against Korn. 14 —-Motions to quash filed by Voisine and Labadie. (3) Removal Proceedings. 15 Governor initiated removal proceedings against accused officers, pursuant to constitutional and statutory authorization. Mich.Const., Art. IX, § 8; Mich.Comp.Laws, 1948, § 767.4, as amended by Mich.Pub.Acts 1949, No. 311, Mich.Pub.Acts 1951, No. 276; Mich.Comp.Laws, 1948, § 168.327, as added by Mich.Pub.Acts 1954, No. 116, c. XV; Mich.Comp.Laws, 1948, §§ 201.7, 201.10.2 16 Oct. 25, 1956—Executive order issued by Governor Williams, on the basis of the findings of Judge Bohn, directing the Attorney General to inquire into the charges made against Korn, and appointing John W. Conlin, Probate Judge, to conduct hearings and take testimony produced before him. 17 —-Executive order issued by Governor directing the Attorney General and Judge Conlin to conduct similar proceedings against Voisine, Labadie, and Buday. 18 Nov. 1 or 2, 1956—Notice of removal proceedings was served on Voisine, Labadie, and Buday, and hearing set for November 13th. 19 — -Korn also served with notice of the removal proceedings. 20 Nov. 13, 1956—Removal proceedings continued to November 21st. 21 Nov. 21, 1956—Accused officers filed motions to dismiss the proceedings, and objected to hearing on removal charges before trial in the criminal proceedings. 22 Removal proceedings continued to January 7th, 1957, and then to January 9th. 23 Jan. 9, 1957—Order issued by Judge Conlin the effect of which, according to accused officers, was to deny their various motions. 24 (4) Intervention by United States District Court. 25 Jan. 14, 1957—Complaint filed by Voisine, Labadie, Buday, and Korn in the United States District Court for the Eastern District of Michigan, naming as defendants Judge Conlin, Governor Williams, Judge Bohn, and Attorney General Kavanagh, and alleging that the statute conferring removal power on the Governor, and the statutes under which Judge Bohn acted, violate the complainants' rights under the Federal Constitution. The complaint prays: that a temporary restraining order issue to prevent defendants from continuing with the removal proceedings until other matters of relief prayed for can be determined; that a three-judge District Court be organized under 28 U.S.C. § 2284, 28 U.S.C.A. § 2284, as required by 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, to issue a preliminary injunction; that on final hearing the removal proceedings be declared unconstitutional and void, and that a permanent injunction issue against defendants' continuing the proceedings; that the warrant and information underlying the criminal action be determined to have arisen out of unconstitutional proceedings. Voisine v. Conlin, Civ. No. 16638. 26 Complainants also filed a notice of motion for a preliminary injunction and for the formation of a three-judge District Court, and prayed for a temporary restraining order to issue without notice. 27 Temporary restraining order issued without notice by District Judge Levin, restraining defendants from continuing with removal proceedings. See 28 U.S.C. § 2284(3), 28 U.S.C.A. § 2284(3) and Fed.Rules Civ.Proc. rule 65, 28 U.S.C.A. 28 Jan. 15, 1957—Announcement of organization of three-judge District Court, and hearing set for January 29th. Defendants agreed that temporary restraining order should remain in effect until matter disposed of by three-judge court. 29 Jan. 21, 1957—Defendants filed answer to complaint, denying jurisdiction of the court on the grounds, among others, that complainants had failed to exhaust their state remedies, and that the suit was in substance one to enjoin the State of Michigan from exercising its sovereign powers. 30 Defendants filed motion to dismiss on similar grounds. 31 Jan. 29, 1957—Hearing held before three-judge District Court on motions of complainants and defendants. 32 Feb. 1, 1957—District Court entered amended order holding in abeyance determination of the questions submitted until the termination of complainants' criminal trials or until further order of court, and continuing in force the temporary restraining order. The court recited as grounds for its action that complainants may forthwith be tried in the criminal proceedings and the constitutional questions presented may thereby become moot, and that complainants may be prejudiced in the criminal proceedings by the investigation in the removal proceedings. Chief Judge Lederle, District Judge, dissented on the ground that the case was ripe for decision. 33 Feb. 28, 1957—The Governor and Attorney General filed a motion to dissolve the temporary restraining order or to pass on defendants' motion to dismiss, on the ground that the court had no authority to refuse to decide the motion and to continue the temporary restraining order. 34 Mar. 8, 1957—Proceedings on the motion to dissolve. 35 Mar. 11, 1957—Voisine filed an answer to the motion to dissolve. 36 Apr. 9, 1957—The court entered an order denying the motion to dissolve on the ground that, deeming it a motion for a rehearing, it presented no considerations that were not before the court when it entered its amended order of February 1st. Chief Judge Lederle dissented. 37 (5) Proceedings in This Court for Review of District Court's Action. 38 July 3, 1957—The Governor and Attorney General filed in this Court a motion for leave to file a petition for writ of mandamus or for writs of prohibition and mandamus directed against the members of the three-judge District Court to compel them to decide the motion for a preliminary injunction and the motion to dismiss, or to refrain from proceeding further in the cause and to vacate the temporary restraining order. 39 Petitioners asserted, among other grounds for the issuance of the writs, that in a case of great public importance the District Court had, for an unreasonable time, failed to perform its judicial function by granting or denying the motions before it, while continuing in effect the temporary restraining order. 40 Oct. 24 or 25, 1957—Counsel for Voisine filed in the District Court a motion to dismiss the complaint, noticed for hearing on November 4th. The Attorney General received a copy of this motion and on October 29th a copy of a similar motion by Labadie, also noticed for hearing on November 4th. 41 Oct. 28, 1957—This Court issued an order to the members of the District Court to show cause on or before November 12th why a writ of mandamus or prohibition should not issue. This order was sent to the respondents the same day, Monday, October 28th. 42 Oct. 29, 1957—The next day, the District Court entered an order, on the motion of Voisine and with the concurrence of the other complainants, vacating the temporary restraining order and dismissing the complaint. The Attorney General, we are advised, was not given notice that the District Court would act on the motion to dismiss, or given an opportunity to present objections. 43 Oct. 31, 1957—Defendants filed with the District Court an answer to the motion to dismiss, asserting that the court should refrain from acting on the motion until it had filed a return to this Court's order of October 28th to show cause. 44 Nov. 4, 1957—The District Court advised this Court of the order of dismissal of October 29th, and expressed its view that, since the issues presented by the case are moot, this Court should vacate its order to show cause. 45 Nov. 8, 1957—The Attorney General of Michigan, protesting against the District Court's action, requested a determination of the issues presented in spite of the District Court's order dismissing the complaint. 46 From the foregoing it appears that as a result of the District Court's refusal to pass on the questions presented by the complainants' motion for a preliminary injunction and the defendants' motion to dismiss, together with the court's continuance of the temporary restraining order, the Governor of Michigan and subordinate state officials designated by him were prevented for almost nine months from exercising powers claimed to be conferred upon them by Michigan law to remove municipal officers guilty of misconduct. The motion for leave to file a petition for mandamus or prohibition was filed in this Court at the end of the 1956 Term and could not be considered until the commencement of the new Term. Immediately after the Court considered the motion and issued its order to show cause on the basis of a claim that challenged the validity of the actions taken by the District Court, that court dismissed the complaint and thereby derailed, as in effect it has asserted, consideration on the merits of the issues presented by the order to show cause. Putting to one side the validity or propriety of the District Court's action in relation to the order of October 28th, and accepting the dismissal as accomplished, we must deny the petition for mandamus or prohibition. By vacating the temporary restraining order and dismissing the complaint, the District Court has brought to pass one alternative of the order petitioners would have this Court issue, thus rendering the petition for all practical purposes moot. But, although the past cannot be recalled and the physical entries in the records expunged, the legal significance and implications of this case are to be deemed expunged as though the restraints imposed by the District Court had never been ordered. 47 Memorandum by Mr. Justice DOUGLAS. 48 This Court is empowered by the Constitution to decide cases and controversies. U.S.Const., Art. III, § 2. A cause that has become moot is not a case or controversy in the constitutional sense. Amalgamated Ass'n of Street, Electric Ry. & Motor Coach Employees of America, Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 416, 418, 71 S.Ct. 373, 374, 95 L.Ed. 389. We cannot underscore this principle too heavily. We have no business in giving any expression of views on the merits, even in squinting one way or another. That is why the Court properly restricts its action to the order entered this day. 1 Section 767.3 authorizes a single judge to conduct an inquiry into alleged illegal practices. Section 767.4 provides that if the judge is satisfied that an offense has been committed and that there is probable cause to believe a person guilty thereof, he may cause his apprehension on proper process. It further provides that if the judge has probable cause to believe that any public officer removable by law has been guilty of misfeasance or malfeasance in office, he shall make findings to this effect and serve them upon the public official having jurisdiction to remove the accused officer. 2 Section 767.4 provides that findings of probable cause transmitted to the Governor by a judge who has conducted an investigation under § 767.3 shall be a sufficient complaint as a basis for initiation of removal proceedings. Section 168.327 authorizes the Governor to remove an elected municipal officer when satisfied by sufficient evidence submitted to him in the manner prescribed by law that the officer is guilty of misconduct. Sections 201.7 and 201.10 authorize the Governor to direct the Attorney General to inquire into the charges and to present testimony and examine witnesses before a probate judge appointed by the Governor for such purpose. The probate judge is to certify a transcript of the testimony produced before him by the Attorney General and the accused officer, and deliver it to the Attorney General for transmittal to the Governor.

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355 U.S. 41 78 S.Ct. 99 2 L.Ed.2d 80 J. D. CONLEY et al., Petitioners,v. Pat J. GIBSON, General Chairman of Locals 6051 and 28, etc., et al. No. 7. Argued Oct. 21, 1957. Decided Nov. 18, 1957. Mr. Joseph C. Waddy, Washington, D.C., for petitioners. Mr. Edward J. Hickey, Jr., Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. 1 Once again Negro employees are here under the Railway Labor Act1 asking that their collective bargaining agent be compelled to represent them fairly. In a series of cases beginning with Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, this Court has emphatically and repeatedly ruled that an exclusive bargaining agent under the Railway Labor Act is obligated to represent all employees in the bargaining unit fairly and without discrimination because of race and has held that the courts have power to protect employees against such invidious discrimination.2 2 This class suit was brought in a Federal District Court in Texas by certain Negro members of the Brotherhood of Railway and Steamship Clerks, petitioners here, on behalf of themselves and other Negro employees similarly situated against the Brotherhood, its Local Union No. 28 and certain officers of both. In summary, the complaint made the following allegations relevant to our decision: Petitioners were employees of the Texas and New Orleans Railroad at its Houston Freight House. Local 28 of the Brotherhood was the designated bargaining agents under the Railway Labor Act for the bargaining unit to which petitioners belonged. A contract existed between the Union and the Railroad which gave the employees in the bargaining unit certain protection from discharge and loss of seniority. In May 1954, the Railroad purported to abolish 45 jobs held by petitioners or other Negroes all of whom were either discharged or demoted. In truth the 45 jobs were not abolished at all but instead filled by whites as the Negroes were ousted, except for a few instances where Negroes were rehired to fill their old jobs but with loss of seniority. Despite repeated pleas by petitioners, the Union, acting according to plan, did nothing to protect them against these discriminatory discharges and refused to give them protection comparable to that given white employees. The complaint then went on to allege that the Union had failed in general to represent Negro employees equally and in good faith. It charged that such discrimination constituted a violation of petitioners' right under the Railway Labor Act to fair representation from their bargaining agent. And it concluded by asking for relief in the nature of declaratory judgment, injunction and damages. 3 The respondents appeared and moved to dismiss the complaint on several grounds: (1) the National Railroad Adjustment Board had exclusive jurisdiction over the controversy; (2) the Texas and New Orleans Railroad, which had not been joined, was an indispensable party defendant; and (3) the complaint failed to state a claim upon which relief could be given. The District Court granted the motion to dismiss holding that Congress had given the Adjustment Board exclusive jurisdiction over the controversy. The Court of Appeals for the Fifth Circuit, apparently relying on the same ground, affirmed. 229 F.2d 436. Since the case raised an important question concerning the protection of employee rights under the Railway Labor Act we granted certiorari. 352 U.S. 818, 77 S.Ct. 37, 1 L.Ed.2d 44. 4 We hold that it was error for the courts below to dismiss the complaint for lack of jurisdiction. They took the position that § 3 First (i) of the Railway Labor Act conferred exclusive jurisdiction on the Adjustment Board because the case, in their view, involved the interpretation and application of the collective bargaining agreement. But § 3 First (i) by its own terms applies only to 'disputes between an employee or group of employees and a carrier or carriers.'3 This case involves no dispute between employee and employer but to the contrary is a suit by employees against the bargaining agent to enforce their statutory right not to be unfairly discriminated against by it in bargaining.4 The Adjustment Board has no power under § 3 First (i) or any other provision of the Act to protect them from such discrimination. Furthermore, the contract between the Brotherhood and the Railroad will be, at most, only incidentally involved in resolving this controversy between petitioners and their bargaining agent. 5 Although the District Court did not pass on the other reasons advanced for dismissal of the complaint we think it timely and proper for us to consider them here. They have been briefed and argued by both parties and the respondents urge that the decision below be upheld, if necessary, on these other grounds. 6 As in the courts below, respondents contend that the Texas and New Orleans Railroad Company is an indispensable party which the petitioners have failed to join as a defendant. On the basis of the allegations made in the complaint and the relief demanded by petitioners we believe that contention is unjustifiable. We cannot see how the Railroad's rights or interests will be affected by this action to enforce the duty of the bargaining representative to represent petitioners fairly. This is not a suit, directly or indirectly, against the Railroad. No relief is asked from it and there is no prospect that any will or can be granted which will bind it. If an issue does develop which necessitates joining the Railroad either it or the respondents will then have an adequate opportunity to request joinder. 7 Turning to respondents' final ground, we hold that under the general principles laid down in the Steele, Graham, and Howard cases the complaint adequately set forth a claim upon which relief could be granted. In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.5 Here, the complaint alleged, in part, that petitioners were discharged wrongfully by the Railroad and that the Union, acting according to plan, refused to protect their jobs as it did those of white employees or to help them with their grievances all because they were Negroes. If these allegations are proven there has been a manifest breach of the Union's statutory duty to represent fairly and without hostile discrimination all of the employees in the bargaining unit. This Court squarely held in Steele and subsequent cases that discrimination in representation because of race is prohibited by the Railway Labor Act. The bargaining representative's duty not to draw 'irrelevant and invidious'6 distinctions among those it represents does not come to an abrupt end, as the respondents seem to contend, with the making of an agreement between union and employer. Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract. The bargaining representative can no more unfairly discriminate in carrying out these functions than it can in negotiating a collective agreement.7 A contract may be fair and impartial on its face yet administered in such a way, with the active or tacit consent of the union, as to be flagrantly discriminatory against some members of the bargaining unit. 8 The respondents point to the fact that under the Railway Labor Act aggrieved employees can file their own grievances with the Adjustment Board or sue the employer for breach of contract. Granting this, it still furnishes no sanction for the Union's alleged discrimination in refusing to represent petitioners. The Railway Labor Act, in an attempt to aid collective action by employees, conferred great power and protection on the bargaining agent chosen by a majority of them. As individuals or small groups the employees cannot begin to possess the bargaining power of their representative in negotiating with the employer or in presenting their grievances to him. Nor may a minority choose another agent to bargain in their behalf. We need not pass on the Union's claim that it was not obliged to handle any grievances at all because we are clear that once to undertook to bargain or present grievances for some of the employees it represented it could not refuse to take similar action in good faith for other employees just because they were Negroes. 9 The respondents also argue that the complaint failed to set forth specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim'8 that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified 'notice pleading' is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.9 Following the simple guide of Rule 8(f) that 'all pleadings shall be so construed as to do substantial justice,' we have no doubt that petitioners' complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745. 10 The judgment is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. 11 It is so ordered. 12 Reversed and remanded with direction. 1 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., 45 U.S.C.A. § 151 et seq. 2 Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283; Cf. Wallace Corp. v. National Labor Relations Board, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216; Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785. 3 In full, § 3 First (i) reads: 'The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act (June 21, 1934), shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.' 48 Stat. 1191, 45 U.S.C. § 153 First (i), 45 U.S.C.A. § 153, subd. 1(i). 4 For this reason the decision in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795, is not applicable here. The courts below also relied on Hayes v. Union Pacific R. Co., 9 Cir., 184 F.2d 337, certiorari denied 340 U.S. 942, 71 S.Ct. 506, 95 L.Ed. 680, but for the reasons set forth in the text we believe that case was decided incorrectly. 5 See, e.g., Leimer v. State Mutual Life Assur. Co., 8 Cir., 108 F.2d 302; Dioguardi v. Durning, 2 Cir., 139 F.2d 774; Continental Collieries v. Shober, 3 Cir., 130 F.2d 631. 6 Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 203, 65 S.Ct. 226, 232. 7 See Dillard v. Chesapeake & Ohio R. Co., 4 Cir., 199 F.2d 948; Hughes Tool Co. v. National Labor Relations Board, 5 Cir., 147 F.2d 69, 74, 158 A.L.R. 1165. 8 Rule 8(a)(2), 28 U.S.C.A. 9 See, e.g., Rule 12(e) (motion for a more definite statement); Rule 12(f) (motion to strike portions of the pleading); Rule 12(c) (motion for judgment on the pleadings); Rule 16 (pre-trial procedure and formulation of issue); Rules 26—37 (depositions and discovery); Rule 56 (motion for summary judgment): Rule 15 (right to amend).

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355 U.S. 62 78 S.Ct. 136 2 L.Ed.2d 93 Mildred S. STINSON, as Administratrix of the Estate of A. Bruce Stinson, Deceased, Suing as such Administratrix, Petitioner,v.ATLANTIC COAST LINE RAILROAD COMPANY. No. 442. Decided Nov. 18, 1957. Rehearing Denied Jan. 6, 1958. See 355 U.S. 910, 78 S.Ct. 338. Mr. Joseph S. Lord, III, for petitioner. Messrs. Peyton D. Bibb and Norman C. Shepard, for respondent. PER CURIAM. 1 The petition for writ of certiorari is granted. The Supreme Court of Alabama held that 'there was sufficient evidence for the jury to find that there was negligence on the part of the Atlantic Coast Line Railroad Company.' 264 Ala. 522, 527, 88 So.2d 189, 193. We agree. We now hold that the evidence also presented a jury question whether the employee's death resulted in whole or in part from such negligence. 35 Stat. 65, 45 U.S.C. § 51, 45 U.S.C.A. § 51; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Schulz v. Pennsylvania R. Co., 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668. The judgment of the Supreme Court of Alabama is therefore reversed and the cause is remanded for consideration of any grounds not disposed of on the first appeal; and, if none has merit, with instructions to reinstate the judgment entered on the jury verdict of June 12, 1953, awarding the petitioner damages of $46,600. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. 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, 520, Mr. Justice Frankfurter is of the view that the writ of certiorari is improvidently granted. Mr. Justice Burton dissents. Mr. Justice Harlan, while believing that certiorari should be denied, considers that Rogers v. Missouri Pacific R. Co., supra, requires him to concur in the result.

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355 U.S. 80 78 S.Ct. 202 2 L.Ed.2d 110 Solomon P. ROSENBLOOM, also known as Sol Rosenbloom, Petitioner,v.UNITED STATES of America. No. 451. Decided Nov. 25, 1957. Solomon P. Rosenbloom, pro se. Solicitor General Rankin, Assistant Attorney General Rice and Mr. Joseph F. Goetten, for the United States. PER CURIAM. 1 The petition for a writ of certiorari is granted. The Court of Appeals has held, without opinion, that petitioner's notice of appeal from the District Court, filed on July 8, 1957, was untimely. The Government has conceded that the Clerk of the District Court did not mail to petitioner or his attorney a notice of the entry of the order of June 14 denying petitioner's motion for a new trial and judgment of acquittal, as required by Rule 49(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. In our opinion the record in this case fails to show with sufficient certainty that petitioner or his attorney had actual notice of the entry of that order by reason of the proceedings which took place in the District Court on June 14.1 2 Cf. Huff v. United States, 5 Cir., 192 F.2d 911; Gonzalez v. United States, 1 Cir., 233 F.2d 825, 827, reversed on other grounds, 352 U.S. 978, 77 S.Ct. 383, 1 L.Ed.2d 363. What transpired at those proceedings is too ambiguous to permit the conclusion that petitioner and his attorney were not justified in believing that petitioner's time to appeal would begin to run on July 8. In these circumstances we think that the Court of Appeals erred in holding that petitioner's notice of appeal was untimely. Rule 37(a)(2), Fed.Rules Crim.Proc.; see Carter v. United States, 10 Cir., 168 F.2d 310. The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion. 3 Reversed and remanded for further proceedings. 4 Mr. Justice BURTON, with whom Mr. Justice CLARK concurs (dissenting). 5 Petitioner was present in open court with his attorney at the time the court overruled his motion for a new trial. He thus had actual notice of the denial of his motion and was not entitled to rely upon an additional notice in writing from the clerk to the same effect. The colloquy quoted by the Court took place later, 'after calling other motions in other cases.' At that time this case 'was again called by the Judge and the proceedings as indicated in the transcript of the official Court reporter took place.' Especially in the light of the time interval between the denial of the motion and the colloquy quoted in the opinion, I believe the Court of Appeals was justified in concluding that petitioner's counsel should have understood that his motion had been denied on June 14. 1 The record shows the following: 'The Court. * * * 'Do you want some time for your client before he turns in? 'Mr. Shaw. Your Honor, I was going to ask for some time in which to get his affairs straightened out, and within which to file an appeal, should we so desire to do. 'The Court. Very well. If you file an appeal, of course, if you apply for bond, I will tell you now that I will grant you bond. Be permitted to go under the bond you are under now. How much time do you want? 'Mr. Shaw. About two weeks, your Honor. 'The Court. How about Monday, July 1st, or do you want it the 8th, the following Monday? 'Mr. Shaw. That will be all right. 'The Court. Be given until July 8th. 'Mr. Shaw. Thank you.'

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355 U.S. 66 78 S.Ct. 128 2 L.Ed.2d 95 Oleta O'Connor YATES, Petitioner,v.UNITED STATES of America. No. 2. Argued Oct. 22, 1957. Decided Nov. 25, 1957. Mr. Leo Branton, Jr., Los Angeles, Cal., for petitioner. Mr. Philip R. Monahan, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This case is one of criminal contempt for refusal to answer questions at trial. Petitioner, admittedly a high executive officer of the Communist Party of California, and 13 codefendants were indicted and convicted of conspiracy to violate the Smith Act, 18 U.S.C.A. § 2385.1 During the trial, petitioner refused on June 30, 1952, to answer 11 questions relating to whether persons other than herself were members of the Communist Party. The District Court held petitioner in contempt of court for each refusal to answer, and imposed 11 concurrent sentences of one year each, which were to commence upon the petitioner's release from custody following execution of the five-year sentence imposed in the conspiracy case. This judgment was affirmed by the Court of Appeals. 9 Cir., 227 F.2d 851. We granted certiorari. 350 U.S. 947, 76 S.Ct. 322, 100 L.Ed. 825. The principal question presented is whether the finding of a separate contempt for each refusal constitutes an improper multiplication of contempts. We hold that it does, and find that only one contempt has been committed. 2 The circumstances of petitioner's conviction are these. After the Government had rested its case in the Smith Act trial, all but four of the defendants—petitioner and three others—rested their cases. Petitioner took the stand and testified in her own defense. During the afternoon of the first day of her cross-examination, June 26, 1952, she refused to answer four questions about the Communist membership of a nondefendant and of a codefendant who had rested his case.2 In refusing to answer, she stated, '* * * (T)hat is a question which, if I were to answer, could only lead to a situation in which a person could be caused to suffer the loss of his job * * * and perhaps be subjected to further harassment, and * * * I cannot bring myself to contribute to that.' She added, 'However many times I am asked and in however many forms, to identify a person as a communist, I can't bring myself to do it * * *.' The District Court adjudged her guilty of civil contempt for refusing to answer these questions, and committed her to jail until she should purge herself by answering the questions or until further order of the court. She was confined for the remainder of the trial.3 3 On the third day of petitioner's cross-examination, June 30, 1952, despite instructions from the court to answer, petitioner refused to answer 11 questions which in one way or another called for her to identify nine other persons as Communists. The stated ground for refusal in these instances was petitioner's belief that either the person named or his family could 'be hurt by' such testimony. She expressed a willingness to identify others as Communists—and in one instance did so—if such identification would not hurt them. The judge stated that he expected to treat these 11 refusals as criminal contempt under Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.4 Adjudication of the contempt was deferred until completion of the principal case. 4 After conviction and imposition of sentences in the conspiracy case, the court, acting under 18 U.S.C. § 401, 18 U.S.C.A. § 401,5 found petitioner guilty of 'eleven separate criminal contempts' for her 11 refusals to answer questions on June 30. No question is raised as to the form or content of the specifications. 5 The court sentenced petitioner to imprisonment for one year on each of the 11 separate specifications of criminal contempt. The sentences were to run concurrently and were to commence upon her release from custody following execution of the five-year sentence imposed on the conspiracy charge. Upon imposing sentence, the court stated that if petitioner answered the 11 questions then or within 60 days, while he had authority to modify the sentence under Rule 35 of the Federal Rules of Criminal Procedure, he would be inclined to accept her submission to the authority of the court. However, petitioner persisted in her refusal. 6 The summary contempt power in the federal courts, '* * * although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.' Ex parte Terry, 1888, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405. The Judiciary Act of 1789 contained a section making it explicit that federal courts could 'punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same * * *.' 1 Stat. 73, 83. After United States District Judge Peck's acquittal in 18316 on charges of high misdemeanors for summarily punishing a member of the bar for contempt in publishing a critical comment on one of his judgments, Congress modified the statute. In the Act of 1831, the contempt power was limited to specific situations such as disobedience to lawful orders. 4 Stat. 487. See Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in 'Inferior' Federal Courts, 37 Harv.L.Rev. 1010, 1023—1038. The present code provision is substantially similar.7 We have no doubt that the refusals in question constituted contempt within the meaning of 18 U.S.C. § 401(3), 18 U.S.C.A. § 401(3). 7 This case presents three issues. Petitioner claims that the sentences were imposed to coerce her into answering the questions instead of to punish her, making the contempts civil rather than criminal and the sentences to a prison term after the close of the trial a violation of Fifth Amendment due process. Second, petitioner argues that her several refusals to answer on both June 26 and June 30 constituted but a single contempt which was total and complete on June 26, so that imposition of contempt sentences for the June 30 refusals was in violation of due process. Finally, petitioner contends that her one-year sentences were so severe as to violate due process and constitute cruel and unusual punishment under the Eighth Amendment. I. 8 While imprisonment cannot be used to coerce evidence after a trial has terminated, Yates v. United States, 9 Cir., 227 F.2d 844; cf. Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 443, 449, 31 S.Ct. 492, 498, 501, 55 L.Ed. 797, it is unquestioned that imprisonment for a definite term may be imposed to punish the contemnor in vindication of the authority of the court. We do not believe that the sentences under review in this case were imposed for the purpose of coercing answers to the 11 questions. Rather, the record clearly shows that the order was made to 'vindicate the authority of the court' by punishing petitioner's 'defiance' thereof. The sentencing judge did express the hope that petitioner would still 'purge herself to the extent that she bows to the authority of the court' by answering the questions either at the time of the sentencing or within 60 days thereafter. In doing so, however, he acted pursuant to the power of the court under Rule 35 of the Federal Rules of Criminal Procedure8 rather than under any theory of civil contempt. Indeed, in express negation of the latter idea, he stated that should she answer the questions, '(i)t could have no effect upon this proceeding and need not be accepted as a purge, because of the fact that the time has passed * * * for the administration of justice in this case to be affected by it.' II. 9 Petitioner contends that the refusals of June 26 and June 30 constituted no more than a single contempt because the questions asked all related to identification of others as Communists, after she made it clear on June 26 that she would not be an informer. She urges that the single contempt was completed on June 26 since the area of refusal was 'carved out' on that day. From this, petitioner concludes that no contempt was committed on June 30, and that imposition of criminal contempt sentences for refusals of that day to answer violates due process guaranties. 10 A witness, of course, cannot 'pick and choose' the questions to which an answer will be given. The management of the trial rests with the judge and no party can be permitted to usurp that function. See United States v. Gates, 2 Cir., 176 F.2d 78, 80. However, it is equally clear that the prosecution cannot multiply contempts by repeated questioning on the same subject of inquiry within which a recalcitrant witness already has refused answers. See United States v. Orman, 3 Cir., 207 F.2d 148. 11 Even though we assume the Government correct in its contention that the 11 questions in this case covered more than a single subject of inquiry, it appears that every question fell within the area of refusal established by petitioner on the first day of her cross-examination. The Government admits, pursuant to the holding of United States v. Costello, 2 Cir., 198 F.2d 200, that only one contempt would result if Mrs. Yates had flatly refused on June 26 to answer any questions and had maintained such a position. We deem it a fortiori true that where a witness draws the lines of refusal in less sweeping fashion by declining to answer questions within a generally defined area of interrogation, the prosecutor cannot multiply contempts by further questions within that area. The policy of the law must be to encourage testimony; a witness willing to testify freely as to all areas of investigation but one, should not be subject to more numerous charges of contempt than a witness unwilling to give any testimony at all. 12 Having once carved out an area of refusal, petitioner remained within its boundaries in all her subsequent refusals. The slight modification on June 30 of the area of refusal did not carry beyond the boundaries already established. Whereas on June 26 the witness refused to identify other persons as Communists, on June 30 she refused to do so only if those persons would be hurt by her identification. Although the latter basis is not identical to the former, the area of refusal set out by it necessarily fell within the limits drawn on June 26. We agree with petitioner that only one contempt is shown on the facts of this case. 13 That conclusion, however, does not establish petitioner's contention that no contempt whatsoever was committed by her refusal to answer the 11 questions of June 30. The contempt of this case, although single, was of a continuing nature: each refusal on June 30 continued the witness' defiance of proper authority. Certainly a party who persisted in refusing to perform specific acts required by a mandatory injunction would be in continuing contempt of court. We see no meaningful distinction between that situation and petitioner's persistent refusal to answer questions within a defined area. 14 Though there was but one contempt, imposition of the civil sentence for the refusals of June 26 is no barrier to criminal punishment for the refusals of June 30. The civil and criminal sentences served distinct purposes, the one coercive, the other punitive and deterrent; that the same act may give rise to these distinct sanctions presents no double jeopardy problem. Rex Trailer Co. v. United States, 1956, 350 U.S. 148, 150, 76 S.Ct. 219, 220, 100 L.Ed. 149; United States v. United Mine Workers, 1947, 330 U.S. 258, 299, 67 S.Ct. 677, 698, 91 L.Ed. 884.9 Clearly, if the civil and criminal sentences could have been imposed simultaneously by the court on June 26, as the United Mine Workers case holds, it scarcely can be argued that the court's failure to invoke the criminal sanction until June 30 was fatal to its criminal contempt powers. Indeed, the more salutary procedure would appear to be that a court should first apply coercive remedies in an effort to persuade a party to obey its orders, and only make use of the more drastic criminal sanctions when the disobedience continues. Had the court imposed a civil sentence and found petitioner guilty of criminal contempt on June 26, it could have postponed imposition of a criminal sentence until termination of the principal case. The distinction between that procedure and the one followed here is entirely formal. III. 15 While the sentences imposed were concurrent, it may be that the court's judgment as to the proper penalty was affected by the view that petitioner had committed 11 separate contempts. In addition, petitioner has now served a total of over 70 days in jail awaiting final disposition of the several proceedings against her. The conspiracy conviction and another criminal contempt conviction have been reversed, and the sentences imposed here have been termed 'severe' by the Court of Appeals. 9 Cir., 227 F.2d 851, 855. Moreover, the court should consider '* * * the extent of the willful and deliberate defiance of the court's order (and), the seriousness of the consequences of the contumacious behaviour * * *.' United States v. United Mine Workers, supra, 330 U.S. at page 303, 67 S.Ct. at page 701. In this regard, petitioner's understandable reluctance to be an informer, although legally insufficient to explain her refusals to answer, is a factor, as is her apparently courteous demeanor and the fact that her refusals seem to have had no perceptible effect on the outcome of the trial. All of this points up the necessity, we think, of having the trial judge reconsider the sentence in the cool reflection of subsequent events.10 16 The contempt convictions on specifications II—XI, inclusive, are reversed. The contempt conviction on specification I is affirmed, but the sentence on that conviction is vacated, and the case is remanded to the District Court for resentencing in the light of this opinion.11 17 It is so ordered. 18 Reversed in part and affirmed in part, but sentence vacated and case remanded for resentencing. 19 Mr. Justice BURTON agrees with the Court of Appeals and the trial court that petitioner's refusals to answer when ordered to do so by the trial court on June 30 constituted at least nine contempts of court. However, in view of all the circumstances, he now joins in the judgment of this Court remanding the case for resentencing. 20 Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting. 21 This case to me is a shocking instance of the abuse of judicial authority. It is without precedent in the books. 22 Mrs. Yates, not wanting to be an informer, refused on cross-examination to answer four questions concerning the Communist Party affiliations of any codefendant who had rested his case or any other person who might be subject to persecution by such a disclosure. 23 For this, her first refusal, she was given her first sentence and confined in jail for 70 days.1 On the third day of her cross-examination she was asked 11 more questions along the same line and, adhering to her original position, remained adamant in her refusal to answer. The district judge told Mrs. Yates that he intended to treat her refusals to answer as 11 separate criminal contempts, but indicated that he would defer action on the criminal contempt for the second refusal for the duration of the trial. The conviction for criminal contempt because of her second refusal to testify was affirmed by the Court of Appeals (9 Cir., 227 F.2d 851) and is now affirmed by this Court.2 24 First. One reason I would reverse is that this is a transparent attempt to multiply offenses. The one offense which Mrs. Yates committed was her first refusal to answer. Her second refusal was merely the maintenance of the same position she took at the start of her cross-examination. I do not think a prosecutor should be allowed to multiply the contempts by repeating the questions. The correct rule, I believe, is stated in United States v. Costello, 2 Cir., 198 F.2d 200, 204. 25 'Certainly the refusal to testify was an act in contempt of the Committee for which the defendant was subject to the punishment prescribed by the statute. But when the defendant made his position clear, the Committee could not multiply the contempt, and the punishment, by continuing to ask him questions each time eliciting the same answer: his refusal to give any testimony. In other words, the contempt was total when he stated that he would not testify, and the refusals thereafter to answer specific questions can not be considered as anything more than expressions of his intention to adhere to his earlier statement and as such were not separately punishable.' 26 Or, as stated in United States v. Orman, 3 Cir., 207 F.2d 148, 160. 27 '* * * where the separate questions seek to establish but a single fact, or relate to but a single subject of inquiry, only one penalty for contempt may be imposed.' 28 Any other rule gives the prosecutor and the judge the awful power to create crimes as they choose. Because of the prosecutor's efforts to multiply the offense by continuing the line of questions, Mrs. Yates' second refusal to answer, following consistently the position she had made clear to the court upon the first day of her cross-examination, was not a contempt. Her second refusal to answer was merely a failure to purge3 herself of the first contempt, not a new one. 29 Second. Mrs. Yates might have been subjected to criminal penalties as well as civil coercion for the contempt she committed upon her first refusal to testify. See Penfield Co. of California v. S.E.C., 330 U.S. 585, 65 S.Ct. 918, 91 L.Ed. 1117; United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. The district judge in fact attempted to impose a three-year criminal sentence for her first refusal to answer; but he was reversed by the Court of Appeals for his failure to give her the necessary notice during the pendency of the trial. Yates v. United States, 9 Cir., 227 F.2d 848. 30 What the Court now does is to make the present conviction do service for the invalid conviction for her first refusal to testify. This cannot be done unless we are to make a rule to fit this case only. 1 This Court reversed the convictions in the principal case. Yates v. United States, 1957, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. 2 At the morning session petitioner indicated that she would answer questions as to the Party membership of codefendants who had not rested their cases, and in fact she did so. 3 The trial ended on Aug. 5, 1952. Petitioner was confined under the judgment of conviction in the principal case until Aug. 30, 1952, when she was released on bail pending appeal in that case. She was reconfined on Sept. 4, 1952, this time under the civil contempt order of June 26. She was released on bail on Sept. 6, 1952, pending appeal from the order directing her reconfinement. That order was reversed on appeal on the ground that petitioner could not purge herself of the civil contempt since the trial had ended. Yates v. United States, 9 Cir., 227 F.2d 844. Petitioner was again confined on Sept. 8, 1952, after the District Court, on that same day, adjudged her in criminal contempt of court for her June 26 refusals to answer. She was released on bail on Sept. 11, 1952, pending appeal from that judgment, which was later reversed on appeal because the district judge had given her no notice at the time of the trial that he expected to hold her in criminal contempt for the June 26 refusals. Yates v. United States, 9 Cir., 227 F.2d 848. Neither the civil nor the criminal contempt sentences for the June 26 refusals, nor their reversals, are under review in the present case. 4 'A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.' 5 '§ 401. Power of court. A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— '(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; '(2) Misbehavior of any of its officers in their official transactions; '(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.' 6 Stansbury, Report of the Trial of James H. Peck (1833). 7 See note 5, supra. 8 'Rule 35. Correction or Reduction of Sentence. * * * The court may reduce a sentence within 60 days after the sentence is imposed * * *.' 9 Nor does the finding of a single contempt mean that the criminal contempt sentence under review in this case constitutes double jeopardy because the court also imposed a criminal contempt sentence for the June 26 refusals. The latter was reversed on appeal, note 3, supra, and in any event was imposed after the criminal contempt sentence for the June 30 refusals. 10 In addition, the sentences imposed were ordered to commence upon completion of the five-year sentence in the conspiracy case. Reversal of the conspiracy conviction has rendered uncertain the date at which the sentences here imposed would begin. 11 Cf. Nilva v. United States, 1957, 352 U.S. 385, 396, 77 S.Ct. 431, 437, 1 L.Ed.2d 415. 1 The trial judge was not through with Mrs. Yates. In his view, the first or 'coercive' civil contempt order remained in effect so long as the judgment of conviction in the main case was pending on appeal. The Court of Appeals ordered her released (Yates v. United States, 9 Cir., 227 F.2d 844) on the ground that confinement for civil contempt is not permissible after the termination of the trial. 2 Petitioner has not urged that this charge of criminal contempt should have been tried before some other judge. Cf. Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11. Nor has petitioner contended that she could be held only on indictment by a grand jury, or tried only by a jury, or prosecuted without the other procedural safeguards of the Fifth and Sixth Amendments. 3 This is apparent from what transpired when Mrs. Yates appeared before the trial judge in this case: 'I had hoped by this time that Mrs. Yates might be willing to purge herself; that she might be prompted to do so.' '* * * as I view it, the court, in its discretion, might treat answers now to the questions as a vindication of judicial authority and treat it as purged.' 'I take it from the defendant's statement that she is as adamant now as she was the day the questions were put.' 'I hope Mrs. Yates will yet purge herself. I think, in offering to accept her answers now as a purge is a humane, merciful thing to do under the circumstances. 'I am not interested in imprisoning Mrs. Yates. I am interested in vindicating the authority of this court, which I feel must be vindicated when anyone wilfully refuses to obey a lawful order of the court. 'If she at any time within 60 days, while I have the authority to modify this sentence under the Rules, wishes to purge herself, I will be inclined even at that late date to accept her submission to the authority of the court.'

01

355 U.S. 169 78 S.Ct. 203 2 L.Ed.2d 177 UNITED STATES of America, ex rel. LEE KUM HOY, Lee Kum Cherk, and Lee Moon Wah, Petitioners,v.John L. MURFF, District Director of Immigration and Naturalization Service. No. 32. Argued Nov. 21, 1957. Decided Dec. 9, 1957. Mr. Benjamin Gim, New York City, for petitioners. Mr. John F. Davis, Washington, D.C., for respondents. PER CURIAM. 1 In view of the representation in the Solicitor General's argument at the Bar that the blood grouping test requirement here involved is presently and has been for some time applied without discrimination 'in every case, irrespective of race, whenever deemed necessary,' and in view of our remand of the case, we need not now pass upon the claim of unconstitutional discrimination. 2 It appearing that the blood grouping tests made herein were in some respects inaccurate and the reports thereof partly erroneous and conflicting, the judgments heretofore entered are vacated and the case is remanded to the District Court with directions that the hearings before the Special Inquiry Officer or a Board of Special Inquiry be reopened, so that new, accurate blood grouping tests may be made under appropriate circumstances, and that relevant evidence may be received as offered on the issues involved. The excludability of petitioners remains to be determined upon those proceedings. 3 Judgments vacated and case remanded with directions.

01

355 U.S. 107 78 S.Ct. 161 2 L.Ed.2d 134 Floyd Linn RATHBUN, Petitioner,v.UNITED STATES of America. No. 30. Argued Oct. 29, 1957. Decided Dec. 9, 1957. Rehearing Denied Jan. 13, 1958. See 355 U.S. 925, 78 S.Ct. 363. Mr. Thomas K. Hudson, Denver, Colo., for petitioner. Mr. John F. Davis, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 This case concerns the issue of whether the contents of a communication overheard on a regularly used telephone extension with the consent of one party to the conversation are admissible in federal court.1 Petitioner was convicted of violations of 18 U.S.C. § 875(b) and (c), 18 U.S.C.A. § 875(b, c) for transmitting an interstate communication which threatened the life of one Sparks in order to obtain from him a stock certificate which Sparks held as collateral for a loan. On March 16, 1955, petitioner, who was in New York, spoke by telephone with Sparks, who was in Pueblo, Colorado. Anticipating another call from petitioner, Sparks requested that members of the Pueblo police force overhear the conversation. When petitioner phoned Sparks in the early morning of March 17, two police officers at Sparks' direction listened to the conversation on a telephone extension in another room of the Sparks home. This extension had not been installed there just for this purpose but was a regular connection, previously placed and normally used. At the trial the police officers testified over timely objection that during this conversation petitioner had threatened Sparks' life because he would no surrender the certificate. Petitioner was convicted and the Court of Appeals affirmed. 236 F.2d 514. We granted certiorari. 352 U.S. 965, 77 S.Ct. 354, 1 L.Ed.2d 320. 2 Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, determined that information obtained and divulged by state agents in violation of Section 605 of the Federal Communications Act2 is inadmissible in federal court. The pertinent portion of Section 605 states: 3 '* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.' 4 Since there was a divulgence of the contents of a communication, the only issue on the facts before us is whether there has been an unauthorized interception within the meaning of Section 605.3 The federal courts have split in their determination of this question. Some courts have held that the statute proscribes the use of an extension telephone to allow someone to overhear a conversation without the consent of both parties.4 Others have concluded that the statute is inapplicable where one party has consented.5 We hold that Section 605 was not violated in the case before us because there has been no 'interception' as Congress intended that the word be used. Every statute must be interpreted in the light of reason and common understanding to reach the results intended by the legislature. Cf. Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226; American Security & Trust Co. v. Commissioners, 224 U.S. 491, 32 S.Ct. 553, 56 L.Ed. 856. That principle would be violated if we attributed to Congress acceptance of the results that would occur here from the position argued by petitioner. 5 The telephone extension is a widely used instrument of home and office,6 yet with nothing to evidence congressional intent, petitioner argues that Congress meant to place a severe restriction on its ordinary use by subscribers, denying them the right to allow a family member, an employee, a trusted friend, or even the police to listen to a converation to which a subscriber is a party. Section 605 points to the opposite conclusion. Immediately following the portion quoted above, the statute continues: 6 '* * * no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto * * *.' 7 The clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. It has been conceded by those who believe the conduct here violates Section 605 that either party may record the conversation and publish it.7 The conduct of the party would differ in no way if instead of repeating the message he held out his handset so that another could hear out of it. We see no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose. 8 The error in accepting petitioner's argument is brought into sharper focus by the fact that Section 605 is penal in nature, the first violation being punishable by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both.8 For example, it follows from petitioner's argument that every secretary who listens to a business conversation at her employer's direction in order to record it would be marked as a potential federal criminal. It is unreasonable to believe that Congress meant to extend criminal liability to conduct which is wholly innocent and ordinary. 9 Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of Section 605, interception, has not occurred. 10 Affirmed. 11 Mr. Justice FRANKFURTER, whom Mr. Justice DOUGLAS joins, dissenting. 12 Although this Court had, in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, decided that neither the Fourth Amendment nor the general judicial principles governing over criminal trials in United States courts barred evidence obtained through interception of telephone communications by law-enforcing officers without the consent of the sender, the Congress a few years later provided that 13 'no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.' § 605, Federal Communications Act of June 19, 1934, 48 Stat. 1064, 1104, 47 U.S.C. § 605, 47 U.S.C.A. § 605. 14 If the judicial attitude that lies behind the phrase 'strict construction of a statute', i.e., in favor of an accused, can have an emphatic illustration, it is found in the two Nardone cases, in which the quoted provision of § 605 was first given effect by this Court. We there held that the implications of that section bar even the most relevant and persuasive evidence obtained, without a sender's authorization, through interception by law officers, and likewise bar independently secured evidence obtained as a result of leads afforded by such interception. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. The whole point of the vigorous dissent in the first Nardone case was directed against literal application of the phrase 'no person' thereby 'enabling the most depraved criminals to further their criminal plans over the telephone, in the secure knowledge that even if these plans involve kidnapping and murder, their telephone conversations can never be intercepted by officers of the law and revealed in court.' Mr. Justice Sutherland, dissenting in Nardone v. United States, 302 U.S. at page 385, 58 S.Ct. at page 278. The Court's opinion gave a short and decisive answer: 'We nevertheless face the fact that the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that 'no person' shall divulge or publish the message or its substance to 'any person." 302 U.S. at page 382, 58 S.Ct. at page 276. 15 In this case, petitioner's conviction was based on the testimony of a police officer who listened in on a telephone communication made by petitioner, and such listening-in was not 'authorized by the sender,' to wir, the petitioner. It is suggested that the interception, for such it was, in the clear meaning of the term for carrying out its function—an intrusion by way of listening to the legally insulated transmission of thought between a speaker and a hearer—does not fall within the prohibition of § 605, because it was carried out by means of 'a regularly used telephone extension with the consent of one party.' But, surely, the availability of a 'regularly used telephone extension' does not make § 605 inoperative. The fact that the Court relies on 'the consent of one party' evidently implies that it would not be without the purview of § 605 for a police officer to conceal himself in a room of a house or a suite of offices having several 'regularly used telephone extensions' and surreptitiously to utilize such an extension o overhear telephone conversations. 16 It is said that the overhearing in this case was 'with the consent of one party.' But the statute is not satisfied with 'the consent of one party.' The statute says 'no person not being authorized by the sender.' Since this Court, in Nardone, read 'no person' to mean no person, it is even more incumbent to construe 'sender' to mean sender, as was the petitioner here, and not to read 'sender' to mean one of the parties to the communication, whether sender or receiver. It is further suggested that Congress must have been aware of the wide use of telephone extensions and the practice of listeningin on extensions. In the first Nardone case this Court rejected the argument that Congress had knowledge of the employment of federal agents 'to tap wires in aid of detection and conviction of criminals.' 302 U.S. at page 381, 58 S.Ct. at page 276. But the Court refused to qualify the rigorous policy of Congress as expressed by its enactment. And today, in Benanti v. United States, the Court rejects, and if I may say so rightly, the plausible contention that the well-known legislative authorization of wire-tapping by some of the States ought to be deemed to have qualified the strict purpose of Congress. 17 It is suggested, however, that it is one of the accepted modes of carrying on business in our time to have secretaries listen in on conversations by their principals. A secretary may fairly be called the employer's alter ego. And so, a secretary is fairly to be deemed as much of an automatic instrument in the context of our problem as a tape recorder. Surely a police officer called in to facilitate the detection of crime is not such an alter ego. His participation in telephone communications when not authorized by the sender occupies precisely the same position that it occupied in the Olmstead case when this Court sanctioned the practice, and in the Nardone cases where this Court rigorously enforced the prohibition by Congress of what theretofore was a lawful practice. 18 Sharing the views expressed by Judge Learned Hand in United States v. Polakoff, 2 Cir., 112 F.2d 888, and Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691, I would reverse the judgment. 1 The grant of certiorari was limited to the following question, as phrased by petitioner: 'Is the listening in of third parties on an extension telephone in an adjoining room, without consent of the sender, an interception of a telephone message, and the divulgence of the contents of such conversation prohibited by statute, to wit Sec. 605, Title 47, U.S.C.A.' Implicit in this phrasing of the question is the fact that one party to the conversation did consent. 2 48 Stat. 1103, 47 U.S.C. § 605, 47 U.S.C.A. § 605. 3 We do not decide the question of whether § 605 is violated where a message is intercepted but not divulged since the police officers did divulge the contents of the overheard conversation when they testified in court. Cf. Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155. 4 United States v. Polakoff, 2 Cir., 112 F.2d 888, 134 A.L.R. 607; James v. United States, 89 U.S.App.D.C. 201, 191 F.2d 472; United States v. Hill, D.C., 149 F.Supp. 83; see Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691. 5 United States v. White, 7 Cir., 228 F.2d 832; Flanders v. United States, 6 Cir., 222 F.2d 163; United States v. Sullivan, D.C., 116 F.Supp. 480, affirmed, 95 U.S.App.D.C. 78, 219 F.2d 760; United States v. Lewis, D.C., 87 F.Supp. 970, reversed on other grounds, Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881; cf. Rayson v. United States, 9 Cir., 238 F.2d 160; United States v. Bookie, 7 Cir., 229 F.2d 130; United States v. Pierce, D.C., 124 F.Supp. 264, affirmed, 6 Cir., 224 F.2d 281. 6 For example, in 1934 the Bell Telephone System, including affiliates, had 1,315,000 extension telephones ou of a total of 13,378,000. In 1956 the System had 8,465,000 extension telephones out of a total of 50,990,000. Exhibit 1364 of the Federal Communications Commission Special Telephone Investigation; Federal Communications Commission, 'Statistics of the Communications Industry in the United States for the year ended December 31, 1956.' 7 See United States v. Polakoff, 2 Cir., 112 F.2d 888, 889: 'We need not say that a man may never make a record of what he hears on the telephone by having someone else listen at an extension, or, as in the case at bar, even by allowing him to interpose a recording machine. The receiver may certainly himself broadcast the message as he pleases, and the sender will often give consent, express or implied, to the interposition of a listener.' (Emphasis added.) Note also that the regulations of the Federal Communications Commission which control the recording of telephone conversations presuppose that either party may record a conversation and declare that tariff regulations of telephone companies which bar the use of recording devices are unjust and unreasonable and so in violation of § 201 of the Federal Communications Act, 47 U.S.C.A. § 201; In the Matter of Use of Recording Devices in Connection with Telephone Service, 11 F.C.C. 1033, 1053. 8 48 Stat. 1100, 47 U.S.C. § 501, 47 U.S.C.A. § 501. Additional violations are punishable by the same fine and not more than two years' imprisonment, or both.

01

355 U.S. 115 78 S.Ct. 180 2 L.Ed.2d 140 Charles ROWOLDT, Petitioner,v.J. D. PERFETTO, Acting Officer in Charge, Immigration and Naturalization Service, Department of Justice, St. Paul, Minnesota. No. 5. Reargued Oct. 14, 1957. Decided Dec. 9, 1957. Messrs. David Rein and Joseph Forer, Washington, D.C., for petitioner. Mr. Oscar H. Davis, Washington, D.C., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. 1 Petitioner is an alien who has been ordered deported by virtue of § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006,1 for past memebership in the Communist Party. He attacks the judgment below on the ground—the only claim we need to consider that he was not a 'member' of the Communist Party within the scope of that section. 2 Petitioner is an alien who entered the United States in 1914 and, except for a short interval in Canada, has resided here continuously. The finding of 'membership' by the hearing officer rested on petitioner's own testimony. He stated that he joined the Communist Party in 'the spring or summer of 1935,' paid dues, attended meetings, and remained a member 'until I got arrested (in deportation proceedings) and that was at the end of 1935. When I was arrested, I finished the Communist Party membership * * *.' At a later point in his testimony, petitioner stated that he was probably a member for approximately one year. 3 He then explained his reasons for joining the Communist Party: 4 'The purpose was probably this—it seemed to me that it came hand in hand—the Communist Party and the fight for bread. It seemed to me like this—let's put it this way—that the Communist Party and the Workers' Alliance had one aim—to get something to eat for the people. I didn't know it was against the law for aliens to join the Communist Party and the Workers' Alliance. * * *' 5 In response to a question whether his joining the Communist Party was 'motivated by dissatisfaction in living under a democracy,' the following colloquy took place: 6 'A. No, not by that. Just a matter of having no jobs at that time. Everybody around me had the idea that we had to fight for something to eat and clothes and shelter. We were not thinking then—anyways the fellows around me, of overthrowing anything. We wanted something to eat and something to crawl into. 7 'Q. You say 'fight for something to eat and crawl into.' What do you mean by that term? A. We had to go and ask those who had it—that was the courthouse at that time. We petitioned city, state and national government. We did and we succeeded. We finally got unemployment laws and a certain budget. Even at the few communist meetings I attended, nothing was ever said about overthrowing anything. All they talked about was fighting for the daily needs. That is why we never thought much of joining those parties in those days.' 8 The other activity bearing on petitioner's membership in the Communist Party was discussed in the following colloquy: 9 'Q. Were you an active worker in the Communist Party? A. The only active work I did was running the bookstore for a while. 10 'Q. What sort of bookstore was it? A. Oh, all kinds of literature—all kinds of writers in the whole world—Strachey, Marx, Lenin's writing and others. Socialism and all that stuff. 11 'Q. Did you own the bookstore? A. No. I didn't get a penny there. 12 'Q. What was the arrangement there? A. I was kind of a salesman in there, but the Communist Party ran it. 13 'Q. You secured this employment through your membership in the Communist Party? A. Yes. 14 'Q. Was this store an official outlet for communist literature? A. Yes.' 15 Petitioner testified that he never advocated change of government by force or violence and he also gave his unilluminating understanding of, and beliefs about, the principles of communism. His account of the circumstances and motives that led him to join the Communist Party stood unchallenged and was evidently accepted at face value. 16 This testimony was all given during an examination of petitioner by the Immigration and Naturalization Service in 1947. At the hearing below, in 1951, petitioner refused to answer whether he had ever been a member of the Communist Party on the ground that the answers might incriminate him. The hearing officer found, from the evidence in the record, that petitioner 'was a member of the Communist Party of the United States in 1935.' On appeal, to both the Assistant Commissioner, Adjudications Division of the Immigration and Naturalization Service, and subsequently the Board of Immigration Appeals, this finding was held supported by the record. Petitioner then sought a writ of habeas corpus from the District Court for the District of Minnesota. Both the District Court and, on appeal, the Court of Appeals for the Eighth Circuit held that the evidence produced at the hearing was sufficient to sustain the finding that petitioner was a 'member' of the Communist Party. 228 F.2d 109. As the case involves an application of Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, we granted certiorari. 350 U.S. 993, 76 S.Ct. 545, 100 L.Ed. 858. 17 The authority for the order deporting petitioner derives from the Internal Security Act of 1950, as amended by the Act of March 28, 1951, 65 Stat. 28. As indicated, its evidentiary support rests entirely on petitioner's testimony before an immigration inspector in 1947. The transcript of that hearing was the foundation of the administrative proceedings that resulted in the order now under review. The adequacy of that testimony to sustain the order must be judged by the Internal Security Act of 1950, which was amended by § 1 of the Act of March 28, 1951, 65 Stat. 28, set forth in the margin.2 18 As pointed out in Galvan v. Press, supra, 347 U.S. at page 527, 74 S.Ct. at page 740, 741, the legislative history of this amendatory statute shows that the three specified qualifications are not to be applied as narrow exceptions but are to be considered as illustrative of the spirit in which the rigorous provisions regarding deportability of § 22(2) are to be construed. There must be a substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was 'joining an organization known as the Communist Party which operates as a distinct and active political organization * * *.' 347 U.S. at page 528, 74 S.Ct. at page 741. 19 Bearing in mind the solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years, cf. Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938, we cannot say that the unchallenged account given by petitioner of his relations to the Communist Party establishes the kind of meaningful association required by the alleviating Amendment of 1951 as expounded by its sponsor, Senator McCarran, and his legislative collaborator, Senator Ferguson. See 97 Cong.Rec. 2368 and 2387. All that the Immigration authorities went on is what the petitioner himself said, for his truthfulness was not called into question. From his own testimony in 1947, which is all there is, the dominating impulse to his 'affiliation' with the Communist Party may well have been wholly devoid of any 'political' implications. To be sure, he was a 'salesman' in a Communist book store, but he 'didn't get a penny there.' Presumably he had to live on something and further inquiry might have elicited that he was getting the necessities of life for his work in the book store. Nor is there a hint in the record that this was not a bona fide book shop. 20 Accordingly, we are of the opinion that the record before us is all too insubstantial to support the order of deportation. The differences on the facts between Galvan v. Press, supra, and this case are too obvious to be detailed. 21 Judgment reversed. 22 Mr. Justice HARLAN, whom Mr. Justice BURTON, Mr. Justice CLARK and Mr. Justice WHITTAKER join, dissenting. 23 I regret my inability to join the Court's opinion, for its effort to find a way out from the rigors of a severe statute has alluring appeal. The difficulty is that in order to reach its result the Court has had to take impermissible liberties with the statute and the record upon which this case is based. 24 Section 22 of the Internal Security Act of 1950, under which these proceedings were brought, provides for the deportation of aliens who at the time of entry into the United States, or thereafter, were 'members of or affiliated with * * * the Communist Party of the United States * * *.'1 In this case there is no dispute that the petitioner was a dues-paying member of the Communist Party for about a year after he entered the United States. The Court, however, finds the record insufficient to establish that petitioner's membership was 'the kind of meaningful association required by the alleviating Amendment of 1951,' and suggests that 'the dominating impulse to his 'affiliation' with the Communist Party may well have been wholly devoid of any 'political' implications.' This holding is derived from the Act of March 28, 1951, which amended the Internal Security Act by exempting from the broad sweep of the membership provision those persons who joined the Party '(a) when under sixteen years of age, (b) by operation of law, or (c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.'2 The Court does not rely here upon any of these exemptions as such, but rests its decision on its finding in Galvan v. Press, 347 U.S. 522, 527, 74 S.Ct. 737, 740, 98 L.Ed. 911, that the legislative discussion of these exemptions indicates that the membership provision of the 1950 Act should be read beningly. 25 The Court's holding as to the insufficiency of this record may be interpreted in one of two ways, either (a) that petitioner was not shown to have joined the Communist Party conscious of its character as a political organization, or (b) that if he did so join, his membership was nonetheless excusable under the 1950 Act because it was predominantly motivated by economic necessity. 26 Under either view of the Court's opinion I think that the setting aside of this deportation order cannot be reconciled with the holding in Galvan Press, supra. There the Court, in rejuecting the contention that the statute should be interpreted as not reaching persons who joined or remained members of the Communist Party without knowledge of its tenets of force and violence,3 said, 347 U.S. at page 528, 74 S.Ct. at page 711: U.S. at page 528, 74 S.Ct. at page 741: Party, aware that he was joining an organization known as the Communist Party which operates as a distinct and active political organization, and that he did so of his own free will.' I need not retrace the reasoning which inescapably led the Court to the decision,4 save to note one point not alluded to in the Galvan opinion, namely, that the ameliorating amendment of the 1951 Act, on whose 'spirit' the Court here relies, was motivated solely by the problems of aliens who were being excluded from entry into the United States because they had joined totalitarian organizations in foreign countries.5 27 Under the first possible view of the Court's opinion it is plain that the petitioner is deportable, for in my judgment the record leaves no room for the conclusion that he was unaware that the Communist Party was 'a distinct and active political organization.' The petitioner has freely admitted that he was a member of the Party for about a year; that he paid Party dues; that he attended Party meetings; and that he worked, without pay, in the Party bookstore, which he recognized as 'an official outlet for communist literature.' Beyond this, petitioner's testimony betrayed considerable, albeit rudimentary, knowledge of Communist history and philosophy. To be sure, he disclaimed belief in the forcible overthrow of government, but that, as Galvan holds, is immaterial under this statute. 28 Perhaps it should be added that I do not understand the Court to suggest that, although petitioner joined the Communist Party aware that it was a political organization, his activities in the Party were too slight to constitute him a 'member' within the meaning of the 1950 Act. The Court's reaffirmation of the Galvan definition of membership would seem to preclude such an interpretation of the opinion. Moreover, that interpretation would do violence to the sweeping and unequivocal language of the Act itself. 29 The Court says that the 'differences on the facts between Galvan v. Press * * * and this case are too obvious to be detailed.' But, in respect to the crucial question whether conscious membership in the Communist Party as a political organization was sufficiently shown, I submit that this record is at least as strong as that in Galvan. A 'detailing' of the record before us will demonstrate this, and I have therefore liberally quoted from it in the Appendix to this opinion, 355 U.S. p. 127, 78 S.Ct. p. 187. 30 The second possible ground of the Court's decision is equally foreclosed by Galvan. For if the record shows, as I believe it plainly does, that the petitioner joined the Communist Party of the United States of his own free will, and knowing it to be 'a distinct and active political organization,' the 1950 Act makes his economic motives for joining just as irrelevant as the absence of proof that he did not believe in the violent overthrow of government. 31 The Court's action in this case calls to mind what Mr. Justice Cardozo said in Anderson v. Wilson, 289 U.S. 20, 27, 53 S.Ct. 417, 420, 77 L.Ed. 1004: 'We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.' Again, with specific reference to the statute here involved, this Court said in Galvan, 347 U.S. at page 528, 74 S.Ct. at page 741: 'A fair reading of the legislation requires that this scope (see 78 S.Ct. 182) be given to what Congress enacted in 1950, however severe the consequences and whatever view one may have of the wisdom of the means which Congress employed to meet its desired end.' I fear that the Court his departed from those wise precepts in this instance. 32 My view of this case would require us to deal with petitioner's contention that the statute, as applied to him, is unconstitutional. Since the Court does not reach that question, no extended discussion of it seems appropriate in a dissenting opinion. It is enough to say that I regard petitioner's constitutional argument foreclosed by Galvan v. Press, supra, Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586, and by the considerations and long line of authorities to which those cases refer. Whatever may be the scope of the limitations of the Fifth Amendment upon the deportation power (see Galvan, 347 U.S. at pages 530—531, 74 S.Ct. at pages 742—743)—a question as to which I reserve the right to speak when occasion arises—I think that there is no constitutional bar to the statute as applied in this case. 33 For the foregoing reasons I would affirm the judgment below. APPENDIX. 34 EXCERPTS FROM THE RECORD. 35 After being warned of his rights, petitioner went on to say: 36 'I told you just now. I don't want to give testimony whatsoever on that Communist stuff again. That is finished for me as far as I am concerned. I am telling you that I have been working here 32 years—since 1914, and you can ask me what kind of work you are doing, how much wages you are getting, does your boss like you, but I don't want to be asked anything else about politics because I am not interested. I am too old to be interested. I am not interested whether the Republicans get in office, or the Democrats, or the Communists, or the Socialists. I do not want anything else to be asked because I don't want to be in this country. I am just in this country for the people's benefit. I am working and paying taxes all the time for them. Why should I go through this and get trapped through your questioning? I do not want to be asked anything about politics. It is 10 years ago now. I don't care what they have in their minds. I don't want to answer any trapping questions. If they don't want me in this country, they can take me and ship me any time.' 37 Thereafter the following occurred, omitting certain portions of the record of no significance here and the testimony already quoted by the Court that related to petitioner's disclaimer of belief in the forcible overthrow of government: 38 'Q. Are you a member of any organizations or societies of any kind at the present time? A. Yes, I belong to the A.F.L. Local No. 665, Miscellaneous Hotel & Restaurant Workers. 39 'Q. To what organizations have you belonged in the past? A. In the past, the Workers' Alliance, the Communist Party. 40 'Q. When did you join the Workers' Alliance? A. In the spring or summer of 1935, I joined both the Workers' Alliance and the Communist Party. 41 'Q. Where did you join these organizations? A. In Minneapolis. 42 'Q. Did you hold any office in either of these organizations? A. Not in the Communist Party but in the Workers' Alliance, I was on the Executive Board, and once in a while I was secretary for some local. 43 'Q. What—the purpose of your joining the Communist Party at that time? A. We had no books then, just paid dues, and somebody collected. 44 'Q. Did you carry a party dues book at that time? A. No, but in the Workers' Alliance we had dues books. 45 'Q. Did you carry a Communist Party card at that time? A. I don't think we had cards at all. 46 'Q. For how long were you a member of the Communist Party? A. From then on until I got arrested and that was at the end of 1935. When I was arrested, I finished the Communist Party membership, but I stayed in the Workers' Alliance. 47 'Q. What were your political beliefs at the time you joined the Communist Party? A. My political beliefs were always somewhat for the benefit of most of the people—always for the benefit to help most of the people. 48 'Q. Apparently you were a member of the Communist Party for approximately one year. Is that correct? A. Yes, probably something like that. 49 'Q. What is your opinion of a revolution, such as occurred in Russia when the Communists obtained power? A. What is my opinion of the Russian revolution—that is about it. As much as I know about it, the Russian revolution, in my opinion, is this. It seemed that at the end of the war of 1914, the Russian middle-class especially and the Russian soldiers were sick and tired of being double-crossed and betrayed by their generals and what not (they went in with the Germans). Russian soldiers spilled their blood running against the Germans without ammunition, and there was chaos in the country. I said middle-class—that they organized and succeeded in overthrowing that particular leadership which was headed by the Czar. But this is my opinion. This was under the leadership of Kerensky. Seemingly, Lenin and his followers which represented more the lower peasant and factory workers, were not satisfied with this set-up, and kept on working for another revolution which finally overthrew the whole upper class in the fall of 1918, and so divorced themselves for the first time in world's history, economically and politically, from the rest of the world. That is the way I see it. That is my opinion on that. 50 'Q. Do you feel that your beliefs in government have changed during the past ten years, that is, since you terminated membership in the Communist Party? A. Yes, it has changed to that extent—that I began thinking for myself instead of following somebody else telling me things. I found that nothing can be broken over a knee, and that any government that exists today has a right to exist as it is—by the power of the majority of a nation's people. Nobody in the world can say there are no changes. We must always consider changes. They can be made when the people see that it is the right time for it, and at that time they will have their representatives which will take care of it. I am absolutely against sudden dictatorship and overthrow of government. 51 'Q. What is your opinion as to whether communism was the cause or outgrowth of the Russian revolution? A. Communism did not start the revolution. The middle-class started the revolution. Lenin got hold of it. Communism was the result of the revolution. 52 'Q. Were you an organizer for the Communist Party? A. No. 53 'Q. What is your personal belief as to the principles of communism? A. What is communism? That is a good question. My belief is a different thing than communism is. According to Marx and Lenin and as I have seen the Communists working, since I knew of them, they are aiming, more or less, with forever methods to set up an economic system to get the people out of a monopoly control onto their own economic feet. That is the way I see them working now.' 1 That section amended the Act of October 16, 1918, 40 Stat. 1012, as amended, to provide: '(Sec. 1) That any alien who is a member of any one of the following classes shall be excluded from admission into the United States: '(2) Aliens who, at any time, shall be or shall have been memebers of any of the following classes: '(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States * * *. 'Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, * * * a member of any one of the classes of aliens enumerated in section 1(2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.' The substance of the relevant portion of this provision was incorporated in the Immigration and Nationality Act of 1952, 66 Stat. 163, 205, 8 U.S.C. § 1251(a)(6)(C), 8 U.S.C.A. § 1251(a)(6)(C). 2 'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Attorney General is hereby authorized and directed to provide by regulations that the terms 'members of' and 'affiliated with' where used in the Act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely (a) when under sixteen years of age, (b) by operation of law, or (c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.' See 16 Fed.Reg. 2907. Now 8 U.S.C.A. § 1182(a) (28)(I)(i). These three exclusions from the substantive provision were, so far as deportations are concerned, repealed by the Immigration any Nationality Act of 1952, 66 Stat. 163, 280; however, as the text of this opinion makes clear, we are not deciding this case on the basis of (c), supra. 1 64 Stat. 987, 1006, 1008. 2 65 Stat. 28. 3 'It must be concluded, therefore, that support, or even demonstrated knowledge, of the Communist Party's advocacy of violence was not intended to be a prerequisite to deportation.' 347 U.S. at page 528, 74 S.Ct. at page 741. 4 The result reached in Galvan was thoroughly consistent both with the judicial and administrative decisions interpreting the predecessors of the 1950 Act, and with the purpose of that Act to 'strengthen' the provisions of the law relating 'to the exclusion and deportation * * * of subversive aliens.' See H.R.Rep. No. 3112, 81st Cong., 2d Sess., p. 54. Compare the exhaustive treatment in Latva v. Nicolls, D.C., 106 F.Supp. 658, where Judge Wyzanski reached the same conclusion as to the meaning of the 1950 Act. 5 This conclusion is compelled by the legislative history. The House of Representatives Report on the bill embodying the amendment stated: 'The attention of the Committees on the Judiciary of both Houses has been directed to the increasing number of cases in which nonimmigrant and immigrant visas have been withheld or admission into this country denied to aliens on the basis of regulations issued pursuant to the act of October 16, 1918, as amended. The majority of the cases brought to the attention of the committees involve spouses of servicemen, close relatives of American citizens, permanent residents previously admitted into the United States and returning from abroad to thier unrelinquished domiciles with appropriate documentation, such as reentry permits, etc. 'The reason most frequently given for the denial of visas or the denial of admission appears to be the applicant's past membership of (sic), or affiliation with, certain totalitarian youth, national labor, or professional student, or similar organizations, or the alien's service in the German or Italian Armies, or his involuntary membership in totalitarian parties or their affiliates and auxiliaries, including those cases where it was shown that such membership or affiliation occurred by operation of law or edict, or for purposes of obtaining or preserving employment, food rations, or other essentials of living. * * * 'The bill makes clear the intent of Congress that aliens who are, or were, voluntary members of * * * totalitarian parties or organizations are to be excluded, but aliens who were involuntary mem- bers * * * are not to be considered ipso facto as members of, or affiliated with, the * * * organizations within the meaning of the act of October 16, 1918, as amended.' H.R.Rep. No. 118, 82d Cong., 1st Sess., pp. 1—2. (Italics added.) The debates on the floor of both Houses of Congress provide additional evidence on this score. In the Senate, where the major discussion took place, every specific reference to the scope of the proposed amendment discloses that its purpose was to assist individuals who were being denied admission into the United States because of their prior membership in totalitarian organizations in their homeland. For example, Senator Smith inquired at one point: 'Would the pending bill exclude, for instance, a Ukrainian who lived in the Soviet Union and who was forced to belong to a Kulak farm cooperative in order to obtain work? Would such a man be excluded?' 97 Cong.Rec. 2369. And Senator McCarran, the chief author of the amendment, described its three subsections in revealing detail. With respect to each he emphasized that many 'spouses of members of the United States Armed Forces' were included. The first class, he said, consisted of persons 'who during infancy where (sic) members of the Hitler Youth, Fascist Youth, and similar organizations where the child's education and welfare were made dependent upon membership * * *.' The second class embraced 'aliens who unwittingly, and without their knowledge or consent, were impressed into the various labor fronts and professional unions and organizations; aliens who served in the German and Italian Armies; and aliens who * * * by law or decree became members of or affiliated with subsidiary totaliarian organizations.' And the third class, as described by Senator McCarran, consisted of 'aliens who were forced to become members of totalitarian organizations in order to obtain food ration cards, housing, employment, and other essentials of living.' 97 Cong.Rec. 2370—2371. The inference that Congress intended to aid only persons being denied admission to the United States rather than persons subject to deportation for membership which took place in this country is substantially reinforced by the fact that when the Immigration and Nationality Act of 1952 repealed the ameliorating amendment, 66 Stat. 163, 280, its substance was re-enacted as far as exclusions were concerned, 66 Stat. 186, but not with respect to deportation.

23

355 U.S. 96 78 S.Ct. 155 2 L.Ed.2d 126 Salvatore BENANTI, Petitioner,v.UNITED STATES of America. No. 231. Argued Oct. 29, 1957. Decided Dec. 9, 1957. Messrs. George J. Todaro, New York City, Jacob Kossman, Philadelphia, pa., Mr. John F. Davis, Washington, D.C., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 The question presented by petitioner is whether evidence obtained as the result of wiretapping by state law-enforcement officers, without participation by federal authorities, is admissible in a federal court. Petitioner was convicted of the illegal possession and transportation of distilled spirits without tax stamps affixed thereto in violation of 26 U.S.C. §§ 5008(b)(1), 5642, 26 U.S.C.A. §§ 5008(b)(1), 5642. The New York police, suspecting that petitioner and others were dealing in narcotics in violation of state law, obtained a warrant in accordance with state law1 authorizing them to tap the wires of a bar which petitioner was known to frequent. On May 10, 1956, the police overheard a conversation between petitioner and another in which it was said that 'eleven pieces' were to be transported that night at a certain time and to a certain place in New York City. Acting according to this information, the police followed and stopped a car driven by petitioner's brother. No narcotics were found, but hidden in the car were eleven five-gallon cans of alcohol without the tax stamps required by federal law. The brother and the alcohol were turned over to federal authorities and this prosecution followed. 2 At the trial the first government witness, a state police officer, testified to the events leading up to the discovery of the cans of alcohol in an automobile which had been driven by the petitioner and then taken by his brother to the appointed spot. No mention was made of the wiretap on direct examination. However, on cross-examination this witness admitted that the information causing the police to follow the car and intercept it came from a wiretap.2 On redirect examination the prosecutor sought to prove that the wiretap had been authorized by state law. The Government introduced a second police official, who testified substantially as the first, admitting on direct examination that a wiretap had existed and on cross-examination that the discovery of the alcohol was occasioned by knowledge of the contents of the wiretapped conversation. The words of that conversation were not disclosed to the jury although they were disclosed to the trial judge and the defense counsel.3 The record is silent as to whether the prosecutor was told the words of the conversation. However, in our view it is unimportant whether he had this information or not. 3 Petitioner's motion to suppress the evidence was denied and he was convicted. The Court of Appeals for the Second Circuit affirmed, 244 F.2d 389, holding that while the action of the state officials violated Section 605 of the Federal Communications Act, the evidence obtained from the violation was still admissible. We granted certiorari. 355 U.S. 801, 78 S.Ct. 6. Petitioner, relying on this Court's supervisory powers over the federal court system, claims that the admission of the evidence was barred by the Federal Constitution and Section 605. We do not reach the constitutional questions as this case can be determined under the statute. Section 605 states in pertinent part:4 4 '* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.' I. 5 In Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, and 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, this Court held that evidence obtained from wiretapping by federal agents was inadmissible in federal court. In Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 the same type of evidence was held admissible in a state court where it had been obtained by state agents. The case before us, containing elements from these three cases, forces a choice between the different results reached. 6 The Nardone decisions laid down the underlying premises upon which is based all subsequent consideration of Section 605. The crux of those decisions is that the plain words of the statute created a prohibition against any persons violating the integrity of a system of telephonic communication and that evidence obtained in violation of this prohibition may not be used to secure a federal conviction. Nardone v. United States, 302 U.S. 379, 382, 58 S.Ct. 275, 276, 82 L.Ed. 314. Moreover, as the second Nardone decision asserts, distinctions designed to defeat the plain meaning of the statute will not be countenanced. 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307. We hold that the correct application of the above principle dictates that evidence obtained by means forbidden by Section 605, whether by state or federal agents, is inadmissible in federal court. 7 In this case the statute was violated if not earlier at least upon the disclosure to the jury of the existence of the intercepted communication,5 for Section 605 forbids the divulgence of 'the existence, contents, substance, purport, effect, or meaning' of the intercepted message. The effect of that violation in contributing to the conviction here is manifest. The jury were free to speculate that the existence of the communication, the source of the Government's evidence, was further proof of petitioner's criminal activities.6 The prosecutor continued to use evidence now linked to a disclosed wiretap although he had been made aware of its existence and of its obvious significance to his case.7 8 Respondents argue that the evidence obtained from the disclosed wiretap should have been admissible by referring to Schwartz v. State of Texas, supra, and by drawing a parallel to the Fourth Amendment. It is urged that as long as the wiretapping occurred without the participation or even knowledge of federal law-enforcement officers, the evidence should be admitted in federal court; the Federal Government, being without fault, should not be handicapped. However, Schwartz v. State of Texas does not indicate approval of such a proposition. Both a state court and state law-enforcement officers were there involved. The rationale of that case is that despite the plain prohibition of Section 605, due regard to federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear indication to that effect. In the instant case we are not dealing with a state rule of evidence. Although state agents committed the wiretap, we are presented with a federal conviction brought about in part by a violation of federal law,8 in this case in a federal court.9 9 Furthermore, confronted as we are by this clear statute, and resting our decision on its provisions, it is neither necessary nor appropriate to discuss by analogy distinctions suggested to be applicable to the Fourth Amendment.10 Section 605 contains an express, absolute prohibition against the divulgence of intercepted communications. Nardone v. United States, 302 U.S. 379, 382, 58 S.Ct. 275, 276, 82 L.Ed. 314. This case is but another example of the use of wiretapping that was so clearly condemned under other circumstances in the second Nardone decision:11 10 'To forbid the direct use of (these) methods * * * but to put no curb on their full indirect use would only invite the very methods deemed 'inconsistent with ethical standards and destructive of personal liberty.' What was said in a different context in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, is pertinent here: 'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." 11 The above principle has for its purpose enhancement of the proper administration of criminal justice. To impute to the statute anything less would give it 'a self-defeating, if not disingenuous purpose.'12 Nardone v. United States, 308 U.S. 338, 340—341, 60 S.Ct. 266, 267—268, 84 L.Ed. 307. II. 12 As an alternative argument to support the judgment below, respondent urges that the interception and divulgence in this case were no violation of Section 605 because the wiretap was placed by state agents acting in accordance with the law of New York. The Constitution and statutes of the State of New York13 provide that an ex parte order authorizing a wiretap may be issued by judges of a certain rank upon the oath or affirmation of certain officials that there is reasonable ground to believe evidence of a crime may be obtained and which identifies the telephone line and the persons who are to be affected thereby. It is undisputed that an order pursuant to that law was issued in this case and that it was executed according to state law. 13 Respondent does not urge that, constitutionally speaking, Congress is without power to forbid such wiretapping even in the face of a conflicting state law. Cf. Weiss v. United States, 308 U.S. 321, 327, 60 S.Ct. 269, 271, 84 L.Ed. 298. Rather the argument is that Congress has not exercised this ower and that Section 605, being general in its terms, should not be deemed to operate to prevent a State from authorizing wiretapping in the exercise of its legitimate police functions. However, we read the Federal Communications Act, and Section 605 in particular, to the contrary. 14 The Federal Communications Act is a comprehensive scheme for the regulation of interstate communication.14 In order to safeguard those interests protected under Section 605, that portion of the statute pertinent to this case applies both to intrastate and to interstate communications. Weiss v. United States, supra. The natural result of respondent's argument is that both interstate and intrastate communication would be removed from the statute's protection because, as this Court noted in Weiss,15 the intercepter cannot discern between the two and will listen to both. Congress did not intend to place the protections so plainly guaranteed in Section 605 in such a vulnerable position. Respondent points to portions of the Act which place some limited authority in the States over the field of interstate communication. The character of these matters, dealing with aspects of the regulation of utility service to the public, is technical in nature16 in contrast to the broader policy considerations motivating Section 605.17 Moreover, the very existence of these grants of authority to the States underscores the conclusion that had Congress intended to allow the States to make exceptions to Setion 605, it would have said so. In light of the above considerations, and keeping in mind this comprehensive scheme of interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy.18 Cf. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640; Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581.19 15 The judgment is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. 16 Reversed. 1 N.Y. Const. Art. I, § 12; N.Y. Code of Criminal Procedure, § 813—a (1942). 2 R. 7: 'Cross examination by Mr. Todaro (defense counsel): 'Q. Officer, you were in the vicinity of this Reno Bar quite frequently? A. Yes, sir. 'Q. Did the Police Department have a tap on the Reno Bar, if you know? A. Yes, they have several taps on the Reno Bar. 'Q. Did you obtain any information as part of this investigation from the wiretap conversation? A. Did I obtain any information in regard— 'Q. Yes, in reference to the Benantis. A. Benanti? 'Q. Yes. A. Yes. 'Q. You also obtained information as a result of this wiretap that this car was going to be driven to a certain location? A. Yes. 'Q. But you had obtained some information through the wiretap which gave you a lead to this trap? A. Part of the information.' 3 R. 52: '(The following took place in the absence of the jury:) 'The Court: Mr. Todaro, the assistant district attorney is here with the order of the (state) court (authorizing the wiretap). I just tell you, Mr. Todaro, I have looked at it and it does provide for the tap of these premises, so that your concession (that the tap was authorized under state law), generally made, was actually well based. 'Also, for whatever factual interest it may have on this motion, Mr. Murphy overheard the conversation that night, if you want to get the full facts on that. 'The reference on the wire was to 'eleven pieces' which they thought meant narcotics, and that was why they intercepted the car.' 4 48 Stat. 1103, 47 U.S.C. § 605, 47 U.S.C.A. § 605. 5 Because both an interception and a divulgence are present in this case we need not decide whether both elements are necessary for a violation of § 605. Also because here the disclosure was of the existence of the communication, it is not necessary for us to reach the issue whether § 605 is violated by an interception of the communication and a divulgence of its fruits without divulging the existence, contents, etc., of the communication. 6 The obvious prejudice to the petitioner from the disclosure of the wiretap is shown by efforts of the prosecution to mitigate it by showing that the wiretap had not been instigated on account of the charge for which petitioner was being tried. However, disclosure of the existence of the communication was the prejudicial error that was not overcome. 7 The heart of the Government's case was (1) the testimony of the two policemen, who were present at the scene of the wiretap and at least one of whom arrested petitioner's brother and discovered the alcohol, and (2) the evidence of a government chamist as to his analysis of the seized alcohol. As the Court of Appeals below said: 'But it is equally clear that but for the wiretap there would have been no basis for any prosecution whatever, as the apprehension of Angelo (petitioner's brother) and seizure of the 'eleven pieces' led to the discovery of appellant's participation in the violations of federal law for which he has been convicted; and the sequence of cause and effect is clear.' 244 F.2d at page 390. 8 A complementary distinction was made in Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. There this Court reversed the denial of an injunction against a federal agent who had seized evidence in violation of the Federal Rules of Criminal Procedure, 18 U.S.C.A. and, being unable to introduce the evidence in federal court, was about to do so in a state prosecution. In answer to the argument that such an injunction would interfere with state judicial procedure, the decision states: 'The command of the federal Rules is in no way affected by anything that happens in a state court. They are designed as standards for federal agents. The fact that their violation may be condoned by state practice has no relevancy to our problem.' Id., 350 U.S. at page 217, 76 S.Ct. at page 294. 9 The first divulgence appearing on the record occurred in court, but we do not mean to imply that an out-of-court violation of the statute would not also lead to the invalidation of a subsequent conviction. 10 It has remained an open question in this Court whether evidence obtained solely by state agents in an illegal search may be admissible in federal court despite the Fourth Amendment. See Lustig v. United States, 338 U.S. 74, 78—79, 69 S.Ct. 1372, 1373 1374, 93 L.Ed. 1819. The instant decision is not concerned with the scope of the Fourth Amendment. 11 308 U.S. at page 340, 60 S.Ct. at page 267. 12 Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312, is not to the contrary. The holding of that decision is that one not a party to an intercepted conversation may not bar the testimony of one who has been induced to testify by exposure of the fact that his own conversations have been wiretapped. Id., 316 U.S. at page 122, 62 S.Ct. at page 1004. The broad language in the decision that the policy of the Fourth Amendment applies to § 605 is placed in the context of a discussion of the right of one not a party to the conversation to complain. Id., 316 U.S. at pages 120, 121, 62 S.Ct. at pages 1003, 1004. This right was rejected on the ground that since the statute allows the 'sender' of a message to consent to its divulgence, it meant to protect only him. 13 N.Y.Const. Art. I, § 12; N.Y.Code of Criminal Procedure, § 813—a (1942). 14 The Federal Communications Act, 47 U.S.C.A. § 151 et seq. was the response to a Presidential message calling to the attention of Congress the disjointed exercise of federal authority over the forms of communication. The primary purpose of the Act was to create a commission 'to regulate all forms of communication and to consider needed additional legislation.' H.R.Rep. No. 1850, 73d Cong., 2d Sess. 3. Note also the remarks of Senator Dill, Chairman of the Committee on Interstate Commerce, who introduced the bill in the Senate, that the Act would correct the theretofore cursory federal regulation of telephone and telegraph companies. 78 Cong.Rec. 8822. 15 308 U.S. at page 328, 60 S.Ct. at page 271. 16 47 U.S.C. § 220(h), 47 U.S.C.A. § 220(h) allows the Federal Communications Commission to place carriers under state authority in regard to accounting systems and methods of depreciation accounting. See H.R.Rep. No. 1850, 73d Cong., 2d Sess. 7. 47 U.S.C. § 221(b), 47 U.S.C.A. § 221(b), as originally enacted, enabled state commissions 'to regulate exchange services in metropolitan areas overlapping State lines.' S.Rep.No. 781, 73d Cong., 2d Sess. 5; H.R.Rep. No. 1850, 73d Cong., 2d Sess. 7. State authority over intrastate communication is reserved by 47 U.S.C.(Supp. II) § 152(b), 47 U.S.C.A. § 152(b), which removes the jurisdiction of the Federal Communications Commission from 'charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier.' See S.Rep. No. 781, 73d Cong., 2d Sess. 3. 17 Cf. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298. 18 In passing, it should be pointed out that several Attorneys General of the United States have urged Congress to grant exceptions to § 605 to federal agents under limited circumstances. See, e.g., Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on H.R. 762, 867, 4513, 4728, 5096, 84th Cong., 1st Sess. 28; Rogers, The Case for Wire Tapping, 63 Yale L.J. 792 (1954). But Congress has declined to do so. In view of this, it would seem unreasonable to believe that Congress is willing to allow this same sort of exception to state agents with no further legislation on its part. 19 Schwartz v. State of Texas, supra, is not to the contrary. While it refused to overturn a state rule of evidence, the Court was satisfied that the action of the state officials nonetheless violated § 605. 344 U.S. at page 202, 73 S.Ct. at page 234.

01

355 U.S. 175 78 S.Ct. 189 2 L.Ed.2d 183 INTERSTATE COMMERCE COMMISSION, Appellant,v.BALTIMORE & OHIO RAILROAD COMPANY et al. The PENNSYLVANIA RAILROAD COMPANY, Appellant, v. The BALTIMORE & OHIO RAILROAD COMPANY et al. ERIE RAILROAD COMPANY and the Port of New York Authority, Appellants, v. The BALTIMORE & OHIO RAILROAD COMPANY et al. The NEW YORK CENTRAL RAILROAD COMPANY, Appellant, v. The BALTIMORE & OHIO RAILROAD COMPANY et al. ARMCO STEEL CORPORATION, M. A. Hanna Company, Iron Ore Company of Canada, Appellants, v. The BALTIMORE & OHIO RAILROAD COMPANY et al. DELAWARE RIVER PORT AUTHORITY, City of Philadelphia, Chamber of Commerce of Greater Philadelphia, Appellants, v. The BALTIMORE & OHIO RAILROAD COMPANY et al. UNITED STATES of America, Appellant, v. The BALTIMORE & OHIO RAILROAD et al. Nos. 463—468, 473. Decided Dec. 9, 1957. Motion to Clarify Judgment Denied June 2, 1958, 356 U.S. 970, 78 S.Ct. 1133. Messrs. Robert W. ginnane and Issaac K. Hay, Washington, D.C., for appellant Interstate Com. Com'n. Messrs. Guernsey Orcutt, Richard R. Bongartz, Philadelphia, Pa., and William Pepper Constable, Baltimore, Md., for appellant Pennsylvania R. Co. Messrs. Sidney Goldstein, New York City, Francis A. Mulhern, Newark, N.J., Arthur L. Winn, Jr., J. Stanley Payne and Samuel H. Moerman, Washington, D.C., for appellants Erie R. Co. and others. 1 Messrs. Robert D. Brooks, New York City and Richard J. Murphy, Chicago, Ill., for appellant New York Cent. R. Co. 2 Mr. John F. Donelan, Washington, D.C., for appellants Armco Steel Corp. and others. 3 Mr. Warren Price, Jr., Washington, D.C., for the Delaware River Port Authority. 4 Mr. David Berger, Philadelphia, Pa., for the City of Philadelphia. 5 Mr. Frederick, H. Knight, Philadelphia, Pa., for the Chamber of Commerce of Greater Philadelphia. 6 Solicitor General J. Lee Rankin, Victor R. Hansen, Asst. Atty. Gen., and Mr. Daniel M. Friedman, Washington, D.C., for the United States. 7 Edwin H. Burgess, Anthony P. Donadio, Norman C. Melvin, Jr., William C. Purnell and Jervis Langdon, Jr., Baltimore, Md., for the Baltimore & Ohio Railroad Co. and others. 8 William L. Marbury, Baltimore, Md., for the Maryland Port Authority. 9 Harry C. Ames, Washington, D.C., and Charles McD. Gillan, Baltimore, Md., for Baltimore Association of Commerce. 10 Mr. Francis D. Murnaghan, Jr., Baltimore, Md., for the Canton Railroad Co. 11 Mr. Thomas N. Biddison, Baltimore, Md., for Mayor and City Council of Baltimore. 12 PER CURIAM. 13 This litigation involves the validity of an order of the Interstate Commerce Commission dealing with the proper relationship, under the National Transportation Policy (§ 1 of the Transportation Act of 1940, 54 Stat. 899, 49 U.S.C., at p. 7107, 49 U.S.C.A. note, preceding section 1), of railroad tariffs on imported iron ore shipped to a steel-producing area in Pennsylvania, Ohio, and West Virginia (the so-called 'differential territory' of the Central Freight Association) from the ports of New York, Philadelphia, and Baltimore. A tariff differential in favor of Baltimore had existed prior to this controversy. In a succession of tariff reductions, railroads serving New York and Philadelphia filed schedules designed to establish parity of rates among the several ports, while railroads serving Baltimore filed schedules designed to maintain the differential. Upon protest against the New York and Philadelphia schedules by Baltimore civic and commercial interests and railroads serving that port, the Interstate Commerce Commission instituted an investigation as a result of which Division 2 of the Commission filed a report approving the tariff schedules giving Philadelphia parity with Baltimore but finding all other schedules that had been issued in this series of reductions to be not just and reasonable. 291 I.C.C. 527. On petition of various parties, the Commission reopened the proceedings, and on October 1, 1956, the full Commission modified the findings of the Division 2 report to the extent of finding the New York schedules, as well as the Philadelphia schedules, to be just and reasonable, 299 I.C.C. 195. The full Commission's order was challenged in a proceeding instituted under 28 U.S.C. § 1336, 28 U.S.C.A. § 1336, and an appropriate District Court held that the Commission's approval of parity between New York and Baltimore was without basis in the record and ordered that portion of the Commission's order vacated. The court further held that the Commission's approval of parity between Philadelphia and Baltimore was not supported by essential findings as to ocean freight costs and anticipated traffic and remanded that portion of the Commission's order for more explicit findings. The court also granted other relief subsidiary to these actions. Baltimore & O.R. Co. v. U.S., D.C., 151 F.Supp. 258. These are the only portions of the decision below with which we are here concerned. We put to one side those provisions of the decree below in which the District Court affirmed other portions of the Commission's order. 14 From what appears, it is not precluded that the Commission may find an interrelationship, within the purview of the National Transportation Policy, supra, among lawful tariffs to be established between these three ports and the 'differential territory.' In this light we deem it appropriate that, in reconsidering the relationship between the Philadelphia and Baltimore schedules pursuant to the remand of the District Court, the Commission should be free to reconsider and take action upon the New York schedules. In carrying out the District Court's direction regarding the Philadelphia rates, the Commission should be permitted to take into account the effect of New York rates on the tariff relationship between Philadelphia and Baltimore and the effect of that relationship on New York and to enter such orders with respect to all three ports as the Commission may find to be required by their interrelationship. Accordingly, on the appeals before us, so much of the decree of the District Court as did not affirm the order of the Commission is vacated, and the cause is remanded for appropriate disposition not inconsistent with this opinion. 15 The CHIEF JUSTICE and Mr. Justice BLACK would affirm the judgment of the District Court.

89

355 U.S. 83 78 S.Ct. 173 2 L.Ed.2d 117 SCHAFFER TRANSPORTATION COMPANY and American Trucking Associations, Inc., Appellants,v.UNITED STATES of America and Interstate Commerce Commission et al. No. 20. Argued Nov. 13, 1957. Decided Dec. 9, 1957. Mr. Peter T. Beardsley, Washington, D.C., for appellants. Mr. Charles H. Weston, for appellee United States. Mr. H. Neil Garson, Washington, D.C., for appellee Interstate Commerce Commission. Mr. Amos M. Mathews, Chicago, Ill., for appellees intervening rail carriers. Mr. Chief Justice WARREN delivered the opinion of the Court. 1 The issue in this case is whether the Interstate Commerce Commission adequately and correctly applied the standards of the National Transportation Policy in denying a motor carrier's application to provide service between points now served exclusively by rail. The applicant, A W. Schaffer, a common carrier by motor doing business as Schaffer Transportation Co., holds a certificate of public convenience and necessity authorizing him to transport granite from Grant County, South Dakota, to points in 15 States. In the present application he sought additional authority under § 207(a) of the Motor Carrier Act of 1935, as amended by the Transportation Act of 1940,1 to transport granite from Grant County to various new points as well as authority to transport from points in Vermont to several States in the Midwest and South.2 From all that appears in the Commission's report, rail service is currently the only mode of transportation available to shippers of granite between the points sought to be served by Schaffer. 2 The evidence adduced to demonstrate the need for Schaffer's service came from three shippers, six receivers and an association composed primarily of Vermont manufacturers of finished granite products. Their evidence, as summarized in the report of Division 5 of the Commission, disclosed the following advantages to be gained from motor carrier service:3 3 'They all agree that (existing rail) service, in the main, is satisfactory for the transportation of carload shipments but entirely inadequate for the transportation of less-than-carload shipments, not only from the standpoint of cost, but also and primarily from a service standpoint. In this respect, the record shows that on movements of small shipments the supporting witnesses have experienced delays, damage to their merchandise, and have been hampered to some degree by the lack or insufficiency of rail sidings. In many instances, they have been asked by customers to furnish delivery by motor carrier but because of the lack of such service they have been unable to comply with these requests. Moreover, and no less important from a business point of view, the shippers are faced with the competitive disadvantage of having to compete with producers of granite at other locations which have truck delivery available. Then, too, the lack of truck service has impeded shippers' ability to increase their sales and expand their markets in this area. By use of the proposed service, certain other benefits also would accrue to the shippers or dealers. For example, the latter would be able to maintain lower inventories, receive their freight faster and more frequently, and thus, be able better to meet erection deadlines, especially during the peak seasons. Furthermore, the amount of crating now necessary would be reduced with resultant savings in time and money.' 4 Relying on these factors, Division 5 approved the application, but the full Commission reconsidered the application on the same record, and, with four Commissioners dissenting, ordered it denied. A. W. Schaffer Extension—Granite, 63 M.C.C. 247. Schaffer brought an action before a statutory three-judge court under 49 U.S.C. § 305(g), 49 U.S.C.A. § 305(g) to set the order aside. The District Court denied relief and ordered the complaint dismissed. 139 F.Supp. 444. The case is here on direct appeal.4 28 U.S.C. §§ 1253, 2101(b), 28 U.S.C.A. §§ 1253, 2101(b). 5 We noted probable jurisdiction. 352 U.S. 923, 77 S.Ct. 220. 6 The National Transportation Policy,5 formulated by Congress, specifies in its terms that it is to govern the Commission in the administration and enforcement of all provisions of the Act, and this Court has made it clear that this policy is the yardstick by which the correctness of the Commission's actions will be measured. Dixie Carriers, Inc. v. United States, 351 U.S. 56, 76 S.Ct. 578, 100 L.Ed. 934; Eastern-Central Motor Carriers Ass'n v. United States, 321 U.S. 194, 64 S.Ct. 499, 88 L.Ed. 668; McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544. Of course, the Commission possesses a 'wide range of discretionary authority' in determining whether the public interest warrants certification of any particular proposed service. United States v. Detroit & Cleveland Navigation Co., 326 U.S. 236, 241, 66 S.Ct. 75, 77, 90 L.Ed. 38; Interstate Commerce Commission v. Parker, 326 U.S. 60, 65 S.Ct. 1490, 89 L.Ed. 2051. But that discretion must be exercised in conformity with the declared policies of the Congress. To see whether those policies have been implemented we look to the Commission's own summary of the evidence, and particularly to the findings, formal or otherwise, which the Commission has made. Just as we would overstep our duty by undertaking to evaluate the evidence according to our own notions of the public interest, we would shirk our duty were we summarily to approve the Commission's evaluation of the record without determining that the agency's evaluation had been made in accordance with the mandate of Congress. 7 The Commission denied Schaffer's application on the following basis: 8 'On the foregoing facts, we are unable to conclude that the public convenience and necessity require the proposed operation. It is seen that for one reason or another the supporting witnesses find fault with the presently utilized rail service. Actually, however, the evidence warrants the conclusion that the witnesses are reasonably satisfied with rail service except for the one complaint that all share, namely, that rail service is too slow. Nevertheless, it is the practice for the Vermont shippers to hold finished granite until they can accumulate a poolcar load in order that the shipments may move at the lower pool-car rate. This practice is followed with the knowledge and consent of the consignees, and the sole purpose therein is to take advantage of the lower rail rate. Less-than-carload rail service, while not as expeditious as the proposed service, is fairly good, but because of the higher rate involved this service is seldom used by the supporting witnesses. The testimony of the South Dakota shipper also indicates that its support of the application is largely motivated by anticipated cheaper transportation. 9 'We have carefully considered applicant's arguments to the contrary, but are forced to conclude that the service presently available is reasonably adequate. The evidence indicates that the witnesses' main purpose in supporting the application is to obtain lower rates rather than improved service. It is well established that this is not a proper basis for a grant of authority, and the application, therefore, must be denied.' 10 Viewing these conclusions in light of the National Transportation Policy we find at the outset that there has been no evaluation made of the 'inherent advantages' of the motor service proposed by the applicant. That policy requires the Commission to administer the Act so as to 'recognize and preserve the inherent advantages' of each mode of transportation. Dixie Carriers, Inc. v. United States, supra; I.C.C. v Mechling, 330 U.S. 567, 67 S.Ct. 894, 91 L.Ed. 1102. When a motor carrier seeks to offer service where only rail transportation is presently authorized, the inherent advantages of the proposed service are a critical factor which the Commission must assess. How significant these advantages are in a given factual context and what need exists for a service that can supply these advantages are considerations for the Commission. 11 Rather than evaluate the benefit that Schaffer's proposed motor service might bring to the public, the Commission cast its first principal conclusion in terms of the adequacy of existing rail service, finding that service to be 'reasonably adequate.' Yet the Commission itself has previously stated: 'That a particular point has adequate rail service is not a sufficient reason for denial of a certificate (to a motor carrier).' Bowles Common Carrier Application, 1 M.C.C. 589, 591. Of course, adequacy of rail service is a relevant consideration, but as the Commission recognized in Metler Extension—Crude Sulphur, 62 M.C.C. 143, 148, 'relative or comparative adequacy' of the existing service is the significant consideration when the interests of competition are being reconciled with the policy of maintaining a sound transportation system. The record here does not disclose the factors the Commission compared in concluding that existing rail service is 'reasonably adequate.' For example, the Commission has not determined whether there are benefits that motor service would provide which are not now being provided by the rail carriers, whether certification of a motor carrier would be 'unduly prejudicial'6 to the existing carriers, and whether on balance the public interest would be better served by additional competitive service. To reject a motor carrier's application on the bare conclusion that existing rail service can move the available traffic, without regard to the inherent advantages of the proposed service, would give one mode of transportation unwarranted protection from competition from others. As the report of Division 5 emphasizes, 'No carrier is entitled to protection from competition in the continuance of a service that fails to meet a public need, nor, by the same token, should the public be deprived of a new and improved service because it may divert some traffic from other carriers.' 12 The Commission's second basic conclusion from the record was that the main purpose of the witnesses in supporting the application was the prospect of obtaining lower rates. For this reason the Commission discounted the testimony of these witnesses, apparently without even evaluating the claimed advantages of the proposed service other than reduced rates. We think this approach runs counter to the National Transportation Policy. The ability of one mode of transportation to operate with a rate lower than competing types of transportation is precisely the sort of 'inherent advantage' that the congressional policy requires the Commission to recognize. Dixie Carriers, Inc. v. United States, supra. The Commission asserts that it has always considered rates irrelevant in certification proceedings under § 207(a), yet, with but one exception, it relies on administrative decisions involving applications by a carrier to provide service to an area already served by the same mode of transportation.7 Those decisions are entirely different from the situation presented here, where a motor carrier seeks to compete for traffic now handled exclusively by rail service. In these circumstances a rate benefit attributable to differences between the two modes of transportation is an 'inherent advantage' of the competing type of carrier and cannot be ignored by the Commission. 13 Since the Commission has failed to evaluate the benefits that Schaffer's proposed service would provide the public, including whatever benefit may be determined to exist from the standpoint of rates, and since the findings as to the adequacy of rail service do not provide this Court with a basis for determining whether the Commission's decision comports with the National Transportation Policy, that decision must be set aside, and the Commission must proceed further in light of what we have said. 14 We do not minimize the complexity of the task the Commission faces in evaluating and balancing the numerous considerations that collectively determine where the public interest lies in a particular situation. And we do not suggest that the National Transportation Policy is a set of self-executing principles that inevitably point the way to a clear result in each case. On the contrary, those principles overlap and, may conflict, and where this occurs, resolution is the task of the agency that is expert in the field. But there is here no indication in the Commission's findings of a conflict of policies. Shippers and receivers now served exclusively by rail have testified to the advantages they would gain from a proposed motor carrier service. There is no finding that the authorization of the proposed service would impair the sound operation of the carriers already certificated. Nor has the Commission properly evaluated the advantages urged by the supporting witnesses to determine whether the standard of public convenience and necessity has been met. 15 For the foregoing reasons, the judgment is reversed and the cause is remanded to the District Court with directions to set aside the Commission's order and remand the cause to the Commission for further proceedings in conformity with this opinion. It is so ordered. 16 Judgment reversed and cause remanded to the District Court with directions. 17 Mr. Justice FRANKFURTER (dissenting). 18 The Transportation Act of 1940 (amending the Interstate Commerce Act) grants to the Interstate Commerce Commission powers and imposes limitations upon their exercise in terms of greatly varying degrees of definiteness. As a consequence, the range of discretion left to the Commission and, correspondingly, the scope of judicial review of Commission orders greatly vary. Thus, our decision this day in Nos. 6 and 8, American Trucking Associations v. United States, 355 U.S. 141, 78 S.Ct. 165, is a striking illustration of the difference between the limitation to which the Commission is subjected in a proceeding under § 5(2)(b) of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 5(2)(b), 49 U.S.C.A. § 5(2)(b), and the requirements of § 207 of that Act, as amended by 49 Stat. 551, 49 U.S.C. § 307, 49 U.S.C.A. § 307, although both relate to motor carrier service by railroads. The Commission's power to grant relief under the undefined terms of the long-and-short-haul clause of § 4 of that Act, as amended by the Mann-Elkins Act of June 18, 1910, 36 Stat. 539, 547, see Intermountain Rate Cases (U.S. v. Atchison, T. & S.F.R. Co.), 234 U.S. 476, 34 S.Ct. 986, 58 L.Ed. 1408, was modified by the specific requirements which Congress wrote into the long-and-short-haul clause in § 6 of the Transportation Act of 1940, 54 Stat. 904, 49 U.S.C. § 4(1), 49 U.S.C.A. § 4(1). In short, some rules dealing with the regulation of surface transportation are narrowly specific, leaving practically no scope for discretion in their application by the Interstate Commerce Commission. Other provisions are expressed in terms which necessarily leave considerable scope in the evaluation of their implied ingredients, while still others are of such breadth as to leave even wider opportunity for an exercise of judgment by the Commission not to be displaced by a court's independent judgment under the guise of judicial review. 19 In the case before us, the Interstate Commerce Commission denied an application for a certificate of public convenience and necessity under § 207(a) of the Interstate Commerce Act, as amended. On review of this denial, the three-judge District Court sustained the Commission. This Court reverses the District Court on the ground that the Commission has failed to enforce the National Transportation Policy in § 1 of the Transportation Act of 1940, 54 Stat. 899, 49 U.S.C., note preceding section 1, 49 U.S.C.A. note preceding section 1. The very name of these introductory recitals to the Transportation Act illumines their legal significance: 'All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.' Congress thus conveyed to the Commission a most generalized point of view for carrying out its manifold, complicated and frequently elusive duties. In the very nature of things this Policy is unlike a more or less specific rule affording more or less defined criteria for application in a particular case. Still less does it afford concrete, definable criteria for judicial overturning of the Commission's conscientious attempt to translate such Policy into concreteness in a particular case. 20 No doubt the Commission is under obligation to heed what was declared to be 'the national transportation policy of the Congress,' namely, 'to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each.' Surely these are not mechanical or self-defining standards. They inevitably imply the widest areas for judgment to be exercised, as the Commission has sought to exercise it, with the massive experience which must be attributed to it in this particular case. It is because I find myself regretfully in disagreement with my brethren regarding the nature and scope of the problem of judicial review in a case like this that I would affirm the judgment of the District Court. 21 It is, however, pertinent to add that the Court's decision may serve a useful purpose if it will lead the Interstate Commerce Commission, despite its enormous volume of business, to a more detailed and illuminating formulation of the reasons for the judgment that it reaches even in that class of cases where Congress has relied on the Commission's discretion in enforcing the most broadly expressed congressional policy. Since the orders in such cases also fall under judicial scrutiny, it is desirable to insist upon precision in the findings and the reasons for the Commission's action. 1 49 Stat. 551, as amended, 54 Stat. 923, 49 U.S.C. § 307(a), 49 U.S.C.A. § 307(a). Section 207(a) of the Act provides: '(a) Subject to section 210, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this part and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied * * *.' 2 A portion of the requested East-bound authority was opposed by a motor carrier already certificated to serve points in five of the Eastern States. This portion of the requested authority was denied by Division 5 of the Commission and is no longer in issue as Schaffer did not seek reconsideration. With this exception, the requested authority was opposed solely by railroads which presently serve the points involved. 3 Whether these advantages demonstrate that the public convenience and necessity required Schaffer's proposed service is not for us to say. We take note of them only to indicate that some showing of need was established. 4 The American Trucking Associations, Inc., was a plaintiff below and is an appellant here. The United States supported the ICC's order in the District Court but has since concluded 'on further analysis' that the order is erroneous; the United States therefore opposed in this Court the Commission's motion to affirm and both filed a brief and presented oral argument in support of appellants. Fifty-four railroads, presently serving the areas for which Schaffer seeks operating authority, appear as appellees along with the Commission. 5 'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions;—all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs o the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.' 54 Stat. 899, 49 U.S.C. note preceding § 1, 49 U.S.C.A. note preceding section 1. 6 Interstate Commerce Commission v. Parker, 326 U.S. 60, 70, 65 S.Ct. 1490, 1495, 89 L.Ed. 2051. The Commission did not purport to rely on any evidence indicating what revenue the railroads might lose by certification of the applicant. 7 Omaha & C.B. Ry. & Bridge Co. Common Carrier Application, 52 M.C.C. 207, 234—235; Pomprowitz Extension—Packing House Products, 51 M.C.C. 343, 347—348; Black Extension of Operations Prefabricated Houses, 48 M.C.C. 695, 708—709; Johnson Common Carrier Application, 18 M.C.C. 194, 195—196; Wellspeak Common Carrier Application, 1 M.C.C. 712, 714. In the one exception, Youngblood Extension of Operations Canton, N.C., 8 M.C.C. 193, the motor carrier's application was opposed by other motor carriers.

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355 U.S. 171 78 S.Ct. 204 2 L.Ed.2d 179 William G. BARR, Petitioner,v.Linda A. MATTEO and John J. Madigan. No. 409. Decided Dec. 9, 1957. Solicitor General Rankin, Assistant Attorney General Doub, Messrs. Paul A. Sweeney and Bernard Cedarbaum, for petitioner. PER CURIAM. 1 The petition for certiorari is granted. The petition presents this question: 'Whether the absolute immunity from defamation suits accorded officials of the Government with respect to acts done within the scope of their official authority, extends to statements to the press by high policymaking officers, below cabinet or comparable rank, concerning matters committed by law to their control or supervision.' 2 In the District Court and the Court of Appeals the litigation was not so confined. By his motion for a directed verdict and requested instructions petitioner also presented to the District Court the defense of qualified privilege. On appeal to the Court of Appeals petitioner, in his brief, raised only the question of absolute immunity, but on reconsideration he urged the court also to pass on the defense of qualified privilege. This that court refused to do on the ground that petitioner, because of the position he had initially taken on the appeal, had waived the defense. In so holding, the court relied on its Rule 17(c)(7), 28 U.S.C.A., requiring an appellant to set forth in his brief a statement of the points on which he intends to rely, and Rule 17(i), which provides that 'Points not presented according to the rules of the court, will be disregarded, though the court, at its option, may notice and pass upon a plain error not pointed out or relied upon.' 3 The scope of the litigation in the Court of Appeals cannot lessen this Court's duty to confine itself to the proper exercise of its jurisdiction and the appropriate scope of the judicial review. Thus, an advisory opinion cannot be extracted from a federal court by agreement of the parties, see Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722, and no matter how much they may favor the settlement of an important question of constitutional law, broad considerations of the appropriate exercise of judicial power prevent such determinations unless actually compelled by the litigation before the Court. United States v. C.I.O., 335 U.S. 106, 110, 68 S.Ct. 1349, 1351, 92 L.Ed. 1849. Likewise, 'Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing. Many of the same reasons are present which impel them to abstain from adjudicating constitutional claims against a statute before it effectively and presently impinges on such claims.' Eccles v. Peoples Bank, of Lakewood Village, 333 U.S. 426, 432, 68 S.Ct. 641, 644, 645, 92 L.Ed. 784. Expecially in a case involving on the one hand protection of the reputation of individuals, and on the other the interest of the public in the fullest freedom of officials to make disclosures on matters within the scope of their public duties, this Court should avoid rendering a decision beyond the obvious requirements of the record. In the present case a ground far narrower than that on which the Court of Appeals rested its decision, the defense of qualified privilege, was consistently pressed in the District Court and in fact urged in the Court of Appeals itself. In these circumstances we think that the broad requirements of judicial power and its proper exercise should lead to consideration of the defense of qualified privilege. 4 To that end, the judgment of the Court of Appeals is vacated, and the case remanded to that court with directions to pass upon petitioner's claim of a qualified privilege. 5 Mr. Justice BLACK, with whom the CHIEF JUSTICE joins, agrees with the disposition of this case as expressed in the last paragraph. 6 Mr. Justice BRENNAN would grant the petition and consider the question presented. 7 Mr. Justice DOUGLAS, dissenting. 8 The Court of Appeals ruled that the question of the defense of qualified privilege on which we vacate and remand had been 'waived' by petitioner and therefore should not be considered by the Court of Appeals under its Rules. That question therefore is not here for us nor should it be reached by the Court of Appeals. I cannot say that the Court of Appeals misconstrued its own Rules* or committed palpable error in refusing to consider the question or unceremoniously and improperly reached for a constitutional question which it should have sought to avoid. Under these circumstances it is an unwarranted exercise of our supervisory powers to require that the question be considered by the Court of Appeals. Instead we should exercise our discretion by denying certiorari. * 'A concise statement of the points on which appellant intends to rely, set forth in separate, numbered paragraphs. Each point shall refer to the alleged error upon which appellant intends to rely.' Rule 17(c)(7). 'Points not presented according to the rules of the court, will be disregarded, though the court, at its option, may notice and pass upon a plain error not pointed out or relied upon.' Rule 17(i).

23

355 U.S. 155 78 S.Ct. 191 2 L.Ed.2d 167 Willie B. MOORE, Petitioner,v.STATE OF MICHIGAN. No. 42. Argued Oct. 15, 16, 1957. Decided Dec. 9, 1957. Mr. William H. Culver, Kalamazoo, Mich., for petitioner. Mr. Samuel J. Torina, Lansing, Mich., for respondent. Mr. Justice BRENNAN delivered the opinion of the Court. 1 On October 29, 1938, the Circuit Court of Kalamazoo County, Michigan, accepted the petitioner's plea of guilty to an information charging him with the murder of an elderly white lady. He was sentenced to solitary confinement at hard labor for life in Michigan's Jackson Prison, where he has since been confined.1 Petitioner, a Negro with a seventh-grade education, was 17 years old at the time. On May 26, 1950, he filed a delayed motion for a new trial in the Circuit Court. He asserted constitutional invalidity in his conviction and sentence because he did not have the assistance of counsel at the time of his plea and sentence. The Circuit Court, after hearing, denied the motion, and the Supreme Court of Michigan affirmed.2 We granted certiorari to decide the important question raised involving a plea of guilty to a charge of murder where the accused was without the benefit of counsel.3 2 The petitioner was arrested during the afternoon of October 26, 1938, a few hours after the murder was committed. He was confined in a Kalamazoo jail and was questioned by local law authorities from time to time until the afternoon of October 28, when he orally confessed to the crime.4 On Saturday morning, October 29, 1938, he was arraigned in the Circuit Court where he pleaded guilty, was adjudged guilty of murder in the first degree, and, after sentence, was transferred from the Kalamazoo jail to the Jackson Prison. 3 In accordance with the then prevailing procedure no stenographic transcript was taken of the proceedings in the Circuit Court at the time of the arraignment and plea. However, at the hearing held on the delayed motion for a new trial, two witnesses, who were present in the courtroom on October 29, 1938, testified as to what then transpired. On the basis of their testimony the Circuit Court in denying the motion for new trial found as a fact—which finding is, of course, accepted by us—that before the petitioner tendered the plea of guilty the trial judge asked the petitioner 'whether he had a lawyer and whether he desired to have a lawyer, and that (the petitioner) gave a negative reply to both of these inquiries, and stated that he wanted to get the matter over with.' 4 The record further discloses that at the arraignment the trial judge, acting in conformity with Michigan procedure, which required him to conduct an investigation into the voluntariness of any plea of guilty,5 conferred privately with petitioner for 'some five to ten minutes' in chambers. Upon the return of the judge and petitioner to the courtroom, the judge stated that the plea would be accepted and proceeded to conduct the hearing required by Michigan law6 to determine the degree of the offense of murder. At this hearing several witnesses testified to the details of the crime. The petitioner took no part in the examination of these witnesses nor did he testify. At the conclusion of the testimony, the trial judge pronounced judgment that the petitioner was guilty of murder in the first degree, and imposed sentence. 5 The judge made a statement, stenographically transcribed, that, over the previous three years, the petitioner had 'been in trouble four or five times, consisting of breaking and entering and unlawful taking of automobiles' and had been handled as a juvenile offender on such occasions. He also stated that the petitioner had 'discussed the whole affair (the murder) very freely with me in all its revolting details' and that 'in my private interview with respondent, I assured him that he must not plead guilty unless he really is guilty; that he was not required to plead guilty; that he could have a trial by jury if he desired it. He assured me freely and voluntarily that he is guilty and that his one desire is to have it all over, to get to the institution to which he is to be committed, and to be under observation and to be examined * * *.' The judge at this point recited the details of the crime as told to him by the petitioner and then stated: 'Such is his story to me in private, told very calmly; without any compulsion whatever. He insists that there is something wrong with his head; that he has had something akin to queer sensations before this.' 6 We may reasonably infer from the record that neither the trial judge nor the Michigan courts which considered the delayed motion thought that the petitioner's plight required the assistance of counsel to satisfy the requisites of the fair hearing secured by the Due Process Clause of the Fourteenth Amendment in a state prosecution. The principles determining the extent to which this constitutional right to counsel is secured in a state prosecution have been discussed in a long series of decisions of this Court.7 We hold that the petitioner's case falls within that class in which the intervention of counsel, unless intelligently waived by the accused, is an essential element of a fair hearing. 7 The petitioner was 17 years of age and had a seventh-grade education. Cf. DeMeerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Williams v. Huff, 79 U.S.App.D.C. 326, 146 F.2d 867. He was charged with a crime carrying Michigan's maximum penalty, viz., solitary confinement at hard labor for life without possibility of parole. Mich.Stat.Ann.1954, §§ 28.548, 28.2304, Comp.Laws 1948, § 750.316, Comp.Laws Supp.1956, § 791.234. Cf. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. The record shows possible defenses which might reasonably have been asserted at trial, but the extent of their availability raised questions of considerable technical difficulty obviously beyond his capacity to comprehend. For instance, one possible defense was insanity, suggested by the trial judge's statements that 'his one desire is to have it all over, to get to the institution to which he is to be committed, and to be under observation and to be examined * * *'; 'he insists that there is something wrong with his head; that he has had something akin to queer sensations before this.' Another possible defense was mistaken identity, suggested by the fact that the evidence pointing to him as the perpetrator of the crime was entirely circumstantial. Cf. Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367. Moreover, the proceedings to determine the degree of murder, the outcome of which determined the extent of punishment, introduced their own complexities. With the aid of counsel, the petitioner, who, as we have said, neither testified himself in the proceeding nor cross-examined the prosecution's witnesses, might have done much to establish a lesser degree of the substantive crime, or to establish facts and make arguments which would have mitigated the sentence. The right to counsel is not a right confined to representation during the trial on the merits. Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77. The circumstances compel the conclusion that the petitioner's rights could not have been fairly protected without the assistance of counsel to help him with his defense. 8 However, we may also infer from the record that the Michigan courts held that even if petitioner was constitutionally entitled to the assistance of counsel he waived this right when he told the trial judge that 'he didn't want one, didn't have one, he wanted to get it over with.' The constitutional right, of course, does not justify forcing counsel upon an accused who wants none. See Carter v. People of State of Illinois, 329 U.S. 173, 174, 67 S.Ct. 216, 218, 91 L.Ed. 172. But, 'where a person convicted in a state court has not intelligently and understandingly waived the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction * * *.' Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224, 100 L.Ed. 126. Where the right to counsel is of such critical importance as to be an element of Due Process under the Fourteenth Amendment, a finding of waiver is not lightly to be made. Cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680; Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309. 9 This Court held in Johnson v. Zerbst, supra, that when a judgment of conviction entered in a federal court is collaterally attacked upon the ground that the defendant did not have the benefit of counsel, he has the burden of showing, by a preponderance of the evidence, that he did not have counsel and did not competently and intelligently waive his constitutional right to the assistance of counsel. We have found that the petitioner was entitled to the benefit of counsel to secure the fair hearing guaranteed to him by the Due Process Clause of the Fourteenth Amendment. Whatever may be the differences in the substantive right to counsel in federal and state cases, when the defendant in a state case has established his constitutional right to the benefit of counsel, he should carry the same burden of proving nonwaiver as is required of a defendant in a federal case. We therefore hold that the rule of Johnson v. Zerbst applies in this case and that the petitioner had the burden of showing, by a preponderance of the evidence, that he did not intelligently and understandingly waive his right to counsel. 10 Notwithstanding the petitioner's express disavowal, before his plea, of a desire for counsel, the petitioner developed evidence at the hearing on the delayed motion which sustained his burden of showing that the disavowal was not intelligently and understandingly made and hence was not a waiver. Williams v. Huff, 79 U.S.App.D.C. 326, 146 F.2d 867. This crucial evidence, apparently not known to the trial judge, was brought out on the cross-examination of the Sheriff of Kalamazoo County at the hearing on the delayed motion, and concerned conversations between the Sheriff and the petitioner before the petitioner orally confessed on the afternoon of October 28, 1938: 11 'Q. You didn't advise him it would probably be best to plead guilty? A. Well, the only way I could answer that right is just to give you a little of the conversation there, perhaps, if you wish me to. 12 'Q. Relate that, that will probably be helpful. A. In talking with Willie Moore—that was before he had made any statement—I told him that if he was guilty of it he might better own up on it because I says there could be trouble. Tension is very high outside and there could be trouble. If you are not guilty of it, why then, I says, I would stand pat forever after. Then I told—I spoke to him about what would be required of him and I would have to take him to the Municipal Court for his arraignment in the lower court and then back over there, and I told him he would be entitled to a hearing in lower court and I says, 'There you will have the Judge read to you and you can waive or demand an examination. You are entitled to an examination over there. It is my duty, and it is up to me, to protect you, to use every effort at my command to protect you,' but, I says, 'the tension is high out there and I am just telling you what could happen if it was started by someone.' I don't know the language I used. * * * 13 'Q. Did you also tell him if he plead guilty he would be sent to Jackson immediately? Do you remember saying anything like that? A. I don't know as I come out and said at any time for him to plead one way or the other, but what I was putting over to him was the fact that if you are guilty and will be sent away you might better be getting away before trouble because I had had information there was certain colored fellows, a group of them, that was going to interfere with me, and also that there was a bunch of Holland fellows going to meet me when I go to Jackson, they would meet me there at Galesburg there, and, therefore, when he was sentenced I avoided the main route and went way through by Gull Lake and across over in the hills there.' (Emphasis supplied.) 14 Although the trial judge rejected the petitioner's testimony as not worthy of belief, in this instance the Sheriff corroborated the petitioner's testimony, given before the Sheriff took the stand, that the Sheriff had told him 'that if I didn't plead guilty to this crime, they couldn't protect me, under those conditions, they says, during the riot, that they didn't know what people they would do, and that they couldn't protect me.' Petitioner further testified that he pleaded guilty because of that statement of the Sheriff: 'After the man tell me he couldn't protect me then there wasn't nothing I could do. I was mostly scared than anything else.' The Circuit Court found the Sheriff's testimony insignificant because other evidence showed that there was in fact 'no threat of mob violence, no congregation of anything that could by any stretch of reasoning be considered a mob or a riotous gathering, and that while the Sheriff felt inclined to take certain precautions and did take certain precautions to avoid any trouble, there was nothing in the situation then existing to indicate that the respondent had been coerced into a false plea, or that he had been placed in fear of insisting upon his constitutional rights.' But plainly it is of no moment to the inquiry that the situation described to the petitioner by the Sheriff did not exist. The petitioner saw only law officers while being held continuously in close confinement from a time just hours after the murder until he orally confessed, and was hardly in a position to know or test the accuracy of what the Sheriff told him. The Sheriff's statement must be evaluated for its effect upon the capacity of this 17-year-old Negro youth of limited education and mental capacity to make an intelligent, understanding waiver of constitutional rights of supreme importance to him in his situation. 15 We believe that the expectation of mob violence, planted by the Sheriff in the mind of this then 17-year-old Negro youth, raises an inference of fact that his refusal of counsel was motivated to a significant extent by the desire to be removed from the Kalamazoo jail at the earliest possible moment. The trial judge's report of his interview with the petitioner is consistent with this inference in that the report states that the petitioner told the judge that 'his one desire is to have it all over, to get to the institution to which he is to be committed, and to be under observation and to be examined.' A rejection of federal constitutional rights motivated by fear cannot, in the circumstances of this case, constitute an intelligent waiver. This conclusion against an intelligent waiver is fortified by the inferences which may be drawn from the age of petitioner, Williams v. Huff, 79 U.S.App.D.C. 326, 146 F.2d 867, and the evidence of emotional disturbance, Hallowell v. United States, 5 Cir., 197 F.2d 926. 16 We thus conclude that the petitioner had sustained his ultimate burden of proving that his plea of guilty was invalidly accepted as obtained without the benefit of counsel and that he did not waive his right to counsel. 17 The judgment is reversed, and the cause is remanded for proceedings not inconsistent with this opinion. 18 Reversed and remanded. 19 Mr. Justice BURTON, with whom Mr. Justice FRANKFURTER, Mr. Justice CLARK and Mr. Justice HARLAN concur, dissenting. 20 The Court's decision rests upon its view that, despite the contrary conclusions of the Circuit and Supreme Courts of Michigan, petitioner has shown that he was in fact so alarmed that he was not able freely, intelligently and understandingly to plead guilty and to waive his right to counsel. But for that issue, this case should be summarily affirmed on the authority of Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188, which dealt with a comparable situation that arose before the same trial judge under like procedure. 21 The only contemporaneous evidence as to petitioner's attitude and equanimity at the time of his trial, in 1938, is the statement which Circuit Judge Weimer made while presiding at the trial. He made it following his private interview with petitioner, and immediately preceding his acceptance of petitioner's plea of guilty. He portrayed petitioner as having, in that interview, 'very calmly; without any compulsion whatever' 'freely and voluntarily' discussed his crime, his guilt and 'his one desire * * * to have it all over * * *.' When making this statement the judge's attention was focused directly upon his responsibility to determine the capacity of petitioner to plead guilty and to waive his constitutional privileges. The statement accordingly commands respect and is entitled to great weight. 22 By 1950, Judge Weimer had died and the prosecuting attorney, who had conducted the trial for the State, had suffered a stroke rendering him incapable of testifying. However, two witnesses did testify, in 1950, as to their recollection of petitioner's demeanor in 1938. 23 One was the chief deputy sheriff, who, in 1938, as a deputy sheriff, had been in charge of taking petitioner to and from the courtroom and to the lobby when petitioner was leaving for the penitentiary. His testimony included the following: 24 'Q. What did you notice, if anything, about his appearance that would have anything to do with the question whether or not he appeared to be in fear or relaxed or what? A. He was very relaxed. There was no sign of fear and no showing, either physically or by speech. 25 'Q. Anything that would lead you to that conclusion? A. To not being in fear? 26 'A. Yes. A. He was nonchalant. * * *' 27 The other witness was a Circuit Judge, who, in 1938, had participated, as an assistant prosecutor, in the interrogation of petitioner when the latter confessed his crime. This witness testified: 28 '* * * I, of course, felt that his answers were fair—were honest and candid in his final statement that he made. That is just my opinion, but he answered the questions that were put to him. To me he seemed very calm and not excited in the least. He spoke about it quite in a matter of fact way. His whole attitude was such that it was hard for me to understand his lack of emotion in telling the story of just what happened or what he claimed happened, what he did and what she did.' 29 As against this, petitioner offered his own statement, quoted by the Court, 355 U.S. 163, 78 S.Ct. 196. Judge Sweet, who presided in 1950, gave little credence to it and said in his opinion: 30 'While this Court has not disregarded the testimony of the (petitioner), but on the contrary has carefully considered it, it is the conclusion of this Court that the (petitioner's) testimony is not worthy of belief. This conclusion is arrived at because of the manner of the witness while testifying, his interest in the outcome of these proceedings, and the many points of conflict between his testimony and the testimony of the two witnesses herein referred to.'1 31 This leaves for consideration the sheriff's statement, quoted by the Court, 355 U.S. 162, 163, 78 S.Ct. 195. His recollection was that he told petitioner that, as sheriff, it was his duty to protect petitioner and that he would use every effort at his command to do so, but that he added "the tension is high out there and I am just telling you what could happen if it was started by someone.' I don't know the language I used.' He did not testify as to petitioner's mental or emotional condition. Furthermore, his recollection as to what he had said about tension must be read in comparison with the abundant testimony of others supporting Judge Sweet's conclusion that, in 1938, there had been little community tension and 'no threat of mob violence * * *.' That the judge discounted the effect of the sheriff's testimony appears from his denial of petitioner's motion on the express ground that he believed that petitioner's plea of guilty 'was freely and voluntarily made * * *.' 32 The issue is one of fact as to what occurred 19 years ago. Three times the state courts have concluded that petitioner acted freely, intelligently and understandingly. On this record, I would affirm that judgment. 1 Michigan long ago abolished capital punishment. The sentence is the maximum sentence for murder. Mich.Stat.Ann. (Henderson 1938) § 28.548. Comp.Laws 1948, § 750.316. See Quicksall v. People of State of Michigan, 339 U.S. 660, 664, 70 S.Ct. 910, 912, 94 L.Ed. 1188. 2 People v. Moore, 344 Mich. 137, 73 N.W.2d 274. The majority opinion relied upon Quicksall v. Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; the dissenting opinion upon DeMeerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584. 3 352 U.S. 907, 77 S.Ct. 150, 1 L.Ed.2d 116. 4 Defendant was questioned on the night of his arrest until approximately 2 or 3 o'clock in the morning of the following day. On October 27, 1938, he was questioned from approximately 8 a.m. until 10 or 11 p.m. On October 28, 1938, he was questioned from approximately 8 a.m. until noon and again in the afternoon when he orally confessed. He was then taken before a municipal court justice where he waived examination and was bound over to Circuit Court for trial. 5 Mich.Stat.Ann.1954, § 28.1058, Comp.Laws 1948, § 768.35. For present practice see Mich.Acts 1957, No. 256; Mich.Court Rule 35—A, adopted June 4, 1947, effective September 1, 1947. 6 mich.Stat.Ann.1954, § 28.550, Comp.Laws 1948, § 750.318. 7 Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Canizio v. People of State of New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545; Carter v. People of State of Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; DeMeerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Foster v. People of State of Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962; Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170; Bute v. People of State of Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; Uveges v. Com. of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126. 1 The following are examples of the conflicts presented by petitioner's testimony: He testified that a large number of people hammered at his cell door, whereas the sheriff and deputy sheriffs denied this and said that it was physically impossible for a group of people to reach petitioner's cell and that his cell door was not of a type conducive to hammering. Petitioner said that the judge, in arraigning him, did not inform him of his right to counsel. Several witnesses testified to the contrary and Judge Sweet, presiding at the hearing on the delayed motion, said: 'It is the further conclusion of this Court that before such plea was accepted by the late Judge Weimer, the (petitioner) was informed of his right to a trial by jury and of his right to be represented by counsel, and that the (petitioner) indicated his desire to proceed without counsel and without a trial, and his desire to have his plea of guilty received by the Court and sentence imposed without further delay.' Petitioner, in testifying as to what took place at his private interview with Judge Weimer, said repeatedly and unequivocally that the sheriff came with petitioner into the judge's chambers and not only was present, but did much of the talking and leading of petitioner's examination. The sheriff and others, however, testified that it was the sheriff's practice not to attend such private sessions of the judge, and that the sheriff was not present on this occasion which Judge Weimer described as his 'private interview' with petitioner.

01

355 U.S. 141 78 S.Ct. 165 2 L.Ed.2d 158 AMERICAN TRUCKING ASSOCIATIONS, Inc., et al., Appellants,v.UNITED STATES of America et al. RAILWAY LABOR EXECUTIVES' ASSOCIATION et al., Appellants, v. UNITED STATES of America et al. Nos. 6 and 8. Argued Oct. 23, 1957. Decided Dec. 9, 1957. [Syllabus from pages 141-142 intentionally omitted] Mr. Peter T. Beardsley, Washington, D.C., for appellants American Trucking Ass'ns et al. Mr. Edward J. Hickey, Jr., Washington, D.C., for appellants Railway Labor Executives' Ass'n et al. Mr. Robert W. Ginnane, Washington, D.C., for appellee Interstate Commerce Commission. Mr. A. B. Howland, Des Monies, Iowa, for intervening appellee Rock Island Motor Transit Co. Mr. Justice CLARK delivered the opinion of the Court. 1 These appeals involve, among subsidiary issues, the basic question of whether the Interstate Commerce Commission in a proceeding under § 207(a)1 of the Interstate Commerce Act wherein a railroad subsidiary seeks a certificate permitting it to provide ordinary motor carrier service at or near the parent railroad's line, is required by § 5(2)(b)2 of the Act, and the National Transportation Policy, 49 U.S.C.A. note preceding section 1 to restrict such motor carrier service to that which is auxiliary to, or supplemental of, the parent railroad's services. A three-judge District Court sitting in the District of Columbia upheld the action of the Commission in issuing a certificate without such restrictions. 144 F.Supp. 365. We agree with the conclusion of the District Court that under the circumstances of this case the action of the Commission was well founded. 2 At the time we noted probable jurisdiction of the appeals, 1956, 352 U.S. 816, 77 S.Ct. 36, 1 L.Ed.2d 43, counsel in No. 8 were invited to discuss the issue of appellants' standing to sue. None of the parties now question that standing, and our examination of § 17(11)3 and § 205(h)4 of the Act leads us to conclude that appellants may properly bring this action. See Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co., 1947, 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646. 3 In 1938 the Commission authorized Rock Island Motor Transit, a wholly owned subsidiary of the Chicago, Rock Island and Pacific Railroad, to purchase the property and operating rights of the White Line Motor Freight Company, between Silvis, Illinois, and Omaha, Nebraska. 5 M.C.C. 451. The operating certificate, issued in 1941, restricted Motor Transit to service to or from points on the Rock Island Railroad, subject to any further restrictions the Commission might impose 'to insure that the service shall be auxiliary or supplementary to the train service * * *.' No. MC 29130. Three years later the Commission allowed Motor Transit to purchase property and operating rights of the Frederickson Lines, covering routes between Atlantic, Iowa, and Omaha. 39 M.C.C. 824. Prior to issuing an operating certificate for the Frederickson routes, however, the Commission reopened both proceedings and imposed five conditions on Motor Transit's operation over the combined routes.5 4 Although Motor Transit succeeded in its efforts to have this order set aside by a three-judge District Court, 90 F.Supp. 516, we upheld on appeal, the power of the Commission to impose the conditions, and reversed the order of the District Court. United States v. Rock Island Motor Transit Co., 1951, 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391. Pursuant to our holding, a certificate was issued in September 1951, containing the restrictions as originally ordered.6 5 Soon thereafter Motor Transit filed with the Commission the present application for a certification of unrestricted operations. Authority was requested to serve the points along the White Line and Frederickson routes as well as certain off-line points, all of which parallel generally the lines of the parent railroad between Chicago and Omaha. The application was substantially granted in November 1954.7 63 M.C.C. 91. Operations were authorized, free of the prior conditions, between Silvis, Illinois, and Omaha. The application was denied insofar as it sought authority between Silvis and Chicago; the Commission pointed out that Motor Transit already possessed such authority. 6 The order was attacked in the District Court by American Trucking Associations, Inc., its Regular Common Carrier Conference, and nine motor carriers—all appellants in No. 6. The Railway Labor Executives' Association and two organizations which since have become members thereof—all of whom are appellants in No. 8—intervened in opposition to the order. Answers were filed by the United States and the Commission. Intervenors in support of the order included Motor Transit, a committee of its employees, the Iowa State Commerce Commission, and numerous Chambers of Commerce and shipper organizations. These appeals were taken from the order of the District Court upholding the certificate as granted. 7 Appellants advance three reasons why the order should be stricken. They say, in general, that the Commission is required not only in acquisition proceedings under § 5(2)(b) but also in certification proceedings under § 207 to limit service by a rail-owned motor carrier to that which is auxiliary to or supplemental of the rail service of its parent; that the Commission is without power to void restrictions previously imposed in acquisition proceedings on the subterfuge of a subsequent § 207 application; and, even if such contentions have no validity, that the evidence was insufficient and the findings inadequate to support the certification order of the Commission. I. 8 By § 5(2)(b), which was formerly § 213(a)(1) of the Motor Carrier Act of 1935, 49 Stat. 555, the Congress authorized consolidation, merger, acquisition, or lease of carriers if found by the Commission to be 'consistent with the public interest.' However, in transactions involving a motor carrier where a railroad or its affiliate is an applicant, the Congress directed the Commission 'not (to) enter such an order unless it finds that the transaction proposed' not only is in the public interest but 'will enable such (railroad) carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.' The Commission has interpreted this mandate of the Congress to confine acquisition of a motor carrier by a railroad or its affiliate to 'operations * * * which are auxiliary or supplementary to train service.'8 We specifically approved this long administrative practice in United States v. Rock Island Motor Transit Co., supra. It will be remembered that the acquisitions of the White Line and Frederickson routes by Motor Transit, wherein 'auxiliary or supplemental' restrictions were imposed, were pursuant to this section of the Act. 9 The present proceedings, however, were instituted under § 206 et seq., of the Act, which involve applications for certificates of public convenience and necessity. Motor Transit had been carrying on scheduled peddle operations over the entire White Line and Frederickson routes regardless of the volume of traffic available. By this application it sought to secure a certificate covering the same general routes without the restrictions imposed in the § 5(2) (b) proceedings. Such a certificate would enable it to haul, inter alia, the more profitable truckload traffic, thus supplementing the expensive peddle service.9 10 Section 207, which defines the showing on which issuance of a certificate of public convenience and necessity is predicated, makes no reference to the phrase 'service * * * in its operations' used in § 5(2)(b), nor is there any language even suggesting a mandatory limitation to service which is auxiliary or supplementary. 11 The legislative history of the Motor Carrier Act of 1935 gives no indication that § 213(a)(1), the predecessor of § 5(2)(b), was to be considered a limitation on applications under § 207. Congressional debate was largely confined to the subject of acquisitions, and no reference to railroad operation of motor carriers appears in either of the Committee Reports. S.Rep. No. 482, H.R.Rep. No. 1645, 74th Cong., 1st Sess. Certain amendments were proposed in 1938, including one by Senator Shipstead which would have added to § 207 the same language which in § 213(a) of the Motor Carrier Act and § 5(2)(b) of the Interstate Commerce Act had been construed as a limitation to auxiliary or supplementary service. The Senator withdrew his amendment after Commissioner Eastman of the Interstate Commerce Commission expressed the view that 'in interpreting and applying the provisions of section 207(a) * * * the Commission should read the act as a whole and take cognizance of this policy' of restricting certificates to auxiliary or supplementary service. See Hearings before Senate Committee on Interstate Commerce on S. 3606, 75th Cong., 3d Sess., pp. 26—30, 141—142. 12 In interpreting § 207, the Commission has accepted the policy of § 5(2)(b) as a guiding light, not as a rigid limitation. While it has applied auxiliary and supplementary restrictions in many § 207 proceedings, the Commission has occasionally issued certificates to railroad subsidiaries without the restrictions where 'special circumstances' prevail, namely, where unrestricted operations by the railowned carrier are found on specific facts and circumstances to be in the public interest.10 At least three of these cases had been decided when the Congress extensively revised the Interstate Commerce Act by enactment of the Transportation Act of 1940, 54 Stat. 898, in which § 213 of the Motor Carrier Act was substantially re-enacted into § 5(2)(b) of the Interstate Commerce Act, while § 207(a) was left unchanged. 13 We conclude, therefore, that the Congress did not intend the rigid requirement of § 5(2)(b) to be considered as a limitation on certificates issued under § 207 Nor is this contrary to our holding in United States v. Rock Island Motor Transit Co., supra, an acquisition case in which the Court also discussed Commission policy under § 207. We pointed out that '(r)ail affiliates have been permitted to leave the line of the railroad to serve communities without other transportation service. Those divergences, however, are an exercise of the discretionary and supervisory power with which Congress has endowed the Commission.' 340 U.S. at page 442, 71 S.Ct. at page 395. We found that the Commission's purpose was to apply the National Transportation Policy so as 'to preserve the inherent advantages of motor-carrier service.' In discussing this practice we quoted at page 428 of 340 U.S., at page 388 of 71 S.Ct. from the opinion of the Commission in that case, which stated the test in this language: 14 'In other words, a railroad applicant for authority to operate as a common carrier by motor vehicle, though required to do no more than prove, as any other applicant, that its service is required by public convenience and necessity, has a special burden * * * by reason of the very circumstance that it is a railroad. Where it fails to show special circumstances negativing any disadvantage to the public from this fact, a grant of authority to supply motor service other than service auxiliary to and supplemental of train service is not justified.' 40 M.C.C. 457, 474. 15 In United States v. Texas & Pacific Motor Transport Co., 1951, 340 U.S. 450, 71 S.Ct. 422, 95 L.Ed. 409, decided on the same day as Rock Island, we upheld the Commission's imposition of restrictions in a § 207 case. In Texas & Pacific, however, the proceeding involved the power of the Commission to impose the restrictions, a question not before us here. 16 We repeat, as was said in those cases, 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, for reasons we have stated, 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 § 207 proceeding. II. 17 We find no indications that the Commission has permitted the § 207 proceedings in this case to be used as a device to evade § 5(2)(b) restrictions. Certificate proceedings under § 207 are separate and distinct from acquisition proceedings, although the same general policy governs both. If the public interest requires that a § 207 certificate be issued to a rail-owned carrier without restriction, we find no authority for denying the Commission power to grant the same simply because the carrier just emerged from a § 5(2)(b) proceeding. Moreover, the approval here was expressly subject to the Commission's continuing examination of the activity of Motor Transit with a view of placing limitations on its operations if found necessary in the public interest. A further condition makes all contractual arrangements between Motor Transit and its parent subject to revision by the Commission. 18 Finally, if under our interpretation a 'loophole' exists in the Act, the Commission has shown no inclination to permit its use as such. Should the Commission prove to be less stringent in the future, appellants not only have recourse to the Congress, but also to the courts for review of the Commission's finding that 'special circumstances' exist. III. 19 Appellants' last contention relates to the sufficiency of the evidence to support the Commission's finding of public convenience and necessity. Appellants concede that public need may be found for peddle traffic between the smaller points along the routes, but contest the findings of public need for unrestricted service between such major points as Davenport, Cedar Rapids, Des Moines, and Council Bluffs, Iowa, and Omaha, Nebraska. 20 The evidence before the Commission was such that we are not inclined to disturb the findings. Approval of the application was urged by the Iowa State Commerce Commission, 149 shippers and receivers, 8 motor carriers who interline traffic with Motor Transit (including some members of appellant Motor Trucking Association), and several Chambers of Commerce and commercial organizations. There was evidence of a serious need for less-than-truckload peddle service: other carriers frequently failed to handle such traffic, and gave service inferior to that of Motor Transit when they did operate. There was testimony that the weight and key-point limitations operated to make even the Motor Transit service less than adequate. It appeared that the peddle traffic alone was not profitable, and that if confined to it Motor Transit could no longer render the caliber of peddle service it had maintained prior to the imposition of the temporary restrictions. Further, there was evidence that 11 points would be totally without peddle service if the auxiliary and supplemental restrictions were applied. Apart from the effect of restricted operations on peddle service, the record indicates that other carriers sometimes had been reluctant to accept even truckloads of certain low-rated commodities. 21 This evidence leaves us unwilling to suggest that public convenience and necessity could only be advanced by confining Motor Transit to service of the smaller communities, while leaving the more profitable business to others. Public need for Motor Transit's operation in truckload traffic to some extent can be grounded on the need for its operation in peddle traffic, since economic justification for carrying on a costly peddle operation depends on combining it with a more lucrative truckload operation. While it is true that railroads were not allowed to enter the motor trucking industry primarily to build an independently profitable trucking operation, there is no foundation in the Interstate Commerce Act for so construing § 207 as to require that any railroad operation in the motor trucking field be unprofitable. Observance of economic realities in ascertaining public need is no less due a rail-owned motor carrier than an independent motor carrier. 22 If, as appellants fear, the unrestricted operations are destructive of competition or otherwise detrimental to the public interest, we believe the situation would not be without remedy. The Commission has retained jurisdiction 'to impose in the future whatever restrictions or conditions, if any, appear necessary in the public interest by reason of material changes in conditions or circumstances surrounding applicant's operations in relation to those of competing motor carriers.' 63 M.C.C., at page 108. This reservation gives it continuing jurisdiction to make certain that the unlimited certificate issued here does not operate to defeat the National Transportation Policy. United States v. Rock Island Motor Transit Co., supra. 23 Affirmed. 24 Mr. Justice DOUGLAS dissents. 1 'Sec. 207. (a) Subject to section 210, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this part and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied * * *.' 49 Stat. 551, 49 U.S.C. § 307(a), 49 U.S.C.A. § 307(a). 2 Sec. 5(2)(b) '* * * If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subparagraph (a) and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable: Provided, That if a carrier by railroad subject to this part, or any person which is controlled by such a carrier, or affiliated therewith within the meaning of paragraph (6), is an applicant in the case of any such proposed transaction involving a motor carrier, the Commission shall not enter such an order 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.' 54 Stat. 906, 49 U.S.C. § 5(2)(b), 49 U.S.C.A. § 5(2)(b). 3 54 Stat. 916, 49 U.S.C. § 17(11), 49 U.S.C.A. § 17(11). 4 49 Stat. 550, as amended, 54 Stat. 922, 49 U.S.C. § 305(h), 49 U.S.C.A. § 305(h). 5 '1. The service to be performed by The Rock Island Transit Company shall be limited to service which is auxiliary to, or supplmental of, train service of The Chicago, Rock Island and Pacific Railway Company, hereinafter called the Railway. '2. The Rock Island Motor Transit Company shall not render any service to, or from or interchange traffic at any point not a station on a rail line of the Railway. '3. No shipments shall be transported by The Rock Island Motor Transit Company between any of the following points, or through, or to, or from, more than one of said points: Omaha, Nebr., Des Moines, Iowa, and collectively Davenport and Bettendorf and Rock Island, Moline, and East Moline, Ill. '4. All contractual arrangements between the Rock Island Motor Transit Company and the Railway shall be reported to use (sic) and shall be subject to revision, if and as we find it to be necessary in order that such arrangements shall be fair and equitable to the parties. '5. Such further specific conditions as we, 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.' 40 M.C.C. 457, 477. 6 Prior to this date, temporary operating authority was granted Motor Transit over the White Line and Frederickson routes with three restrictions: 1. No service to be performed for shipments originating at Chicago, Ill., or Omaha, Nebr., and destined to either of said points. 2. No shipment to be transported between any of the following points or through, or to, or from more than one of said points: Omaha, and collectively Davenport and Bettendorf, Iowa, Rock Island, Moline and East Moline, Ill. 3. No single shipment to be handled on motor carrier billing weighing more than 2,000 pounds. 7 Two conditions were imposed: '(1) that there may be attached from time to time to the privileges granted herein such reasonable terms, conditions, and limitations as the public convenience and necessity may require, and (2) that all contractual arrangements between (Motor Transit) and (Rock Island) shall be reported to us and shall be subject to revision, if and as we find it to be necessary in order that such arrangements shall be fair and equitable to the parties * * *.' 63 M.C.C., at page 109. 8 Pa.Truck Lines—Control—Barker, 1 M.C.C. 101, supplemented, 5 M.C.C. 9, 11; see, e.g., Gulf Transport Co.—Purchase—Crane, 35 M.C.C. 699; Pacific Motor Trucking Co.—Purchase—Keithly, 15 M.C.C. 427; Texas & P. Motor Transport Co.—Purchase—Southern Transp. Co., 5 M.C.C. 653. 9 In contrast to 'truckload traffic,' which refers to starting with a full load and delivering at one destination, the term 'peddle traffic' refers to starting with a full load and delivering at various destination points, or the converse, picking up parts of a load at various points and delivering at a single destination. Because Motor Transit is exclusively licensed over the routes in question by the Iowa State Commerce Commission, all intrastate traffic will go to Motor Transit regardless of the outcome of the present proceeding. In addition, all rail-billed traffic will go to Motor Transit as a matter of course. Therefore, only two kinds of traffic are actually involved in this case, interstate truckload and interstate peddle traffic proceeding on a motor bill of lading. 10 For cases where restrictions have been applied in § 207 cases, see, e.g., Kansas City S. Transport Co., Com. Car. Application, 10 M.C.C. 221, 28 M.C.C. 5; Chicago, M., St. P. & P.R. Co. Extension—Milwaukee Division, 53 M.C.C. 341; Frisco Transportation Co. Extension—Springfield Airport, 47 M.C.C. 63; Great Northern R. Co. Extension—Hobson—Lewistown, 19 M.C.C. 745; Texas & P. Motor Transport Co. Extension—Big Spring—Pecos, Tex., 14 M.C.C. 649. For cases where certificates were issued under § 207 without restrictions, see, e.g., Burlington Truck Lines Extension—Iowa, 48 M.C.C. 516; Rock Island Motor Transit Extension—Wellman, Iowa, 31 M.C.C. 643; Burlington Transportation Co. Extension—Council Bluffs Weldon—Kansas City, 28 M.C.C. 783; Santa Fe Trail Stages, Inc., Com. Car. Application, 21 M.C.C. 725; Interstate Transit Lines Extension—Verdon, Neb., 10 M.C.C. 665; St. Andrews Bay Transportation Co. Extension, 3 M.C.C. 711. In the instant case the Commission summarized its practice: 'This policy (of imposing auxiliary and supplementary restrictions) was and is sound and should be relaxed only where the circumstances clearly establish (1) that the grant of authority has not resulted and probably will not result in the undue restraint of competition, and (2) that the public interest requires the proposed operation, which the authorized independent motor carriers have not furnished, except where it suited their convenience. 'The findings hereinafter made * * * do not establish a precedent. Each case of this character must be determined upon the facts and circumstances disclosed by the evidence.' 63 M.C.C. 91, 102, 108.

78

355 U.S. 131 78 S.Ct. 206 2 L.Ed.2d 151 James E. YOUNGDAHL, W. Chandler, Ruth Ralph, Amalgamated Clothing Workers of America, CIO, et al., Petitioners,v.RAINFAIR, Inc. No. 11. Argued Oct. 15, 1957. Decided Dec. 9, 1957. Mr. William J. Isaacson, for petitioners. Mr. J. L. Shaver, Sr., Wynne, Ark., for respondent. Mr. Justice BURTON delivered the opinion of the Court. 1 The issues here are whether, under the circumstances of this case, a state court may enjoin strikers and union representatives from (1) 'threatening, intimidating or coercing any of the officers, agents or employees of (the employer) at any place,' and also 'from obstructing, or attempting to obstruct the free use of the streets adjacent to (the employer's) place of business, and the free ingress and egress to and from (the employer's) property,' and (2) all 'picketing or patrolling' of the employer's premises. For reasons hereafter stated, we conclude that the state court may lawfully enjoin conduct of substantially the first category but not of the second. 2 Most of the material facts are uncontroverted. In 1955, respondent, Rainfair, Inc., was a Wisconsin corporation with headquarters in Racine, Wisconsin. It owned and operated a plant in Wynne, Arkansas, an essentially rural community of about 4,000 inhabitants. About 100 women and seven men were there employed in the manufacture of men's slacks which were shipped in interstate commerce. None of the employees were members of a labor union but many had signed applications to join the Amalgamated Clothing Workers of America, CIO, which is one of the petitioners. 3 Apparently in an effort to compel the employer to recognize the union as the bargaining agent of the employees, 29 of the employees did not report for work on May 2, 1955. A picket line was established on the street in front of the plant. Strike headquarters were maintained across the street from the plant entrance. Nearly all of the strikers were women. Their number varied from eight to 37. All was not quiet, however. On one occasion nails were strewn over the company's parking lot and, about a week later, the whole lot was 'seeded' with roofing tacks. Tacks were also scattered in the driveway of the plant manager's home and on the driveways of 12 of the nonstriking women employees. One of the pickets told the plant manager that she would 'wipe the sidewalk' with him and send him back to Wisconsin because he 'was nothing but trash.' The plant manager was followed by the strikers each time he left the plant; he also was harassed at night by occasional shouting at his home and by numerous anonymous telephone calls. 4 Immediately after the strike was called, respondent, by registered mail, informed each of the strikers that, if they did not return to work within a few days, the company would assume that those not returning had quit there jobs. Only three returned. Thirteen new employees were hired. The strike ended on May 19, the pickets were withdrawn and the strikers applied for reinstatement. Respondent, however, declined to arrange for immediate reinstatement. On June 17, the strikers voted to re-establish the picket line on Monday, June 20.1 The purpose was to protest against respondent's failure to recognize the union and its refusal to reinstate the employees who had applied for reinstatement in May. 5 Shortly after midnight, on the morning of June 20, two women strikers deliberately drove a sharp instrument into two tires of a car owned by the daughter of one of the nonstriking women employees.2 At about 5:15 a.m. the police were summoned to the plant where they found a five-foot black snake inside the plant beneath a broken window. At about 6 a.m. picketing was resumed.3 Although the union posted notices warning the strikers against committing acts of violence, a union representative later was sufficiently concerned to ask the police to have someone regularly on duty at the entrance to the plant. The evidence shows that the tension was in large part caused by the enormous amount of abusive language hurled by the strikers at the company employees. The Supreme Court of Arkansas later summarized this as follows: 6 'As the employees would go to and from work at the plant, or go to lunch, or take a recess, the strikers would congregate along the west edge of their lot and sometimes in Rowena Street and engage in loud and offensive name calling, singing or shouting directed at the workers. They would call the workers 'scabs,' 'dirty scabs,' 'fat scabs,' 'yellow scabs,' 'crazy scabs,' 'cotton patch scabs,' 'pony tailed scabs,' 'fuzzy headed scabs,' 'fools,' 'cotton picking fools,' and other similar names. This took place every time an employee left or entered the plant. It was done by the strikers individually, in couples or by the entire group and in a loud and boisterous manner. One witness described it as 'just bedlam' when more than a dozen joined in the shouting. Particular names or remarks were reserved for individual workers. One pregnant worker was greeted with, 'Get the hot water ready,' or, 'I am coming to make another payment on the baby, call Dr. Beaton,' or, 'Why, you can work another hour until you go to the delivery room.' This worker and another drove to a filling station for gasoline when two of the strikers drove up and told the attendant not to wait on 'these scabs' before he waited on the strikers. 7 'One worker said the strikers always called her 'fat scab,' and that individual pickets and strikers made fun of her clothing and asked her if 'Pete,' the plant manager, still liked her 'low-cut dresses and earrings.' This made the employee so angry she invited the picket to come over and 'make it some of her business.' * * * 8 'The strikers sang songs with improvised lyrics to the tune of certain popular ballads and religious and Union songs. 'When the Saints Go Marching In' became 'When the Scabs Go Marching In' and the ballad, 'Davy Crockett,' began, 'Born in a cotton patch in Arkansas, the greenest gals we ever saw * * *.' 9 'The women pickets would stand in the street or sit near the plant and shout ugly names, stick out their tongues, hold their noses and make a variety of indecent gestures while pointing at the workers in the plant. Several workers testified the continuous name calling and boisterous conduct of the strikers made them afraid, angry, ill or nervous and had an adverse effect on their ability to properly do their work. Some of the workers would talk back to the strikers while others remained silent. The Chief of Police of Wynne testified there was more tension during the second picketing than the first and that he was fearful there was going to be trouble during the second picketing and so informed Union staff members. One staff member called him once when trouble seemed imminent and wanted to 'go on record' as having requested the presence of the officer.' 226 Ark. 80, 83—84, 288 S.W.2d 589, 591. 10 On June 24, respondent filed a complaint in the local Chancery Court. It described the conduct of the strikers and alleged that such conduct amounted to 'unlawful acts * * * for the unlawful purpose of intimidating and coercing' respondent's employees into joining the union, that respondent had no adequate remedy at law and that it was suffering irreparable damage from such conduct. The court acted upon the complaint and the testimony of the plant manager and issued a temporary injunction. After full hearing, it made the injunction permanent on September 15. The trial court's findings included the following statement: 11 'That the defendants, in picketing the plaintiff's plant, have resorted to violence, coercion and intimidation, and such other unlawful conduct as was calculated to cause a breach of the peace, and that the defendants have unlawfully abused the right to peaceably picket, as granted to them by the laws of this state and the Federal Constitution, and that said defendants should be permanently enjoined from picketing the plaintiff's plant.' 12 The permanent decree enjoined not only the threatening and intimidation of the employees of respondent at any place, but also all picketing or patrolling of respondent's premises by the named defendants and all other persons in sympathy or acting in concert with them.4 The Supreme Court of Arkansas affirmed the decree. 266 Ark. 80, 288 S.W.2d 589. We granted certiorari largely because of the sweeping language of the decree. 352 U.S. 822, 77 S.Ct. 62, 1 L.Ed.2d 45. 13 The applicable principles of law are substantially agreed upon. Respondent concedes that it is engaged in interstate commerce and that its employees are entitled to the protection of the National Labor Relations Act, as amended 61 Stat. 136, 29 U.S.C. § 151, 29 U.S.C.A. § 151. Respondent does not contend that the state court had power to enjoin peaceful organized activity, recognizing that generally the National Labor Relations Board has exclusive jurisdiction of such matters. Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546. Petitioners concede that the state court had the power to enjoin violence. United Automobile, Aircraft and Agricultural Implement Workers of America v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162; Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers of America v. Wisconsin Employment Relations Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154. Respondent contends that the record here shows a pattern of violence so enmeshed in the picketing that, to restore order, it was necessary to enjoin all organized conduct. Petitioners, on the other hand, urge that there was no violence here and no threat of it and, accordingly, that there was no factual warrant for the injunction which issued. 14 The issue here is whether or not the conduct and language of the strikers were likely to cause physical violence. Petitioners urge that all of this abusive language was protected and that they could not, therefore, be enjoined from using it. We cannot agree. Words can readily be so coupled with conduct as to provoke violence. See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 768—769, 86 L.Ed. 1031. Petitioners contend that the words used, principally 'scab' and variations thereon, are within a protected terminology. But if a sufficient number yell any word sufficiently loudly showing an intent to ridicule, insult or annoy, no matter how innocuous the dictionary definition of that word, the effect may cease to be persuasion and become intimidation and incitement to violence.5 Wynne is not an industrial metropolis. When, in a small community, more than 30 people get together and act as they did here, and heap abuse on their neighbors and former friends, a court is justified in finding that violence is imminent. Recognizing that the trial court was in a better position than we can be to assess the local situation, we think the evidence supports its conclusion, affirmed by the State Supreme Court, that the conduct and massed name-calling by petitioners were calculated to provoke violence and were likely to do so unless promptly restrained. 15 Though the state court was within its discretionary power in enjoining future facts of violence, intimidation and threats of violence by the strikers and the union, yet it is equally clear that such court entered the pre-empted domain of the National Labor Relations Board insofar as it enjoined peaceful picketing by petitioners. The picketing proper, as contrasted with the activities around the headquarters, was peaceful. There was little, if any, conduct designed to exclude those who desired to return to work. Nor can we say that a pattern of violence was established which would inevitably reappear in the event picketing were later resumed. Cf. Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836. What violence there was was scattered in time and much of it was unconnected with the picketing. There is nothing in the record to indicate that an injunction against such conduct would be ineffective if picketing were resumed. 16 Accordingly, insofar as the injunction before us prohibits petitioners and others cooperating with them from threatening violence against, or provoking violence on the part of, any of the officers, agents or employees of respondent and prohibits them from obstructing or attempting to obstruct the free use of the streets adjacent to respondent's place of business, and the free ingress and egress to and from that property, it is affirmed. On the other hand, to the extent the injunction prohibits all other picketing and patrolling of respondent's premises and in particular prohibits peaceful picketing, it is set aside. The judgment of the Supreme Court of Arkansas is vacated and the case is remanded to it for further proceedings not inconsistent with this opinion. 17 It is so ordered. 18 Judgment of Supreme Court of Arkansas vacated and case remanded with directions. 19 The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS, being of opinion that Congress has given the National Labor Relations Board exclusive jurisdiction of this controversy, would reverse the judgment in its entirety and remand the cause to the state court for dismissal of the injunction. 1 In the meantime the union had filed unfair labor practice charges against respondent before the National Labor Relations Board. These were still pending at the time of the hearing of the instant case. The union also requested the Board to conduct a representation election, but this request was withdrawn before the hearing on the injunction. At an election held on October 19, a majority of the employees of respondent voted not to be represented by the union. 2 They later were convicted of this misdemeanor. 3 The placards were inscribed, 'Rainfair Workers on Strike, Rainfair is unfair to its employees, Amalgamated Clothing Workers of America, CIO.' 4 'It is, therefore, considered and decreed by this court that the defendants James E. Youngdahl * * * and each of them, and their agents and employees, and each and every one of the officers and members of Amalgamated Clothing Workers of America, CIO, and all other persons in sympathy, or acting in concert with them, be, and they are hereby permanently enjoined while on, adjacent to, or near plaintiff's premises located on Martin Drive and Rowena Street, in Wynne, Arkansas, from interfering with plaintiff's business, its customers and employees, and from picketing or patrolling, or causing to be picketed or patrolled the plaintiff's premises, and the sidewalks, streets, or other property adjacent to plaintiff's premises, with placards or banners designating said place of business as unfair to organized labor, or with placards otherwise so worded as to give said place of business such designation; that the defendants, and each of them, their agents and employees, and the officers and members of the above-mentioned union, and all sympathizers, and all other persons acting in concert with them, be, and they are hereby restrained and enjoined from accosting and detaining, or causing to be accosted or to be detained on the sidewalks or streets adjacent to or on plaintiff's premises, any person or persons seeking to enter or depart from said place of business for the purpose of dissuading them from patronizing, or working for plaintiff, or from calling attention to any alleged unfairness of plaintiff, or its place of business, to organized labor; from threatening, intimidating or coercing any of the officers, agents or employees of plaintiff at any place; from loitering and congregating around and under the tent and upon the property that is used as the union's headquarters, located directly across Rowena Street in front of plaintiff's premises; and from obstructing, or attempting to obstruct the free use of the streets adjacent to plaintiff's place of business, and the free ingress and egress to and from plaintiff's property.' 5 In Arkansas there was then in effect a statute of long standing which expressly made it a crime for any person to 'make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault * * *.' Ark. Stat. 1947, § 41—1412.

910

355 U.S. 253 78 S.Ct. 212 2 L.Ed.2d 247 UNITED STATES of America, Petitioner,v.The NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY. No. 45. Argued Nov. 20, 1957. Decided Dec. 16, 1957. Mr. Alan S. Rosenthal, Washington, D.C., for the petitioner. Mr. Edmund M. Sweeney, Boston, Mass., for the respondent. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The General Accounting Office audited transportation bills of the respondent, rendered and paid in 1944, and determined that the Government was overcharged in the amount of $1,025.26. When the respondent did not refund this amount on demand, the Government exercised the right, reserved in § 322 of the Transportation Act of 1940,1 to deduct the overpayments from a subsequent bill. The Government credited that amount against a bill of the respondent, admittedly owing, of $1,143.03 for 1950 transportation services, and paid the balance of $117.77 by check. 2 The respondent thereupon brought this action under the Tucker Act2 in the District Court for Massachusetts. The complaint seeks recovery not of the $1,025.26 deducted, but of the full amount of the 1950 bill of $1,143.03. The Government's answer admits the 1950 bill but pleads its payment by the check of $117.77 and the credit of $1,025.26 in liquidation of the overcharges determined in the 1944 bills. The respondent filed a pleading in response to the government answer3 admitting 'that it did receive the check in the amount of $117.77, all as recited by the defendant, leaving the balance due and to this date unpaid in the amount of $1025.26.' 3 The question presented in both courts below, and in this Court, is whether in this action the carrier has the burden of proving the correctness of the 1944 bills, or the Government the burden of proving that it was overcharged. The District Court held that the respondent carrier was pleading on a contract against which the Government was attempting to 'set off' claims under other contracts, and that 'whoever attempts to set off the other contractual claims has the burden of showing there are other claims.' In the absence of government evidence proving the claimed overcharges in the 1944 bills, a motion of the respondent for summary judgment was granted. The judgment entered, however, was for $402.84, because the respondent accepted the amount of 1944 overcharges in the difference between that sum and the amount of the bill. The Court of Appeals for the First Circuit affirmed the judgment. 236 F.2d 101. We granted certiorari, 352 U.S. 965, 77 L.Ed. 359, 1 L.Ed.2d 320. 4 Before enactment of § 322, the Government protected itself against transportation overcharges by not paying transportation bills until the responsible government officers, and, in doubtful cases, the General Accounting Office, first audited the bills and found that the charges were correct.4 When charges were questioned the carrier was required to justify them. If administrative settlement was not reached and the carrier sued the United States to recover the amount of the bill, no one questions that it was the carrier's duty to sustain the burden of proving the correctness of the charges.5 Southern Pacific Co. v. United States, 272 U.S. 445, 448, 47 S.Ct. 123, 124, 71 L.Ed. 343. 5 Section 322, however, required the payment of such bills 'upon presentation * * * prior to audit or settlement by the General Accounting Office * * *.' The audit procedures remained substantially the same as those in effect prior to the statute but the former means of protecting against overcharges—by not paying the bills until their correctness was proved—has, by force of the statute, been replaced by the method of collecting them from subsequent bills, under the right reserved by the section to the Government 'to deduct the amount of any overpayment to any such carrier from any amount subsequently found to be due such carrier.' We recently said in United States v. Western Pacific R. Co., 352 U.S. 59, 74, 77 S.Ct. 161, 170, 1 L.Ed.2d 126: 6 '* * * This right (to deduct overpayment from subsequent bills of the carrier) was thought to be a necessary measure to protect the Government, since carriers' bills must be paid on presentation and before audit.' 7 Again at page 75 of 352 U.S., at page 171 of 77 S.Ct.: 8 'The fact that the Government paid the carrier's bills as rendered is without significance in light of § 322 of the Transportation Act, supra, requiring payment 'upon presentation' of such bills and postponing final settlement until audit.' 9 This interpretation of § 322 finds full support in the legislative history of the section. The section was included in the omnibus transportation bill, which became the Transportation Act of 1940, in direct response to a demand of the railroads for legislation relieving them of the inordinate delays in payment of their bills attributable to the preaudit procedure, which tied up substantial amounts of accounts receivable and contributed to the financial difficulties which confronted the railroads during the depression years. The then President of the Association of American Railroads raised the issue in a letter to the Procurement Division of the Department of the Treasury dated October 5, 1937. (See Appendix to this opinion, 355 U.S. 264, 78 S.Ct. 219.) Proposed legislation in almost the identical language which became § 322 was thereupon introduced in 1938.6 It failed of passage in the Seventy-fifth Congress and a number of similar proposals were therefore introduced in the Seventy-sixth Congress.7 None of these passed, but in the following year the provision was included as § 322 of the Transportation Act of 1940.8 10 It is entirely clear that although the railroads sought, in the words of their spokesman, 'corrective action * * * that will render impossible such long delays in payment for services rendered,' to gain that end the railroads recognized that any remedy suggested on their behalf should be 'both practical and legal and (one) which can easily be made operative without the assumption of any risk insofar as the Government is concerned.' It was 'with this thought in mind' that the railroads proposed the elimination of preaudit procedures and the prompt payment of transportation bills when rendered, with audit 'after payment * * * (of) these bills referred to the General Accounting Office or such other governmental auditing office as might be desired for audit.' The plan contemplated that 'in the event * * * this audit reveals an over-payment' the same 'will be promptly paid by the railway, preserving, however, the right of the carrier to make further effort to re-collect in the event that it does not believe the proper charges resulted from the Government's audit.'9 11 In hearings before the House Committee on Interstate and Foreign Commerce held June 1, 1938,10 in connection with one of the bills incorporating the proposal which became § 322, the then General Counsel of the Association of American Railroads, arguing in support of the proposal, urged that '(i)f that section could be put in here, it would require the payment of the bills by the Government as they are rendered by the railroads, with the privilege, however, of course, if it should develop that there has been an overpayment, the Government may deduct that amount from subsequent bills.' 12 The conclusion is inescapable from this history that the Congress was desirous of aiding the railroads to secure prompt payment of their charges,11 but it is also clear that the Congress, and the railroads, contemplated that the Government's protection against overcharges available under the preaudit practice should not be diminished. The burden of the carriers to establish the correctness of their charges was to continue unabridged. The carriers were to be paid immediately upon submission of their bills but the carriers were in return promptly to refund overcharges when such charges were administratively determined. The carrier would then have 'to re-collect' the sum refunded by justifying its bills to the agency or by proving its claim in the courts. The footing upon which each of the parties stood when controversies over charges developed was not to be changed. The right of the United States to deduct overpayments from subsequent bills was the carriers' own proposal for securing the Government against the burden of having to prove the overpayment in proceedings for reimbursement. 13 In the light of this history, we are unable to agree with the holdings of the Court of Appeals that '(a)ll that § 322 does is to authorize and direct disbursing officers of the United States to pay transportation bills upon presentation, without waiting for audit or settlement by the General Accounting Office,' and that the reservation of the right of offset against subsequent bills is without significance—'We suppose that this provision was inserted out of an abundance of caution, because the availability of a setoff by the United States need not depend upon specific statutory authorization,' citing Gratiot v. United States, 15 Pet. 336, 370, 10 L.Ed. 759. 1 Cir., 236 F.2d 101, 105. 14 Nor do we share the view of the Court of Appeals that 'the position of the United States as shipper, so far as the present case is concerned, is no different from that of a private shipper.' Id., 236 F.2d at page 104. Even if we assume that '(i)f a private shipper or consignee should pay the carrier before satisfying himself of the correctness of the charges demanded—as he may be required to do pursuant to § 3(2) of the Interstate Commerce Act, 49 U.S.C.A. § 3(2) and regulations of the Commission thereunder—and later sues for a refund of alleged overpayments, or seeks to set off the amount of the overpayments against another claim admittedly due, in either case the shipper or consignee would have the burden of alleging and proving the fact and the amount of such overpayment,'12 the Court of Appeals overlooks the fact that the Government's statutory right of setoff was designed to be the substantial equivalent of its previous right to withhold payment altogether until the carrier established the correctness of its charges. Thus the issue of overcharges, after the enactment of § 322, arises in a different way, but the differing procedures by which the issue is presented should not control the placement of the burden of proof.13 In effect the situation is that the railroad is suing to recover amounts which the Government initially paid conditionally, and then recaptured, under the § 322 procedure. We therefore hold that the burden of the carrier to establish the lawfulness of its charges is the same under § 322 as it was under the superseded practice. 15 Similarly, conventional principles of contractual setoff should not govern the determination of the carrier's burden of proof in this action merely because the complaint frames an action for recovery of the full amount of the 1950 bill rather than the amount deducted therefrom. The respondent's brief concedes that '(w)henever a railroad brings an action against the Government, directly upon the deduction (as, on the facts of the case, to recover the alleged 1944 overpayments), it has the burden of alleging and proving the facts of the case and establishing the validity of its claim in the light of the contract and the applicable tariffs.' There is also authority that the plaintiff has the same burden, although suing on the subsequent bill, when the claim for damages is for the amount of the deduction. Suncook Mills v. United States, D.C., 44 F.Supp. 744; Eastport S.S. Co. v. United States, 130 F.Supp. 333, 131 Ct.Cl. 210; Buch Express, Inc., v. United States, 132 F.Supp. 473, 132 Ct.Cl. 772.14 We do not see that a different issue was shaped by the pleadings in this action. Cf. Wisconsin Central R. Co. v. United States, 164 U.S. 190, 212, 17 S.Ct. 45, 52, 41 L.Ed. 399. Although the ad damnum clause of the complaint prays recovery of $1,143.03, respondent's pleading filed in response to the Government's answer admits the government payment of $117.77, and that the actual controversy concerns the balance of $1,025.26. The true dispute between the parties, arising from the determination and collection of the overpayments as authorized by § 322, involves the lawfulness of the 1944 bills. It is the substance, not the form, which should be our concern. Cf. Alcoa S.S. Co. v. United States, 338 U.S. 421, 70 S.Ct. 190, 94 L.Ed. 225; Reynolds v. United States, 292 U.S. 443, 54 S.Ct. 800, 78 L.Ed. 1353. We hold that the respondent is entitled to recover only if it satisfies its burden of proving that its 1944 charges were computed at lawful and authorized rates. 16 We do not here intimate that the administrative determination of overpayment has binding effect in the judicial proceeding, see Wisconsin Central R. Co. v. United States, supra, 164 U.S. at page 211, 17 S.Ct. at page 51; Grand Trunk Western R. Co. v. United States, 252 U.S. 112, 120—121, 40 S.Ct. 309, 311—312, 64 L.Ed. 484; and we agree with the Court of Appeals that the extrinsic fact, namely the availability of the freight cars in the sizes ordered, remains to be proved in the suit. Our conclusion is that the burden in that respect is upon the carrier. 17 The judgment of the Court of Appeals is reversed with direction to remand the case to the District Court for further proceedings not inconsistent with this opinion. 18 Reversed and remanded. 19 Mr. Justice FRANKFURTER dissents, on the basis of the opinion of Chief Judge Magruder in the court below, 1 Cir., 236 F.2d 101, and more particularly because the respondent was not the initial carrier. 20 Appendix. 21 The letter, dated October 5, 1937, was addressed by J. J. Pelley, President of the Association of American Railroads, to Captain H. E. Collins, Assistant Director, Procurement Division, Treasury Department, and reads: 22 'Dear Captain Collins: 23 'The railroads members of the Association of American Railroads, which comprise about 98% of all the Class I railroads in the United States, have been very much concerned by the long delay in securing payment for transportation services rendered for the U.S. Government. We know further, from conferences with the officers of the American Short Line Railroad Association, that their lines have been and are experiencing similar difficulty. These delays are not justified and the carriers should not be expected to finance the Government as they are now doing, insofar as transportation is concerned. Furthermore, the railroads are necessarily large borrowers and in that connection are required as a condition to their obtaining the necessary capital to pay substantial interest charges on all such borrowed money, whereas on the other hand the Government is paying no interest on its delayed payments to the railroad companies, which delays in many instances run over a year and invariably are not settled for sixty to ninety days. Although the railroads pay interest for the money they borrow, they cannot under the law collect interest from the Government no matter how long settlements may be delayed. This is obviously unfair. 24 'Under the law applicable to commercial shippers, transactions with railroads are required to be on substantially a cash basis. Shippers are required to pay freight charges within 48 hours, on a majority of the traffic, and in no case are they permitted credit in excess of 96 hours. It appears to us, and particularly under the present unfortunate financial position of the railroads, that the carriers ought to receive settlement from the Government within 96 hours after a bill has been presented and that would be possible providing the proper machinery were set up and the proper instructions issued. 25 'This matter is of very much greater importance today than it has been in years past, for the reason that under present conditions the Government is engaged in shipping to a very much greater extent than ever before. Due to the various bureaus and other agencies, particularly in connection with relief work and in connection with some of the governmental corporations that have been organized, the Government is today handling much tonnage which was previously commercial traffic so that the delay in settlement for the transportation charges is much more serious to the railroads today than would have been the case a decade ago. It should also be borne in mind in connection with Government freight shipped under Government bills of lading the railroads are under the law not assessing their commercial rates but are making such discounts as the law requires because of land-grants and which in many instances today means the handling of this traffic on a basis below the actual cost of performing the service. These facts are mentioned only as indicating the very great importance of providing some sort of a system which will permit the more prompt payment of these charges. 26 'That you may have a picture of the situation, your attention is directed to the fact that as of July 1, 1937, there were 94,182 outstanding unpaid railroad bills against the Government amounting to $11,749,774, all of which bills had been rendered prior to May 1, 1937, and of these bills and this amount there was unpaid $4,683,946, representing 37,761 bills which had been rendered prior to January 1, 1937. 27 'We feel very sure that you and the other officers of the Government will agree that this situation is one that is grossly unfair and that corrective action should be taken that will render impossible such long delays in payment for services rendered. 28 'We are also of the opinion that it is not sufficient for us to simply complain of this situation but that in addition thereto we ought to suggest a remedy which in our judgment is both practical and legal and which can easily be made operative without the assumption of any risk insofar as the Government is concerned, providing you and your associates will put the suggested plan in operation and with such instructions issued as may be needed in connection therewith. With this thought in mind, we very respectfully submit for your consideration the following: 29 'We believe that the delay in the payment of transportation charges by the Government to the railroads would be absolutely avoided if the various departments contracting for transportation were instructed to pay the bills as rendered and after payment have these bills referred to the General Accounting Office or such other governmental auditing office as might be desired for audit. In the event that this audit reveals an over-payment, then claim be presented to the carrier for the amount thereof which will be promptly paid by the railway, preserving, however, the right of the carrier to make further effort to re-collect in the event that it does not believe the proper charges resulted from the Government's audit. Attention is further directed to the fact that the railroads would never have, under such a plan, more money than the Government lawfully owed for the reason that the Government is shipping daily and is currently obligated to the railroad companies for transportation charges. This would place the handling of governmental transportation charges on substantially the same basis as applies in connection with commercial transactions. 30 'I am very sure from our previous negotiations with you and others connected with the Government with regard to the same subject that there exists no differences as between us as to the necessity of more prompt payment than has heretofore prevailed. I hope that you and your associates may consider the suggestions contained herein as reasonable and practical and that we may rely upon your good offices to bring about some such arrangement. It may be that you may desire to discuss this matter and perhaps make some suggestions that differ somewhat from the plan proposed herein. Should this situation develop, I want to assure you that either the officers of this Association or the appropriate officers of this Association with a committee of the lines will gladly discuss the subject with you at such time and place as may be mutually satisfactory. I feel sure that we both desire to obtain a very substantial improvement in the situation that now exists, and I am of the opinion that if these matters can be handled along lines somewhat similar to those which we have recommended that it will not only create a much better feeling as between the railroads and the Government, but in addition thereto will materially reduce the expenditures of both parties in the handling of these accounts and give to the railroads money which is due and greatly needed. 31 'With very kindest regards, I beg to remain. 32 'Yours most cordially, 33 '(Signed) J. J. Pelley.' 1 Section 322 of the Transportation Act of September 18, 1940, 54 Stat. 955, 49 U.S.C. § 66, 49 U.S.C.A. § 66, provides as follows: 'Payment for transportation of the United States mail and of persons or property for or on behalf of the United States by any common carrier subject to the Interstate Commerce Act, as amended, or the Civil Aeronautics Act of 1938, shall be made upon presentation of bills therefor, prior to audit or settlement by the General Accounting Office, but the right is hereby reserved to the United States Government to deduct the amount of any overpayment to any such carrier from any amount subsequently found to be due such carrier.' 2 24 Stat. 505, as amended, 28 U.S.C. § 1346(a)(2), 28 U.S.C.A. § 1346(a) (2). 3 The Pleading is captioned 'Plaintiff's Answer to Defendant's Counterclaim.' 4 Government accounts generally are subject to audit prior to payment. 33 Op.Atty.Gen. 383. Prepayment examination of claims has statutory support in several statutes. See 55 Stat. 875, 31 U.S.C. § 82b, 31 U.S.C.A. § 82b; R.S. § 3620, 31 U.S.C. § 492, 31 U.S.C.A. § 492; R.S. § 3622, 31 U.S.C. § 496, 31 U.S.C.A. § 496; R.S. § 3623, 31 U.S.C. § 498, 31 U.S.C.A. § 498; R.S. § 3633, 31 U.S.C. § 514, 31 U.S.C.A. § 514; R.S. § 3648, 31 U.S.C. § 529, 31 U.S.C.A. § 529; 37 Stat. 375, as amended, 31 U.S.C. § 82, 31 U.S.C.A. § 82; 55 Stat. 875, 31 U.S.C. § 82c, 31 U.S.C.A. § 82c. The claimant must furnish proof satisfactorily establishing his claim. Charles v. United States, 19 Ct.Cl. 316. Doubtful accounts and claims are transmitted to the General Accounting Office for review. Section 1 of G.A.O. General Regulations No. 50, April 21, 1926, 4 CFR § 4.1. 5 The correctness of the 1944 bills turned on the determination of fact whether freight cars of the shorter lengths ordered by the United States were available when the initial carrier supplied cars of larger sizes. A wartime measure permitted the charging of the tariffs applicable to the cars furnished if the carrier could not supply cars of the sizes ordered. 1 Cir., 236 F.2d 101, 103. The General Accounting Office determined the overpayment on a finding that the documents showed that longer cars were furnished than were ordered. On the question of whether cars of the sizes ordered were available, the Government stated its position in answer to interrogations: 'Such information is peculiarly within the knowledge of plaintiff (respondent) and/or the initial carrier * * *.' The ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary. Cf. Selma, R. & D.R. Co. v. United States, 139 U.S. 560, 566, 1 S.Ct. 638, 640, 35 L.Ed. 266; United States v. Denver & R.G.R. Co., 191 U.S. 84, 91—92, 24 S.Ct. 33, 35, 48 L.Ed. 106. The position of the respondent herein is that the Government had all the information known to the carriers as to the availability of cars of the sizes ordered. 6 S. 3876, 75th Cong., 3d Sess., introduced April 20, 1938 (83 Cong.Rec. 5569). H.R. 10620, 75th Cong., 3d Sess., introduced May 12, 1938 (83 Cong.Rec. 6842). 7 See, e.g., S. 1915, 76th Cong., 1st Sess., introduced March 23, 1939 (84 Cong.Rec. 3143); S.1990, 76th Cong., 1st Sess., introduced March 30, 1939 (84 Cong.Rec. 3509). Section 1 of both of these bills dealt with the elimination of land-grant rates; § 2 with the payment of transportation bills upon presentation. H.R. 2531, 76th Cong., 1st Sess., introduced January 13, 1939 (84 Cong.Rec. 345); H.R. 4862, 76th Cong., 1st Sess., introduced March 8, 1939 (84 Cong.Rec. 2512). Section 501 of Title V of H.R. 2531 and §§ 201 and 202 of Title II of H.R. 4862 concerned government traffic. Their provisions were substantially the same as the provisions in S. 1915 and 1990. 8 H.R.Rep. No. 2016, 76th Cong., 3d Sess.; H.R.Rep. No. 2832, 76th Cong., 3d Sess. 9 The postpayment audit of transportation bills by the General Accounting Office has been a large-scale operation since enactment of § 322. For example, the Annual Report of the Comptroller General for the fiscal year ending June 30, 1951, pages 31—32, reports that: 'During the fiscal year 1951, there was examined and reviewed in the regular audit of freight transportation payments—exclusive of special cases—a total of 633,706 vouchers covering 2,569,198 bills of lading, paid in the sum of $350,341,941 as to which there were stated for issuance 25,591 notices of overpayment totaling $6,301,799. There was examined and reviewed in the audit of passenger transportation payments a total of 400,639 vouchers covering 2,917,633 transportation requests, paid in the sum of $91,380,604, as to which there were stated for issuance 11,015 notices of overpayment totaling $672,708.' A general practice of making refunds following determination of overpayments has apparently developed under § 322. A footnote to the Government's brief states: 'We are advised by the General Accounting Office that, during the fiscal year ending June 30, 1956, carriers refunded a total of $40,941,188.78. The amount deducted from subsequent bills during that same period totaled $11,155,837.72. During the preceding fiscal year, the total amount refunded was approximately two and one-half times the amount deducted.' 10 Hearings before the Committee on Interstate and Foreign Commerce of the House of Representatives on H.R. 10620, 75th Cong., 3d Sess., June 1, 1938, pp. 34—35. 11 The statute was broadened before final passage to apply to any common carrier subject to the Interstate Commerce Act, as amended, 49 U.S.C.A. § 1 et seq., or the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 401 et seq. See Hearings before the Committee on Interstate and Foreign Commerce of the House of Representatives on H.R. 2531, 76th Cong., 1st Sess., p. 472. 12 The private shipper must pay freight charges promptly and has no expressed right of offset of any overpayment against charges for other transportation services. 24 Stat. 380, as amended, 49 U.S.C. § 3(2), 49 U.S.C.A. § 3(2). A limited exception allows carriers to extend credit for a period of 96 hours to private shippers under prescribed conditions and limitations. Ex parte No. 73, 57 I.C.C. 591. 13 Compare the practice followed in the Court of Claims, which has concurrent jurisdiction with the District Court of actions under the Tucker Act. A 'Memorandum Order as to Procedure in Common Carrier Cases,' issued March 11, 1953, by the Court of Claims (now, with some amendments, included as Appendix B in the Rules of the Court of Claims, revised December 2, 1957), expressly defines the 'dispute' in cases of the instant kind, among others, brought in that court: 'The word 'dispute' * * * means the shipment or shipments with respect to which the General Accounting Office or other agency of the Government determined that the carrier's charges had been overpaid * * * rather than subsequent shipments which are not in dispute except for the fact that the overpayments determined as to the shipments in dispute have been deducted from the amount of the carrier's bills covering such subsequent shipments.' The memorandum prescribes a procedure for the framing of the issues arising from the 'dispute' as so defined. The carrier bringing the action must furnish a detailed schedule as to 'each of the carrier's bills for the shipments in dispute' and is required also to file, at the time of its petition or within 30 days thereafter, 'a request for admission by the defendant (United States) of the genuineness of any relevant documents described in and exhibited with the request and of the truth of the material matters of fact relied on by the carrier for recovery in the action.' The statements are expressly required to be 'sufficiently explicit to show the nature of the dispute and the specific reason or reasons why the plaintiff believes it is entitled to recover higher rates or charges than those allowed by the Government.' Failure to comply with the requirements of the memorandum may be cause for the imposition of sanctions, including dismissal of the carrier's petition. 14 But see Atlantic Coast Line R. Co. v. United States, Ct.Cl., 140 F.Supp. 569, 572. The Court of Claims there indicated that the burden would be on the United States which holding that the railroad had the duty to provide all the information it had on the issue of availability of cars.

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355 U.S. 220 78 S.Ct. 199 2 L.Ed.2d 223 Lulu B. McGEE, Petitioner,v.INTERNATIONAL LIFE INSURANCE COMPANY. No. 50. Argued Nov. 20, 1957. Decided Dec. 16, 1957. Mr. Arthur J. Mandell, Houston, Tex., for the petitioner. Mr. Stanley Hornsby, Austin, for the respondent. Opinion of the Court by Mr. Justice BLACK, announced by Mr. Justice DOUGLAS. 1 Petitioner, Lulu B. McGee, recovered a judgment in a California state court against respondent, International Life Insurance Company, on a contract of insurance. Respondent was not served with process in California but by registered mail at its principal place of business in Texas. The California court based its jurisdiction on a state statute which subjects foreign corporations to suit in California on insurance contracts with residents of that State even though such corporations cannot be served with process within its borders.1 2 Unable to collect the judgment in California petitioner went to Texas where she filed suit on the judgment in a Texas court. But the Texas courts refused to enforce her judgment holding it was void under the Fourteenth Amendment because service of process outside California could not give the courts of that State jurisdiction over respondent. 288 S.W.2d 579. Since the case raised important questions, not only to California but to other States which have similar laws, we granted certiorari. 352 U.S. 924, 77 S.Ct. 239, 1 L.Ed.2d 160. It is not controverted that if the California court properly exercised jurisdiction over respondent the Texas courts erred in refusing to give its judgment full faith and credit. 28 U.S.C. § 1738, 28 U.S.C.A. § 1738. 3 The material facts are relatively simple. In 1944, Lowell Franklin, a resident of California, purchased a life insurance policy from the Empire Mutual Insurance Company, an Arizona corporation. In 1948 the respondent agreed with Empire Mutual to assume its insurance obligations. Respondent then mailed a reinsurance certificate to Franklin in California offering to insure him in accordance with the terms of the policy he held with Empire Mutual. He accepted this offer and from that time until his death in 1950 paid premiums by mail from his California home to respondent's Texas office. Petitioner Franklin's mother, was the beneficiary under the policy. She sent proofs of his death to the respondent but it refused to pay claiming that he had committed suicide. It appears that neither Empire Mutual nor respondent has ever had any office or agent in California. And so far as the record before us shows, respondent has never solicited or done any insurance business in California apart from the policy involved here. 4 Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations. In a continuing process of evolution this Court accepted and then abandoned 'consent,' 'doing business,' and 'presence' as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, c. V. More recently in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the Court decided that 'due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice." Id., 326 U.S. at page 316, 66 S.Ct. at page 158. 5 Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity. 6 Turning to this case we think it apparent that the Due Process Clause did not preclude the California court from entering a judgment binding on respondent. It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. Cf. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Pennoyer v. Neff, 95 U.S. 714, 735, 24 L.Ed. 565.2 The contract was delivered in California, the premiums were mailed from there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable. When claims were small or moderate individual claimants freguently could not afford the cost of bringing an action in a foreign forum—thus in effect making the company judgment proof. Often the crucial witnesses—as here on the company's defense of suicide—will be found in the insured's locality. Of course there may be inconvenience to the insurer if it is held amenable to suit in California where it had this contract but certainly nothing which amounts to a denial of due process. Cf. Travelers Health Ass'n v. Commonwealth of Virginia ex rel. State Corporation Comm., 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154. There is no contention that respondent did not have adequate notice of the suit or sufficient time to prepare its defenses and appear. 7 The California statute became law in 1949, after respondent had entered into the agreement with Franklin to assume Empire Mutual's obligation to him. Respondent contends that application of the statute to this existing contract improperly impairs the obligation of the contract. We believe that contention is devoid of merit. The statute was remedial, in the purest sense of that term, and neither enlarged nor impaired respondent's substantive rights or obligations under the contract. It did nothing more than to provide petitioner with a California forum to enforce whatever substantive rights she might have against respondent. At the same time respondent was given a reasonable time to appear and defend on the merits after being notified of the suit. Under such circumstances it had no vested right not to be sued in California. Cf. Bernheimer v. Converse, 206 U.S. 516, 27 S.Ct. 755, 51 L.Ed. 1163; National Surety Co. v. Architectural Decorating Co., 226 U.S. 276, 33 S.Ct. 17, 57 L.Ed. 221; Funkhouser v. J. B. Preston Co., Inc., 290 U.S. 163, 54 S.Ct. 134, 78 L.Ed. 243. 8 The judgment is reversed and the cause is remanded to the Court of Civil Appeals of the State of Texas, First Supreme Judicial District, for further proceedings not inconsistent with this opinion. 9 It is so ordered. 10 Judgment reversed and cause remanded with directions. 11 The CHIEF JUSTICE took no part in the consideration or decision of this case. 1 Cal.Insurance Code, West's Anno. §§ 1610—1620. 2 And see Ace Grain Co. v. American Eagle Fire Ins. Co., D.C., 95 F.Supp. 784; Storey v. United Ins. Co., D.C., 64 F.Supp. 896; S. Howes Co., Inc. v. W.P. Milling Co., Okl., 277 P.2d 655; Compania de Astral, S.A. v. Boston Metals Co., 205 Md. 237, 107 A.2d 357, 108 A.2d 372, 49 A.L.R.2d 646, certiorari denied 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738; Zacharakis v. Bunker Hill Mut. Ins. Co., 281 App.Div. 487, 120 N.Y.S.2d 418; Smyth v. Twin State Improvement Co., 116 Vt. 569, 80 A.2d 664, 25 A.L.R.2d 1193.

34

355 U.S. 269 78 S.Ct. 327 2 L.Ed.2d 257 COMMONWEALTH OF VIRGINIA, plaintiff,v.STATE OF MARYLAND. No. 12, Original. Supreme Court of the United States December 16, 1957 Messrs. C. F. Hicks, Asst. Atty. Gen. of Virginia and Kenneth C. Patty, Atty. Gen., for plaintiff. Messrs. Joseph S. Kaufman, Asst. Atty. Gen. of Maryland and C. Ferdinand Sybert, Atty. Gen. (Mr. Edward S. Digges, Special Asst. Atty. Gen., on the brief), for defendant. On motion for leave to file bill of complaint. PER CURIAM. 1 The Court having heard oral argument by the Attorneys General of the States and having considered the printed briefs of counsel, the Court is of the opinion that the motion for leave to file the bill of complaint should be granted. The State of Maryland is directed to file an answer to the bill of complaint within 60 days and process is ordered to issue accordingly.

89

355 U.S. 184 78 S.Ct. 221 2 L.Ed.2d 199 Everett D. GREEN, Petitioner,v.UNITED STATES of America. No. 46. Reargued Oct. 16, 1957. Decided Dec. 16, 1957. Messrs. George Blow and George Rublee II, Washington, D.C., for petitioner. Mr. Leonard B. Sand, Washington, D.C., for respondent. Opinion of the Court by Mr. Justice BLACK announced by Mr. Justice DOUGLAS. 1 This case presents a serious question concerning the meaning and application of that provision of the Fifth Amendment to the Constitution which declares that no person shall 2 '* * * be subject for the same offence to be twice put in jeopardy of life or limb * * *.' 3 The petitioner, Everett Green, was indicted by a District of Columbia grand jury in two counts. The first charged that he had committed arson by maliciously setting fire to a house.1 The second accused him of causing the death of a woman by this alleged arson which if true amounted to murder in the first degree punishable by death.2 Green entered a plea of not guilty to both counts and the case was tried by a jury. After each side had presented its evidence the trial judge instructed the jury that it could find Green guilty of arson under the first count and of either (1) first degree murder or (2) second degree murder under the second count. The trial judge treated second degree murder, which is defined by the District Code as the killing of another with malice aforethought and is punishable by imprisonment for a term of years or for life,3 as an offense included within the language charging first degree murder in the second count of the indictment. 4 The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. Its verdict was silent on that charge. The trial judge accepted the verdict, entered the proper judgments and dismissed the jury. Green was sentenced to one to three years' imprisonment for arson and five to twenty years' imprisonment for murder in the second degree. He appealed the conviction of second degree murder. The Court of Appeals reversed that conviction because it was not supported by evidence and remanded the case for a new trial. 95 U.S.App.D.C. 45, 218 F.2d 856. 5 On remand Green was tried again for first degree murder under the original indictment. At the outset of this second trial he raised the defense of former jeopardy but the court overruled his plea. This time a new jury found him guilty of first degree murder and he was given the mandatory death sentence. Again he appealed. Sitting en banc, the Court of Appeals rejected his defense of former jeopardy, relying on Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, and affirmed the conviction. 98 U.S.App.D.C. 413, 236 F.2d 708. One judge concurred in the result, and three judges dissented expressing the view that Green had twice been placed in jeopardy in violation of the Constitution. We granted certiorari, 352 U.S. 915, 77 S.Ct. 217, 1 L.Ed.2d 122. Although Green raises a number of other contentions here we find it necessary to consider only his claim of former jeopardy. 6 The sonstitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. In his Commentaries, which greatly influenced the generation that adopted the Constitution, Blackstone recorded: 7 '* * * the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.'4 8 Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at page 169, 21 L.Ed. 872: 9 'The common law not only prohibited a second punishment for the same offence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.'5 10 The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. 11 In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant's jeopardy, and even when 'not followed by any judgment, is a bar to a subsequent prosecution for the same offence.' United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous. United States v. Ball, supra; Peters v. Hobby, 349 U.S. 331, 344—345, 75 S.Ct. 790, 796, 99 L.Ed. 1129. Cf. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445. 12 Moreover it is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge. This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; Kepner v. United States, 195 U.S. 100, 128, 24 S.Ct. 797, 804, 49 L.Ed. 114. In general see American Law Institute, Administration of The Criminal Law: Double Jeopardy 61—72 (1935). This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where 'unforeseeable circumstances * * * arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.' Wade v. Hunter, 336 U.S. 684, 688—689, 69 S.Ct. 834, 837, 93 L.Ed. 974. 13 At common law a convicted person could not obtain a new trial by appeal except in certain narrow instances.6 As this harsh rule was discarded courts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense.7 Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had 'waived' his plea of former jeopardy by asking that the conviction be set aside.8 Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final.9 But whatever the rationalization, this Court has also held that a defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. 14 In this case, however, we have a much different question. At Green's first trial the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought).10 The jury found him guilty of second degree murder, but on his appeal that conviction was reversed and the case remanded for a new trial. At this new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal.11 For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.12 15 Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder.13 But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974. In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: 'We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.' 16 After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsuccessful. 17 Nevertheless the Government contends that Green 'waived' his constitutional defense of former jeopardy to a second prosecution on the first degree murder charge by making a successful appeal of his improper conviction of second degree murder. We cannot accept this paradoxical contention. 'Waiver' is a vague term used for a great variety of purposes, good and bad, in the law. In any normal sense, however, it connotes some kind of voluntary knowing relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. When a man has been convicted of second degree murder and given a long term of imprisonment it is wholly fictional to say that he 'chooses' to forego his constitutional defense of former jeopardy on a charge of murder in the first degree in order to secure a reversal of an erroneous conviction of the lesser offense. In short, he has no meaningful choice. And as Mr. Justice Holmes observed, with regard to this same matter in Kepner v. United States, 195 U.S. 100, at page 135, 24 S.Ct. 797, at page 897, 49 L.Ed. 114: 'Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the law would deny to a prisoner the correction of a fatal error unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.' 18 It is true that in Kepner, a case arising in the Philippine Islands under a statutory prohibition against double jeopardy, Mr. Justice Holmes dissented from the Court's holding that the Government could not appeal an acquittal in a criminal prosecution. He argued that there was only one continuing jeopardy until the 'case' had finally been settled, appeal and all, without regard to how many times the defendant was tried, but that view was rejected by the Court. The position taken by the majority in Kepner is completely in accord with the deeply entrenched principle of our criminal law that once a person has been acquitted of an offense he cannot be prosecuted again on the same charge. This Court has uniformly adhered to that basic premise. For example, in United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, a unanimous Court held: 19 'The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting (the defendant) twice in jeopardy, and thereby violating the constitution.' 20 And see Peters v. Hobby, 349 U.S. 331, 344—345, 75 S.Ct. 790, 796—797, 99 L.Ed. 1129; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445. 21 Using reasoning which purports to be analogous to that expressed by Mr. Justice Holmes in Kepner, the Government alternatively argues that Green, by appealing, prolonged his original jeopardy so that when his conviction for second degree murder was reversed and the case remanded he could be tried again for first degree murder without placing him in new jeopardy. We believe this argument is also untenable. Whatever may be said for the notion of continuing jeopardy with regard to an offense when a defendant has been convicted of that offense and has secured reversal of the conviction by appeal, here Green was not convicted of first degree murder and that offense was not involved in his appeal. If Green had only appealed his conviction of arson and that conviction had been set aside surely no one would claim that he could have been tried a second time for first degree murder by reasoning that his initial jeopardy on that charge continued until every offense alleged in the indictment had been finally adjudicated. 22 Reduced to plain terms, the Government contends that in order to secure the reversal of an erroneous conviction of one offense, a defendant must surrender his valid defense of former jeopardy not only on that offense but also on a different offense for which he was not convicted and which was not involved in his appeal. Or stated in the terms of this case, he must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to five to twenty years' imprisonment. As the Court of Appeals said in its first opinion in this case, a defendant faced with such a 'choice' takes a 'desperate chance' in securing the reversal of the erroneous conviction. The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.14 23 The Government argues, however, that we should accept Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, as a conclusive precedent against Green's claim of former jeopardy.15 The Trono case arose in the Philippine Islands, shortly after they had been annexed by the United States, under a statutory prohibition against double jeopardy. At that time a sharphy divided Court took the view that not all constitutional guarantees were 'applicable' in the insular possessions, particularly where the imposition of these guarantees would disrupt established customs. Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088. In Trono the defendants had been charged with murder but were acquitted by the trial court which instead found them guilty of the lesser offense of assault. They appealed the assault conviction to the Philippine Supreme Court. That court, acting under peculiar local procedures modeled on pre-existing Spanish practices, which allowed it to review the facts and law and to substitute its findings for those of the trial judge, set aside their acquittal, found them guilty of murder and increased their sentences. 24 On review by this Court, Mr. Justice Peckham, writing for himself and three other Justices, took the position that by appealing the conviction for assault the defendants waived their plea of former jeopardy with regard to the charge of murder. He said: 25 'We do not agree to the view that the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment. * * * No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it * * * he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense * * *.' 199 U.S. at page 533, 26 S.Ct. at page 124. 26 Mr. Justice Holmes refused to join the Peckham opinion but concurred in the result. Just the year before, in Kepner v. United States, 195 U.S. 100, 135, 24 S.Ct. 797, 807, 49 L.Ed. 114, he had sharply denounced the notion of 'waiver' as indefensible. There is nothing which indicates that his views had changed in the meantime. As pointed out above, he did dissent from the holding in Kepner—that the Government could not appeal an acquittal—on the ground that a new trial after an appeal by the Government was part of a continuing jeopardy rather than a second jeopardy. But that contention has been consistently rejected by this Court. 27 Chief justice Fuller and Justices Harlan, White, and McKenna dissented in Trono. Mr. Justice McKenna wrote a dissent which was concurred in by Justices White and Harlan. During the course of this opinion he stated: 28 'It is, in effect, held that because the defendants * * * appealed and sought a review, as authorized by the statute, of the minor offense for which they were convicted, the United States was given the right to try them for the greater offense for which they were acquitted. * * * I think that the guaranties of constitutions and laws should not be so construed. * * * I submit that the state seeks no convictions except in legal ways, and because it does not it affords means of review of erroneous rulings and judgments, and freely affords such means. It does not clog them with conditions or forfeit by their exercise great and constitutional rights. * * * 29 '* * * Here and there may be found a decision which supports the exposition of once in jeopardy expressed in the (Peckham) opinion. Opposed to it is the general concensus of opinion of American text books on criminal law and the overwhelming weight of American decided cases.' 199 U.S. at pages 538—539, 540, 26 S.Ct. at page 125. 30 We do not believe that Trono should be extended beyond its peculiar factual setting to control the present case. All that was before the Court in Trono was a statutory provision against double jeopardy pertaining to the Philippine Islands—a territory just recently conquered with long-established legal procedures that were alien to the common law.16 Even then it seems apparent that a majority of the Court was unable to agree on any common ground for the conclusion that an appeal of a lesser offense destroyed a defense of former jeopardy on a greater offense for which the defendant had already been acquitted. As a matter of fact, it appears that each of the rationalizations advanced to justify this result was rejected by a majority of the Court. As Mr. Justice Holmes, who concurred in the result, effectively demonstrated, the 'waiver theory' is totally unsound and indefensible. On the other hand Mr. Justice Holmes' theory of continuing jeopardy has never outwardly been adhered to by any other Justice of this Court.17 31 We believe that if either of the rationales offered to support the Trono result were adopted here it would unduly impair the constitutional prohibition against double jeopardy. The right not to be placed in jeopardy more than once for the same offense is a vital safeguard in our society, one that was dearly won and one that should continue to be highly valued. If such great constitutional protections are given a narrow, grudging application they are deprived of much of their significance. We do not feel that Trono or any other decision by this Court compels us to forego the conclusion that the second trial of Green for first degree murder was contrary to both the letter and spirit of the Fifth Amendment. 32 Reversed. 33 Mr. Justice FRANKFURTER, whom Mr. Justice BURTON, Mr. Justice CLARK and Mr. Justice HARLAN join, dissenting. 34 On the basis of the following facts the Court has concluded that petitioner has twice been put in jeopardy of life in violation of the Fifth Amendment to the Constitution.1 35 Petitioner was tried under an indictment on two counts. The first count charged arson under D.C.Code, 1951, § 22—401. The second count charged murder in the first degree under D.C.Code, 1951, § 22—2401, in that in perpetrating the arson petitioner had caused the death of one Bettie Brown. In submitting the case to the jury under the second count, the trial court instructed on both first and second degree murder. The jury returned a verdict finding petitioner guilty of arson under the first count and of second degree murder under the second count; the verdict was silent on the charge of first degree murder. The court entered judgment on the verdict, and sentenced petitioner to terms of imprisonment of one to three years on the first count of the indictment and five to twenty years on the second count. 36 Petitioner appealed his conviction of second degree murder, contending that there was no evidence to suport a verdict for that offense. The Court of Appeals sustained this claim. It reversed the conviction and ordered a new trial on the ground that, since there was no basis in the evidence for finding petitioner guilty of murder in the second degree, it was error to instruct the jury on that issue. 95 U.S.App.D.C. 45, 218 F.2d 856.2 Petitioner was retried on the second count of the indictment, convicted of first degree murder, and sentenced to death. The Court of Appeals, the nine judges sitting en banc, affirmed this conviction, rejecting petitioner's contention that he had been put twice in jeopardy of his life in violation of the Federal Constitution, 98 U.S.App.D.C. 413, 236 F.2d 708, Chief Judge Edgerton and Judges Bazelon and Fahy dissenting. 37 Since the prohibition in the Constitution against double jeopardy is derived from history, its significance and scope must be determined, 'not simply by taking the words and a dictionary, but by considering (its) origin and the line of (its) growth.' Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115. 38 The origin of this constitutional protection is found in the common-law pleas of autrefois acquit and autrefois convict. In Vaux's Case, 4 Co.Rep. 44a, 45a, it was accepted as established that 'the life of a man shall not be twice put in jeopardy for one and the same offence, and that is the reason and cause that auterfoits acquitted or convicted of the same offence is a good plea * * *.' Likewise Blackstone stated that 'the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offense. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.' 4 Bl.Comm. 335. To try again one who had been previously convicted or acquitted of the same offense was 'abhorrent to the law of England.' Regina v. Tancock, 13 Cox C.C. 217, 220; see The King v. Emden, 9 East 437, 445—447. 39 A principle so deeply rooted in the law of England, as an indispensable requirement of a civilized criminal procedure, was inevitably part of the legal tradition of the English Colonists in America. The Massachusetts Body of Liberties of 1641, an early compilation of principles drawn from the statutes and common law of England, declared that, 'No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse,' and that 'Everie Action betweene partie and partie, and proceedings against delinquents in Criminal causes shall be briefly and destinctly entered on the Rolles of every Court by the Recorder thereof. That such actions be not afterwards brought againe to the vexation of any man.' Colonial Laws of Massachusetts 43, 47. 40 Thus the First Congress, which proposed the Bill of Rights, came to its task with a tradition against double jeopardy founded both on ancient precedents in the English law and on legislation that had grown out of colonial experience and necessities. The need for the principle's general protection was undisputed, though its scope was not clearly defined. Fear of the power of the newly established Federal Government required 'an explicit avowal in (the Constitution) * * * of some of the plainest and best established principles in relation to the rights of the citizens, and the rules of the common law.' People v. Goodwin, 18 Johns., N.Y., 187, 202. Although many States in ratifying the Constitution had proposed amendments considered indispensable to secure the rights of the citizen against the Federal Government, New York alone proposed a prohibition against double jeopardy. This is not surprising in view of the fact that only in New Hampshire had the common-law principle been embodied in a constitutional provision. 2 Poore, Federal and State Constitutions, Colonial Charters and other Organic Laws (2d ed.), 1282. The bill of rights adopted by the New York convention, and transmitted to Congress with its ratification of the Constitution, included a declaration that, 'no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.' Documents Illustrative of the Formation of the Union, H.R.Doc. No. 398, 69th Cong., 1st Sess. 1035. This declaration was doubtless before Madison when he drafted the constitutional amendments to be proposed to the States. 41 The terms in which Madison introduced into the House what became the specific provision that is our present concern were these: 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence * * *.' 1 Annals of Cong. 434. Debate on this provision in the Committee of the Whole evidenced a concern that the language should express what the members understood to be the established common-law principle. There was fear that as proposed by Madison, it might be taken to prohibit a second trial even when sought by a defendant who had been convicted. Representative Benson of New York objected to the provision because he presumed it was meant to express the established principle 'that no man's life should be more than once put in jeopardy for the same offence; yet it was well known, that they were entitled to more than one trial.' 1 Annals of Cong. 753. Others who spoke agreed that although of course there could be no second trial following an acquittal, the prohibition should not extend to a second trial when a conviction had been set aside. The provision as amended by the Senate, S.J., 1st Cong., 1st Sess. 77, and eventually ratified as part of the Fifth Amendment to the Constitution, was substantially in the language used by Representative Benson to express his understanding of the common law. 42 The question that had concerned the House in debating Madison's proposal, the relation between the prohibition against double jeopardy and the power to order a new trial following conviction, was considered at length by Mr. Justice Story on circuit in United States v. Gibert, 1834, 25 Fed.Cas. pages 1287, 1294—1303, No. 15,204. The defendants in that case had been found guilty of robbery on the high seas, a capital offense, and moved for a new trial. Mr. Justice Story, after full consideration of the English and American authorities, concluded that the court had no power to grant a new trial when the first trial had been duly had on a valid indictment before a court of competent jurisdiction. According to his view, the prohibition against double jeopardy applied equally whether the defendant had been acquitted or convicted, and there was no exception for a case where the new trial was sought by the defendant for his own benefit. Earlier, Mr. Justice Story had himself taken a non-literal view of the constitutional provision in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165, where, writing for the Court, he found that discharge of a jury that had failed to agree was no bar to a second trial. See also 3 Story, Commentaries on The Constitution (1833), 659—660. 43 Story's conclusion that English law prohibited, except in rate instances, granting a new trial after conviction of a felony was undoubtedly correct, see The King v. Mawbey, 6 T.R. 619, 638, and on occasion this result has been expressly made to depend on the maxim prohibiting double jeopardy. The Queen v. Murphy, 2 L.R.P.C. 535, 547—548; see The Attorney-General v. Bertrand, 1 L.R.P.C. 520, 531—534; but see The Queen v. Scaife, 17 Q.B. 238. To this day the Court of Criminal Appeals has ordinarily no power to order a new trial even after quashing a conviction on appeal by the defendant, Criminal Appeal Act, 7 Edw. VII, c. 23, s. 4(2), and repeated efforts to secure this power for the Court have met with the argument that a new trial would, at least in spirit, offend the principle that a defendant may not be put twice in jeopardy for the same offense. See 176 H.L.Deb. (5th ser. 1952) 759—763. 44 The old practice of the English courts, and the position taken by Mr. Justice Story, however, was generally rejected in the United States. The power to grant a new trial in the most serious cases appears to have been exercised by many American courts from an early date in spite of provisions against double jeopardy. United States v. Fries, 3 Dall. 515, 1 L.Ed. 701 (treason); see People v. Morrison, 1 Parker Cr.R., N.Y., 625, 626—643 (rape). In United States v. Keen, 26 Fed.Cas. pages 686, 687—670, No. 15,510, a decision rendered only five years after United States v. Gibert, Mr. Justice McLean, on circuit, vigorously rejected the view that the constitutional provision prohibited a new trial on the defendant's motion after a conviction, or that it 'guarantees to him the right of being hung, to protect him from the danger of a second trial.' See 26 Fed.Cas. at page 690. Other federal courts that had occasion to consider the question also rejected Mr. Justice Story's position, see United States v. Williams, 28 Fed.Cas. pages 636, 641, No. 16,707; United States v. Harding, 26 Fed.Cas. pages 131, 136—138, No. 15,301, and statements by Court cast serious doubt on its validity. See Ex parte Lange, 18 Wall. 163, 173—174, 21 L.Ed. 872, and Mr. Justice Clifford dissenting at pages 201—204. In Hopt v. Utah, 104 U.S. 631, 26 L.Ed. 873; 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; 114 U.S. 488, 5 S.Ct. 972, 29 L.Ed. 183; 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708, the defendant was in fact retried three times following reversals of his convictions. 45 Finally, United States v. Ball, 163 U.S. 662—671, 16 S.Ct. 1192—1195, 41 L.Ed. 300, expressly rejected the view that the double jeopardy provision prevented a second trial when a conviction had been set aside. Two of the defendants in the case had been convicted of murder, and on writ of error the judgments were reversed with directions to quash the indictment. The same defendants were then convicted on a new indictment. In affirming these convictions the Court said, 'it is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted.' 163 U.S. at page 672, 16 S.Ct. at page 1195. On a literal reading of the constitutional provision, with an eye exclusively to the interests of the defendants, they had been 'once in jeopardy,' and were entitled to the benefit of a reversal of their convictions without the hazard of a new trial. The Court recognized, however, that such a wooden interpretation would distort the purposes of the constitutional provision to the prejudice of society's ligitimate interest in convicting the guilty as much as, in United States v. Gibert, they had been distorted to the prejudice of the defendants. See also Murphy v. Commonwealth of Massachusetts, 177 U.S. 155, 158—160, 20 S.Ct. 639, 640—641, 44 L.Ed. 711. 46 The precise question now here first came before a federal court in United States v. Harding, 26 Fed.Cas. page 131, No. 15,301. There three defendants had been jointly indicted and tried for murder. One was convicted of murder and two of manslaughter, and all moved for a new trial. A new trial was ordered for the defendant convicted of murder, and as to the other two defendants the case was continued to allow them to decide whether they would take a new trial or abide by their convictions. Mr. Justice Grier warned these defendants: 47 'You ought clearly to understand and weigh well the position in which you now stand. You have been once tried and acquitted of the higher grade of offence charged against you in this indictment, the penalty affixed to which is death; but * * * you have (escaped). * * * But let me now solemnly warn you to consider well the choice you shall make. Another jury instead of acquitting you altogether, may find you guilty of the whole indictment, and thus your lives may become forfeit to the law.' 26 Fed.Cas. at page 138. 48 In thus assuming that the defendants could be retried for the greater offense of murder without violating the prohibition against double jeopardy, Mr. Justice Grier evidently drew upon a familiar background and what he took to be established practice in the federal courts. To one versed in these traditions, the choice to which the defendants were put in abiding by their convictions or obtaining a new trial, on which the entire question of their guilt would be open to re-examination, seemed legally speaking a matter of course. 49 Not until Trono v. United States, 1905, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, more than fifty years after the Harding case, did the question that had there been passed upon by Mr. Justice Grier first come before this Court. Trono v. United States came here from the Philippine Islands. The plaintiffs in error had been proceeded against in a court of first instance on a complaint accusing them of murder in the first degree. They were acquitted of this charge, but convicted of the included offense of assault. They appealed to the Supreme Court of the Philippines, and that court, exercising a jurisdiction similar to that conferred by Spanish law on the former Audiencia to review the whole case both on the facts and the law, reversed the judgment of the court of first instance, convicted the plaintiffs in error of the crime of 'homicide,' or murder in the second degree, and increased the punishment imposed by the court of first instance. The plaintiffs in error then sought review by this Court, claiming that the action of the Supreme Court of the Philippines had placed them twice in jeopardy in contravention of the declaration of rights contained in § 5 of the Act of July 1, 1902, for the Government of the Philippines. The provision in the statute relied on by the plaintiffs in error declared that, 'no person for the same offense shall be twice put in jeopardy of punishment * * *.' 32 Stat. 692. This language, it will be noted, is substantially identical with that in the Fifth Amendment to the Constitution, upon which petitioner in the present case relies. Its legal relation to the Fifth Amendment calls for later consideration. 50 This Court affirmed the judgment of the Supreme Court of the Philippines, holding that since the plaintiffs in error had appealed their convictions of the lower offense in order to secure a reversal, there was no bar to convicting them of the higher offense in proceedings in the appellate court that were tantamount to a new trial. After canvassing state and federal precedents, Mr. Justice Peckham concluded that, 'the better doctrine is that which does not limit the court or jury, upon a new trial to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy, and acts upon the original judgment as if it had never been.' 199 U.S. at page 533, 26 S.Ct. at page 124. It was pointed out that in permitting retrial for the greater offense the Court only applied the principle laid down in United States v. Ball, supra, and that the result was justified not only on the theory that the accused had 'waived' their right not to be retried, but also on the ground that, 'the constitutional provision was really never intended to, and, properly construed, does not, cover the case of a judgment under these circumstances, which has been annulled by the court at the request of the accused * * *.' 199 U.S. at page 534, 26 S.Ct. at page 124. 51 The Court in Trono left no doubt that its decision did not turn on any surviving peculiarities of Spanish procedure, or on the fact that the plaintiffs in error relied on a statutory provision rather than on the Fifth Amendment itself. 'We may regard the question as thus presented,' stated Mr. Justice Peckham, 'as the same as if it arose in one of the Federal courts in this country, where, upon an indictment for a greater offense, the jury had found the accused not guilty of that offense, but guilty of a lower one which was included in it, and upon an appeal from that judgment by the accused, a new trial had been granted by the appellate court, and the question was whether, upon the new trial accorded, the accused could be again tried for the greater offense * * *.' 199 U.S. at page 530, 26 S.Ct. at page 123. The dissenters did not dispute this view of the case, but on the contrary were concerned with the Court's holding precisely because of its constitutional implications. Mr. Justice Harlan adhered to the view he had taken in earlier cases that the Bill of Rights applied to the Islands, and Mr. Justice McKenna in the principal dissent observed that, 'Let it be remembered that we are dealing with a great right, I may even say a constitutional right, for the opinion of the court discusses the case as though it were from a circuit court of the United States.' 199 U.S. at page 539, 26 S.Ct. at page 125. 52 The scope and significance of the Trono case is underscored by the Court's decision in Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114, rendered only a year before. That case also arose in the Philippine Islands. The plaintiff in error had been acquitted by the court of first instance of the offense with which he was charged. On appeal by the Government to the Supreme Court of the Islands, the judgment was reversed and the plaintiff in error convicted. In this Court both the Attorney General for the Philippines and the Solicitor General of the United States contended that § 5 of the Act of July 1, 1902, which included the same prohibition against double jeopardy involved in the Trono case, should be construed in the light of the system of law prevailing in the Philippines before they were ceded to the United States. Brief for the Attorney General of the Philippines, pp. 6 16, 29—38; Brief for the Solicitor General, pp. 34—44. Under that jurisprudence, proceedings in the Supreme Court, or Audiencia, were regarded not as a new trial but as an extension of preliminary proceedings in the court of first instance. The entire proceedings constituted one continuous trial, and the jeopardy that attached in the court of first instance did not terminate until final judgment had been rendered by the Audiencia. 53 The Court rejected the Government's contention and held that the proceedings after acquittal had placed the accused twice in jeopardy. Whatever the Spanish tradition, the purpose of Congress was 'to carry some, at least, of the essential principles of American constitutional jurisprudence to these islands, and to engraft them upon the law of this people, newly subject to our jurisdiction.' 'This case does not * * * require determination of the question whether the jeopardy clause (of the Fifth Amendment) became the law of the islands * * * without Congressional action, as the act of Congress made it the law of these possessions when the accused was tried and convicted.' 195 U.S. at pages 121—122, 125, 24 S.Ct. at page 801. The Court also rejected the suggestion that the rights enumerated in the Act of Congress could have been used 'in any other sense than that which has been placed upon them in construing the instrument from which they were taken * * *.' 195 U.S., at page 124, 24 S.Ct. at page 802. Mr. Justice Holmes, dissenting, found the case 'of great importance, not only in its immediate bearing upon the administration of justice in the Philippines, but, since the words used in the Act of Congress are also in the Constitution, even more because the decision necessarily will carry with it an interpretation of the latter instrument.' 195 U.S. at page 134, 24 S.Ct. at page 806. 54 The legislative history of the Philippine Bill of Rights, § 5 of the Act of July 1, 1902, made inevitable the Court's conclusion that by its enactment Congress extended to the Islands the double jeopardy provision of the Fifth Amendment, notwithstanding surviving Spanish procedures, so that the Court should construe the statute as it would the constitutional provision itself. President McKinley, in his famous instructions to the Philippine Commission, dated April 7, 1900, drawn by a leader of the American Bar, Secretary of War Elihu Root, had stated that 55 'the Commission should bear in mind, and the people of the Islands should be made plainly to understand, that there are certain great principles of government which have been made the basis of our governmental system, which we deem essential to the rule of law and the maintenance of individual freedom, and of which they have, unfortunately, been denied the experience possessed by us; that there are also certain practical rules of government which we have found to be essential to the preservation of these great principles of liberty and law, and that these principles and these rules of government must be established and maintained in their islands for the aske of their liberty and happiness, however, much they may conflict with the customs or laws of procedure with which they are familiar. It is evident that the most enlightened thought of the Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably within a short time command universal assent. Upon every division and branch of the Government of the Philippines, therefore, must be imposed these inviolable rules: 56 'That no person shall be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without just compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice in jeopardy for the same offense * * *.' 1 Public Laws of the Philippine Commission, p. LXVI.3 57 As the Court pointed out, 'These principles were not taken from the Spanish law; they were carefully collated from our own Constitution, and embody almost verbatim the safeguards of that instrument for the protection of life and liberty.' 195 U.S. at page 124, 24 S.Ct. at page 802. In the Act of July 1, 1902, Congress adopted, almost in the language of the President's instructions, the fundamental provisions he considered must be engrafted onto Philippine law, and the historical context in which Congress acted leaves no doubt that it was also actuated by the Same purpose as the President to extend to the Philippines 'certain great principles of government which have been made the basis of our governmental system * * *.' 1 Public Laws of the Philippine Commission, p. LXVI. In the double jeopardy provision of § 5 Congress did not fashion a novel principle specially adapted to Philippine conditions and different from what was familiar to American constitutional thought. On the contrary, it extended over those newly subject to our jurisdiction the specific command of the Fifth Amendment, as construed and developed in the decisions of this Court. The Court in Kepner and Trono cases, therefore, following the statutory language itself, emphasized by its legislative history, construed the double jeopardy provision of § 5 as though it were construing the same provision in the United States Constitution. See also Weems v. United States, 217 U.S. 349, 367 368, 30 S.Ct. 544, 549, 54 L.Ed. 793. The background of these decisions, and the expressed understanding of the Court on the nature and scope of the provision construed, make them direct authority in all cases arising under the double jeopardy provision of the Fifth Amendment. 58 The decision in Trono was emphatically a decision of the Court. Although Mr. Justice Holmes concurred in the result only, and not in the opinion of Mr. Justice Peckham, there can be no doubt of where he stood. He had dissented in the Kepner case on the ground that trial and retrial constituted one procedure entailing one continuous jeopardy, and that there could be no second jeopardy until a conviction or acquittal free from legal error had been obtained. He was dissatisfied with the opinion of Mr. Justice Peckham in the Trono case, therefore, not remotely because it upheld the accused's conviction of the greater offense, but because it did not go further and adopt the continuing jeopardy theory Mr. Justice Holmes had espoused in the Kepner case. It there was no double jeopardy for him when the Government appealed an acquittal, obviously there was none when the defendant appealed a conviction. Indeed, in Kepner he explicitly stated that he considered state cases that held the defendant could not be retried for the greater offense to be wrong. 59 Many statements by this Court since Trono show that the principle of that case cannot in all good conscience be rested on the criminal procedure of the Philippine Islands, but on a construction of the Fifth Amendment itself and as such binding on the entire federal judiciary. In Burton v. United States, 202 U.S. 344, 378, 26 S.Ct. 688, 697, 50 L.Ed. 1057, a case arising in the continental United States, the Court referred to the principle established by the Trono decision without any suggestion that it was confined to cases arising in the Philippines. In Brantley v. State of Georgia, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768, the defendant was convicted of manslaughter under an indictment for murder. On appeal to the State Court of Appeals, the conviction was reversed and the defendant retried and convicted of murder. Although the case concerned the Due Process Clause, the Court comprehensively stated that this 'was not a case of twice in jeopardy under any view of the Constitution of the United States.' 217 U.S. at page 285, 30 S.Ct. at page 515. 60 Of special relevance is Stroud v. United States, 251 U.S. 15, 17—18, 40 S.Ct. 50, 51, 64 L.Ed. 103. In that case the defendant was indicted for murder, and the jury returned a verdict of 'guilty as charged in the indictment without capital punishment.' The judgment was reversed and a new trial had on which the defendant was again found guilty of murder, but without a recommendation against capital punishment. He was then sentenced to death. This Court expressly relied on Trono in affirming the judgment and rejecting the contention that the imposition of a greater punishment had placed the defendant twice in jeopardy. As a practical matter and on any basis of human values, it is scarcely possible to distinguish a case in which the defendant is convicted of a greater offense from one in which he is convicted of an offense that has the same name as that of which he was previously convicted but carries a significantly different punishment, namely death rather than imprisonment. 61 Whatever formal disclaimers may be made, neither Trono itself nor the reliance placed upon it for more than half a century permits any other conclusion than that the Court today overrules that decision. It does so, furthermore, in a case where the defendant's position is far less persuasive than it was in Trono. There the plaintiffs in error had been expressly acquitted of the greater offense, whereas in the present case petitioner relies on an 'implied acquittal' based on his conviction of the lesser offense of second degree murder and the jury's silence on the greater offense. Surely the silence of the jury is not, contrary to the Court's suggestion, to be interpreted as an express finding that the defendant is not guilty of the greater offense. All that can with confidence be said is that the jury was in fact silent. Every trial lawyer and every trial judge knows that jury verdicts are not logical products, and are due to considerations that preclude accurate guessing or logical deduction. Insofar as state cases speak of the jury's silence as an 'acquittal,' they give a fictional description of a legal result: that when a defendant is found guilty of a lesser offense under an indictment charging a more serious one, and he is content to accept this conviction, the State may not again prosecute him for the greater offense. A very different situation is presented, with considerations persuasive of a different legal result, when the defendant is not content with his conviction, but appeals and obtains a reversal. Due regard for these additional considerations is not met by stating, as though it were a self-evident proposition, that the jury's silence has, for all purposes, 'acquitted' the defendant. 62 Moreover, the error of the District Court, which was the basis for petitioner's appeal from his first conviction, was of a kind peculiarly likely to raise doubts that the jury on the first trial had made a considered determination of petitioner's innocence of first degree murder. By instructing on second degree murder when the evidence did not warrant a finding of such an offense, the court gave the jury an opportunity for compromise and lenity that should not have been available. The fact of the matter is that by finding petitioner guilty of arson under count one of the indictment, and of second degree murder under count two, the jury found him guilty of all the elements necessary to convict him of the first degree felony murder with which he was charged, but the judge's erroneous instruction permitted the jury, for its own undisclosed reason, to render an irrational verdict. 63 We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us. The question in the present case is effectively indistinguishable from that in Trono. Furthermore, we are not here called upon to weigh considerations generated by changing concepts as to minimum standards of fairness, which interpretation of the Due Process Clause inevitably requires. Instead, the defense of double jeopardy is involved, whose contours are the product of history. In this situation the passage of time is not enough, and the cnviction borne to the mind of the rightness of an overturning decision must surely be of a highly compelling quality to justify overruling a well-established precedent when we are presented with no considerations fairly deemed to have been wanting to those who preceded us. Whatever might have been the allowable result if the question of retrying a defendant for the greater offense were here for the first time, to fashion a policy in favorem vitae, it is foreclosed by the decision in Trono v. United States. 64 Even if the question were here for the first time, we would not be justified in erecting the holding of the present case as a constitutional rule. Yet the opinion of the Court treats the question, not as one within our supervisory jurisdiction over federal criminal procedure, but as a question answered by the Fifth Amendment itself, and which therefore even Congress cannot undertake to affect. 65 Such an approach misconceives the purposes of the double jeopardy provision, and without warrant from the Constitution makes an absolute of the interests of the accused in disregard of the interests of society. In Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 153, 82 L.ed. 288, we held that a State could permit the prosecution to appeal a conviction of second degree murder and on retrial secure a conviction of first degree murder without violating any 'fundamental principles of liberty and justice.' Since the State's interest in obtaining a trial 'free from the corrosion of substantial legal error' was sufficient to sustain the conviction of the greater offense after an appeal by the State, it would of course sustain such a conviction if the defendant had himself appealed. Although this case defined conduct permissible under the Due Process Clause of the Fourteenth Amendment, it cannot wisely be ignored in tracting the constitutional limits imposed on the Federal Government. Nor should we ignore the fact that a substantial body of opinion in the States permits what today the Court condemns as violative of a 'vital safeguard in our society.'4 The Court restricts Congress within limits that in the experience of many jurisdictions are not a part of the protection against double jeopardy or required by its underlying purpose, and have not been imposed upon the States in the exercise of their governmental poewrs. 66 Undeniably the framers of the Bill of Rights were concerned to protect defendants from oppression and from efforts to secure, through the callousness of repeated prosecutions, convictions for whose justice no man could vouch. On the other hand, they were also aware of the countervailing interest in the vindication of criminal justice, which sets outer limits to the protections for those accused of crimes. Thus if a defendant appeals his conviction and obtains a reversal, all agree, certainly in this country, that he may be retried for the same offense. The reason is, obviously, not that the defendant has consented to the second trial—he would much prefer that the conviction be set aside and no further proceedings had—but that the continuation of the proceedings by an appeal, together with the reversal of the conviction, are sufficient to permit a re-examination of the issue of the defendant's guilt without doing violence to the purposes behind the Double Jeopardy Clause. The balance represented by that clause leaves free another appeal to law. Since the propriety of the original proceedings has been called in question by the defendant, a complete re-examination of the issues in dispute is appropriate and not unjust. In the circumstances of the present case, likewise, the reversal of petitioner's conviction was a sufficient reason to justify a complete new trial in order that both parties might have one free from errors claimed to be prejudicial. As Mr. Justice Peckham pointed out in Trono, 'the constitutional provision was really never intended to, and, properly construed, does not, cover the case of a judgment under these circumstances, which has been annulled by the court at the request of the accused * * *.' 199 U.S. at page 534, 26 S.Ct. at page 124. 67 I would affirm the judgment. 1 D.C.Code, 1951, § 22—401. 2 D.C.Code, 1951, § 22—2401. 'Whoever, being of sound memory and discretion * * * without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22—401 * * * is guilty of murder in the first degree.' Section 22—2404 provides that the 'punishment of murder in the first degree shall be death by electrocution.' 3 D.C.Code, 1951, § 22—2403. 'Whoever with malice aforethought, except as provided in (s) 22—2401 * * * kills another, is guilty of murder in the second degree.' § 22—2404. 'The punishment of murder in the second degree shall be imprisonment for life, or for not less than twenty years.' 4 4 Blackstone's Commentaries 335. 5 And see United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300: 'The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.' 6 See 1 Stephen, History of the Criminal Law of England, c.x; United States v. Gibert, 25 Fed.Cas. page 1287, No. 15,204. 7 Under English law the appellate court has no power to order a new trial after any appeal except in certain cases where the first trial was a complete 'nullity,' as for example when the trial court was without jurisdiction over the person or subject matter. See 4 Stephen, Commentaries on the Laws of England (21st ed. 1950), 284. The English appellate court does have power to substitute a finding of guilt of a lesser offense if the evidence warrants, but it cannot find the defendant guilty of an offense for which he was acquitted or increase his sentence. See 10 Halsbury, Laws of England (Simonds ed. 1955), 539—541, and the cases cited there. 8 See, e.g., Brewster v. Swope, 9 Cir., 180 F.2d 984; State v. McCord, 8 Kan. 232, 12 Am.Rep. 469; Cross v. Commonwealth, 195 Va. 62, 77 S.E.2d 447; Smith v. State, 196 Wis. 102, 219 N.W. 270. 9 See, e.g., State v. Aus, 105 Mont. 82, 69 P.2d 584. Cf. Griffin v. People of State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891. 10 In substance the situation was the same as though Green had been charged with these different offenses in separate but alternative counts of the indictment. The constitutional issues at stake here should not turn on the fact that both offenses were charged to the jury under one count. 11 It should be noted that Green's claim of former jeopardy is not based on his previous conviction for second degree murder but instead on the original jury's refusal to convict him of first degree murder. 12 Many of the state courts which have considered the problem have concluded that under circumstances similar to those of this case a defendant cannot be tried a second time for first degree murder. Other state cases take a contrary position. In general see the Annotations at 59 A.L.R. 1160, 22 L.R.A.,N.S., 959, and 5 L.R.A.,N.S., 571. Of course, many of the state decisions rest on local constitutional or statutory provisions. 13 See cases collected in the Annotations cited in n. 12, supra, and the Annotation at 114 A.L.R. 1406. 14 The suggestion is made that under the District Code second degree murder is not an offense included in a charge of first degree murder for causing a death in the course of perpetrating a felony (commonly referred to as 'felony murder') because it involves elements different from those necessary to establish the felony murder, and that therefore Green could not legally have been convicted of second degree murder under the indictment. We fail to comprehand how this suggestion aids the Government. In the first place, the District of Columbia Court of Appeals has expressly held that second degree murder is a lesser offense which can be proved under a charge of felony murder. Goodall v. United States, 86 U.S.App.D.C. 148, 180 F.2d 397, 17 A.L.R.2d 1070; Green v. United States, 95 U.S.App.D.C. 45, 218 F.2d 856. Even more important, Green's plea of former jeopardy does not rest on his conviction for second degree murder but instead on the first jury's refusal to find him guilty of felony murder. It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense. If anything, the fact that it cannot be classified as 'a lesser included offense' under the charge of felony murder buttresses our conclusion that Green was unconstitutionally twice placed in jeopardy. American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has been found guilty on one but not on the second he cannot be tried again on the second even though he secures reversal of the conviction and even though the two offenses are related offenses charged in the same indictment. See, e.g., Annotation, 114 A.L.R. 1406. 15 With the exception of Trono, the Government appears to concede in its brief, pp. 38—39, that the double jeopardy problem raised in this case has not been squarely before this Court. Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Brantley v. State of Georgia, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768, and Kring v. State of Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, are not controlling here since they involved trials in state courts. Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, is clearly distinguishable. In that case a defendant was retried for first degree murder after he had successfully asked an appellate court to set aside a prior conviction for that same offense. 16 In the course of his opinion Mr. Justice Peckham made some general observations to the effect that he regarded the statutory provision as having the same effect as the Fifth Amendment. Those remarks were not essential to the decision so that even if they had been accepted by the full Court they would not be conclusive in this case where the interpretation of the Fifth Amendment is necessarily decisive. Cf. Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257; Humphrey's Executor v. United States, 295 U.S. 602, 626—627, 55 S.Ct. 869, 873, 79 L.Ed. 1611. 17 Mr. Justice White and Mr. Justice McKenna who dissented with Mr. Justice Holmes in Kepner refused to agree with the Court in Trono. In his dissent in the latter case Mr. Justice McKenna attributed his vote in Kepner to the fact that the Philippine Islands had a system of jurisprudence which was totally different from ours in that it provided no trial by jury and traditionally had permitted appellate courts to review both the law and the facts in criminal cases and to substitute their findings for those made by the trial judge. Justice Peckham, in his opinion, also recognized the peculiar nature of these Phillippine procedures. 1 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *.' 2 In reversing petitioner's conviction the court observed that: 'In seeking a new trial at which—if the evidence is substantially as before—the jury would have no choice except to find him guilty of first degree murder or to acquit him, Green is manifestly taking a desperate chance. He may suffer the death penalty. At oral argument we inquired of his counsel whether Green clearly understood the possible consequence of success on this appeal, and were told the appellant, who is 64 years of age, says he prefers death to spending the rest of his life in prison. He is entitled to a new trial.' 95 U.S.App.D.C. 45, 48, 218 F.2d 856, 859. 3 These instructions were drawn up for the guidance of the commission headed by William Howard Taft. In 1912, W. Cameron Forbes, then Governor General of the Philippines, asked Taft 'what the history of the formation of the Philippine policy was, who it was that had written the instructions by President McKinley to the Taft Commission. He informed me that this was the work of Secretary Root, who wrote the letter of instructions, after which he had read them over to him (Judge Taft) and other members of his Commission, and that some suggestions and modifications were made but that the main work was intact.' 1 Forbes, The Philippine Islands, 130, n. 2. In an address in 1913, Taft stated that the instructions 'had a conspicuous place in the history of our relations to the Philippines, and a Congressional indorsement, given to but few documents in the whole history of our country. It secured to the Philippine people all the guaranties of our Bill of Rights except trial by jury and the right to bear arms. It was issued by President McKinley as commander-in-chief of the Army and Navy in the exercise of a power which Congress was glad to leave to him without intervention for four years. He had thus the absolute control of what should be done in the way of establishing government in the Philippine Islands, and this letter to Mr. Root was the fundamental law of a civil government established under military authority. Subsequently, in 1902, when Congress assumed responsibility, it formally adopted and expressly ratified this letter of instructions, and declared that it, as supplemented by the remaining provisions of the statute, should be the Constitution of the Government of the Philippine Islands, and the charter of the liberties of the Filipino people.' 2 Forbes, The Philippine Islands, 500. 4 Of the 36 States that have considered the question, 19 permit retrial for the greater offense: Colorado.—See Young v. People, 54 Colo. 293, 298—307, 130 P. 1011. Connecticut.—See State v. Lee, 65 Conn. 265, 271—278, 30 A. 1110, 27 L.R.A. 498; State v. Palko, 122 Conn. 529, 538—539, 541, 191 A. 320, 113 A.L.R. 628, affirmed 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Georgia.—Brantley v. State, 132 Ga. 573 574—579, 64 S.E. 676, 22 L.R.A., N.S., 959, affirmed 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768; Perdue v. State, 134 Ga. 300, 302—303, 67 S.E. 810. Indiana.—See Ex parte Bradley, 48 Ind. 548, 549—558; State ex rel. Lopez v. Killigrew, 202 Ind. 397, 403—406, 174 N.E. 808, 74 A.L.R. 631. Kansas.—State v. McCord, 8 Kan. 232, 240—244; see In re Christensen, 166 Kan. 671, 675—677, 203 P.2d 258. Kentucky.—Hoskins v. Commonwealth, 152 Ky. 805, 807—808, 154 S.W. 919. Mississippi.—Jones v. State, 144 Miss. 52, 60—73, 109 So. 265, 59 A.L.R. 1146, motion for leave to proceed in forma pauperis denied for want of substantial federal question, 273 U.S. 639, 47 S.Ct. 96, 71 L.Ed. 817 (citing Trono v. United States); Butler v. State, 177 Miss. 91, 100, 170 So. 148. Missouri.—See State v. Simms, 71 Mo. 538, 540—541; State v. Stallings, 334 Mo. 1, 5, 64 S.W.2d 643. Nebraska.—Bohanan v. State, 18 Neb. 57, 58—77, 24 N.W. 390, submission of cause set aside because of escape of plaintiff in error, Bonahan v. State, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854; Macomber v. State, 137 Neb. 882, 896, 291 N.W. 674. Nevada.—In re Somers, 31 Nev. 531, 532—539, 103 P. 1073, 24 L.R.A., N.S., 504; see State v. Teeter, 65 Nev. 584, 610, 200 P.2d 657. New Jersey.—See State v. Leo, 34 N.J.L.J. 340, 341—342, and 356. New York.—People v. Palmer, 109 N.Y. 413, 415—420, 17 N.E. 213; People v. McGrath, 202 N,.y. 445, 450—451, 96 N.E. 92. North Carolina.—State v. Correll, 229 N.C. 640, 641—642, 50 S.E.2d 717; see State v. Matthews, 142 N.C. 621, 622—623, 55 S.E. 342. Ohio.—State v. Behimer, 20 Ohio St. 572, 576—582; State v. Robinson, 100 Ohio App. 466, 470—472, 137 N.E.2d 141. Oklahoma.—Watson v. State, 26 Okl.Cr. 377, 379—390, 224 P. 368; see Pierce v. State, 96 Okl.Cr. 76, 79, 248 P.2d 633. South Carolina.—See State v. Gillis, 73 S.C. 318, 319—324, 53 S.E. 487, 5 L.R.A.,N.S., 571; State v. Steadman, 216 S.C. 579, 588 592, 59 S.E.2d 168. Utah.—State v. Kessler, 15 Utah 142, 144—147, 49 P. 293. Vermont.—See State v. Bradley, 67 Vt. 465, 472—474, 32 A. 238; State v. Pianfetti, 79 Vt. 236, 246—247, 65 A. 84. Washington.—State v. Ash, 68 Wash. 194, 197—203, 122 P. 995, 39 L.R.A., N.S., 611; State v. Hiatt, 187 Wash. 226, 236, 60 P.2d 71. In eight of these States, Indiana, Kansas, Kentucky, Nevada, New York, Ohio, Oklahoma, and Utah, this result is based to some extent on statutes defining the effect of granting a new trial. In four, Colorado, Georgia, Mississippi and Missouri, on special constitutional provisions that permit retrial for the greater offense. Connecticut, North Carolina, and Vermont have no constitutional provisions as to double jeopardy, but recognize the common-law prohibition. In 17 States the defendant cannot be retried for the greater offense: Alabama.—See Thomas v. State, 255 Ala. 632, 635—636, 53 So.2d 340. Arkansas.—Johnson v. State, 29 Ark. 31, 32—46; see Hearn v. State, 212 Ark. 360, 361, 205 S.W.2d 477. California.—People v. Gilmore, 4 Cal. 376; People v. Gordon, 99 Cal. 227, 228—232, 33 P. 901; In re Hess, 45 Cal.2d 171, 175 176, 288 P.2d 5; but see People v. Keefer, 65 Cal. 232, 234—235, 3 P. 818; People v. McNeer, 14 Cal.App.2d 22, 27—30, 57 P.2d 1018; In re Moore, 29 Cal.App.2d 56, 84 P.2d 57. Delaware.—See State v. Naylor, 5 Boyce 99, 114—115, 117, 28 Del. 99, 114—115, 117, 90 A. 880. Florida.—State ex rel. Landis v. Lewis, 118 Fla. 910, 911 916, 160 So. 485; see McLeod v. State, 128 Fla. 35, 37, 174 So. 466; Simmons v. State, 156 Fla. 353, 354, 22 So.2d 803. Illinois.—Brennan v. People, 15 Ill. 511, 517—519; People v. Newman, 360 Ill. 226, 232—233, 195 N.W. 645. Iowa.—State v. Tweedy, 11 Iowa 350, 353—358; State v. Coleman, 226 Iowa 968, 976, 285 N.W. 269. Louisiana.—See State v. Harville, 171 La. 256, 258—262, 130 So. 348. Michigan.—People v. Farrell, 146 Mich. 264, 266, 269, 272 273, 294, 109 N.W. 440; People v. Gessinger, 238 Mich. 625, 627 629, 214 N.W. 184. New Mexico.—State v. Welch, 37 N.M. 549, 559, 25 P.2d 211; State v. White, 61 N.M. 109, 113, 295 P.2d 1019. Oregon.—State v. Steeves, 29 Or. 85, 107—111, 43 P. 947; State v. Wilson, 172 Or. 373, 382, 142 P.2d 680. Pennsylvania.—Commonwealth v. Deitrick, 221 Pa. 7, 17—18, 70 A. 275; Commonwealth v. Flax, 331 Pa. 145, 157—158, 200 A. 632. Tennessee.—See Slaughter v. State, 25 Tenn. 410, 413—415; Reagan v. State, 155 Tenn. 397, 400—402, 293 S.W. 755. Texas.—Jones v. State, 13 Tex. 168, 184—185; Brown v. State, 99 Tex.Cr.R. 19, 21—22, 267 S.W. 493; but see Hill v. State, 126 Tex.Cr.R. 79, 80—81, 69 S.W.2d 409; Joubert v. State, 136 Tex.Cr.R. 219, 220—221, 124 S.W.2d 368; Beckham v. State, 141 Tex.Cr.R. 438, 442, 148 S.W.2d 1104; Hall v. State, 145 Tex.Cr.R. 192, 194, 167 S.W.2d 532; Ex parte Byrd, 157 Tex.Cr.R. 595, 597 598, 251 S.W.2d 537. Virginia.—Stuart v. Commonwealth, 28 Grat. 950, 953—964; see Taylor v. Commonwealth, 186 Va. 587, 589—590, 592, 43 S.E.2d 906. West Virginia.—See State v. Franklin, 139 W.Va. 43, 64, 79 S.E.2d 692. Wisconsin.—Radej v. State, 152 Wis. 503, 511—513, 140 N.W. 21; but see State v. B—-, 173 Wis. 608, 616—628, 182 N.W. 474; State v. Witte, 243 Wis. 423, 427—431, 10 N.w.2d 117; State v. Evjue, 254 Wis. 581, 586—592, 37 N.W.2d 50. In two of these States, Virginia and Texas, the result is based to some extent on statutes prohibiting retrial for the greater offense, and in New Mexico on a constitutional provision to the same effect.

01

355 U.S. 233 78 S.Ct. 245 2 L.Ed.2d 234 UNITED STATES of America, Petitioners,v.The SHOTWELL MANUFACTURING COMPANY, Byron A. Cain, and Harold E. Sullivan. No. 1. Argued Oct. 17, 1957. Decided Dec. 16, 1957. [Syllabus from pages 233-234 intentionally omitted] Mr. Philip Elman, Washington, D.C., for petitioner. Mr. George B. Christensen, Chicago, Ill., for respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 This case presents an unusual question involving the integrity of a criminal trial in the federal courts. 2 The Solicitor General has filed a motion in this Court to remand the case to the District Court for further proceedings. This motion is based on a proffer of evidence alleged to have come into the possession of the Government after the United States had petitioned for certiorari to review a decision of the Court of Appeals setting aside the conviction of the respondents. It is claimed that such evidence shows that the decision of the Court of Appeals was based upon a perjurious record attributable to the fraud of the respondents. 3 A clear appreciation of both the proceedings in the lower courts and the peculiar circumstances in which the Government's motion arises is essential to an understanding of why we believe the motion to remand must be granted. 4 In 1953 the respondents and Frank J. Huebner, after a jury trial in the United States District Court for the Northern District of Illinois, were convicted of willfully attempting to evade the 1945 and 1946 federal corporate income taxes of the Shotwell Manufacturing Company.1 Prior to trial they moved for dismissal of the indictment on the ground that their voluntary and timely disclosure of these tax derelictions to the taxing authorities entitled them to immunity from prosecution under the Treasury's former 'voluntary disclosure policy.'2 This motion was denied by the District Court after a pretrial hearing. Respondents and Huebner then moved, no the same ground, for suppression of the evidence obtained from them by the taxing authorities as a result of their alleged disclosure. After a further pretrial hearing, the District Court also denied this motion, later filing an opinion in which it found that the disclosure was not made in good faith.3 5 On appeal, the Court of Appeals affirmed as to the dismissal motion but reversed as to the suppression motion, set aside the convictions, and remanded the case for a new trial. 225 F.2d 394.4 The Court of Appeals found that the respondents' disclosure was bona fide, and also ruled that the disclosure was timely, an issue which the District Court had not reached.5 The Government petitioned us for certiorari on the suppression issue and the respondents and Huebner cross-petitioned on the dismissal issue.6 Thereafter, the Government filed its motion to remand, on which, as later amended and supplemented, respondents and Huebner joined issue by the filing of answers.7 Considering that the matters presented by the motion to remand raised an important issue affecting the proper administration of justice in the federal courts, we granted the Government's petition for certiorari, 'limited to the issues raised in the amended motion to remand and supplement thereto and the respondents' answer to the amended motion to remand.'8 352 U.S. 997, 77 S.Ct. 552, 1 L.Ed.2d 544. We denied the cross-petition for certiorari. 352 U.S. 998, 77 S.Ct. 552, 1 L.Ed.2d 544. 6 For an understanding of the significance of the newly discovered evidence9 proffered by the Government some knowledge is required of the position taken by the defendants in the District Court on the suppression issue. The substance of that position was presented by Leon J. Busby, Shotwell's accountant, who testified at both the hearing on the motion to suppress and at the trial. He stated that the Shotwell Company in each of the years 1945 and 1946 had received substantial cash payments for black-market candy sales above O.P.A. ceiling prices;10 that these receipts were not recorded on Shotwell's books and were not reported in its income tax returns; that he first learned of these facts in the course of conversations with H. Stanley Graflund, Shotwell's comptroller, during a trip they took to New York early in January 1948; that immediately upon his return to Chicago he discussed the matter with respondents Cain and Sullivan; that he recommended disclosing the omissions to the taxing authorities; and that, at the direction of respondents, he revealed the entire affair to Ernest J. Sauber, Deputy Collector in Chicago, in a series of conferences beginning in the latter part of January 1948, at one or more of which conferences he was accompanied by Cain. He also testified that thereafter, acting under Sauber's instructions and assurances that only a civil liability was involved, he and his staff, with the assistance of Cain, Huebner and Graflund, conducted an exhaustive investigation over a period of several months to reconstruct the Shotwell figures on the black-market transactions. He said that these figures were furnished in August 1948 to a revenue agent for scrutiny. 7 Sauber and Cain gave similar testimony, except that Sauber fixed Busby's first visit to him at about the middle of March 1948. Cain's explanation of Shotwell's failure to report the black-market receipts in its income tax returns was that he believed such receipts were not taxable since they were used by Shotwell to purchase black-market supplies11 and therefore gave rise to no profit.12 8 In support of its motion the Government has filed with the Court the affidavits of Huebner and Graflund, which they executed after the Government filed its petition for certiorari. These affidavits paint a sharply different picture of the entire affair; indeed, they flatly contradict the tale unfolded on behalf of the respondents in the District Court. More specifically: (1) Graflund swears that the first time he discussed the black-market transactions with Busby was at Busby's home in late June 1948, at which time Busby gave no indication that he had previously known of these transactions;13 (2) Graflund and Huebner swear that at no time prior to a meeting held in July 1948 were they ever advised or led to believe by respondents that Shotwell's black-market receipts had been disclosed to the Treasury; (3) Huebner swears that it was at this July 1948 meeting that Cain first told him that a voluntary disclosure would be made, and that Cain also gave him to understand that it had been 'agreed' that the date of the disclosure 'would be set at June 15, 1948';14 (4) Graflund and Huebner swear that prior to the middle of July 1948 no work was done by anyone to assemble records or data for the purpose of making a disclosure to the tax authorities, and that the alleged offsetting payments for black-market supplies were in fact concocted 'out of thin air' at the July meeting; and (5) Huebner swears that in July and August 1948 he gave Cain $10,000 which Cain said he needed 'to fix the tax difficulty we were in.'15 Huebner says in his affidavit that he was not asked to testify in the District Court 'because I had stated I would not lie on the stand.' 9 It is obvious that the Government's new evidence casts the darkest shadow upon the truthfulness of the disclosure testimony given by or on behalf of the respondents in the District Court. If true, it indicates that what the respondents have sought to represent in the District Court, the Court of Appeals, and in this Court as a voluntary disclosure, made in a timely manner and in good faith, was instead but a further step in a conspiracy to 'fix' Shotwell's tax difficulties, possibly involving the corruption of government officials,16 and certainly entailing an attempt to perpetrate a fraud upon the courts. Were we to undertake to review the Court of Appeals upon a record as suspect as this, we might very well be lending ourselves to the consummation of a fraud which may already have made the Court of Appeals its unwitting victim. In these circumstances it is imperative that the case be remanded to the District Court for a full exploration of where the truth lies before the case is allowed to proceed further. The integrity of the judicial process demands no less. 10 The path to our decision is clearly marked by this Court's actions and pronouncements in two recent cases, Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, and Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1. In each case the Court refused to consider the questions presented for review in the face of a challenge to the integrity of the record based on newly discovered evidence. In Communist Party the Court remanded the case to the Board with directions to resolve the charges of taint, and to make a fresh determination on the merits, if taint were found.17 In Mesarosh the Court, believing that the record clearly demonstrated that a key government witness had been wholly discredited, took more drastic action by reversing the convictions of the petitioners and remanding the case to the District Court for a new trial. The basic reason for the Court's action in both cases was made manifest in its opinions. In Communist Party, supra, 351 U.S. at pages 124—125, 76 S.Ct. at page 668, the Court said: 11 'The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relation to proceedings in the federal courts. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Therefore, fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted. * * * We cannot pass upon a record containing such challenged testimony. We find it necessary to dispose of the case on the grounds we do, not in order to avoid a constitutional adjudication but because the fair administration of justice requires it.' 12 In Mesarosh, supra, 352 U.S. at page 14, 77 S.Ct. at page 8, the Court said: 13 'This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. (Citing McNabb, supra, in a footnote.) If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity.' 14 A convincing showing is of course necessary to bring these principles into play. We think that such a showing has been made here. The newly discovered evidence contained in the affidavits from the prospective witnesses Graflund and Huebner cuts to the very heart of the testimony adduced by respondents to show that they made a timely and bona fide disclosure to the Treasury, the sole issue involved in the suppression hearings and the issue on which the outcome of the case in the Court of Appeals turned. It is plain that either the testimony in the District Court was untrue or these affidavits themselves are the product of fraud. This is a matter for the District Court to determine. One thing is clear. This Court cannot be asked to review the decision of the Court of Appeals until these charges have been resolved. 15 In both the Communist Party and Mesarosh cases, supra, the action of the Court enured to the benefit of the defendants. In this instance the further proceedings below may work to the advantage of the Government.18 In the circumstances of this case we think that the distinction makes no difference. Because they were found guilty by the jury, respondents concede, as they must, that the motion to remand involves no question of double jeopardy. See United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. Their objection that it is 'unfair' to allow the Government at this stage of the proceedings to 'bolster' the record relating to the suppression issue is likewise unacceptable. It is undeniable, of course, that upon appellate reversal of a conviction the Government is not limited at a new trial to the evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence. We think that in the peculiar circumstances of this case the fair administration of justice requires that the Government should have a similar opportunity here. For if the Government's evidence is found to be true, it would then appear that the Court of Appeals' decision setting aside the verdict was obtained by the respondents on a corrupt record attributable to their own fraud. In the further proceedings in the District Court the respondents will of course have a reciprocal opportunity to sustain the validity of their asserted voluntary disclosures. 16 We should not lose sight of the fact that the Government's new showing does not relate to an issue submitted to the jury in the proceedings below, but rather to a preliminayr question as to the admissibility of evidence.19 Hence, to grant the Government's motion is not to permit it to 'bolster' the evidence upon which the verdict of guilty was returned by the jury in this case. That verdict clearly must stand or fall on the sufficiency of the evidence already introduced at the trial. 17 In these circumstances, acceptance of the respondents' position on this motion would be tantamount to sanctioning a rule which would prohibit appellate review upon a record suspect of taint, if the taint might operate to the disadvantage of the defendants, but which would nevertheless require review if the taint might operate to their advantage. We cannot subscribe to that quixotic result. The fair administration of justice is not such a one-way street. 18 The respondents contend that the motion to remand should originally have been addressed to the Court of Appeals, and that we should now send the Government back to that Court.20 This contention is essentially one addressed to our discretion, and in the circumstances of this case we find it unavailing. The Government was not in a position to make the motion until after its petition for certiorari had been filed in this Court. The course of this litigation has already been protracted. We are abundantly satisfied that the charges as to the integrity of the record must be fully aired, and that the proper forum for this is the District Court because of its intimate familiarity with the record and its facilities for sifting controverted facts. In this state of affairs we think that it would be both unnecessary and wasteful to remit the Government to the Court of Appeals. Cf. Mesarosh, supra, 352 U.S. at page 13, 77 S.Ct. at page 7. 19 We conclude with a word about the nature of the further proceedings in the District Court. The additional evidence to be presented by both sides will be confined to the suppression issue. The District Court will make such new findings of fact on this issue as may be appropriate in light of the further evidence and the entire existing record (see Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543), including findings on the question of the timeliness of respondents' alleged disclosures.21 If the District Court decides, on the basis of its new findings, to adhere to its original decision on the motion to suppress, it will then enter new final judgments based upon the record as supplemented by its new findings, thereby preserving to all parties the right to seek further appellate review, including respondents' right to have reviewed by the Court of Appeals alleged errors in the original trial which that court did not reach in the previous appeal. If, on the other hand, the District Court concludes after the further proceedings that the motion to suppress should have been granted, it would then become its duty to accord the respondents a new trial. 20 In accordance with the views set forth in this opinion, we make the following disposition of this case: (1) this Court's order of February 25, 1957, which granted with limitations the Government's petition for certiorari, is vacated and such petition is granted without restriction; (2) the judgment of the Court of Appeals is vacated; and (3) the case is remanded to the District Court for further proceedings consistent with this opinion. 21 It is so ordered. 22 Judgment of Court of Appeals vacated and case remanded to District Court. 23 Court's order which granted with limitations the government's petition for certiorari vacated and such petition granted without restriction, judgment of Court of Appeals vacated, and case remanded to District Court. 24 Dissenting opinion of Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, announced by Mr. Justice DOUGLAS. 25 By remanding this case so that the Government can introduce additional evidence to save the conviction thrown out by the Court of Appeals, I think the Court takes unnecessary and unprecedented action which may have far-reaching and unfortunate ramifications not yet clearly foreseen. I would deny certiorari and thus permit the case in its regular course to go back to the District Court for a new trial pursuant to the decision of the Court of Appeals. At this trial the Government could introduce any evidence which it now has, new or otherwise, and a full hearing could be had on its charges of perjury and fraud. 26 The Court of Appeals held that defendants' incriminating disclosures were secured by promises of immunity made by various government officials and that such disclosures could not be used to convict defendants because of their privilege against self-incrimination under the Fifth Amendment. Now this Court sends the case back to the District Court to hear new evidence and make new findings with respect to whether defendants' disclosures were made in good faith and in full accordance with certain vague conditions attached to the offers of immunity.1 The majority asserts that it is not ruling on the merits of the defendants' Fifth Amendment claims but it seems to me a vain and wasteful act for the majority to return the case to the District Court for these supplemental proceedings unless it assumes that neither the Fifth Amendment nor any rule of evidence in the federal courts bars the use of incriminating admissions induced by promises of immunity where the disclosures are not made with pure motives. If we are going to concern ourselves with the case at all, I believe we should at least give full consideration to the legal problems involved in defendants' requests for suppression before remanding the case for any further proceedings. 27 I think the Fifth Amendment questions raised here are important, unsettled and not susceptible to offhand resolution, particularly with respect to incriminating evidence which the defendants actually turned over to the Government in hope of securing immunity from prosecution. In Bram v. United States, 168 U.S. 532, 542—543, 18 S.Ct. 183, 187, 42 L.Ed. 568, the Court referred with approval to the rule that 28 "* * * a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * * A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted." (Emphasis supplied.) 29 In record with this statement it appears to have been generally assumed in this Court that the Fifth Amendment bars the use against a defendant in a criminal prosecution of confessions or admissions secured from him by promises of immunity. See, e.g., Hardy v. United States, 186 U.S. 224, 229, 22 S.Ct. 889, 891, 46 L.Ed. 1137; Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131; Smith v. United States, 348 U.S. 147, 150, 75 S.Ct. 194, 196, 99 L.Ed. 192. And so far as I can tell this Court has never considered whether lack of good faith deprives a suspect of the Fifth Amendment's protection when he makes disclosures under a promise of immunity, or under just what circumstances and to what extent this might be true. I do not mean to intimate any view on the merits of this problem now, but I do register a protest against the manner in which the majority disposes of the case. 30 I believe the majority has also disregarded another significant and crucial consideration—the role of the jury in passing on the admissibility of defendants' disclosures. In Wilson v. United States, 162 U.S 613, 624, 16 S.Ct. 895, 900, 40 L.Ed. 1090, the Court laid down a rule which it has never questioned: 31 'When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject the confession if, upon the whole evidence, they are satisfied it was not the voluntary act of the defendant.' Just recently in Smith v. United States, 348 U.S. 147, 151, 75 S.Ct. 194, 196, 99 L.Ed. 192, the Court stated that the question of voluntariness was properly left to the jury where a taxpayer claimed he had made certain disclosures on the strength of promises of immunity by revenue officers. Cf. Kent v. People of Porto Rico, 207 U.S. 113, 118—119, 28 S.Ct. 55, 57—58, 52 L.Ed. 127. 32 In the lower federal courts there seems to be considerable difference of opinion as to whether the Wilson case makes it mandatory that the jury participate in the process of determining whether a confession is voluntary or whether the jury's participation is a matter of discretion with the trial judge.2 E.g., compare United States v. Leviton, 2 Cir., 193 F.2d 848, 852, certiorari denied 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350, with Lewis v. United States, 9 Cir., 74 F.2d 173, 178—179. In at least the District of Columbia Circuit the rule appears to be settled that the trial judge must submit the question of voluntariness to the jury for its independent determination. McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21. In the States a number of different methods of allocating the burden of determining the voluntariness of a confession between the judge and jury have been followed, but the trend seems to be that the judge should determine voluntariness in the first instance and if he finds that the confession is voluntary then should submit the case to the jury with instructions not to consider the confession as evidence unless they also find it voluntary. As a matter of fact the Court in Wilson relied on state cases which had laid down this so-called 'humane' rule. I myself favor such a rule, which is particularly beneficial where, as here, the question of admissibility turns to a large extent on the credibility of witnesses. 33 I think that the principles established in Wilson and subsequent cases clearly apply to the questions of admissibility raised in this case. Under these principles the trial judge, at a minimum, has the option of submitting such questions to the jury. But the majority's disposition of this case precludes that possibility at the partial new trial which it orders. It attempts to avoid this infirmity by saying, 'the Government's new showing does not relate to an issue submitted to the jury in the proceedings below, but rather to a preliminary question as to the admissibility of evidence.' And it continues, 'Respondents did not urge below, nor do they suggest here, that the question of admissibility of the disputed evidence was properly an issue for the jury.' But these answers are obviously inadequate. We are not concerned with what has happened or what was urged but with how this case will be handled in the future. If the new trial ordered by the Court of Appeals had been allowed to stand the defendants would not have been barred from demanding that the question of admissibility be submitted to the jury just because they had not made a similar request at the first trial or on appeal. 34 The Court now gives the Government an opportunity to introduce new evidence in an attempt to save a conviction it has lost in the Court of Appeals. If this does not technically infringe the protection against double jeopardy it seems to me to violate its spirit. Cf. Green v. United States, 355 U.S. 184, 78 S.Ct. 221; Kepner v. United States, 195 U.S. 100, 128—129, 24 S.Ct. 797, 804, 49 L.Ed. 114. In fact it is even worse in some respects. Only the Government stands to benefit from this partial new trial while the defendants must fight to keep what they already have. Not a single case has been referred to or discovered where defendants have been subjected to such piecemeal prosecution.3 To my knowledge it is a new idea that the Government can supplement a trial record in order to retain a conviction which an appellate court would otherwise reverse. 35 Both the Government and the Court concede that the action taken here is extraordinary but such disposition is justified on the ground this is an exceptional case which called for extraordinary action. I do not agree. In essence all the Government proposes to do on remand is to impeach the testimony of certain witnesses for both sides with alleged newly discovered evidence. No witness has recanted nor do the defendants concede that their testimony was false. If the Government can partially reopen a case to impeach witnesses what rational basis is there for denying it a similar right in any case when new facts appear which persuasively suggest that it could strengthen its evidence in order to save a conviction on appeal? This possibility emphasizes the anomalous nature of what is done here. 36 The Court proceeds on the assumption that it would be improper for us to review the suppression question on a record which might contain materially false testimony and that it is better, although concededly unique, to send the case back for more evidence on that issue. But there is no need to resort to either undesirable alternative. As I stated in the beginning the case should simply be left alone and allowed to go back for a new trial. There the Government can offer all the evidence it has or can secure so that a new record can be made on the suppression issue. In my judgment it cannot seriously be contended that the Government would be barred from introducing evidence on that issue at a new trial. While it is true that the Court of Appeals ordered the disclosures suppressed, on the evidence in the record then before it, such ruling should not be construed as binding at a new trial where substantial newly discovered evidence is available. Cf. Aetna Life Ins. Co. v. Wharton, 8 Cir., 63 F.2d 378; City of Sedalia ex rel. and to use of Ferguson v. Shell Petroleum Corp., 8 Cir., 81 F.2d 193. If need be—and I think not—this Court could vacate the judgment of the Court of Appeals to the extent necessary to allow the Government a de novo hearing on the suppression issue at the new trial. 28 U.S.C. § 2106, 28 U.S.C.A. § 2106. This would do full justice as far as the charges of tax evasion are concerned and if perjury has been committed it can be prosecuted as a separate crime. 37 I think this case is a dangerous precedent which should not be launched needlessly into the stream of the law. 1 Internal Revenue Code of 1939, § 145(b), 53 Stat. 63, 26 U.S.C.A. § 145(b). The Shotwell Company manufactured candy and marshmallows. Cain was President, Sullivan, Executive Vice President and General Counsel, and Huebner, Vice President. Huebner is no longer a respondent here. See notes 6 and 7, infra. 2 Under that policy, first announced by the Treasury Department in 1945, the Department did not refer to the Department of Justice for prosecution cases of intentional income tax evasion where the taxpayers had made a clean breast of things to the Treasury before any investigation had been initiated by the Revenue Service. This policy was set forth in various informal announcements by Treasury officials, but was never formalized by statute or regulation. The policy was abandoned in January 1952. 3 The propriety of this pretrial procedure is not before us. 4 The Court of Appeals did not pass on other contentions made by the respondents in support of a reversal of their conviction. 5 More specifically, the Court of Appeals held that there was an effective voluntary disclosure and that the Government's use of the evidence thereby obtained from the respondents violated their rights under the Self-Incrimination Clause of the Fifth Amendment. The District Court simply held that the alleged voluntary disclosure was defective, and did not discuss the Fifth Amendment. In the present posture of this case we do not reach the correctness of these rulings of the two lower courts, or any other question going to the merits of the respondents' conviction. 6 We deferred consideration of the petition and cross-petitions for certiorari for some months on the basis of representations made by the Solicitor General in his letters of December 6, 1955, and June 1, 1956, which culminated in the filing of the Government's motion to remand. See 351 U.S. 980, 76 S.Ct. 1045, 100 L.Ed. 1495. As originally filed, the cross-petition was conditional on the Government's petition being granted. After the Government moved to remand, respondents withdrew the conditional limitation, and Huebner withdrew his cross-petition in its entirety. 7 Huebner later withdrew his answer and consented to the Government's motion. 8 Respondents point out that this limitation of our writ in effect amounted to a denial of the Government's petition for certiorari, and therefore that the motion to remand, which was not before the Court of Appeals, must be regarded as an attempt to invoke an original jurisdiction which we do not possess. We shall dispose of respondents' point by vacating our limited with and granting, nunc pro tunc, the Government's petition for certiorari, without restriction. This removes all question as to our jurisdiction, 28 U.S.C. § 2106, 28 U.S.C.A. § 2106; Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1, and prejudices neither party because we shall decide only the issues raised by the motion to remand. 9 Respondents have made no such showing in opposition to the Government's motion as would justify our questioning the accuracy of the Solicitor General's representation that the Government's proffered evidence is 'newly discovered.' 10 The Government puts the figure at some $380,000; the respondents' figure is about $160,000. 11 Except for the amount of $6,000 which was reported in the Shotwell returns. 12 Although the Treasury policy at the time denied deductability to such black-market expenditures, the courts later held that this kind of expenditure was deductible. See Sullenger v. Commissioner, 11 T.C. 1076. 13 According to Grafluend's affidavit, it would appear that the respondents were spurred into action after Sam Krane, a Special Agent of the Internal Revenue Service, visited the Shotwell office on June 21, 1948. The affidavit states that Krane requested records and information relating to Shotwell's transactions with one David G. Lubben, from whom Shotwell had been receiving large sums of money which were not recorded in its regular books; that Graflund made certain records available to Krane and was 'criticized' by the respondents for having done so; and that Graflund conferred with Busby within a few days after Krane's visit. 14 In his affidavit Huebner states: 'On November 13, 1952, Sauber testified at the hearing on the defendant's motion to suppress evidence that Busby and Cain had contacted him in March, 1948. After hearing Sauber testify, I told Cain I thought the voluntary disclosure date was supposed to be June 15, 1948. Cain said to me, 'Ssshhh! There is nobody that knows anything about this. Keep quiet." 15 The Solicitor General represents that if the motion to remand is granted Revenue Agent Joseph M. Lima will testify that on July 30, 1948 he was instructed by his Group Supervisor, Ralph Johnson, to make an immediate audit of Shotwell's 1946 return; that thereafter he was instructed by Johnson to allow (as offsets) over-ceiling purchases totaling more than $300,000 which were wholly unsubstantiated and whose allowance was contrary to the existing Revenue Service policy; and that he then prepared a report showing a tax deficiency for 1945 and 1946 of about $20,000, which report he destroyed at Johnson's direction in September 1948, after the Intelligence Unit of the Service had made inquiries about the case. In this connection Huebner states in his affidavit: 'Cain also told me, sometime in about late July, 1948, that he was about to settle the tax case. Shortly thereafter, Cain told me he had settled the tax case for a tax deficiency of $20,000.00 'In October, 1948, Busby told me that there had been a meeting in the fraud division at the Internal Revenue office and that hell had broken loose; that some Internal Revenue people had a heck of a time destroying papers that had been made up for the purpose of billing Shotwell for taxes.' 16 See note 15, supra. 17 Section 14(a) of the Subversive Activities Control Act expressly authorizes courts of appeals to remand cases to the Board for the taking of further evidence. 64 Stat. 987, at pp. 1001—1002, 50 U.S.C.A. § 793(a). Our authority to act in similar fashion is found in the broad provisions of 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, which grants us power, incident to our appellate jurisdiction, to 'vacate * * * any judgment' brought 'before (us) for review' and to 'require such further proceedings to be had as may be just under the circumstances.' 18 The Government does not concede the correctness of the Court of Appeals' decision upon the existing record. Cf. United States v. Johnson, 327 U.S. 106, 111, 112, 66 S.Ct. 464, 466, 90 L.Ed. 562. 19 Respondents did not urge below, nor do they suggest here, that the question of admissibility of the disputed evidence was properly an issue for the jury. Rather their contention has been that the judge should have sustained the motion to suppress. 20 It has also been suggested that these charges of fraud could be dealt with at the new trial which the Court of Appeals has ordered. But as the Court of Appeals has directed suppression of the evidence obtained by the Government as a result of the alleged voluntary disclosure, it seems clear that at the new trial the Government could not use that evidence, or the fruits thereof, unless the 'suppression' aspect of the judgment of the Court of Appeals is vacated. We think that the sound administration of justice precludes that course because, if the Government's evidence is true, the net effect would be to grant the respondents a new trial, not otherwise justified, procured by their own fraud. 21 Respondents have contended that the Government's new evidence is irrelevant to the issue of timeliness because, even assuming its truth, the disclosure was timely since no formal investigation was initiated by the Revenue Service until after July 1948, the time that the Government's new evidence indicates that the respondents first communicated with the Treasury. We find it unnecessary to deal with this contention because the new evidence is in any event clearly relevant to the question whether a bona fide disclosure was in fact ever made. Moreover, in the present state of the record this Court should not pass on respondents' argument as to timeliness because (a) the District Court has not yet made a finding on this issue, and (b) the Treasury 'voluntary disclosure policy' was never formulated with sufficient precision to enable us to apply it mechanically. 1 We are not concerned with the motivating force behind an individual's deciding to come in and talk to us about his evasion. If he 'gets religion' before we have done anything, he will not be prosecuted.' Treasury Press Release, May 14, 1947. 2 The entire subject is annotated in great detail at 170 A.L.R. 567. Also see 85 A.L.R. 870. 3 Neither Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1, nor Communist Party v. Subversive Activities Control Bd., 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, serves as any authority for the Court's action. In the Mesarosh case the Government had secured a conviction which had been upheld by the Court of Appeals. In this Court the Government came forward with evidence that one of its principal witnesses at the trial had committed perjury and the Court reversed the conviction and remanded the case for a full new trial. Here the United States has lost a conviction in the Court of Appeals. It now asks us to send the base back to the trial court so that it can introduce additional evidence in an attempt to salvage the reversed conviction. The difference between the two cases is manifest and crucial. In the Communist Party case administrative findings were challenged and this Court remanded the case to the agency so that it might consider the record free of any perjurious testimony by government witnesses. The administrative proceeding there can hardly be equated with the criminal prosecution involved here. Moreover, in both the Mesarosh and Communist Party cases the Court's action operated to protect the rights of defendants, not as here to aid the Government. In view of our traditional methods of criminal justice this difference is not without importance.

01

355 U.S. 225 78 S.Ct. 240 2 L.Ed.2d 228 Virginia LAMBERT, Appellant,v.The PEOPLE OF THE STATE OF CALIFORNIA. No. 47. Argued Oct. 16, 17, 1957. Decided Dec. 16, 1957. Rehearing Denied Jan. 27, 1958. See 355 U.S. 937, 78 S.Ct. 410. Mr. Samuel C. McMorris, Los Angeles, Cal., for the appellant. Mr. Warren M. Christopher, Los Angeles, Cal., as amicus curiae. Messrs. Philip E. Grey, Los Angeles, Cal., and Clarence, A. Linn, San Francisco, for the appellee. Mr. Justice DOUGLAS delivered the opinion of the Court. 1 Section 52.38(a) of the Los Angeles Municipal Code defines 'convicted person' as follows: 2 'Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony.' 3 Section 52.39 provides that it shall be unlawful for 'any convicted person' to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering. 4 Section 52.43(b) makes the failure to register a continuing offense, each day's failure constituting a separate offense. 5 Appellant, arrested on suspicion of another offense, was charged with a violation of this registration law.* The evidence showed that she had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant asserted that § 52.39 of the Code denies her due process of law and other rights under the Federal Constitution, unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant guilty. The court fined her $250 and placed her on probation for three years. Appellant, renewing her constitutional objection, moved for arrest of judgment and a new trial. This motion was denied. On appeal the constitutionality of the Code was again challenged. The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit to the claim that the ordinance was unconstitutional. The case is here on appeal. 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). We noted probable jurisdiction, 352 U.S. 914, 77 S.Ct. 218, 1 L.Ed.2d 121, and designated amicus curiae to appear in support of appellant. The case having been argued and reargued, we now hold that the registration provisions of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment. 6 The registration provision, carrying criminal penalties, applies if a person has been convicted 'of an offense punishable as a felony in the State of California' or, in case he has been convicted in another State, if the offense 'would have been punishable as a felony' had it been committee in California. No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction. 7 We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge. 8 We do not go with Blackstone in saying that 'a vicious will' is necessary to constitute a crime, 4 Bl.Comm. *21, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition. See Chicago, B. & Q.R. Co. v. United States, 220 U.S. 559, 578, 31 S.Ct. 612, 617, 55 L.Ed. 582. But we deal here with conduct that is wholly passive—mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. Cf. Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930; United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604; United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 138, 88 L.Ed. 48. The rule that 'ignorance of the law will not excuse' (Shevlin-Carpenter Co. v. State of Minnesota, supra, 218 U.S. at page 68, 30 S.Ct. at page 666) is deep in our law, as is the principle that of all the powers of local government, the police power is 'one of the least limitable.' District of Columbia v. Brooke, 214 U.S. 138, 149, 29 S.Ct. 560, 563, 53 L.Ed. 941. On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. Recent cases ullustrating the point are Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021; Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178. These cases involved only property interests in civil litigation. But the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case. 9 Registration laws are common and their range is wide. Cf. People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, 'A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.' Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community. 10 Reversed. 11 Mr. Justice BURTON, dissents because he believes that, as applied to this appellant, the ordinance does not violate her constitutional rights. 12 Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting. 13 The present laws of the United States and of the forty-eight States are thick with provisions that command that some things not be done and others be done, although persons convicted under such provisions may have had no awareness of what the law required or that what they did was wrongdoing. The body of decisions sustaining such legislation, including innumerable registration laws, is almost as voluminous as the legislation itself. The matter is summarized in United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 302, 66 L.Ed. 604: 'Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.' 14 Surely there can hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person wholly innocent of wrongdoing, in the sense that he was not remotely conscious of violating any law, who is imprisoned for five years for conduct relating to narcotics, and the case of another person who is placed on probation for three years on condition that she pay $250, for failure, as a local resident, convicted under local law of a felony, to register under a law passed as an exercise of the State's 'police power.'* Considerations of hardship often lead courts, naturally enough, to attribute to a statute the requirement of a certain mental element some consciousness of wrongdoing and knowledge of the law's command—as a matter of statutory construction. Then, too, a cruelly disproportionate relation between what the law requires and the sanction for its disobedience may constitute a violation of the Eighth Amendment as a cruel and unusual punishment, and, in respect to the States, even offend the Due Process Clause of the Fourteenth Amendment. 15 But what the Court here does is to draw a constitutional line between a State's requirement of doing and not doing. What is this but a return to Year Book distinctions between feasance and nonfeasance—a distinction that may have significance in the evolution of common-law notions of liability, but is inadmissible as a line between constitutionality and unconstitutionality. One can be confident that Mr. Justice Holmes would have been the last to draw such a line. What he wrote about 'blameworthiness' is worth quoting in its context: 16 'It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness. Such a denial would shock the moral sense of any civilized community; or, to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.' (This passage must be read in the setting of the broader discussion of which it is an essential part. Holmes, The Common Law, at 49 50.) 17 If the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be impaired. I abstain from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents—a derelict on the waters of the law. Accordingly, I content myself with dissenting. * For a recent comprehensive reviw of these registration laws see Note, 103 U. of Pa.L.Rev. 60 (1954). * This case does not involve a person who, convicted of a crime in another jurisdiction, must decide whether he has been convicted of a crime that 'would have been punishable as a felony' had it been committed in California. Appellant committed forgery in California, and was convicted under California law. Furthermore, she was convicted in Los Angeles itself, and there she resided for over seven years before the arrest leading to the present proceedings.

34

355 U.S. 273 78 S.Ct. 299 2 L.Ed.2d 264 Knut Einar HEIKKINEN, Petitioner,v.UNITED STATES of America. No. 89. Decided Jan. 6, 1958. Mr. David Rein, Washington, D.C., for the petitioner. Mr. J. F. Bishop, Washington, D.C., for the respondent. Mr. Justice WHITTAKER delivered the opinion of the Court. 1 This case involves the legality of convictions of petitioner, an alien previously ordered deported, for (1) willful failure to depart from the United States, and (2) willful failure to make timely application in good faith for travel or other documents necessary to his departure, within six months from the date of the final order of deportation. 2 Section 20(c) of the Immigration Act of 1917, 39 Stat. 890, as amended, 57 Stat. 553, 64 Stat. 1012, 8 U.S.C. (1946 ed., Supp. IV) § 156(c),* provided, in pertinent part, that '(a)ny alien against whom an order of deportation is outstanding * * * who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from the date of the enactment of the Subversive Activities Control Act of 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, * * * shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years * * *.' It is the above-quoted provisions of § 20(c) that are involved here. 3 Petitioner, a native of Finland, went to Canada in 1910 and later acquired Canadian citizenship. He entered the United States in 1916 and, except for several foreign trips, has since resided here. A final order of deportation was entered against him on April 9, 1952, under the Act of October 16, 1918, 40 Stat. 1012, as amended, 41 Stat. 1008, 54 Stat. 673, 64 Stat. 1006, 1008, 8 U.S.C. (1946 ed., Supp. IV) § 137,1 by reason of his membership in the Communist Party of the United States from 1923 to 1930.2 4 On November 10, 1953, petitioner was indicted, in two counts, in the United States District Court for the Western District of Wisconsin. The first count charged him with willful failure to depart from the United States within six months from the date of the deportation order. The second count charged him with willful failure to make timely application in good faith for travel or other documents necessary to his departure from the United States within six months from the date of the deportation order. Upon a trial before a jury he was convicted on both counts. He was sentenced to imprisonment for a term of five years on Count 1, and imposition of sentence on Count 2 was suspended until completion of service of the sentence on Count 1. The Court of Appeals affirmed. 240 F.2d 94. We granted certiorari. 353 U.S. 935, 77 S.Ct. 813, 1 L.Ed.2d 758. 5 Petitioner challenges the judgments of conviction on a number of grounds, but in the view we take of the case it is necessary to consider only the first ground, namely, that the evidence is insufficient to support the verdict on either count. 6 This is a criminal case. It is therefore necessary that the prosecution adduce evidence sufficient to support a finding of guilt beyond a reasonable doubt. This is no less true when the defendant is an alien. Harisiades v. Shaughnessy, 342 U.S. 580, 586, 72 S.Ct. 512, 517, 96 L.Ed. 586. The crucial element of the crime charged in the first count is that petitioner 'did willfully fail to depart from the United States' within six months from the deportation order of April 9, 1952. (Emphasis supplied.) A thorough review of the record discloses no evidence that any country was willing, in that period, to receive petitioner.3 There can be no willful failure to depart until 'the country willing to receive the alien is identified.' United States v. Spector, 343 U.S. 169, 171, 72 S.Ct. 591, 593, 96 L.Ed. 863. It therefore cannot be said that there was any evidence to support the jury's finding that petitioner 'did willfully fail to depart from the United States' within six months from the deportation order. The evidence on Count 1 is thus insufficient to support the verdict, and the judgment of conviction thereon must fall. 7 The Government argues that petitioner willfully failed to make timely application to Finland, or to some other country, to receive him, and that if he had done so he might have been able to identify, within the time prescribed, a country to which he could go. While this argument has some relation to Count 1, it mainly involves, and therefore brings us to a consideration of, the adequacy of the evidence to support the verdict on Count 2. On April 18, 1952, nine days after entry of the order of deportation, the officer in charge of the Immigration and Naturalization Service at Duluth, Minnesota, at the request of the District Director of Immigration at Chicago, sent Inspector Maki to interview petitioner and obtain 'personal data, usually called passport data.' Maki admitted at the trial that, in that interview, he 'told (petitioner) that (he) had been instructed to get this personal history; that (he) was going to prepare this on the Passport Data form, and that it would (be sent to Chicago where it) would be considered by (the) Service down there with a view towards (the) Service obtaining some travel document or other in (petitioner's) case,' and that this was common procedure in such cases. Petitioner furnished the information requested, and it was forwarded by Maki, on April 21, 1952, to the District Director at Chicago. On April 30, 1952, petitioner received a letter from the officer in charge of the Immigration and Naturalization Office in Duluth, which, after reciting that an order directing petitioner's deportation from the United States had been entered on April 25, 1952,4 said: 8 'Arrangements to effect your deportation pursuant to such order are being made and when completed you will be notified when and where to present yourself for deportation.' The letter continued, summarizing pertinent provisions of § 20(c) of the Immigration Act of 1917, as amended,5 and concluded: 'Therefore, you will recognize the importance of making every effort in good faith to obtain passport or other travel documents so that you may effect your departure pursuant to the said order of deportation within the time prescribed by the quotation above from the (Immigration Act of 1917, as amended).' 9 On February 12, 1953, an investigator of the Service interviewed and took a written and signed statement from petitioner, which was put in evidence by the Government at the trial. In that statement petitioner corroborated Maki's statement to him of April 9, 1952, acknowledged receipt of the letter of April 30, 1952, and stated, in substance, that he had not applied for travel documents because relying on Maki's statement and the letter mentioned, he had 'been waiting for instructions from the immigration authorities' or 'from Mr. Maki as to when (he) should start to make application for a passport, in case the Service had failed to get a visa or a passport.' Petitioner's statement further recited that he had never received any request from the Service 'to execute any passport application' and that he had not willfully refused to depart from the United States nor to apply in good faith for travel documents, but wanted 'to cooperate (with the Attorney General to get) a passport to Finland * * *.' 10 Is this evidence sufficient to support the jury's finding that petitioner 'did willfully fail to make timely application in good faith for travel or other documents necessary to his departure from the United States'? We believe that it is not. There can be no willful failure by a deportee, in the sense of § 20(c), to apply to, and identify, a country willing to receive him in the absence of evidence, or an inference permissible under the statute, of a 'bad purpose' or '(non-)justifiable excuse,' or the like. Cf. United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381; Spies v. United States, 317 U.S. 492, 497, 498, 63 S.Ct. 364, 367, 87 L.Ed. 418. Inspector Maki had informed petitioner that his purpose, in procuring the 'passport data' on April 9, 1952, was to send it to the District Director at Chicago, where it 'would be considered * * * with a view towards * * * obtaining some travel document or other in his case.' Moreover, the letter of April 30, 1952, from the officer in charge of the Duluth office, told petitioner, in the plainest language, that the Service was making the arrangements to effect his deportation and, when completed, he would be notified when and where to present himself for deportation. Surely petitioner was justified in relying upon the plain meaning of those simple words, and it cannot be said that he acted 'willfully'—i.e., with a 'bad purpose' or without 'justifiable excuse'—in doing so, until, at least, they were in some way countermanded, which was never done within the prescribed period. It is true that the last paragraph of that letter drew attention to the importance of making good-faith efforts to obtain the documents necessary to effect departure within the time prescribed, but that language did not in terms negate, and cannot fairly be said implicitly to have negated, the earlier paragraph of the letter, because, as stated, that paragraph of the letter plainly told petitioner that the Service was itself making the necessary arrangements for his deportation and, when completed, he would be notified when and where to present himself for deportation. In this factual setting we believe there was not sufficient evidence to support the jury's finding that petitioner acted willfully in failing to apply for documents necessary to his departure within the time prescribed. The evidence on Count 2 is thus insufficient to support the verdict, and the judgment of conviction on that count must also fall. 11 Reversed. 1 That Act provided, in pertinent part: '(Sec. 1) That any alien who is a member of any one of the following classes shall be excluded from admission into the United States: '(2) Aliens who, at any time, shall be or shall have been members of any of the following classes: '(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States * * *.' (64 Stat. 1006.) Now 8 U.S.C.A. § 1182(a)(28)(C). 'Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, * * * a member of any one of the classes of aliens enumerated in section 1(2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.' (64 Stat. 1008.) Now 8 U.S.C.A. § 1251(a)(6)(C), (d). * Now 8 U.S.C.A. § 1252(e). 2 He was asked at the deportation hearing to specify the country to which he would prefer to go, if deported from the United States, and he answered: 'To my native country, Finland.' Deportees are authorized to designate the country of their first choice by § 20(a) of th e Immigration Act of 1917, as amended, now 8 U.S.C.A. §§ 1252(a, c), 1253(a, b). 3 There was evidence that after expiration of the period of six months from the issue of the deportation order on April 9, 1952, petitioner obtained a passport to Canada. But this evidence was irrelevant to the issue whether Canada was willing to receive petitioner during the period covered by the indictment, and, in fact, counsel for the Government objected to this evidence upon the ground that the Canadian passport did not show Canada's willingness to accept petitioner 'within the six months' period (after April 9, 1952), which is the * * * period that we are concerned with in this indictment.' 4 This was, in fact, not the date of the deportation order, which was April 9, 1952, but, rather, was the date of the warrant of deportation ordering petitioner deported to Finland. 5 That summary read as follows: 'In this connection you are reminded that (§ 20(c) of the Immigration Act of 1917, as amended) * * * declares that any such alien 'who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, * * * or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, or who shall connive or conspire, or take any other action, designed to prevent or hamper or with the purpose of preventing or hampering his departure pursuant to such order of deportation, or who shall willfully fail or refuse to present himself for deportation at the time and place required by the Attorney General pursuant to such order of deportation, shall upon conviction be guilty of a felony. * * *"

12

355 U.S. 369 78 S.Ct. 363 2 L.Ed.2d 352 I. N. GORDON, appellant,v.STATE OF TEXAS. No. 71. Supreme Court of the United States January 13, 1958 Rehearing Denied March 3, 1958. See 355 U.S. 967, 78 S.Ct. 530. Mr. B. R. Stewart, for appellant. Mr. C. K. Richards, Asst. Atty. Gen. of Texas (Mr. Will Wilson, Atty. Gen., on the brief), for respondent. PER CURIAM. 1 The judgment is affirmed. Twenty-first Amendment to the Constitution of the United States. Carter v. Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605.

78

355 U.S. 313 78 S.Ct. 277 2 L.Ed.2d 302 Rose STAUB, Appellant,v.CITY OF BAXLEY. No. 48. Argued Nov. 18, 19, 1957. Decided Jan. 13, 1958. Mr. Morris P. Glushien, New York City, for appellant. Mr. J. H. Highsmith, Baxley, Ga., for appellee. Mr. Justice WHITTAKER delivered the opinion of the Court. 1 Appellant, Rose Staub, was convicted in the Mayor's Court of the City of Baxley, Georgia, of violation of a city ordinance and was sentenced to imprisonment for 30 days or to pay a fine of $300. The Superior Court of the county affirmed the judgment of conviction; the Court of Appeals of the State affirmed the judgment of the Superior Court, 94 Ga.App. 18, 93 S.E.2d 375, and the Supreme Court of the State denied an application for certiorari. The case comes here on appeal. 2 The ordinance in question is set forth in the margin.1 Its violation, which is not denied, arose from the following undisputed facts shown at the trial: Appellant was a salaried employee of the International Ladies' Garment Workers Union which was attempting to organize the employees of a manufacturing company located in the nearby town of Hazelhurst. A number of those employees lived in Bazley. On February 19, 1954, appellant and one Mamie Merritt, also a salaried employee of the union, went to Baxley and, without applying for permits required under the ordinance, talked with several of the employees at their homes about joining the union. While in a restaurant in Baxley on that day they were sought out and questioned by the Chief of Police concerning their activities in Baxley, and appellant told him that they were 'going around talking to some of the women to organize the factory workers * * * and hold(ing) meetings with them for that purpose.' Later that day a meeting was held at the home of one of the employees, attended by three other employees, at which, in the words of the hostess, appellant 'just told us they wanted us to join the union, and said it would be a good thing for us to do * * * and went on to tell us how this union would help us.' Appellant told those present that the membership dues would be 64 cents per week but would not be payable until the employees were organized. No money was asked or received from the persons at the meeting, but they were invited 'to get other girls * * * there to join the union' and blank membership cards were offered for that use. Appellant further explained that the immediate objective was to 'have enough cards signed to petition for an election * * * with the Labor Board.'2 3 On the same day a summons was issued and served by the Chief of Police commanding appellant to appear before the Mayor's Court three days later to answer 'to the offense of Soliciting Members for an Organization without a Permit & License.' 4 Before the trial, appellant moved to abate the action upon a number of grounds, among which were the contentions that the ordinance 'shows on its face that it is repugnant to and violative of the 1st and 14th Amendments to the Constitution of the United States in that it places a condition precedent upon, and otherwise unlawfully restricts, the defendant's freedom of speech as well as freedom of the press and freedom of lawful assembly' by requiring, as conditions precedent to the exercise of those rights, the issuance of a 'license' which the Mayor and city council are authorized by the ordinance to grant or refuse in their discretion, and the payment of a 'license fee' which is discriminatory and unreasonable in amount and constitutes a prohibitory flat tax upon the privilege of soliciting persons to join a labor union. These contentions were overruled by the Mayor's Court and, after a continuance,3 the case was tried and appellant was convicted and sentenced as stated.4 The same contentions were made in the Superior Court where the city answered, denying 'that the ordinance is invalid or void for any of the reasons stated' by appellant, and, after a hearing, that court affirmed the judgment of conviction. 5 Those contentions were renewed in the Court of Appeals but that court declined to consider them. It stated that '(t)he attack should have been made against specific sections of the ordinance and not against the ordinance as a whole'; that '(h)aving made no effort to secure a license the defendant is in no position to claim that any section of the ordinance is invalid or unconstitutional'; and that since it 'appears that the attack was not made against any particular section of the ordinance as being void or unconstitutional, and that the defendant has made no effort to comply with any section of the ordinance * * * it is not necessary to pass upon the sufficiency of the evidence, the constitutionality of the ordinance, or any other phase of the case * * *.' The court then held that '(t)he trial court did not err in overruling the writ of certiorari' and affirmed the judgment of conviction. 94 Ga.App. at page 24, 93 S.E.2d at pages 378—379. 6 At the threshold, appellee urges that this appeal be dismissed because, it argues, the decision of the Court of Appeals was based upon state procedural grounds and thus rests upon an adequate nonfederal basis, and that we are therefore without jurisdiction to entertain it. Hence, the question is whether that basis was an adequate one in the circumstances of this case. 'Whether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law and, where a case coming from a state court presents that question, this court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court.' First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 346, 46 S.Ct. 135, 137, 70 L.Ed. 295, and cases cited. See also Schuylkill Trust Co. v. Commonwealth of Pennsylvania, 296 U.S. 113, 122—123, 56 S.Ct. 31, 36, 80 L.Ed. 91; and Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949. As Mr. Justice Holmes said in Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143, 'Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.' Whether the constitutional rights asserted by the appellant were '* * * given due recognition, by the (Court of Appeals) is a question as to which the (appellant is) entitled to invoke our judgment, and this (she has) done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward non-federal grounds of decision that were without any fair or substantial support * * * (for) if non-federal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided.' Ward v. Board of Com'rs of Love County, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751, and cases cited. 7 The first of the nonfederal grounds relied on by appellee, and upon which the decision of the Court of Appeals rests, is that appellant lacked standing to attack the constitutionality of the ordinance because she made no attempt to secure a permit under it. This is not an adequate nonfederal ground of decision. The decisions of this Court have uniformly held that the failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 585, 75 L.Ed. 1264; Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949. 'The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.' Jones v. City of Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1242, 86 L.Ed. 1691, dissenting opinion adopted per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290. 8 Appellee also contends that the holding of the Court of Appeals, that appellant's failure to attack 'specific sections' of the ordinance rendered it unnecessary, under Georgia procedure, 'to pass upon * * * the constitutionality of the ordinance, or any other phase of the case * * *,' constitutes an adequate 'nonfederal ground' to preclude review in this Court. We think this contention is 'without any fair or substantial support' (Ward v. Board of Com'rs of Love County, supra) and therefore does not present an adequate nonfederal ground of decision in the circumstances of this case. The several sections of the ordinance are interdependent in their application to one in appellant's position and constitute but one complete act for the licensing and taxing of her described activities. For that reason, no doubt, she challenged the constitutionality of the whole ordinance, and in her objections used language challenging the constitutional effect of all its sections. She did, thus, challenge all sections of the ordinance, though not by number. To require her, in these circumstances, to count off, one by one, the several sections of the ordinance would be to force resort to an arid ritual of meaningless form. Indeed, the Supreme Court of Georgia seems to have recognized the arbitrariness of such exaltation of form. Only four years ago that court recognized that an attack on such a statute was sufficient if 'the (statute) so challenged was invalid in every part for some reason alleged.' Flynn v. State, 1953, 209 Ga. 519, 522, 74 S.E.2d 461, 464. In enunciating that rule the court was following a long line of its own decisions. Atlantic Loan Co. v. Peterson, 1935, 181 Ga. 266, 269, 182 S.E. 15, 16—17; Miller v. Head, 1938, 186 Ga. 694, 708, 198 S.E. 680, 687—688; Stegall v. Southwest Georgia Regional Housing Authority, 1944, 197 Ga. 571, 30 S.E.2d 196; Krasner v. Rutledge, 1948, 204 Ga. 380, 383, 49 S.E.2d 864, 866. 9 We conclude that the decision of the Court of Appeals does not rest on an adequate nonfederal ground and that we have jurisdiction of this appeal. 10 The First Amendment of the Constitution provides: 'Congress shall make no law * * * abridging the freedom of speech * * *.' This freedom is among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action; and municipal ordinances adopted under state authority constitute state action. Lovell v. City of Griffin, supra, 303 U.S. at page 450, 58 S.Ct. at page 668, and cases cited. 11 This ordinance in its broad sweep makes it an offense to 'solicit' citizens of the City of Baxley to become members of any 'organization, union or society' which requires 'fees (or) dues' from its members without first applying for and receiving from the Mayor and Council of the City a 'permit' (Sections I and II) which they may grant or refuse to grant (Section V) after considering 'the character of the applicant, the nature of the * * * organization for which members are desired to be solicited, and its effects upon the general welfare of (the) citizens of the City of Baxley' (Section IV). 12 Appellant's first contention in this Court is that the ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council of the City and thereby constitutes a prior restraint upon, and abridges, that freedom. Believing that appellant is right in that contention and that the judgment must be reversed for that reason, we confine our considerations to that particular question and do not reach other questions presented. 13 It will be noted that appellant was not accused of any act against the peace, good order or dignity of the community, nor for any particular thing she said in soliciting employees of the manufacturing company to join the union. She was simply charged and convicted for 'soliciting members for an organization without a Permit.' This solicitation, as shown by the evidence, consisted solely of speaking to those employees in their private homes about joining the union.5 14 It will also be noted that the permit is not to be issued as a matter of course, but only upon the affirmative action of the Mayor and Council of the City. They are expressly authorized to refuse to grant the permit if they do not approve of the applicant or of the union or of the union's 'effects upon the general welfare of citizens of the City of Baxley.' These criteria are without semblance of definitive standards or other controlling guides governing the action of the Mayor and Council in granting or withholding a permit. Cf. Niemotko v. State of Maryland, 340 U.S. 268, 271—273, 71 S.Ct. 325, 327—328, 95 L.Ed. 267. It is thus plain that they act in this respect in their uncontrolled discretion. 15 It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. 16 In Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, this Court held invalid an Act which proscribed soliciting money or any valuable thing for 'any alleged religious, charitable or philanthropic cause', Gen.St.1930, § 6294, unless the 'cause' is approved by the secretary of the public welfare council of the state. Speaking for a unanimous Court, Mr. Justice Roberts said: 17 'It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion * * * is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth. * * * (T)o condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.' 310 U.S. at pages 305, 307, 60 S.Ct. at page 904. 18 To the same effect are Lovell v. City of Griffin, supra, 303 U.S. at pages 451, 452, 58 S.Ct. at pages 668, 669;6 Hague v. C.I.O., 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423;7 Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 163, 164, 60 S.Ct. 146, 151, 152, 84 L.Ed. 155;8 Largent v. State of Texas, 318 U.S. 418, 422, 63 S.Ct. 667, 669, 87 L.Ed. 873;9 Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290, adopting per curiam on rehearing the dissenting opinion in 316 U.S. 584, 600 602, 62 S.Ct. 1231, 1240, 1241, 86 L.Ed. 1691;10 Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267;11 Kunz v. People of State of New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280.12 19 It is undeniable that the ordinance authorized the Mayor and Council of the City of Baxley to grant 'or refuse to grant' the required permit in their uncontrolled discretion. It thus makes enjoyment of speech contingent upon the will of the Mayor and Council of the City, although that fundamental right is made free from congressional abridgment by the First Amendment and is protected by the Fourteenth from invasion by state action. For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms and lays 'a forbidden burden upon the exercise of liberty protected by the Constitution.' Cantwell v. State of Connecticut, supra, 310 U.S. at page 307, 60 S.Ct. at page 905. Therefore, the judgment of conviction must fall. 20 Reversed. 21 Mr. Justice FRANKFURTER, whom Mr. Justice CLARK joins, dissenting. 22 This is one of those small cases that carry large issues, for it concerns the essence of our federalism—due regard for the constitutional distribution of power as between the Nation and the States, and more particularly the distribution of judicial power as between this Court and the judiciaries of the States.1 23 An ordinance of the City of Baxley, Georgia,2 provides that anyone who seeks to solicit members for any organization requiring the payment of dues shall first apply to the Mayor and Council of Baxley for a permit to carry on such solicitation. The ordinance further provides a detailed procedure for making the application, standards for granting the permit, the fee to be charged, and sanctions for failure to comply with the ordinance. Appellant was arrested for violation of the ordinance and was ordered to appear before the Mayor's Court of the City. By a plea in abatement she attacked the ordinance as in conflict with provisions of the State and the United States Constitutions and with the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.3 Her plea was overruled, and the cause proceeded to trial. The undisputed evidence established that appellant was an employee of the International Ladies' Garment Workers Union, an organization that required dues of its members, that she was soliciting members for the union in Baxley, and that she had not applied for a permit as required by the city ordinance. Appellant was convicted and sentenced to pay a fine or $300 or serve 30 days in the city jail. 24 Appellant applied to the Superior Court of the county for a writ of certiorari, repeating the contentions she had made in her plea in abatement. The cause was tried de novo by the court without a jury and the judgment of the Mayor's Court was affirmed. 25 On writ of error, the Georgia Court of Appeals reviewed the judgment of the Superior Court. It noted that appellant had made no effort to secure a permit and that her constitutional attack should have been made specifically against a particular section or sections of the ordinance and not against the ordinance as a whole. On this doctrine of Georgia appellate procedure it cited Anthony v. City of Atlanta, 66 Ga.App. 504, 505, 18 S.E.2d 81—82, which in turn cited Glover v. City of Rome, 173 Ga. 239, 160 S.E. 249, and concluded that the issue of the constitutionality of the ordinance had not been properly raised. Accordingly, the Court of Appeals sustained the conviction. 94 Ga.App. 18, 93 S.E.2d 375. The Supreme Court of Georgia denied appellant's application for a writ of certiorari, and the case came here on appeal from the Court of Appeals of Georgia. 26 The jurisdictional basis for this appeal is 28 U.S.C. § 1257, 28 U.S.C.A. § 1257, which had its origin in the famous twenty-fifth section of the Act of September 24, 1789, 1 Stat. 73, 85. That seemingly technical procedural provision of the First Judiciary Act has served as one of the most nationalizing forces in our history. By that section, as construed in Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97, strongly reinforced by Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 5 L.Ed. 257, the denial of a claim of a federal right in the final judgment of the highest available court of a State could be brought for review at the bar of this Court. This amenability of state action to the judicial arbitrament of the Nation's Supreme Court has been recognized by leading historians as one of the shaping influences in the fusion of the States into a Nation. Naturally enough, vigorous efforts were made, both before and after the Civil War, to repeal § 25, but without avail. See Warren, Legislative and Judicial Attacks on the Supreme Court of the United States, A History of the Twenty-Fifth Section of the Judiciary Act, 47 Amer.L.Rev. 1, 161; H.R.Rep.No. 43, 21st Cong., 2d Sess.; Hart and Wechsler, 'Note on the Attacks Upon the Jurisdiction,' The Federal Courts and the Federal System, 418. The power of this Court to review denials by state courts of federal claims has never been qualified.4 27 While the power to review the denial by a state court of a nonfrivolous claim under the United States Constitution has been centered in this Court, carrying with it the responsibility to see that the opportunity to assert such a claim be not thwarted by any local procedural device, equally important is observance by this Court of the wide discretion in the States to formulate their own procedures for bringing issues appropriately to the attention of their local courts, either in shaping litigation or by appeal. Such methods and procedures may, when judged by the best standards of judicial administration, appear crude, awkward and even finicky or unnecessarily formal when judged in the light of modern emphasis on informality. But so long as the local procedure does not discriminate against the raising of federal claims and, in the particular case, has not been used to stifle a federal claim to prevent its eventual consideration here, this Court is powerless to deny to a State the right to have the kind of judicial system it chooses and to administer that system in its own way. It is of course for this Court to pass on the substantive sufficiency of a claim of federal right, First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 346, 46 S.Ct. 135, 137, 70 L.Ed. 295, but if resort is had in the first instance to the state judiciary for the enforcement of a federal constitutional right, the State is not barred from subjecting the suit to the same procedures, nisi prius5 and appellate, that govern adjudication of all constitutional issues in that State. Edelman v. People of State of California, 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387; Parker v. People of State of Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886. In Nickel v. Cole, 256 U.S. 222, 225, 41 S.Ct. 467, 468, 65 L.Ed. 900, we said, '(W)hen as here there can be no pretence that the (state) Court adopted its view in order to evade a constitutional issue, and the case has been decided upon grounds that have no relation to any federal question, this Court accepts the decision whether right or wrong.' 28 The relevance of a state procedure requiring that constitutional issues be presented in their narrowest possible scope is confirmed by the practice of this Court. The Court has long insisted, certainly in precept, on rigorous requirements that must be fulfilled before it will pass on the constitutionality of legislation, on avoidance of such determinations even by strained statutory construction, and on keeping constitutional adjudication, when unavoidable, as narrow as circumstances will permit. See the classic statement of the unanimous Court in Liverpool, N.Y. & P.S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899, and 'a series of rules,' drawn from a long sequence of prior decisions by Mr. Justice Brandeis, in his well-known concurring opinion, frequently cited and always approvingly, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688. Even though its action may result in the disadvantages and embarrassments of keeping open doubtful questions of constitutionality, this Court will consider only those very limited aspects of a statute that alone may affect the rights of a particular litigant before the Court. See Muskrat v. United States, 219 U.S. 346, 361—362, 31 S.Ct. 250, 255, 55 L.Ed. 246; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. A statute may be found invalid in some of its parts but valid in others, see Dorchy v. State of Kansas, 264 U.S. 286, 289—290, 44 S.Ct. 323, 324, 68 L.Ed. 686, it may be valid at one time and not another, see Chastleton Corp. v. Sinclair, 264 U.S. 543, 547—548, 44 S.Ct. 405, 406, 68 L.Ed. 841, it may be valid under one state of facts but not another, see Kansas City Southern R. Co. v. Anderson, 233 U.S. 325, 329—330, 34 S.Ct. 599, 600, 58 L.Ed. 983, it may be valid as to one class of persons and invalid as to others, see People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160—161, 27 S.Ct. 188, 190, 51 L.Ed. 415. It is because the exercise of the right to declare a law unconstitutional is 'the most important and delicate duty of this court,' and because that right 'is not given to (the Court) as a body with revisory power over the action of Congress,' Muskrat v. United States, supra, 219 U.S. at page 361, 31 S.Ct. at page 255, nor, it may be added, over the action of the forty-eight States, that this Court has from the beginning demanded of litigants that they show in precisely what way and to what extent incursions have been made into their federally protected rights and rules have been developed designed to narrow as closely as possible the issues presented by such claims. Surely a state court is not to be denied the like right to protect itself from the necessity—sometimes even the temptation—of adjudicating overly broad claims of unconstitutionality. Surely it can insist that such claims be formulated under precise (even if, in our view, needlessly particularized) requirements and restricted to the limited issues that concrete and immediately pressing circumstances may raise. 29 An examination of the whole course of Georgia decisions leaves one with the clear conviction that the procedural rule applied by the Court of Appeals of Georgia in this case was intended to be responsive to the same problems that have influenced the important considerations of judicial policy governing the administration of this Court's business. The cases relied upon by the Georgia court in this case are part of a long line of decisions holding a comprehensive, all-inclusive challenge to the constitutionality of a statute inadequate and requiring explicit particularity in pleadings in order to raise constitutional questions. Those cases rest essentially on a recognition of the gravity of judicial invalidation of legislation. See, e.g., Dade County v. State, 201 Ga. 241, 245, 39 S.E.2d 473, 476—477. They require the pleader to allege the specific portion of the challenged legislation. Thus, allegations of unconstitutionality directed at a group of 16 sections of the Criminal Code, Rooks v. Tindall, 138 Ga. 863, 76 S.E. 378; a single named 'lengthy section' of a statute, Crapp v. State, 148 Ga. 150, 95 S.E. 993; a single section of a city charter amendment, Glover v. City of Rome, 173 Ga. 239, 160 S.E. 249; a named Act of the General Assembly, Wright v. Cannon, 185 Ga. 363, 195 S.E. 168; and a 5-section chapter of the Code, Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 95 S.E.2d 677, were held 'too general' or 'too indefinite' to raise constitutional questions because of their failure to define with particularity what portions offended claimed constitutional rights. The Georgia rule is designed to apply, within this touchy scope of constitutional litigation, the requirement of the Georgia Code, Ga.Code Ann.1956, § 81—101, that pleadings shall 'plainly, fully, and distinctly' set forth the pleader's cause of action, see Richmond Concrete Products Co. v. Ward, supra, 212 Ga. at page 775, 95 S.E.2d at page 679. 30 There is nothing frivolous or futile (though it may appear 'formal') about a rule insisting that parties specify with arithmetic particularity those provisions in a legislative enactment they would ask a court to strike down. This is so, because such exactitude helps to make concrete the plaintiffs' relation to challenged provisions. First, it calls for closer reflection and greater responsibility on the part of one who challenges legislation, for, in formulating specific attacks against each provision for which an infirmity is claimed, the pleader is more likely to test his claims critically and to reconsider them carefully than he would be if he adopted a 'scatter-shot' approach. Secondly, the opposing party, in responding to a particularized attack, is more likely to plead in such a way as to narrow or even eliminate constitutional issues, as where he admits that a specific challenged provision is invalid.6 Finally, where the parties identify particular language in a statute as allegedly violating a constitutional provision, the court will often be able to construe the words in such a way as to render them inoffensive. The ordinance involved in this case might, for example, have been held inapplicable to the type of organization to which appellant belongs had her objections been directed at the word 'union' in § I; it might have been held to provide for the automatic granting of a permit upon registration had appellant's objections been directed specifically at the standard set forth in § IV.7 Sophisticated as such a construction might appear, it would have entailed less astute reading than has been resorted to by this Court in its avoidance of constitutional adjudication. 31 Of course, even if the Georgia rule is intrinsically reasonable and thus entitled to respect by this Court, we must be sure that it has not been applied arbitrarily in the case before us. Appellant attacks a nine-section ordinance with nine charges of invalidity, several of which (although it is difficult to say precisely how many) involve federal claims. It may be—but it certainly is not clearly so—that with little expenditure of time and effort, and with little risk of misreading appellant's charges, a court could determine exactly what it is about the Baxley ordinance that allegedly infringes upon appellant's constitutional rights. But rules are not made solely for the easiest cases they govern. The fact that the reason for a rule does not clearly apply in a given situation does not eliminate the necessity for compliance with the rule. So long as a reasonable rule of state procedure is consistently applied, so long as it is not used as a means for evading vindication of federal rights, see Davis v. Wechsler, 263 U.S. 22, 24—25, 44 S.Ct. 13, 14, 68 L.Ed. 143, it should not be refused applicability. There is no indication whatever in the case before us that the Georgia Court of Appeals applied this well-established rule of pleading arbitrarily or inadvisedly; this case cannot be said to stand out, among the many cases in which the rule has been applied, as a deviation from the norm. 32 The local procedural rule which controlled this case should not be disregarded by reason of a group of Georgia cases which, while recognizing and reaffirming the rule of pleading relied on by the Court of Appeals below, suggest a limited qualification. It appears that under special circumstances, where a generalized attack is made against a statute without reference to specific provisions, the court will inquire into the validity of the entire body of legislation challenged. The cases on which the Court relies as establishing this as the prevailing rule in Georgia strongly indicate that this approach will be used only where an allegation of unconstitutionality can be disposed of (one way or the other) relatively summarily and not where, as here, difficult issues are raised. In the only case cited by the Court in which the Georgia Supreme Court overturned a statute on the basis of generalized allegations, Atlantic Loan Co. v. Peterson, 181 Ga. 266, 182 S.E. 15, the result was 'plainly apparent.' 181 Ga. at page 274, 182 S.E. at page 19. In the other cases cited, Miller v. Head, 186 Ga. 694, 198 S.E. 680; Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571, 30 S.E.2d 196; Krasner v. Rutledge, 204 Ga. 380, 49 S.E.2d 864, and Flynn v. State, 209 Ga. 519, 74 S.E.2d 461, the court gave varying degrees of recognition to this approach, refusing altogether to apply it in Flynn, where the court declined to accept 'the burden of examining the act section by section and sentence by sentence.' 209 Ga. at page 522, 74 S.E.2d at page 464. Certainly it cannot be said that the Court of Appeals was out of constitutional bounds in failing to bring the instant case within the purview of whatever exception can be said to have been spelled out by these cases or that it is for this Court to formulate exceptions to the valid Georgia rule of procedure. 33 The record before us presents not the remotest basis for attributing to the Georgia court any desire to limit the appellant in the fullest opportunity to raise claims of federal right or to prevent an adverse decision on such claims in the Georgia court from review by this Court. Consequently, this Court is left with no proper choice but to give effect to the rule of procedure on the basis of which this case was disposed of below. 'Without any doubt it rests with each state to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise; and the state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law. Callan v. Bransford, 139 U.S. 197, 11 S.Ct. 519, 35 L.Ed. 144; Brown v. Commonwealth of Massachusetts, 144 U.S. 573, 12 S.Ct. 757, 36 L.Ed. 546; Jacobi v. State of Alabama, 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106; Hulbert v. City of Chicago, 202 U.S. 275, 281, 26 S.Ct. 617, 618, 50 L.Ed. 1026; Newman v. Gates, 204 U.S. 89, 27 S.Ct. 220, 51 L.Ed. 385; Chesapeake & Ohio Railway Co. v. McDonald, 214 U.S. 191, 195, 29 S.Ct. 546, (547), 53 L.Ed. 963.' John v. Paullin, 231 U.S. 583, 585, 34 S.Ct. 178, 58 L.Ed. 381. 34 The appeal should be dismissed. 35 Appendix. 36 Portions of Appellant's Plea in Abatement. 37 '2. Defendant alleges that the prosecution of said case should be abated upon the ground that said ordinance is unconstitutional and void for the reasons hereinafter stated. 38 '(a) Defendant shows that the ordinance with which she is charged to have violated shows on its face that it is repugnant to and violative of the 1st and 14th Amendments to the Constitution of the United States in that it places a condition precedent upon, and otherwise unlawfully restricts the defendant's freedom of speech as well as freedom of the press and freedom of lawful assembly. Defendant shows that the right to engage in organizing labor unions is an inherent constitutional right consisting of soliciting members by pointing out to workers the advantage of belonging to labor unions, such solicitation being done by word of mouth, by pamphlets or other publications and by holding meetings of those desirous to be informed of the facts about labor unions. Defendant shows that such acts are restricted and limited by said ordinance so as to place a condition precedent, by way of the payment of a license fee, or the privilege of engaging in the constitutional rights of free speech, free press and free assembly. 39 '(b) Defendant shows that said ordinance is repugnant to and violative of Section 7 of the National Labor Relations Act, as amended, and tends to contravene said Act and the public policy of the United States as contained in said Act by establishing unwarranted conditions upon the right of defendant to participate in the labor activities secured by the National Labor Relations Act, as amended, and the public policy of the United States. Thus the ordinance which interferes with such rights is in direct conflict with superior Federal legislation and is therefore unconstitutional, null and void. 40 '(c) Defendant shows that said ordinance is not a valid ordinance in that it denies equal protection of the laws to defendant and others like defendant in that said ordinance, which requires the payment of large sums of money, is founded upon an unreasonable and invalid classification of persons which must pay the confiscatory fee which is set out in the ordinance. Said ordinance makes the payment of the fee conditioned upon the mere fact that a person receives remuneration for his efforts in soliciting membership in an organization. Such classification is not a reasonable classification for imposing the payment of a fee upon defendant and others similarly situated. 41 '(d) Defendant shows that said ordinance is invalid in that it shows on its face that it is a regulatory measure imposing a flat tax upon a privilege which is excessive in amount. The sums of money charged under said ordinance are of such amount as to be wholly unreasonable, confiscatory and prohibitory. The amounts of money charged in said ordinance are so large that it could not reasonably be paid by anyone desiring to organize any sort of organization and therefore exists solely to prevent and deprive defendant and others like defendant from organizing members in their organization and exercising rights previously herein set out. The ordinance shows on its face that it is patently a device intended to prevent organization within the city limits in behalf of labor unions. It is a well known fact this day and time that labor unions constitute the vast majority of organizations which send paid representatives into communities for the purpose of organizing and soliciting membership. The above purposes are illegal and improper and is a misuse and abuse of the law-making powers of the plaintiff city, but nevertheless will be successful in depriving defendant of her rights unless this court declares said ordinance null and void. 42 '(e) Defendant shows that said ordinance is an invalid regulating in that it leaves within the discretion of the Mayor and City Council, with no form of appeal or any objective or definitive standards, the refusal or granting of the license required. 43 '(f) Defendant shows that said ordinance is void in that the same is repugnant to and violative of Article 1, Section 1, paragraph 3 of the Constitution of the State of Georgia in that the same is not impartial but is unreasonable and arbitrary and contravenes said Section. 44 '(g) Defendant shows that said ordinance is unconstitutional and void as violative of Article 1, Section 1, Paragraph 3 of the Constitution of Georgia in that defendant is deprived of her liberty and property without due process of law. 45 '(h) Defendant shows that said ordinance is not a valid ordinance enacted for any legitimate purpose to benefit the citizens of Baxley, Georgia, but that said ordinance on its face shows that it is unreasonable, confiscatory, prohibitory and discriminatory, and that it exists solely for the purpose of depriving and denying defendant and others from engaging in a lawful occupation and that said ordinance is for the purpose of preventing the organization of labor unions within the city limits of Baxley, Georgia. 46 '(i) Defendant avers that said ordinance is patently void in that the same is a misuse and abuse of the police power of the City of Baxley, Georgia, in an effort to deprive defendant and others like defendant of their rights herein referred to through the subterfuge of a city ordinance. 47 '3. Defendant alleges that because of the aforesaid reasons said ordinance is unconstitutional and void, and should be so declared by the court, and the action against defendant for violation thereof abated.' 1 'Section I. Before any person or persons, firms or organizations shall solicit membership for any organization, union or society of any sort which requires from its members the payments of membership fees, dues or is entitled to make assessment against its members, such person or persons shall make application in writing to Mayor and Council of the City of Baxley for the issuance of a permit to solicit members in such organization from among the citizens of Baxley. 'Section II. Such application shall give the name and nature of the organization for which applicant desires to solicit members, whether such organization is incorporated or unincorporated, the location of its principal office and place of business and the names of its officers, along with date of its organization, and its assets and liabilities. Such application shall further contain the age and residence of applicant including places of residence of applicant for past ten years; and as well as business or profession in which such applicant has been engaged during said time, and shall furnish at least three persons as references to applicant's character. Said application shall also furnish the information as to whether applicant is a salaried employee of the organization for which he is soliciting members, and what compensation, if any, he receives for obtaining members. 'Section III. This application shall be submitted to a regular meeting of Mayor and Council of City of Baxley, and in event it is desired by Mayor and Council to investigate further the information given in the application, or in the event the applicant desires a formal hearing on such application, such hearing shall be set for a time not later than the next regular meeting of the Mayor and Council of City of Baxley. At such hearing the applicant may submit for consideration any evidence that he may desire bearing on the application, and any interested persons shall have the right of appearing and giving evidence to the contrary. 'Section IV. In passing upon such application the Mayor and Council shall consider the character of the applicant, the nature of the business of the organization for which members are desired to be solicited, and its effects upon the general welfare of citizens of the City of Baxley. 'Section V. The granting or refusing to grant of such application for a permit shall be determined by vote of Mayor and Council, after consideration and hearing if same is requested by applicant or Mayor and Council, in the same manner as other matters are so granted or denied by the vote of the Mayor and Council. 'Section VI. In the event that person making application is salaried employee or officer of the organization for which he desires to seek members among the citizens of Baxley, or persons employed in the City of Baxley, or received a fee of any sort from the obtaining of such members, he shall be issued a permit and license for soliciting such members upon the payment of $2,000.00 per year. Also $500.00 for each member obtained. 'Section VII. Any person, persons, firm, or corporation soliciting members for any organization from among the citizens or persons employed in the City of Baxley without first obtaining a permit and license therefor shall be punished as provided by Section 85 of Criminal Code of City of Baxley. 'Section VIII. All Ordinances of City of Baxley in conflict with (this) ordinance are hereby repealed. 'Section IX. Should any section or portion of this Ordinance be held void, it shall not affect the remaining sections and portions of same.' 2 This reference obviously was to the National Labor Relations Board as Georgia has no comparable agency. 3 During that continuance, appellant brought an action in the Superior Court of the county asking an injunction against enforcement of the ordinance and a declaration of its invalidity. The Superior Court found against petitioner and on appeal the Supreme Court of the State affirmed, holding that 'If the ordinance is invalid, by reason of its unconstitutionality, or for other cause, such invalidity would be a complete defense to any prosecution that might be instituted for its violation.' Staub v. Mayor, etc., of Baxley, 211 Ga. 1, 2, 83 S.E.2d 606, 608. 4 Mamie Merritt was also charged with the same offense and was tried with appellant and was likewise convicted and given the same sentence, but it has been stipulated that the judgment of conviction against her shall await, and conform with, the result of this appeal. 5 For that reason we are not here confronted with any question concerning the right of the city to regulate the pursuit of an occupation. Cf. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. 6 The ordinance involved in that case proscribed the distribution of literature in the City of Griffin 'without first obtaining written permission from the City Manager * * *,' which he might grant or withhold in his discretion. 303 U.S. at page 447, 58 S.Ct. at page 667. This Court, in reversing a conviction under that ordinance, said: 'Legislation of the type of the ordinance in question 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. 7 There the ordinance proscribed the leasing of a hall for a public speech or the holding of public meetings 'without a permit from the Chief of Police.' 307 U.S. at page 501, 59 S.Ct. at page 957. Members of a labor union sought permission to hold public meetings in the city for the 'organization of unorganized workers into labor unions.' Id., 307 U.S. at page 504, 59 S.Ct. at page 959. Permission was refused on the ground that such meetings would cause disorder. They then sought and obtained an injunction prohibiting the city from interfering with their rights of free speech and peaceable assembly. The case came here on certiorari and this Court affirmed. In the course of his opinion, Mr. Justice Roberts said the ordinance was 'void upon its face' and that '* * * uncontrolled official suppression (of free speech and peaceable assembly) cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.' Id., 307 U.S. at page 516, 59 S.Ct. at page 964. 8 There an ordinance of Irvington, New Jersey, in effect banned 'communication of any views or the advocacy of any cause from door to door' (308 U.S. at page 163, 60 S.Ct. at page 149), without 'a written permit from the Chief of Police * * *.' Id., 308 U.S. at page 157, 60 S.Ct. at page 152. This Court held the ordinance invalid as a prior restraint upon First Amendment rights and said that such an ordinance 'strikes at the very heart of the constitutional guarantees.' Id., 308 U.S. at page 164, 60 S.Ct. at page 152. 9 This Court said: 'The mayor issues a permit only if after thorough investigation he 'deems it proper or advisable.' Dissemination of ideas depends upon the approval of the distributor by the official. This is administrative censorship in an extreme form. It abridges the freedom of religion, of the press and of speech guaranteed by the Fourteenth Amendment.' 318 U.S. at page 422, 63 S.Ct. at page 669. 10 Chief Justice Stone said: '(H)ere it is the prohibition of publication, save at the uncontrolled will of public officials, which transgresses constitutional limitations and makes the ordinance void on its face.' 316 U.S. at page 602, 62 S.Ct. at page 1241. 11 There the city allowed use of its park for public meetings, but by custom a permit was required from its park commissioner. A religious group known as Jehovah's Witnesses scheduled several Bible talks to be held in the city park. They applied for a permit to do so, but it was refused. Later they proceeded to hold such a meeting without a permit and when Niemotko opened the meeting he was arrested and later convicted for disturbing the peace, though the meeting was orderly and the real cause was the failure to have a permit. This Court reversed. After pointing out there were no standards governing the discretion of the park commissioner in granting or refusing such permits and referring to Hague v. C.I.O., supra; Lovell v. City of Griffin, supra, and other cases, it said: 'It is clear that all that has been said about the invalidity of such limitless discretion must be equally applicable here. * * * The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.' 340 U.S. at page 272, 71 S.Ct. at page 327. 12 There it was said: 'This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications (to hold outdoor religious meetings) on the basis of his interpretation, at that time, of what is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which given an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.' 340 U.S. at page 293, 71 S.Ct. at page 314. 1 The peculiar demands made upon the judiciary by a federal system such as ours were recently indicated by the Chief Justice of Australia, Sir Owen Dixon: '(F)ederalism is a form of government the nature of which is seldom adequately understood in all its bearings by those whose fortune it is to live under a unitary system. The problems of federalism and the considerations governing their solution assume a different aspect to those whose lives are spent under the operation of a federal Constitution, particularly if by education, practice and study they have been brought to think about the constitutional conceptions and modes of reasoning which belong to federalism as commonplace and familiar ideas. A unitary system presents no analogies and indeed, on the contrary, it forms a background against which many of the conceptions and distinctions inherent in federalism must strike the mind as strange and exotic refinements.' O'Sullivan v. Noarlunga Meat Ltd., 94 C.L.R. 367, 375 (1956). 2 The ordinance is set forth in full in the margin of the opinion of the Court in this case, 355 U.S. 314, 78 S.Ct. at page 278. 3 The relevant portions of appellant's plea in abatement are set forth in an Appendix to this opinion, 355 U.S. 335, 78 S.Ct. at page 289, infra. 4 It was not enlarged until 1914, 38 Stat. 790, now 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3). It had been assumed that state courts would not unduly invoke a federal right to cut down state authority. But judicial attitudes on the part of state courts toward modern social legislation led Congress to establish a new principle of appellate control over state courts by conferring on this Court jurisdiction to review judgments by the highest court of a State upholding as well as denying federal rights. More immediately relevant is the fact that, despite the centralizing tendency generated by the outcome of the Civil War, this Court rejected a vigorous drive to extend the scope of our review so as to cover all questions in the record, even those of state concern, where the case is properly here on denial of some federal claim. This attempted extension was rejected as a 'radical and hazardous change of a policy vital in its essential nature to the independence of the State courts * * *.' Murdock v. City of Memphis, 20 Wall. 590, 630, 22 L.Ed. 429. 5 'While it is true that a substantive Federal right or defense duly asserted cannot be lessened or destroyed by a state rule of practice, yet the claim of the plaintiff in error to a Federal right not having been asserted at a time and in a manner calling for the consideration of it by the state supreme court under its established system of practice and pleading, the refusal of the trial court and of the supreme court to admit the testimony tendered in support of such claim is not a denial of a Federal right which this court can review (Baldwin v. State of Kansas, 129 U.S. 52, 9 S.Ct. 193, 32 L.Ed. 640; Oxley Stave Co. v. Butler County, 166 U.S. 648, 17 S.Ct. 709, 41 L.Ed. 1149.) * * *.' Atlantic Coast Line R. Co. v. Mims, 242 U.S. 532, 536—537, 37 S.Ct. 188, 190, 61 L.Ed. 476. 6 One of the most vulnerable provisions of this ordinance, the drastically high license fee, was taken out of controversy in this suit by the respondent's admission of its invalidity. It is not out of question that more specific pleading might have drawn similar admissions as to other allegedly objectionable portions of the ordinance. 7 Thus, it is an allowable assumption that the Georgia court might construe § VI so as to make it provide that a person in appellant's situation need only apply and pay a fee in order to obtain the permit.

23

355 U.S. 339 78 S.Ct. 311 2 L.Ed.2d 321 Howard LAWN, Petitioner,v.UNITED STATES of America. William GIGLIO and Frank Livorsi, Petitioners, v. UNITED STATES of America. Nos. 9, 10. Argued Oct. 14, 15, 1957. Decided Jan. 13, 1958. Rehearing Denied March 3, 1958. See 355 U.S. 967, 78 S.Ct. 529. [Syllabus from pages 339-341 intentionally omitted] Mr. Milton Pollack, New York City, for petitioner Lawn. Mr. Joseph Leary Delaney, New York City, for petitioners Giglio and Livorsi. Mr. Roger D. Fisher, Washington, D.C., for respondent. Mr. Justice WHITTAKER delivered the opinion of the Court. 1 On July 23, 1953, a 10-count indictment was returned in the United States District Court for the Southern District of New York charging petitioners and others with evading, and conspiring to evade, assessment and payment of a large amount of federal income taxes for the year 1946 in violation of the internal revenue laws (§§ 145(b) and 3793(b) of the Internal Revenue Code of 1939)1 and of the general conspiracy statute (18 U.S.C. § 371, 18 U.S.C.A. § 371). After a protracted trial before a jury petitioners were found guilty as charged.2 On appeal the Court of Appeals found that there was substantial evidence that petitioners, operating through the media of several partnerships and corporations,3 conspired to evade, and by a variety of means did evade, both the assessment4 and the payment5 of more than $800,000 of individual and corporate federal income taxes for the year 19466 upon income derived from the World War II black market in sugar and that petitioners Giglio and Livorsi, who owned equal interests in the several enterprises of which Giglio was the chief executive, were the principals in the conspiracy, but Roth, an accountant, and Lawn, a lawyer,7 provided the accounting and legal services required to carry out the conspiracy. It found that the evidence amply sustained the verdicts and that no prejudicial error was committed at the trial, and it affirmed the judgments of conviction. United States v. Giglio, 2 Cir., 232 F.2d 589. Upon petition by Lawn in No. 9, and by Giglio and Livorsi in No. 10, we granted certiorari. 352 U.S. 865, 77 S.Ct. 91, 1 L.Ed.2d 74. Because the challenged convictions resulted from a common trial at which petitioners were represented by the same counsel, and because several of the questions presented in each case are similar, the two cases will be decided in one opinion. 2 Petitioners ask this Court to reverse their convictions upon four main grounds. First, they contend, Lawn only tangentially, that they were deprived of due process in violation of the Fifth Amendment by the refusal of the District Court to conduct a full-dress hearing to determine whether testimony or documents obtained from them in a prior grand jury investigation, or evidence derived from leads and clues furnished thereby, was considered by the grand jury that returned the present indictment. Second, petitioner Lawn contends that receipt in evidence at the trial of a photostatic copy of a canceled check and its corresponding check stub, obtained from him in a prior grand jury investigation, deprived him of due process in violation of the Fifth Amendment. Third, petitioners contend they were denied an opportunity to examine and cross-examine witnesses at the trial to determine whether evidence derived from leads and clues furnished by testimony and documents obtained from petitioners in a prior grand jury investigation was used by the prosecution at the trial, and that this deprived them of due process in violation of the Fifth Amendment. And fourth, petitioners Lawn and Livorsi contend that the evidence does not support their convictions. 3 Understanding of petitioners' first and second contentions, and to a lesser extent their third contention, requires a review of the underlying facts upon which they are based. Revenue agents began an investigation in 1948 of petitioners' income tax liabilities, and on September 14, 1950, three criminal informations were filed charging them with violation of the federal income tax laws. Those informations were not brought to trial because the Government had not completed its investigation and later concluded that 'much more serious crimes (were) involved.' In early July 1952, petitioners and Roth were served with subpoenas duces tecum commanding them to appear and testify before a grand jury on July 14, 1952, and to produce certain partnership and corporate records of the Giglio and Livorsi enterprises. They appeared and testified, but were not warned of their constitutional privilege against self-incrimination. Lawn produced three canceled checks made by Tavern Fruit Juice Co. payable to his order and the checkbook stub corresponding to the second check. Those instruments were there marked 'G.J. Ex. (1, 2, 3 and 4, respectively) 7/15/52 L.F.G.' and were photostated by the United States Attorney and returned to Lawn. Giglio produced a quantity of records, including some partnership records, but stated that 'practically all of these companies and corporations turned over the books and records to the Internal Revenue Department on some date in 1949.' On October 20, 1952, the grand jury returned six indictments against petitioners charging them with offenses similar to those charged in the present indictment. Petitioners moved to dismiss those indictments upon the ground that they had been procured, in part at least, upon evidence obtained from petitioners in violation of their Fifth Amendment rights. The District Court held that to require petitioners to testify and produce partnership and personal records before the grand jury, while criminal informations charging tax evasions were pending against them, without warning them of their constitutional privilege against self-incrimination, violated their Fifth Amendment rights. It therefore dismissed the indictments and directed the Government 'to return, to the respective defendants, the partnership and personal records produced by them in response to the subpoenas.' United States v. Lawn, D.C., 115 F.Supp. 674, 678. The Government appealed from that order but the appeal was dismissed as untimely on October 19, 1953. United States v. Roth, 2 Cir., 208 F.2d 467.8 While that appeal was pending the Government caused a new investigation to be made of petitioners' federal income tax liabilities by another grand jury, before whom petitioners did not appear, and on July 23, 1953, that grand jury returned the present indictment which was sealed. After the Government's appeal from the order dismissing the 1952 indictment had been dismissed (United States v. Roth, supra) the new sealed indictment was opened, and soon afterward petitioners moved (1) to dismiss the indictment, and in that connection (2) to have a hearing to determine whether the Government had used testimony given or documents produced by petitioners before the 1952 grand jury, or evidence obtained through leads and clues furnished thereby, in procuring the indictment, and (3) to inspect he minutes of the grand jury and, if the motion to dismiss the indictment be denied, (4) to suppress the use at the trial of all testimony and documents procured from petitioners in the 1952 grand jury proceeding and all evidence derived therefrom. These motions were submitted to the court upon affidavits.9 After considering them and hearing extensive arguments of counsel, the court found that the affidavits left no room for an inference that the Government had used illegally obtained materials in securing the present indictment, that petitioners' claim did not have the 'solidity' required to justify the holding of such a hearing, and that to do so 'on the basis of the showing made by the defendants and the Government would indeed be subordinating 'the need for rigorous administration of justice to undue solicitude for potential * * * disobedience of the law by the law's officers.' (Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307.)' United States v. Giglio, D.C., 16 F.R.D. 268, 270. The court declined to hold the requested hearing and denied the motion to inspect the grand jury minutes and the motion to dismiss the indictment. The court also denied the motion to suppress,10 but in that connection said: 'Of course, if during the course of the trial defendants have reason to believe that illegally obtained material is being or may be used against them, they can object at that time and it will be incumbent upon the trial judge to rule on their objections.' United States v. Giglio, supra, 16 F.R.D. at page 271. 4 Pursuant to order of the court the Government produced for inspection by petitioners, before the trial, the corporate records delivered by Giglio to the 1952 grand jury in compliance with its subpoena, the documents which had been abandoned by petitioners and examined by the Government, and the documents relating to petitioners' businesses obtained from the New Jersey receiver. At the beginning of the trial petitioners renewed the above-mentioned motions which were again denied. In the course of the trial the Government furnished petitioners a transcript of their testimony before the 1952 grand jury. I. 5 As stated, petitioners first contend that they were deprived of due process by the refusal of the court to conduct the requested full-dress hearing to enable them to attempt to determine whether materials obtained from them in the 1952 grand jury proceeding, or evidence derived therefrom, was considered by the 1953 grand jury. We believe there is no merit in this contention. The District Court's order dismissing the 1952 indictments because of the use of such evidence before that grand jury, though final, could not in any way determine that any direct or derivative use of such evidence was made by the 1953 grand jury that returned the present indictment. The affidavits submitted in support of and in opposition to the motion for the requested hearing disclosed, as found by the trial court and the Court of Appeals, with which findings we agree, that petitioners had no reason, beyond suspicion, to believe that the 1953 grand jury considered any of the materials produced by petitioners before the 1952 grand jury. These facts make clear that petitioners laid no foundation for the holding of a protracted preliminary hearing (at which they would, in effect, take the depositions of the Government's witnesses) to determine whether there was any substance to their suspicion that some direct or derivative use may have been made by the 1953 grand jury of materials produced by petitioners before the 1952 grand jury. 6 Moreover, this Court has several times rule that one indictment returned by a legally constituted nonbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits and satisfies the requirements of the Fifth Amendment. In Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, this Court was required to decide whether an indictment should be quashed because procured in part by incompetent evidence of an admission by the accused, aside from which 'there was very little evidence against the accused.' Id., 218 U.S. at page 247, 31 S.Ct. at page 4. This Court refused to hold that such an indictment should be quashed, stating: 'The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.' Id., 218 U.S. at page 248, 31 S.Ct. at page 4. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 408, 100 L.Ed. 755, this Court squarely faced and decided the question, saying: 7 'If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.' Id., 350 U.S. at page 363, 76 S.Ct. at page 409. 8 This Court was urged in that case to 'establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence,' id., 350 U.S. at page 364, 76 S.Ct. at page 409, but the Court declined to do so, saying: 9 'It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.' Ibid. 10 It should be unnecessary to say that we are not here dealing with the use of incompetent or illegal evidence in a trial on the merits, nor with the right to decline to give incriminating testimony in legal proceedings or to suppress the direct or derivative use at the trial of evidence illegally obtained. We deal here only with the question whether petitioners, in the circumstances of this case, were entitled to a preliminary hearing to enable them to satisfy their unsupported suspicions that the 1953 grand jury that returned this indictment made direct or derivative use of the materials which they produced before the 1952 grand jury. We hold that they were not. II. 11 We come now to petitioner Lawn's contention that receipt in evidence at the trial of a photostatic copy of a canceled check and its corresponding check stub, obtained from him in the 1952 grand jury proceeding, deprived him of due process in violation of the Fifth Amendment. As earlier stated, Lawn, pursuant to subpoena, produced before the 1952 grand jury a canceled check of Tavern Fruit Juice Co. payable to his order in the amount of $15,000, endorsed by him, and the corresponding stub, which were marked on their faces 'G.J. Ex. 2 7/15/52 L.F.G.' and 'G.J. Ex. 4 7/15/52 L.F.G.,' respectively, and were photostated by the United States Attorney and returned to Lawn. Those photostats were offered in evidence—it appears inadvertently by the prosecution at the trial, as Exhibits 61—A and 61—B. However, before those exhibits were offered, Exhibit 58—A, being a statement of assets, liabilities, income, profit and loss and supporting schedules of Tavern Fruit Juice Company prepared some time after Tavern's fiscal year had ended on March 31, 1946, and Exhibit 7, being Tavern's information tax return for 1946 which was filed on September 15, 1947, had been received in evidence without objection. The former contained an item of 'legal expenses $16,600,' while the latter recited 'legal fees $1,600.' Roth, in explanation, testified that 'sometime during the operation of the partnership a check for $15,000 was drawn to Howard Lawn,' and that a question had arisen about how to enter it on the books. After discussing the matter with Giglio, Roth charged it to legal expense. Months later Lawn asked Roth how the item was carried on Tavern's books and Roth told him that it was carried as a legal expense. Lawn advised Roth that this handling was incorrect, as the item was a loan from Giglio and not a legal expense of Tavern. Thereupon, after consulting Giglio, Roth altered Tavern's books by removing the item from legal expense and charging it to Giglio. Roth did not remember just when the alteration of the books was made, except that it was after the preparation of Exhibit 58—A and prior to the filing of Exhibit 7. 12 It is important to note that at this stage of the trial there was thus clear evidence before the jury, corroborated by Exhibits 58—A and 7, all admitted without objection, showing that Lawn had received the $15,000 check from Tavern, but an issue existed whether it was an innocent loan from Giglio or an incriminatory payment by Tavern in the guise of a legal fee. The prosecution then offered in evidence Exhibits 61—A and 61—B, being the $15,000 check and corresponding stub. Petitioners' able and experienced counsel (now deceased) then asked, and was granted, permission to examine the witness Roth preparatory to a possible objection to those exhibits. He then questioned the witness at some length about the handwriting on the check and stub,11 and concluded by asking the witness: 'Q. And under that check stub or in that No. 640 (the number of the check stub), which corresponds with the check itself, there is a parenthetical statements, 'Bill G'? A. Yes, sir. Q. Indicating it is for Mr. Giglio's account? A. Yes, sir.' And petitioners' counsel then stated, 'No objection,' and the exhibits were received. This examination and use of those exhibits (showing on their face that they had been exhibits before the 1952 grand jury) by petitioners' able counsel to show that the check was an innocent loan by Giglio and not an incriminatory payment by Tavern in the guise of a legal fee—his only opportunity to drive that point home to the jury if petitioners were not to take the stand, as they did not—and his affirmative statement that he had 'no objection' to receipt of the exhibits show, we believe, a conscious and intentional waiver of all objections to receipt of those documents in evidence. 13 Lawn argues that the denial, before the trial, of petitioners' motion to suppress, and the unequivocal affidavit of the United States Attorney in charge of the case stating that materials obtained from petitioners pursuant to subpoena in the 1952 grand jury proceeding would not be used in the future course of the case, preserved his objections to these exhibits and made it unnecessary again to object to them at the trial. It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary again to object when such evidence is offered at the trial. Cogen v. United States, 278 U.S. 221, 223, 49 S.Ct. 118, 119, 73 L.Ed. 275; Gouled v. United States, 255 U.S. 298, 312, 313, 41 S.Ct. 261, 266, 65 L.Ed. 647; Waldron v. United States, 95 U.S.App.D.C. 66, 69—70, 219 F.2d 37, 41; and compare Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515. But the rule is one of practice and is not without exceptions, nor is it to be applied as a hard-and-fast formula to every case regardless of its special circumstances. Cogen v. United States, supra, 278 U.S. at pages 223, 224, 49 S.Ct. at page 119; Gouled v. United States, supra, 255 U.S. at pages 312, 313, 41 S.Ct. at page 266. It will be remembered that the court in passing on the motion to suppress said, respecting the affidavit of the United States Attorney, that 'at this stage of the proceedings, that oath is sufficient' (United States v. Giglio, 16 F.R.D. at page 271), but he expressly left the matter of suppression of evidence to the trial court and admonished petitioners that if during the course of the trial they 'have reason to believe that illegally obtained material is being or may be used against them, they can object at that time and it will be incumbent upon the trial judge to rule on their objections.' Id., at page 271. The record shows that petitioners' counsel was fully aware of all this when Exhibits 61—A and 61—B were offered in evidence, and when, after using them for his purposes, he affirmatively said he had 'no objection' to them. 14 The Government argues that, had its attention been called to the fact that these particular photostatic copies had been exhibits before the 1952 grand jury by an objection to them, it could and would have produced other copies obtained from other sources before the 1952 grand jury proceeding was commenced. In that connection it has filed here what is said to be a transcript of a hearing accorded to Lawn at his request on May 12, 1952, which it says contains photostatic copies of the check and check stub in question voluntarily produced by Lawn. Lawn has moved to strike that transcript and the portions of the Government's brief relating thereto. That motion must be sustained as we must look only to the certified record in deciding questions presented. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762. 15 We believe that the facts from the certified record, above discussed, show that petitioners' counsel, after using the check and check stub to make his point before the jury that the check was an innocent loan from Giglio and not an incriminatory payment by Tavern in the guise of a legal fee, wisely (as, we believe, every impartial and experienced trial lawyer would agree) said that he had 'no objection' to those exhibits, and thus consciously and intentionally waived any objection to their receipt in evidence. III. 16 Petitioners argue that they were denied an opportunity to examine and cross-examine witnesses at the trial to determine whether evidence derived from leads and clues furnished by materials obtained from them in the 1952 grand jury proceedings was used by the prosecution at the trial, and that this deprived them of due process in violation of the Fifth Amendment. It cannot be doubted that petitioners had that right in the circumstances of this case, Nardone v. United States, 308 U.S. 338, 341, 342, 60 S.Ct. 266, 267, 268, 84 L.Ed. 307, and the Government does not otherwise contend. Moreover, as earlier stated, the District Court, in ruling the pretrial motion to suppress expressly left this subject open to inquiry at the trial. United States v. Giglio, 16 F.R.D., at page 271. The contention is wholly factual, and a thorough study of the record discloses that petitioners were accorded that right. The court did not sustain objections to petitioners' examination or cross-examination of witnesses attempting to show derivative use at the trial of any evidence produced by petitioners before the 1952 grand jury, but only sustained objections to questions attacking the procedural validity of the indictment.12 At no time did counsel for petitioners point specifically to any evidence offered at the trial which they claimed was derived from materials furnished by petitioners before the 1952 grand jury. Near the close of the Government's case, the court stated that, so far as he could detect, there had been no direct or derivative use of any tainted evidence by the Government at the trial, and he requested counsel for petitioners, on two occasions, to submit a memorandum of any evidence offered by the Government which he believed was obtained through leads or clues from materials produced by petitioners before the 1952 grand jury. No such memorandum was ever furnished. 17 Petitioners point to three instances there they say the trial court denied them the right to examine witnesses about the source of evidence offered by the Government at the trial. First, they say that in cross-examining the Government's witness Roth they sought to question him concerning an affidavit he had made in support of the motion to dismiss the 1953 indictment, but the court sustained an objection to the question. It is clear that the ruling was made upon the ground, as petitioners' counsel stated at the time, that the purpose of the interrogation was to 'go into the question of what evidence was used to obtain this indictment,' rather than to show the use by the Government of tainted evidence at the trial. Second, they point to the fact that during the crossexamination of Treasury Agent Present, their counsel asked him whether, in his audits, he had examined any other books or records about which counsel had failed to ask; and they argue that the purpose of the question was to determine whether tainted evidence had been or was being used by the Government at the trial, and that they were denied an answer to the question. But examination of the record discloses that counsel's announced purpose in asking the question was not to determine whether wainted evidence had been or was being used at the trial, but was, rather, to determine whether tained evidence was 'used by the grand jury that found this indictment.'13 Third, petitioners argue that in examining their own witness, former Assistant United States Attorney Leone, they were denied an opportunity to show derivative use of tainted evidence by the Government at the trial. The record shows that there is no basis whatever for this contention.14 IV. 18 Petitioners Lawn and Livorsi argue that the evidence is insufficient to sustain their convictions. In support of Count 10, the conspiracy count, the record contains evidence tending to show that Lawn, formerly Chief of the Criminal Division of the United States Attorney's Office for the District of New Jersey, was employed by Giglio and Livorsi because 'he had a terrific entry with some of the highest government offices,' 'was a part of the organization' and was 'there to prevent any trouble.' He was frequently in Giglio's private office, which adjoined his own. Lawn was present in Giglio's office when it was decided that Eatsum would purchase corn at blackmarket prices and have it refined into syrup to be sold for overceiling prices, and Lubben began the handling of those matters. But Lawn later told him that he 'had terrific connections' with a syrup company and with a prominent political figure in the midwest and that he could procure the corn and syrup more advantageously, and Lawn then took over the handling of those matters. Lubben was called into Giglio's office in September 1945, where Giglio, Roth and Lawn were present, and Giglio stated 'that the profits from (Tavern's) candy business and primarily (Eatsum's) corn syrup business were becoming terrific, and that he wasn't interested in paying a lot of income tax and something had to be done, and done quick'; that 'it had been decided to form a number of companies' to siphon off the profits of the partnerships through 'phony invoices'; and that the companies would 'be dissolved * * * before it came time to pay the income tax.' Soon afterward Lawn was instrumental in the creation of a number of corporations bearing in some combination the word 'American.' Lawn was an officer and nominal stockholder in several of these corporations, and owned 25% of the stock of one of them which had been given to him by Giglio and Livorsi, and Lawn received substantial payments from the Giglio and Livorsi enterprises in addition to his salary. In September 1947, near the time the delinquent income tax returns were filed for the year 1946 by Giglio, Livorsi and their several corporations, a meeting was held in Lawn's private office with Giglio and Roth where it was agreed that Giglio would transfer his home to Roth so that the Government would 'not be able to take the house,' and Lawn said the arrangement 'would save Mr. Giglio's home.' Soon afterward the transfer was made. There was other evidence tending to show Lawn's participation in the conspiracy, but we believe the aboverecited evidence, with the legitimate inferences that might be drawn therefrom by the jury, was clearly sufficient to support the verdict on the conspiracy count. 19 Lawn also contests the sufficiency of the evidence to support the verdicts against him on Counts 7 and 9, but since the sentence upon those counts run concurrently with the sentence on Count 10, which we have found sustained by the evidence, it is unnecessary for us to consider those contentions. Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692; Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489.15 20 Petitioner Livorsi argues that the evidence was not sufficient to support the verdicts against him. As to Count 6, which charged him with attempting to evade assessment of his income taxes for the year 1946 by filing a fraudulent return, the record shows that his return disclosed income from Eatsum for that year of $101,123.88. However, the Government introduced evidence showing that his income from that source in that year was $228,288.58, and that his income from Tavern for that year was understated by more than $40,000. During the trial an issue arose concerning the proper 'distributive shares' of Giglio and Livorsi in the profits of Eatsum for the year 1946, by reason of the sale by Lubben of his 'distributive share' in the profits of that pertnership to Giglio and Livorsi (on March 8, 1946) prior to the close of its accounting year on May 31, 1946. Because of that complication the court, in an effort to simplify the matter, gave a supplemental charge to the jury in which, among other things, he said: '(W)hen you get to counts 5 and 6, where it was claimed that the income received from Eatsum wasn't fully reported by the defendant Giglio and by the defendant Livorsi, in connection with their individual returns, I say because of that distributive share difficulty, don't consider Eatsum at all * * *.' (Emphasis supplied.) Livorsi now contends that the effect of that charge was to eliminate the $101,123.88 of income which he had reported in his sworn return as received from that source in that year and to give him a credit in that amount which more than offset his understatement of income from other sources, and, thus, established that there was no deficiency in his reporting of income. This contention need not detain us long. While, of course, a conviction upon a charge of attempting to evade assessment of income taxes by the filing of a fraudulent return cannot stand in the absence of proof of a deficiency, the court's charge did not create the credit claimed by Livorsi. It only withdrew from the jury's consideration the Government's claim that his income from Eatsum in that year was $127,164.70 more than he had reported in his return. That meaning of the charge could not have been misunderstood by the jury. 21 Count 9 charged Livorsi and others with attempting to evade payment of income taxes of American Brands Corporation for the calendar year 1946 by converting and diverting its assets. Livorsi argues that there is no evidence to support his conviction on that count. We must disagree. The evidence disclosed that Livorsi owned half of the capital stock of that corporation and frequently conferred with Giglio, who owned the other half of its capital stock, concerning the operations of the corporation and was familiar with its affaifs; that no income tax was withheld by the corporation from his salary; and that from January 1, 1946, to June 16, 1947, he withdrew from the corporation more than $122,000, including salary, while the corporation had a federal income tax liability for the year 1946 of more than $100,000, as shown by its own return, of which only $300 had been paid. This evidence, with the legitimate inferences that might be drawn therefrom be the jury, was clearly sufficient to support the verdict on Count 9. 22 Livorsi's contention that there was not sufficient evidence to support the verdict against him on Count 10, the conspiracy count, when viewed in the light of all the foregoing facts, and those found by the Court of Appeals, which we find are supported by the record, is entirely without merit. 23 Livorsi also contends that the evidence was not sufficient to support the verdict against him on Count 8, but since the sentence on that count runs concurrently with the sentence on Count 6, which we have affirmed, it is unnecessary to consider his contentions concerning Count 8. Sinclair v. United States, supra; Hirabayashi v. United States, supra; and Pinkerton v. United States, supra.16 24 Several other points raised by petitioners have been carefully considered and are found to be without merit. The judgment in each case must be affirmed. 25 Affirmed. 26 Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice BRENNAN join, concurring in part and dissenting in part. 27 I agree with all of the Court's opinion except Part II relating to Government exhibits 61—A and 61—B, which are the copies of the canceled check and stub evidencing the $15,000 payment to Lawn. This leads me to concur in the affirmance of the convictions of Giglio and Livorsi, but as to Lawn I think a different result is required. 28 The Court appears to recognize that these exhibits were excludable as 'tainted' evidence, since they were government-made copies of documents which, as held in a prior decision, United States v. Lawn, D.C., 115 F.Supp. 674, had been obtained from Lawn in violation of his constitutional rights. Nevertheless the Court sustains their admissibility on the ground that Lawn's counsel 'consciously and intentionally' waived at trial any objection to them. This view I cannot share, for it seems to me the Court's action falls short of what we should do in holding the Government to the strictest measure of accountability on its repeated representations to court and defense counsel that it was not using any 'tainted' evidence at the trial. 29 The Court justifies its finding of waiver by reasoning that the 'no objection' remark of Lawn's counsel at the time these exhibits were introduced reflected his deliberate choice between having these documents in, or securing their exclusion from, the case. But to me this reasoning is quite unconvincing. At the outset, it should be noted that the Court here assumes that counsel realized these particular photostats of the original check and stub were 'tainted' copies. That, in my opinion, is a hazardous assumption. It is true that each exhibit bore the tell-tale 1952 grand jury markings, but assuming, as I do, that the Government's use of these documents was the result of inadvertence, it is equally true that this red light escaped the notice of the prosecutor as well as that of the trial judge, who the record shows was constantly alert and sensitive throughout the trial to the possibility of 'tainted' evidence filtering into the case. I see no reason for attributing to defense counsel greater awareness on this score than that possessed by the prosecutor and the judge. 30 Further, it is by no means as apparent to me as it is to the Court that counsel wanted these exhibits in the case for the purpose of corroborating Lawn's explanation of the $15,000 payment as being an innocent personal loan from Giglio rather than, as claimed by the Government, an incriminatory payment from the partnership.1 As I read the record on this episode, it seems just as reasonable to suppose that counsel's voir dire examination of the witness through whom these exhibits were introduced, ending with his 'no objection' remark, was but the familiar kind of jury play which a good trial lawyer sometimes uses to affect an appearance of unconcern towards damaging evidence which he knows he cannot keep out of the case. It is of interest that defense counsel did not even mention the loan theory in his summation; this tends to show that, having done what he could with these exhibits at the time of their receipt in evidence, his tactics were to leave well enough alone. On the other hand, it can hardly be denied that from a jury's standpoint the actual canceled check bearing Lawn's endorsement was of great value to the Government. In a jury's eyes the canceled check would be apt to be considered an instrument of crime implicating Lawn in the conspiracy, and so indeed the prosecutor played it up with telling effect in his summation. 31 In short, I think the Court has viewed this episode in an unreal light. At least there is much room for doubt as to what counsel actually intended. Where, as here, we are dealing with exhibits whose use the Government can justify at all only on a plea of good-faith inadvertence, I think the petitioner is entitled to the benefit of that doubt, particularly in view of the Government's repeated unequivocal representations that it would not use any of the 'tainted' evidence at the trial. The Court's contrary view I deem inconsistent with the high standards which past decisions have insisted be maintained in the conduct of federal criminal trials. See McNabb v. United States, 318 U.S. 332, 340—341, 63 S.Ct. 608, 612, 613, 87 L.Ed. 819. 'The dignity of the United States Government will not permit the conviction of any person on tainted testimony.' Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1. 32 In my opinion the admission of these exhibits was prejudicial error, and if nothing further appeared I think we would be required to reverse for a new trial. However, additional evidence now proffered by the Government indicates that other 'innocent' copies of the same check and stub were in the hands of the New Jersey federal authorities at the time of the New York trial.2 Had the existence of such copies been known to the New York prosecutor, the error arising from the use of the 'tainted' copies should be deemd harmless, for if objection to these exhibits had been made the prosecutor could have substituted 'innocent' copies. If, on the other hand, the federal authorities in New Jersey had no such copies or if in any event the New York prosecutor was unaware of their possession of the copies, reversal would still be required on grounds of prejudicial error, since the prosecutor would not have been in a position to substitute 'innocent' copies had the 'tainted' copies been objected to and excluded at the trial. 33 Although, as the Court properly holds, we cannot pass upon the accuracy of this additional evidence in determining the issues before us, I think the Government's proffer may properly be taken into account in deciding the nature of the judgment we should enter. See 28 U.S.C. § 2106, 28 U.S.C.A. § 2106; cf. United States v. Shotwell Manufacturing Co., 355 U.S. 233, 78 S.Ct. 245. The petitioner, by making his specific objection to admission of the disputed exhibits for the first time on appeal, gave the Government no occasion to introduce the 'innocent' copies at the trial and thereby avoid error. He should not now be permitted to preclude the Government from showing that the error complained of was harmless. In these circumstances I think the proper course for us is to vacate the judgment of the Court of Appeals as to Lawn, and to remand the case to the District Court for the purpose of determining whether 'innocent' copies of these exhibits were within reach of the New York prosecutor at the time of trial. If the court so finds, it should be instructed to let Lawn's conviction stand, and if it finds otherwise, to grant him a new trial. 1 26 U.S.C. (1952 ed.) §§ 145(b) and 3793(b), 26 U.S.C.A. §§ 145(b), 3793(b). The first five counts named only petitioner Giglio and Louis J. Roth as defendants. Since Giglio does not here contest the adequacy of the evidence to sustain those or any of the other counts against him, and since Roth pleaded guilty to all counts of the indictment and was a principal witness for the prosecution at the trial, those counts are not here summarized. The remaining counts in essence charged as follows: Count 6 charged that Livorsi and Roth, on or about September 15, 1947, willfully attempted to evade assessment of income taxes of Livorsi for the calendar year 1946 by filing a fraudulent return. Count 7 charged that Giglio, Lawn and Roth, from about September 1, 1947, to the date of filing of the indictment, willfully attempted to evade payment of Giglio's income taxes for the calendar year 1946 by concealing his assets. Count 8 charged that Livorsi, from about September 1, 1947, to the date of filing of the indictment, willfully attempted to evade payment of his income taxes for the calendar year 1946 by concealing his assets. Count 9 charged that Giglio, Livorsi, Lawn and Roth, from about January 1, 1946, to the date of filing of the indictment, willfully attempted to evade payment of income taxes of American Brands Corporation for the calendar year 1946 by converting and diverting its assets. Count 10 charged that Giglio, Livorsi, Lawn, Roth and American Brands Corporation, from about July 1, 1945, to the date of filing of the indictment, willfully conspired to commit the substantive offenses charged in Counts 1 through 9 of the indictment. Count 10 of the indictment was dismissed by the court as to American Brands Corporation after the jury failed to report as to it. 2 Lawn was sentenced to a year and a day on each of Counts 7, 9 and 10, the sentences to run concurrently. Giglio was sentenced to a total of 15 years. Livorsi was sentenced to 5 years on each of Counts 6, 9 and 10 to run consecutively, and was sentenced to 5 years on Count 8 to run concurrently with the sentence on Count 6. 3 The principal organizations were: Tavern Fruit Juice Company, a partnership owned by Giglio and Livorsi; Eatsum Food Products Co., Ltd., a partnership owned 25% by Giglio, 25% by Livorsi, and 50% by one Lubben until March 8, 1946, when he left the enterprise and sold his 'distributive share' in the profits thereof to Giglio and Livorsi; and a series of corporations bearing in some combination the word 'American' which were created in early 1946 to drain off the profits of Eatsum through the use of fraudulent invoices and were to be dissolved before their income taxes became due. 4 The Court of Appeals found that generally three means of evasion of tax assessment were used: (1) the fraudulent allocation of income among the various companies and individuals in the conspiracy; (2) the fraudulent overstatement of expenses; and (3) the failure to disclose income. 5 The evasion of payment was in general accomplished by delaying disclosure of income tax liabilities through the filing of returns from 5 to 15 months late; by failing to withhold income taxes on salaries; by concealment of the individual assets of Giglio and Livorsi; and by the misappropriation, conversion and diversion of corporate assets. 6 Of the total, $573,683.73 was admitted to be owing by Giglio, Livorsi and American Brands Corporation in the long-overdue returns they filed, and only $16,735.95 was paid. 7 They were full-time employees of the several Giglio and Livorsi enterprises. 8 In their beief on that appeal petitioners had argued that the Government's notice of appeal was not timely filed, but they did not move to dismiss the appeal until after the period of limitations had run in late September 1953. 9 In support of their motions petitioners filed a number of affidavits reciting in essence that the 1952 indictment was returned after the Government had secured estimony and documents from petitioners in violation of their constitutional rights; that the present indictment is very similar to the prior one, and that a revenue agent had implied that some of his computations were based on documents stored in a room in which the documents obtained from petitioners were also kept. In opposition to the motions the Government filed affidavits made by all of the revenue agents who had conducted investigations leading to the indictment and by all the United States Attorneys who had been responsible for the prosecution of the case. In essence, they recited that after the District Court dismissed the 1952 indictment a conference was called, by an assistant United States Attorney, of all revenue agents who had conducted the investigations; that they were there told that it would be necessary to obtain a new indictment which was not to be based in any way, however remote, upon testimony or personal or partnership documents obtained from petitioners in the 1952 grand jury proceedings, and any doubts about the use of any evidence were to be resolved in favor of exclusion; that none of the testimony or personal or partnership records, produced by petitioners before the 1952 grand jury, was in any way used in obtaining the present indictment; and that long before 1952 the Government had in its possession copies and microfilm enlargements of bank checks, bank statements and books and records pertaining to petitioners' transactions, which had been secured from banks, third persons, a New Jersey receiver, government agencies, and abandoned books and records relating to petitioners' businesses. The affidavit of the Assistant United States Attorney in charge of the case unequivocally recited that none of the materials obtained from petitioners in the 1952 grand jury proceeding would be used in the future course of the case. 10 The court stated as its reasons: 'The United States Attorney has sworn that this material will not be used in the future course of this case, and at this stage of the proceedings, that oath is sufficient. The granting of defendants' motion to suppress at this time would necessitate an investigation of all of the Government's evidence. Such an investigation would entail a great deal of useless effort because much of this material, which has been collected since 1948, will not be used at the trial.' United States v. Giglio, D.C., 16 F.R.D., at pages 270, 271. 11 'Q. In whose handwriting are the entries on Government's Exhibit 61—B for identification? I think you said it is the stub book. A. To the best of my recollection, those are Mr. Cerone's. 'Q. How do you spell Cerone? A. C-e-r-o-n-e. 'Q. He was one of your employees, Mr. Roth? A. No, he was a bookkeeper employed by Tavern Fruit Juice. 'Q. Would the same be true with regard to the check, the face of the check, payee of the check? A. The payee of the check and the amount? 'Q. The handwriting is what I am asking about. A. The handwriting, that looks like William Giglio's handwriting. 'Q. The maker of the check (for) the $15,000? A. Yes, the signature. 'Q. They look like his handwriting, do they? A. Yes, sir. 'Q. And this 61—B for identification, you have told me that that looked like the printing or the writing of Mr. Cerone, did you not? A. Yes, sir.' 12 Though at times, in colloquies with the court, counsel for petitioners was equivocal, the following is typical of the position taken by him: Counsel: 'I really don't see how I can get adjudicated the question of the illegality of the indictment before you without calling all these people who made affidavits before Judge Palmieri. Now, that obviously would be, well, very disruptive of your trial. I would never think of doing it if * * * it didn't seem to me that was all I had. * * * Have I made it plain? The Court: 'I think you have, but I want to be sure. Now, the whole purpose of this is to go to the procedural validity of the indictment. Council: 'That is it, yes, sir. That is it, that is just it exactly. The Court: 'And it is a question, really, of what happened before the grand jury. Counsel: 'That's it, really, just that. The Court: 'Rather than its effect upon what you might call the substantive issues of the case or the guilt or innocence of these defendants, let us say. Counsel: 'My answer is an unequivocal yes, and I don't have to look at a record to answer it.' 13 The record shows that, although there was no objection to the question, counsel for the Government stated to the court, out of the hearing of the jury, that prior to the dismissal of the 1952 indictment the witness had examined partnership records produced by petitioners before the 1952 grand jury, and said: 'If counsel elicits testimony now about those facts, there is going to be before this court evidence which Judge Goddard held improper. * * * If counsel wishes to examine into this field I think he should do it outside the presence of the jury, because it might be prejudicial error even if he voluntarily does it.' Counsel for petitioners then made plain that his purpose was to determine whether tainted evidence was 'used by the grand jury that found this indictment,' and he further said, 'I have no other way * * * than to do it here.' Counsel for the Government then said to the court: 'Now, the question specifically presented to the witness was broad and includes partnership records illegally produced and partnership records legally obtained. There can't be objection to the second part, but the question is too broad.' Counsel for petitioners replied: 'Well, I am not going into something half-way. * * *' The court then said: 'All right, I think that is the way I should rule.' It is obvious that none of this constitutes any support for petitioners' claim that they were denied an opportunity to cross-examine the witness to determine whether tainted evidence had been or was being used by the Government at the trial. 14 In fact, all petitioners sought to show by this witness was that when he caused petitioners to be subpoenaed to appear before the 1952 grand jury he knew that criminal informations charging tax evasions were then pending against them, and that these prosecutions were instituted in 'bad faith.' 15 Petitioner Lawn also contends that a statement made by the Government's attorney in his closing summation to the jury, saying, in pertinent part, 'We vouch for (Roth and Lubben) because we think they are telling the truth,' deprived him of a fair trial. No objection was made to the statement at the trial. The Government's attorney did not say nor insinuate that the statement was based on personal knowledge or on anything other than the testimony of those witnesses given before the jury, and therefore it was not improper. Cf. Henderson v. United States, 6 Cir., 218 F.2d 14, 19; United States v. Holt, 7 Cir., 108 F.2d 365, 370; Tuckerman v. United States, 6 Cir., 291 F. 958, 969. Moreover, petitioners' counsel in his summation to the jury had argued that the Government's case was a persecution of petitioners, had been instituted in bad faith at the instance of a group of revenue agent, and was supported 'solely' by the testimony of Roth and Lubben who were admitted perjurers, and counsel in his opening statement had said that the United States Attorney and his assistant in charge of the case 'had been instructed, or in my opinion they never would have done this.' These comments clearly invited the reply which petitioner Lawn now attacks. Cf. Gridley v. United States, 6 Cir., 44 F.2d 716, 739; United States v. Battiato, 7 Cir., 204 F.2d 717. In addition, the court in his charge to the jury, after telling them that they were the sole judges of the credibility of the witnesses, called particular attention to the fact that Roth was an accomplice and said: 'You have got to be particularly careful in scrutinizing his testimony to see whether to save his own skin he lied to hurt somebody else or whether he had some other motive for lying to hurt somebody else.' As to Lubben, the charge continued: 'I am going to tell you to be just as careful with his testimony as you would with an accomplice, and look and scrutinize it carefully.' We think the foregoing shows clearly that there is no merit in Lawn's contention. 16 Petitioners Giglio and Livorsi contend that the trial court erred in refusing their motion, made after several days of cross-examination of Lubben at the trial, for production of Lubben's federal income tax return for 1946, all testimony given by Lubben 'before the grand jury that found this indictment or found any other indictment against these defendants,' and all written statements made by Lubben to any agent of the Government. This issue was not raised in the Court of Appeals. Only in exceptional cases will this Court review a question not raised in the court below. Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 568, 71 L.Ed. 996; Husty v. United States, 282 U.S. 694, 701, 702, 51 S.Ct. 240, 241, 242, 75 L.Ed. 629. There are no exceptional circumstances here. Cf. United Brotherhood of Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973. Moreover, the question was not mentioned in the petition for certiorari filed in this Court. Our Rule 23(1)(c), 28 U.S.C.A. provides, in pertinent part: 'Only the questions set forth in the petition or fairly comprised therein will be considered by the court.' The question is not properly here. Cf. Irvine v. California, 347 U.S. 128, 129, 74 S.Ct. 381, 98 L.Ed. 561. 1 It is difficult to believe that counsel could have found in these exhibits the important corroborative value which the Court now attributes to them. The original recording of the $15,000 payment as 'legal expense' on Tavern's books had been made by the company accountant only after he had consulted Giglio, and there is no dispute that the subsequent alteration in this entry to reflect the payment as a transaction involving Giglio personally rather than the partnership was urged by Lawn. Only because of Lawn's insistence did the $15,000 'payment' take on its subsequent guise as a loan from Giglio. 2 The Government asserts that such copies were voluntarily produced by Lawn at a hearing with reference to his own income tax returns which was held in New Jersey on May 12, 1952.

01

355 U.S. 368 78 S.Ct. 363 2 L.Ed.2d 352 Jeremiah REEVES, Jr., petitioner,v.STATE OF ALABAMA. No. 66. Supreme Court of the United States January 13, 1958 Messrs. Peter A. Hall and Orzell Billingsley, Jr., for petitioner. Messrs. William F. Thetford and Robert B. Stewart (Messrs. John Patterson, Atty. Gen. of Alabama and Bernard F. Sykes, Asst. Atty. Gen., on the brief), for respondent. On writ of certiorari to the Supreme Court of Alabama. PER CURIAM. 1 The writ of certiorari is dismissed as improvidently granted. 2 Mr. Justice DOUGLAS dissents.

89

355 U.S. 300 78 S.Ct. 304 2 L.Ed.2d 292 CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO., Appellant,v.STATE OF ILLINOIS, Illinois Commerce Commission, and Milwaukee Road Commuters' Association. UNITED STATES of America, Appellant, v. STATE OF ILLINOIS, Illinois Commerce Commission, and Milwaukee Road Commuters' Association. INTERSTATE COMMERCE COMMISSION, Appellant, v. STATE OF ILLINOIS, Illinois Commerce Commission, and Milwaukee Road Commuters' Association. Nos. 12, 27, 28. Argued Nov. 12, 1957. Decided Jan. 13, 1958. Mr. Raymond K. Merrill, Chicago, Ill., for appellant Chicago, M., St. P. & Pac. R. Co. Mr. J. Lee Rankin, Solicitor Gen., for appellant the United States. Mr. Charlie H. Johns, Jr., Washington, D.C., for appellant Interstate Commerce Commission. Mr. Harry R. Begley, Chicago, Ill., for appellees State of Illinois and Illinois Commerce Commission. Mr. S. Ashley Guthrie, Chicago, Ill., for appellee Milwaukee Road Commuters' Ass'n. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The State of Illinois, the Illinois Commerce Commission, and the Milwaukee Road Commuters' Association, aggrieved by an order of the Interstate Commerce Commission fixing intrastate passenger fares for the Milwaukee Road's Chicago suburban commuter service higher than the fares authorized by the State Commission, brought this action in the District Court for the Northern District of Illinois, Eastern Division, seeking relief under 29 U.S.C. § 1336, 28 U.S.C.A. § 1336. The ICC order, 297 I.C.C. 353, was made under 49 U.S.C. § 13(4), 49 U.S.C.A. § 13(4),1 which authorizes the ICC to prescribe intrastate fares if it finds that '* * * any such * * * (existing intrastate) fare * * * causes * * * any undue, unreasonable, or unjust discrimination against interstate * * * commerce.' The three-judge District Court set aside the order, enjoined its enforcement,2 and remanded the case to the ICC for further proceedings. 146 F.Supp. 195. The District Court held, inter alia, that the ICC failed to make findings appropriate to show that the existing fares caused undue, unreasonable or unjust discrimination against interstate commerce. The judgment was appealed under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.3 We noted probable jurisdiction, 352 U.S. 939, 77 S.Ct. 260, 263, 1 L.Ed.2d 236. 2 The ICC found that the Milwaukee Road's 1954 passenger revenues from the Chicago suburban commuter service fell short by $306,038 of meeting the out-of-pocket cost of the service. This was the basis of the conclusion that the existing intrastate fares caused undue discrimination against interstate commerce. To remove this discrimination the ICC prescribed fares to produce $383,000 additional annual revenue, enough to eliminate the determined out-of-pocket loss and to allow $77,000 annually as a contribution to indirect costs and taxes. The question for our decision is whether the District Court properly set aside the ICC order as void for lack of findigns necessary to support an order under § 13(4). 3 The Chicago suburban commuter service, except for a relatively insignificant exception mentioned below, is entirely an intrastate service. It is provided in two directions from Chicago's Union Station. One direction, wholly within Illinois, is west from Chicago some 37 route miles to Elgin, Illinois. The other direction is north from Chicago to Walworth, Wisconsin; however, 62 of the 74 route miles in that direction, and 24 of the 26 station stops, are located with Illinois.4 Total 1954 passenger revenues from this service were $1,796,231 from 4,869,064 passengers. Commuters traveling on commutation and multiple-ride tickets numbered 3,910,526 of this total and accounted for $1,374,261 of the revenue. 4 Commuter fares of most of the railroads providing commuter service in the Chicago area have been determined, at least since 1950, in joint hearings conducted by the ICC and the State Commission under 49 U.S.C. § 13(3), 49 U.S.C.A. § 13(3).5 297 I.C.C. 353, 354. On July 24, 1952, however, the Milwaukee Road, instead of filing petitions or schedules with both Commissions, filed a petition with the State Commission only requesting 5 'authority to discontinue all off-peak Chicago suburban passenger trains and consolidate certain peak-hour trains and also to increase one-way, round-trip and commutation fares to such extent as will after taking into consideration the economy effected by such discontinuances and consolidation of trains, give respondent sufficient revenues to permit operation of the Chicago suburban service without an out-of-pocket loss.' 297 I.C.C., at 355. 6 The State Commission did not act on the application until 1954. Meanwhile the Milwaukee Road changed the suburban service from a steam to a diesel operation. The State Commission found that the cost savings effected by this change eliminated the out-of-pocket loss and, on November 10, 1954, denied the application. The Milwaukee Road thereupon, in February 1955, petitioned the ICC for relief under § 13(4). 7 This case presents once again the problem of adjusting state and federal interests in the regulation of intrastate rates. These intrastate rates are primarily the State's concern and federal power is dominant 'only so far as necessary to alter rates which injuriously affect interstate transportation.' State of North Carolina v. United States, 325 U.S. 507, 511, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760. Thus, whenever this federal power is exerted within what would otherwise be the domain of state power, the justification for its exercise must 'clearly appear.' State of Florida v. United States, 282 U.S. 194, 212, 51 S.Ct. 119, 124, 75 L.Ed. 291. The statute provides a practical method of minimizing the inevitable irritations inherent in the conflict by requiring the ICC to notify the State whenever there is brought before it any fare imposed by state authority. In addition, the ICC may confer with the state regulatory authority, or may hold joint hearings with the state agency, when the State's rate-making authority may be affected by the action taken by the ICC. 49 U.S.C. § 13(3), 49 U.S.C.A. § 13(3). 8 The occasion for the exercise of the federal power asserted by § 13(4) is the necessity for effecting the required contribution by intrastate traffic of its proportionate share of the revenues necessary to pay a carrier's operating cost and to yield a fair return.6 When intrastate revenues fall short of producing their fair proportionate share of required total revenues, they work an undue discrimination against interstate commerce, and the ICC may remove the discrimination by fixing intrastate rates high enough reasonably to protect interstate commerce. Illinois Commerce Commission v. United States, 292 U.S. 474, 479, 54 S.Ct. 783, 785, 78 L.Ed. 1371; Railroad Commission of State of Wisconsin v. Chicago, B. & Q.R. Co., 257 U.S. 563, 586, 42 S.Ct. 232, 236, 66 L.Ed. 371; United States v. State of Louisiana, 290 U.S. 70, 75, 54 S.Ct. 28, 31, 78 L.Ed. 181. In determining whether an undue revenue discrimination against interstate commerce is caused by intrastate rates, the ICC may consider 'among other things, the need, in the public interest, of adequate and efficient railway transportation service and the need of revenues sufficient to sustain such service,' a standard written into 49 U.S.C. § 15a(2), 49 U.S.C.A. § 15a(2). King v. United States, 344 U.S. 254, 264, 73 S.Ct. 259, 265, 97 L.Ed. 301. No formal requirements are prescribed for the findings to be made by the ICC under § 13(4). United States v. State of Louisiana, 290 U.S. 70, 80, 54 S.Ct. 28, 33, 78 L.Ed. 181. Reasonable determinations suffice. State of Florida v. United States, 292 U.S. 1, 9, 54 S.Ct. 603, 606, 78 L.Ed. 1077. But the justification for the exercise of this exceptional federal power to interfere with intrastate rates must be made definitely and clearly apparent. State of Florida v. United States, 282 U.S. 194, 212, 51 S.Ct. 119, 124, 75 L.Ed. 291. 9 In the instant case the ICC interfered with suburban commuter rates—intrastate rates peculiarly localized in impact upon the Chicago suburban community. In substance, the ICC found that because this single segment of the Milwaukee Road's intrastate operations in Illinois did not meet out-of-pocket costs, there was an undue discrimination against the road's interstate operations, without regard to the contribution of other Illinois intrastate revenues, freight or passenger, concerning which both the record and the findings are entirely silent. 10 We think this is a case where the ICC cannot be sustained in altering intrastate rates merely because the Chicago suburban commuter traffic—of the Milwaukee Road's total intrastate Illinois traffic, freight and passenger—is not remunerative or reasonably compensatory. Cf. State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; State of North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760. The limited and exceptional federal power asserted by § 13(4) over intrastate rates must be exercised with 'scrupulous regard for maintaining the (primary) power of the state in this field.' State of North Carolina v. United States, 325 U.S. 507, 511, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760. It is of course desirable that each particular intrastate service should as nearly as may be pay its own way and return a profit—but the State Commission, not the ICC, has the responsibility in the first instance to achieve that desired end. Passenger deficits have become chronic in the railroad industry and it has become necessary to make up these deficits from more remunerative services. The ICC has recognized this practical reality of today's railroading and has changed its ratefixing policy so that if interstate passenger service inevitably and inescapably cannot bear its direct costs and its share of joint or indirect costs, the ICC feels compelled in a general rate case to take the passenger deficit into account in the adjustment of interstate freight rates and charges. King v. United States, 344 U.S. 254, 261, 73 S.Ct. 259, 263, 97 L.Ed. 301. An equally broad power must be conceded to a state commission in the exercise of its primary authority to prescribe and adjust intrastate rates. 11 In view of that policy, we do not think that the deficit from this single commuter operation can fairly be adjudged to work an undue discrimination against the Milwaukee Road's interstate operations without findings which take the deficit into account in the light of the carrier's other intrastate revenues from Illinois traffic, freight and passenger. The basic objective of § 13(4), applied in the light of § 15a(2) to this case, is to prevent a discrimination against the carrier's interstate traffic which would result from saddling that traffic with an undue burden of providing intrastate services. A fair picture of the intrastate operation, and whether the intrastate traffic unduly discriminates against interstate traffic, is not shown, in this case, by limiting consideration to the particular commuter service in disregard of the revenue contributed by the other intrastate services.7 12 A requirement for findings which reflect the commuter service deficit in the totality of intrastate revenues is not a departure from previous holdings of this Court. The precise situation presented by this case has not heretofore been considered by the Court. The previous cases involving Commission orders increasing intrastate rates in the interest of the carrier's revenue (as distinguished from cases of discrimination against particular persons and localities, see Houston, E. & W.T.R. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341) involved statewide orders raising intrastate rates. In passenger fare cases, ICC orders were sustained on a showing that following general increases in interstate passenger rates, state commissions refused to increase intrastate passenger rates to the same level for what were essentially identical services. Railroad Commission of State of Wisconsin v. Chicago, B. & Q.R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371; State of New York v. United States, 257 U.S. 591, 42 S.Ct. 239, 66 L.Ed. 385. It was held that the state passenger rates in that circumstance were not producing their fair proportionate share. In State of North Carolina v. United States, 325 U.S. 507, 65 S.Ct. 1260, 89 L.Ed. 1760, also a passenger fare case, the ICC order was not sustained because the findings were held to be insufficient. Nonpassenger fare cases in which ICC orders raising intrastate rates were sustained were United States v. State of Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181; State of Florida v. United States, 292 U.S. 1, 54 S.Ct. 603, 78 L.Ed. 1077, and King v. United States, 344 U.S. 254, 73 S.Ct. 259, 97 L.Ed. 301. The order was not sustained, however, in an earlier Florida case, State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291. The only case ostensibly based upon a revenue discrimination caused by a local operation was not a passenger fare case. Illinois Commerce Commission v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371. Basically the discrimination there complained of, however, was a persons-and-locality discrimination against interstate shippers. 13 It should also be noted that in King v. United States, supra, the Court adverted to those very factors among the ICC's findings whose absence in the present case we find to be a fatal defect. The Court there emphasized the ICC finding that the entire intrastate traffic, freight and passenger, constituted a revenue drain upon the carrier's revenues from interstate traffic. Since the Commission has not in this case found whether or not the commuter rates, viewed in the light of the Illinois intrastate operation as a whole, constitute an undue revenue discrimination against the Milwaukee Road's interstate operations, the judgment of the District Court in remanding the case to the Commission for further consideration must be affirmed.8 14 The District Court also held that the ICC erred in considering evidence which was not presented by the Milwaukee Road to the State Commission. The evidence in question concerned certain depreciation and maintenance-of-way expenses totaling $258,172, which the ICC took into account in computing out-of-pocket costs. The District Court said: 15 'If different evidence is to be offered or a different basis of fares is to be urged before the interstate commission, the state commission should have been given a chance to fix fares on the same evidence and the same basis. 16 'Where a railroad seeks the fixing of higher intrastate rates by the interstate commission after failing in such endeavor before a state commission, § 13(4) does not contemplate that the state commission is to be considered only a way station in a journey to the interstate commission.' 146 F.Supp. 195, 201, 202. 17 This holding in effect restricts the ICC in decisions under § 13(4) to the identical evidence presented by the railroad to the State Commission. So to restrict the ICC's consideration as to whether intrastate rates work an undue discrimination against interstate commerce might seriously interfere with the Commission's duty to remove the discrimination to protect the exclusive federal domain of interstate commerce. It is contrary to this Court's holding in State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291. There the State Commission had not affirmatively prescribed the existing rates which the ICC increased. It was urged that until the State Commission did so § 13(4) granted no power to the ICC to prescribe higher rates. This Court rejected this contention, saying 'To hold * * * that there can be no adjustment of intrastate rates by the Interstate Commerce Commission so far as may be needed to protect interstate commerce until the state itself has first 'sat in judgment on the issue of the lawfulness of those intrastate rates' would be to impose a limitation not required by the terms of the statute and repugnant to the grant of authority.' Id., 282 U.S. at page 210, 51 S.Ct. at page 123. 18 In this case the ICC might more wisely have arranged for joint hearings under § 13(3) or have deferred action pending an opportunity for the State Commission to consider this evidence. However, nothing in the statute compels either course or denies the ICC the power to determine the question presented by the railroad's petition, whatever may have been the evidence presented before the State Commission. See State of North Carolina v. United States, D.C., 128 F.Supp. 718, affirmed 350 U.S. 805, 76 S.Ct. 45, 100 L.Ed. 723; State of Illinois v. United States, D.C., 101 F.Supp. 36, 47, affirmed 342 U.S. 930, 72 S.Ct. 377, 96 L.Ed. 693. 19 Finally, it is argued that the District Court erred in setting aside so much of the ICC order as authorized an increase in the interstate fares to the two Wisconsin points. We believe, however, that these rates are so interwoven with and so closely bound to the intrastate rates that a proper disposition of this case reasonably requires that the Commission reconsider them as part of its reconsideration of the entire Chicago suburban commuter service. The only reason why the ICC increased the interstate rates was to make them conform to the increased intrastate rates. 20 Paragraph 3 of the District Court judgment dated June 14, 1956, is modified to provide that the remand to the ICC shall be for further proceedings not inconsistent with this opinion. It is so ordered. 21 Judgment modified. 1 24 Stat. 383, as amended, 41 Stat. 484, 49 U.S.C. § 13(4), 49 U.S.C.A. § 13(4): 'Whenever in any such investigation the commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, of prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is forbidden and declared to be unlawful it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.' 2 The injunction was stayed pending the hearing of the appeal to this Court. The excess fares are being impounded under a provision of the stay order providing for their refund to the persons who paid them in the event the judgment appealed from is affirmed. 3 The Milwaukee Road is the appellant in No. 12. The United States is the appellant in No. 27. The ICC is the appellant in No. 28. Each appeals from the particular provisions of the judgment by which it is aggrieved. 4 The interstate fares to the two Wisconsin points were also raised in this proceeding by an ICC order entered November 21, 1955, and Order No. 26550, Passenger Fares and Surcharges, 214 I.C.C. 174, was modified so as to permit the rates to be made effective. No affirmative order raising the intrastate rates was made, however, until March 2, 1956. The ICC report allowed the Milwaukee Road and the Illinois Commerce Commission 60 days in which to adjust the intrastate rates on the bases prescribed in the report. Failing such adjustment the order of March 2, 1956, prescribing the intrastate rates was entered and Order No. 11703, Intrastate Rates Within Illinois, 59 I.C.C. 350, was modified to permit the Milwaukee Road to make the intrastate rates effective. 5 24 Stat. 383, as amended, 41 Stat. 484, 49 U.S.C. § 13(3), 49 U.S.C.A. § 13(3): 'Whenever in any investigation under the provisions of this chapter, or in any investigation instituted upon petition of the carrier concerned, which petition is hereby authorized to be filed, there shall be brought in issue any rate, fare, charge, classification, regulation, or practice, made or imposed by authority of any State, the commission, before proceeding to hear and dispose of such issue, shall cause the State or States interested to be notified of the proceeding. The commission may confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to this chapter or chapter 12 of this title, with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of such State bodies and of the commission; and to that end is authorized and empowered, under rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters wherein the commission is empowered to act and where the rate-making authority of a State is or may be affected by the action taken by the commission. The commission is also authorized to avail itself of the cooperation, services, records, and facilities of such State authorities in the enforcement of any provision of this chapter or chapter 12 of this title. 6 Railroad Commission of State of Wisconsin v. Chicago, B. & Q.R. Co., 257 U.S. 563, 586, 42 S.Ct. 232, 236, 66 L.Ed. 371. 'The effective operation of the (Interstate Commerce) act will reasonably and justly require that intrastate traffic should pay a fair proportionate share of the cost of maintaining an adequate railway system.' 7 This would seem to be particularly required here in light of the Commission's recognition 'that the deficit from the (Milwaukee Road's) total passenger operations is relatively greater than from its suburban operations.' 297 I.C.C. 353, 359. The Commission found that the Milwaukee Road earned in 1954 from its freight operations $37,293,050, and suffered a deficit from all passenger operations of $22,824,532, resulting in a net railway operating income of $14,568,518. This represented a return of approximately 2%. 8 We agree with the District Court that that portion of the prescribed increases designed to produce $77,000 annually as a contribution to indirect costs and taxes is not based upon adequate findings. There is no finding of the total of indirect costs and taxes to which contribution is to be made, nor any finding from which we may infer how the ICC derived its conclusion that a $77,000 contribution was fair. It is axiomatic that to know whether something is a fair proportionate part of something else, we must be told what the something else is. On the other hand we cannot agree with the District Court that there was not support in the evidence for the ICC's finding that the prescribed rates would be just and reasonable for the future. The ICC did not rely solely upon the comparison with the similar fares of the Northwestern, for there was ample other evidence in the record to sustain their findings. But the factors which determine the reasonableness of a rate are so different from the factors which determine what is a fair proportionate share of a carrier's total income that a finding of the reasonableness of the rates prescribed does not embrace all the findings necessary to support the exercise of the § 13(4) power.

78

355 U.S. 286 78 S.Ct. 291 2 L.Ed.2d 282 UNITED STATES of America, Appellant,v.Gerald H. SHARPNACK. No. 35. Argued Oct. 29, 1957. Decided Jan. 13, 1958. Miss Beatrice Rosenberg, Washington, D.C., for appellant. Mr. Joel Westbrook, San Antonio, Tex., for appellee. Mr. Justice BURTON delivered the opinion of the Court. 1 The issue in this case is whether the Assimilative Crimes Act of 1948, 18 U.S.C. § 13, 18 U.S.C.A. § 13, is constitutional insofar as it makes applicable to a federal enclave a subsequently enacted criminal law of the State in which the enclave is situated. For the reasons hereafter stated, we hold that it is constitutional. 2 A four-count indictment, in the United States District Court for the Western District of Texas, charged the appellee, Sharpnack, with committing sex crimes involving two boys in violation of 18 U.S.C. § 13, 18 U.S.C.A. § 13, and arts. 535b and 535c of Vernon's Texas Penal Code 1952. The offenses were charged to have been committed in 1955 at the Randolph Air Force Base, a federal enclave in Texas Articles 535b and 535c had been enacted in 1950 and, at the time of the commission of the alleged offenses, were in force throughout the State. Also, since 1948, the Federal Assimilative Crimes Act has provided that, within such an enclave, acts not punishable by any enactment of Congress are punishable by the then effective laws of the State in which the enclave is situated.1 Nevertheless, upon motion of Sharpnack, the District Court, in an unreported order, dismissed the indictment 'for the reason that Congress may not legislatively assimilate and adopt criminal statutes of a state which are enacted by the state subsequent to the enactment of the Federal Assimilative Statute.'2 The United States appealed to this Court under 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, and we noted probable jurisdiction. 352 U.S. 962, 77 S.Ct. 356, 1 L.Ed.2d 319. 3 The 1948 Assimilative Crimes Act was enacted as part of the Revised Criminal Code of the United States and reads as follows: 4 's 13. Laws of states adopted for areas within federal jurisdiction. 5 'Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 73 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.' 18 U.S.C., 18 U.S.C.A. 6 In the absence of restriction in the cessions of the respective enclaves to the United States, the power of Congress to exercise legislative jurisdiction over them is clearly stated in Article I, § 8, cl. 17, and Article IV, § 3, cl. 2, of the Constitution.4 See Collins v. Yosemite Park Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502. The first Federal Crimes Act, enacted in 1790, 1 Stat. 112, defined a number of federal crimes and referred to federal enclaves. The need for dealing more extensively with criminal offenses in the enclaves was evident, and one natural solution was to adopt for each enclave the offenses made punishable by the State in which it was situated. See United States v. Press Publishing Co., 219 U.S. 1, 9 13, 31 S.Ct. 212, 213—215, 55 L.Ed. 65. Initially there was room for a difference of opinion as to the desirability of doing this by blanket legislation, rather than by a code enumerating and defining specific offenses applicable to the enclaves. Congress made its initial decision on this point in 1825 by adopting for otherwise undefined offenses the policy of general conformity to local law. On repeated occasions thereafter Congress has confirmed that policy by enacting an unbroken series of Assimilative Crimes Acts. During the same period, Congress has recognized a slowly increasing number of federal crimes in the field of major offenses by enacting for the enclaves specific criminal statutes which have defined those crimes and, to that extent, have excluded the state laws from that field.5 7 In the Act of 1825, sponsored by Daniel Webster in the House of Representatives, Congress expressly adopted the fundamental policy of conformity to local law.6 That Act provided the basis from which has grown the Assimilative Crimes Act now before us. Congress thereby made it clear that, with the exception of the enlarged list of offenses specifically proscribed by it, the federal offenses in each enclave were to be identical with those proscribed by the State in which the enclave was situated. That Act made no specific reference to subsequent repeals or amendments by the State of any assimilated laws. It also made no specific reference to new offenses that might be added by the State after the enactment of the Assimilative Crimes Act. 8 In 1831, there was certified by a Circuit Court to this Court in United States v. Paul, 6 Pet. 141, 8 L.Ed. 348, the concrete question whether, under the Assimilative Crimes Act of 1825, a statute enacted in 1829 by the State of New York, defining a new offense to be known as burglary in the third degree, was applicable to the federal enclave at West Point. The question was submitted without argument and this Court's answer is reported in full as follows: 9 'Mr. Chief Justice Marshall stated it to be the opinion of the Court, that the third section of the act of Congress, entitled 'an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,' passed March 3, 1825, is to be limited to the laws of the several states in force at the time of its enactment. This was ordered to be certified to the Circuit Court for the southern district of New York.' Id., 6 Pet. at page 142. 10 There is nothing in that answer or in the report of the case to show that the issue was decided as anything more than one of statutory construction falling within the doctrine calling for the narrow construction of a penal statute. So interpreted, the decision did not reach the issue that is before us. It did, however, carry a fair implication that the Act of 1825 was constitutional insofar as it made applicable to enclaves the criminal laws in force in the respective States at the time of the enactment of the Assimilative Crimes Act. This Court later so held in Franklin v. United States, 216 U.S. 559, 30 S.Ct. 434, 54 L.Ed. 615. 11 Due to the limitation of the Assimilative Crimes Act of 1825 to state laws in force at the time of its own enactment, the Act gradually lost much of its effectiveness in maintaining current conformity with state criminal laws. This result has been well called one of static conformity. To renew such conformity, Congress has enacted comparable Assimilative Crimes Acts in 1866, 14 Stat. 13; in 1874 as R.S. § 5391; in 1898, 30 Stat. 717; in 1909 as § 289 of the Criminal Code, 35 Stat. 1145; in 1933, 48 Stat. 152; in 1935, 49 Stat. 394; in 1940, 54 Stat. 234; and finally in 1948 in the Revised Criminal Code as 18 U.S.C. § 13, 18 U.S.C.A. § 13. 12 The above series of substantial re-enactments demonstrates a consistent congressional purpose to apply the principle of conformity to state criminal laws in punishing most minor offenses committed within federal enclaves. In the re-enactments of 1866, 1874, 1898 and 1909, the interpretation given the Act of 1825 by the Paul case was made explicit by expressly limiting the assimilation to the state laws 'now in force,' or as the 'laws of the State * * * now provide. * * *' In the Acts of 1933, 1935 and 1940, Congress continued to prescribe assimilation to the state laws 'in force' on specified recent dates, and these three re-enactments also made the assimilation conditional upon the state laws 'remaining in force at the time of the doing or omitting the doing of such act or thing. * * *'7 This helped to keep the federal law current with the state law by reflecting future deletions from the state laws as soon as made. 13 In 1948 coincidentally with its revision of the Criminal Code of the United States, Congress finally adopted the present language. This expressly limits the assimilation to acts or omissions committed within a federal enclave and "not made punishable by any enactment of Congress * * *.' It further specifies that 'Whoever * * * is guilty of any act or omission which * * * would be punishable if committed or omitted within the jurisdiction of the State * * * in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like (federal) offense and subject to a like punishment.' (Emphasis supplied.) This assimilation applies whether the state laws are enacted before or after the Federal Assimilative Crimes Act and at once reflects every addition, repeal or amendment of a state law.8 Recognizing its underlying policy of 123 years' standing, Congress has thus at last provided that within each federal enclave, to the extent that offenses are not preempted by congressional enactments, there shall be comlete current conformity with the criminal laws of the respective States in which the enclaves are situated. 14 There is no doubt that Congress may validly adopt a criminal code for each federal enclave. It certainly may do so by drafting new laws or by copying laws dufining the criminal offenses in force throughout the State in which the enclave is situated. As a practical matter, it has to proceed largely on a wholesale basis. Its reason for adopting local laws is not so much because Congress has examined them individually as it is because the laws are already in force throughout the State in which the enclave is situated.9 The basic legislative decision made by Congress is its decision to conform the laws in the enclaves to the local laws as to all offenses not punishable by any enactment of Congress. Whether Congress sets forth the assimilated laws in full or assimilates them by reference, the result is as definite and as ascertainable as are the state laws themselves. 15 Having the power to assimilate the state laws, Congress obviously has like power to renew such assimilation annually or daily in order to keep the laws in the enclaves current with those in the States. That being so, we conclude that Congress is within its constitutional powers and legislative discretion when, after 123 years of experience with the policy of conformity, it enacts that policy in its most complete and accurate form. Rather than being a delegation by Congress of its legislative authority to the States, it is a deliberate continuing adoption by Congress for federal enclaves of such unpre-empted offenses and punishments as shall have been already put in effect by the respective States for their own government. Congress retains power to exclude a particular state law from the assimilative effect of the Act. This procedure is a practical accommodation of the mechanics of the legislative functions of State and Nation in the field of police power where it is especially appropriate to make the federal regulation of local conduct conform to that already established by the State. Cf. Stewart & Co. v. Sadrakula, 309 U.S. 94, 100—101, 60 S.Ct. 431, 434—435, 84 L.Ed. 596. 16 Examples of uses made by Congress of future state legislative action in connection with the exercise of federal legislative power are numerous. The Webb-Kenyon Act of March 1, 1913, 37 Stat. 699, 700, 27 U.S.C. § 122, 27 U.S.C.A. § 122, prohibited the shipment of intoxicating liquors into a State to be used 'in violation of any law of such State * * *.' West Virginia subsequently enacted a prohibition law. This Court nevertheless upheld the applicability of the Federal Act as it assimilated that subsequent state statute. Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 326, 37 S.Ct. 180, 185, 61 L.Ed. 326. See also Knickerbocker Ice Co. v. Stewart, 253 U.S. 149,10 169, 40 S.Ct. 438, 443, 64 L.Ed. 834 (Justice Holmes' dissent), and United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 63 L.Ed. 337. 17 The Federal Black Bass Act, as amended, 61 Stat. 517, 66 Stat. 736, 16 U.S.C. s 852, 16 U.S.C.A. § 852, prohibited the transportation of fish in interstate commerce contrary to the law of the State from which it is transported. And see 18 U.S.C. § 43, 18 U.S.C.A. § 43. 18 The Johnson Act, 64 Stat. 1134, 15 U.S.C. § 1172, 15 U.S.C.A. § 1172, prohibiting the transportation of gambling devices in interstate commerce, provides that a State may exempt itself from the Act. See Nilva v. United States, 8 Cir., 212 F.2d 115.11 19 In the less closely related field of civil law, the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), bases the liability of the United States on 'the law of the place where the act or omission occurred.' 20 The Social Security Act, as amended, 71 Stat. 519, 42 U.S.C.A. § 416(h)(1), provides that an applicant shall be considered a husband or wife of an insured individual 'if the courts of the State in which such insured individual is domiciled at the time such applicant files an application * * * would find that such applicant and such insured individual were validly married at the time such applicant files such application * * *.' (Emphasis supplied.) 21 The Bankruptcy Act, 52 Stat. 847, 11 U.S.C. § 24, 11 U.S.C.A. § 24, provides that it shall not affect the allowance of exemptions prescribed 'by the State laws in force at the time of the filing of the petition * * *.' See Hanover National Bank of City of New York v. Moyses, 186 U.S. 181, 189—190, 22 S.Ct. 857, 861, 46 L.Ed. 1113. 22 Under 63 Stat. 25, 50 U.S.C.App. § 1894(i)(1) and (2), 50 U.S.C.A.Appendix, § 1894(i)(1, 2), States were authorized to free certain local areas from federal rent control either by passing local rent control legislation of their own, or by determining that federal rent control was no longer necessary. See United States v. Shoreline Co-op Apartments, Inc., 338 U.S. 897, 70 S.Ct. 248, 94 L.Ed. 551, reversing, per curiam, Woods v. Shoreline Co-op Apartments, D.C., 84 F.Supp. 660. 23 This Court also has held that Congress may delegate to local legislative bodies broad jurisdiction over Territories and ceded areas provided Congress retains, as it does here, ample power to revise, alter and revoke the local legislation. District of Columbia v. John R. Thompson Co., 346 U.S. 100, 106, 109—110, 73 S.Ct. 1007, 1010, 1012—1013, 97 L.Ed. 1480; Christianson v. King County, 239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327; Hornbuckle v. Toombs, 18 Wall. 648, 655, 21 L.Ed. 966.12 24 The application of the Assimilative Crimes Act to subsequently adopted state legislation, under the limitations here prescribed, is a reasonable exercise of congressional legislative power and discretion.13 Accordingly, the judgment of the District Court is reversed and the case is remanded to it for further action consistent with this opinion. 25 Reversed and remanded. 26 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. 27 There are two provisions of the Constitution involved in the present controversy. Article I, § 1 provides: 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' A supplementary provision is that contained in Art. IV, § 3, cl. 2: 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.' 28 It is, therefore, the Congress, and the Congress alone, that has the power to make rules governing federal enclaves. I suppose there would be no doubt, at least after Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, that this rule-making power could not be exercised by the President, let alone some federal agency such as the Department of the Interior. The power to make laws under which men are punished for crimes calls for as serious a deliberation as the fashioning of rules for the seizure of the industrial plants involved in the Youngstown case. Both call for the exercise of legislative judgment; and I do not see how that requirement can be satisfied by delegating the authority to the President, the Department of the Interior, or, as in this case, to the States. The Court held in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, that the determination of what constitutes 'fair competition' may not be left with the industry affected, subject to approval by the President. For the codes promulgated would have the standing of federal statutes. 'But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.' Id., 295 U.S. at pages 537—538, 55 S.Ct. at page 846. The codemaking authority was held to be an unconstitutional delegation of legislative power. Id., 295 U.S. at page 542, 55 S.Ct. at page 843. 'The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is * * * vested.' Id., 295 U.S. at page 529, 55 S.Ct. at page 843. 29 The vice in the Schechter case was not that the President was the one who received the delegated authority, but that the Congress had abdicated the lawmaking function. The result should be the same whether the lawmaking authority, constituted by Congress, is the President or a State. 30 Of course Congress can adopt as federal laws the laws of a State; and it has often done so. Even when it does so without any enumeration of the laws, it 'has acted as definitely as if it had repeated the words' used by the State, as Mr. Justice Holmes said in Knicker-bocker Ice Co. v. Stewart, 253 U.S. 149, 167, 40 S.Ct. 438, 443, 64 L.Ed. 834. Also Congress could, I think, adopt as federal law, governing an enclave, the state law governing speeding as it may from time to time be enacted. The Congress there determines what the basic policy is. Leaving the details to be filled in by a State is analogous to the scheme of delegated implementation of congressionally adopted policies with which we are familiar in the field of administrative law. But it is Congress that must determine the policy, for that is the essence of lawmaking. Under the scheme now approved a State makes such federal law, applicable to the enclave, as it likes, and that law becomes federal law, for the violation of which the citizen is sent to prison. 31 Here it is a sex crime on which Congress has never legislated. Tomorrow it may be a blue law, a law governing usury, or even a law requiring segregation of the reces on buses and in restaurants. It may be a law that could never command a majority in the Congress or that in no sense reflected its will. It is no answer to say that the citizen would have a defense under the Fifth and Sixth Amendments to unconstitutional applications of these federal laws or the procedures under them. He is entitled to the considered judgment of Congress whether the law applied to him fits the federal policy. That is what federal lawmaking is. It is that policy which has led the Court heretofore to limit these Assimilative Crimes Acts to those state laws in force at the time of enactment of the Federal Act. United States v. Paul, 6 Pet. 141, 8 L.Ed. 348. And see Franklin v. United States, 216 U.S. 559, 568—569, 30 S.Ct. 434, 436—437, 54 L.Ed. 615. 32 There is some convenience in doing what the Court allows today. Congress is saved the bother of enacting new Assimilative Crimes Acts from time to time. Federal laws grow like mushrooms without Congress passing a bill. But convenience is not material to the constitutional problem. With all due deference to those who are convinced the other way, I am forced to conclude that under this Assimilative Crimes Act it is a State, not the Congress, that is exercising the legislative power under Art. I, § 1 of the Constitution and that is making the 'needful Rules and Regulations' envisioned by Art. IV, § 3, cl. 2. That may not constitutionally be done. 1 There is no contention that the acts here charged were punishable under any enactment of Congress other than by virtue of the Assimilative Crimes Act, and there is no contention that Randolph Air Force Base is not a federal enclave subject to 18 U.S.C. § 13, 18 U.S.C.A. § 13. 2 The order also included the following paragraph: 'It is further the opinion of this Court that Section 13, Title 18, United States Code, enacted in 1948, wherein it assimilates and adopts said criminal statutes enacted by the state subsequent to the enactment of said section, to-wit: Articles 535(b) and 535(c) of the Texas Penal Statutes, enacted in 1950, upon which all four counts of this indictment are predicated, is a delegation of Congress' legislative authority to the states in violation of the Constitution of the United States.' 3 Section 7 contains the following provision: 'The term 'special maritime and territorial jurisdiction of the United States,' as used in this title, includes: '(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.' 18 U.S.C., 18 U.S.C.A. 4 'Article. I. 'Section 8. The Congress shall have Power * * * 'To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings * * *. 'Article. IV. 'Section. 3. * * * 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.' U.S.Const. 5 For example, the following offenses committed within federal enclaves are now made criminal by such enactments of Congress: arson, 18 U.S.C. § 81, 18 U.S.C.A. § 81; assault, 18 U.S.C. § 113, 18 U.S.C.A. § 113; maiming, 18 U.S.C. § 114, 18 U.S.C.A. § 114; larceny, 18 U.S.C. § 661, 18 U.S.C.A. § 661; receiving stolen property, 18 U.S.C. § 662, 18 U.S.C.A. § 662; false pretenses 'upon any waters or vessel within the special maritime and territorial jurisdiction of the United States,' 18 U.S.C. § 1025, 18 U.S.C.A. § 1025; murder, 18 U.S.C. § 1111, 18 U.S.C.A. § 1111; manslaughter, 18 U.S.C. § 1112, 18 U.S.C.A. § 1112; attempted murder or manslaughter, 18 U.S.C. § 1113, 18 U.S.C.A. § 1113; malicious mischief, 18 U.S.C. § 1363, 18 U.S.C.A. § 1363; rape, 18 U.S.C. § 2031, 18 U.S.C.A. § 2031; carnal knowledge, 18 U.S.C. § 2032, 18 U.S.C.A. § 2032; and robbery, 18 U.S.C. § 2111, 18 U.S.C.A. § 2111. 6 'Sec. 3. * * * if any offence shall be committed in any of the places aforesaid, the punishment of which offence is not specially provided for by any law of the United States, such offence shall, upon a conviction in any court of the United States having recognisance thereof, be liable to, and receive the same punishment as the laws of the state in which such fort, dock-yard, navy-yard, arsenal, armory, or magazine, or other place, ceded as aforesaid, is situated, provide for the like offence when committed within the body of any county of such state.' 4 Stat. 115. 7 See H.R.Rep. No. 263, 73d Cong., 1st Sess.; 77 Cong.Rec. 5530—5532, 5920; and H.R.Rep. No. 1022, 74th Cong., 1st Sess. 8 The Reviser's Note to § 13 states the situation simply: 'The revised section omits the specification of any date as unnecessary in a revision, which speaks from the date of its enactment. Such omission will not only make effective within Federal reservations, the local State laws in force on the date of the enactment of the revision, but will authorize the Federal courts to apply the same measuring stick to such offenses as is applied in the adjoining State under future changes of the State law and will make unnecessary periodic pro forma amendments of this section to keep abreast of changes of local laws. In other words, the revised section makes applicable to offenses committed on such reservations, the law of the place that would govern if the reservation had not been ceded to the United States.' 18 U.S.C., 18 U.S.C.A. 9 We do not now pass upon the effect of the Assimilative Crimes Act where an assimilated state law conflicts with a specific federal criminal statute, cf. Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962, or with a federal policy. Cf. Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814; Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596; Hunt v. United States, 278 U.S. 96, 49 S.Ct. 38, 73 L.Ed. 200; Air Terminal Services, Inc., v. Rentzel, D.C., 81 F.Supp. 611; Oklahoma City v. Sanders, 10 Cir., 94 F.2d 323, 115 A.L.R. 363. 10 In Knickerbocker Ice Co. v. Stewart, supra, this Court voided a statute which attempted to make state workmen's compensation laws applicable to injuries within the federal admiralty and maritime jurisdiction. The basis of that holding, which we do not now re-examine, was that 'the Constitution not only contemplated, but actually established' a 'harmony and uniformity' of law throughout the admiralty jurisdiction. Id., 253 U.S. at page 164, 40 S.Ct. at page 441. That statute was voided because it was designed to 'destroy' what was considered to be a constitutionally required uniformity. Ibid. In contrast, the statute now before us is designed to effectuate a long-standing congressional policy of conformity with local law. 11 The applicability of criminal provisions under the Connally Hot Oil Act, 49 Stat. 30, 15 U.S.C. § 715, 15 U.S.C.A. § 715, depends upon the adoption of state conservation laws. See Humble Oil & Refining Co. v. United States, 10 Cir., 198 F.2d 753. Under the Fugitive from Justice Act, 18 U.S.C. § 1073, 18 U.S.C.A. § 1073, it is criminal for a person to travel in interstate commerce to avoid prosecution for specified crimes as defined 'under the laws of the place from which he flees * * *.' Cf. Hemans v. United States, 6 Cir., 163 F.2d 228. 12 Wayman v. Southard, 10 Wheat. 1, 47—50, 6 L.Ed. 253, is not controlling. In that case, Chief Justice Marshall stated that Congress could not constitutionally delegate to state legislatures the power to adopt future 'rules of practice' and 'modes of proceeding' which would bind federal courts. In 1872, that decision was met by Congress in the adoption of the Conformity Act, 17 Stat. 197, which prescribed: 'Sec. 5. That the practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding * * *.' (Emphasis supplied.) While this Act was later restricted by interpretation, the validity of its application to future state practice was generally accepted by the courts. See Hart and Wechsler, The Federal Courts and the Federal System (1953), 581 586; Warren, Federal Process and State Legislation, 16 Va.L.Rev. 421, 557—570 (1930); Clark and Moore, A New Federal Civil Procedure, 44 Yale L.J. 387, 401—411 (1935). 13 See generally, Note, The Federal Assimilative Crimes Act, 70 Harv.L.Rev. 685 (1957).

01

355 U.S. 373 78 S.Ct. 352 2 L.Ed.2d 340 NASHVILLE MILK COMPANY, Petitioner,v.CARNATION COMPANY. SAFEWAY STORES, Incorporated, Petitioner, v. Harry V. VANCE, Trustee in Bankruptcy for Frank Melvin Thompson, Bankrupt. Nos. 67, 69. Supreme Court of the United States January 20, 1958 Mr. Jerome F. Dixon, Chicago, Ill., for petitioner. Mr. Melville C. Williams, Chicago, Ill., for respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 Petitioner, alleging that it had been injured by respondent's sales at unreasonably low prices in violation of § 3 of the Robinson-Patman Act,1 49 Stat. 1526, 15 U.S.C. § 13a, 15 U.S.C.A. § 13a, sued the respondent for treble damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 730, as amended, 15 U.S.C. §§ 15, 26, 15 U.S.C.A. §§ 15, 26. The District Court dismissed the complaint on the ground that the private remedies afforded by §§ 4 and 16 of the Clayton Act cannot be based on a violation of § 3 of the Robinson-Patman Act. The Court of Appeals affirmed. 238 F.2d 86. We brought the case here, 352 U.S. 1023, 77 S.Ct. 590, 1 L.Ed.2d 595, to resolve a conflict between the ruling below and a decision of the Court of Appeals for the Tenth Circuit holding that such a private action does lie. Vance v. Safeway Stores, Inc., 239 F.2d 144. 2 Sections 4 and 16 of the Clayton Act permit private actions of this kind2 only for injuries resulting from practices forbidden by the 'antitrust laws' as defined in § 1 of the Clayton Act, 15 U.S.C.A. § 12,3 namely: (1) the Sherman Act (Act of July 2, 1890, 15 U.S.C.A. §§ 1—7, 15 note); (2) parts of the Wilson Tariff Act (Act of August 27, 1894, 15 U.S.C.A. §§ 8—11); (3) the Act amending the Wilson Tariff Act (Act of February 12, 1913, 15 U.S.C.A. § 11); and (4) the Clayton Act, 15 U.S.C.A. § 12 et seq. ('this Act'). In light of the much other so-called antitrust legislation enacted prior and subsequent to the Clayton Act,4 it seems plain that the rule expressio unius exclusio alterius is applicable, and that the definition contained in § 1 of the Clayton Act is exclusive. Therefore it is of no moment here that the Robinson-Patman Act may be colloquially described as an 'antitrust' statute. And since no one claims that § 3 of the Robinson-Patman Act can be regarded as an amendment to the Sherman Act or the Wilson Tariff Act, the precise issue before us is whether Congress made that section of the Robinson-Patman Act a part of the Clayton Act, thus making it one of the 'antitrust laws' whose violation can lead to the private causes of action authorized by §§ 4 and 16. For the reasons stated below we hold that this is not the case.5 I. 3 The Robinson-Patman Act, consisting of our sections, convincingly shows on its face that § 3 does not amend the Clayton Act, but stands on its own footing and carries its own sanctions. 4 The first section of the Act does expressly amend § 2 of the Clayton Act, which prohibits certain kinds of price discriminations, and allied activities, on the part of those engaged in domestic or territorial commerce. The first paragraph of this section reads: 5 'That section 2 of the (Clayton Act) * * * is amended to read as follows: * * *' The section then sets forth in haec verba, and within quotation marks, all the provisions of § 2, as modified by the amending language. 49 Stat. 1526, 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a). 6 Two other sections of the Act are not in point here. Section 2 simply applies the amending provisions of § 1 to litigation commenced under the former provisions of § 2 of the Clayton Act, 15 U.S.C. § 21a, 15 U.S.C.A. § 21a; and § 4 deals with certain practices of cooperative associations. 15 U.S.C. § 13b, 15 U.S.C.A. § 13b. 7 The only other section of the Act is § 3, with which we are concerned here. It prohibits three kinds of trade practices, (a) general price discriminations, (b) geographical price discriminations, and (c) selling 'at unreasonably low prices for the purpose of destroying competition or eliminating a competitor.' The important thing to note is that this section, in contrast to § 1 of the Robinson-Patman Act, does not on its face amend the Clayton Act. Further, § 3 contains only penal sanctions for violation of it provisions; in the absence of a clear expression of congressional intent to the contrary, these sanctions should under familiar principles be considered exclusive, rather than supplemented by civil sanctions of a distinct statute. See D. R. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U.S. 165, 174—175, 35 S.Ct. 398, 401, 59 L.Ed. 520. 8 The conclusion that only § 1 of the Robinson-Patman Act can be regarded as amendatory of the Clayton Act is further borne out by the title of the whole Robinson-Patman Act, which reads (49 Stat. 1526): 9 'An Act 10 'To amend section 2 of (the Clayton Act) * * * and for other purposes.' (Italics added.) 11 The 'other purposes' can only refer to the sections of the Act other than the first section. 12 Because there is a partial overlap between the price-discrimination clauses of § 3 of the Robinson-Patman Act (see note 1, supra) and those of § 2 of the Clayton Act, as amended by the first section of the Robinson-Patman Act,6 it is argued that it would be anomalous to allow a private cause of action for price discrimination in violation of § 2 of the Clayton Act but to deny a private cause of action based on a violation of § 3 of the Robinson-Patman Act. This argument, however, over-looks the fact that § 3 of the Robinson-Patman Act includes a provision which is not found in § 2 of the Clayton Act, namely, selling 'at unreasonably low prices for the purpose of destroying competition or eliminating a competitor.' It is not an idle conjecture that the possibility of abuse inherent in a private cause of action based upon this vague provision7 was among the factors which led Congress to leave the enforcement of the provisions of § 3 solely in the hands of the public authorities, except to the extent that violation of any of its provisions also constituted a violation of § 2 of the Clayton Act, and as such was subject to private redress under §§ 4 and 16 of that Act. In any event, in the absence of a much clearer indication of congressional intent than is present in these statutory provisions and their legislative history (355 U.S. 380, 78 S.Ct. 356), we should not read the Robinson-Patman Act as subjecting violations of the 'unreasonably low prices' provision of § 3 to the private remedies given by the Clayton Act. 13 Respondent calls our attention to the fact that the 1940 U.S. Code codifies § 3 of the Robinson-Patman Act as being among the 'antitrust laws' embraced in § 1 of the Clayton Act. However, reference to the 1926 and 1934 Codes shows that the 1940 codification was a palpable error.8 Moreover, this codification seems to us, for the reasons set forth in this opinion, to be manifestly inconsistent with the Robinson-Patman Act, and in such circumstances Congress has specifically provided that the underlying statute must prevail. Act of June 30, 1926, 32(a), vol. 1 U.S.C. (1952 ed.), p. LXIII, 1 U.S.C.A. preceding section 1; see Stephan v. United States, 319 U.S. 423, 426, 63 S.Ct. 1135, 1136, 87 L.Ed. 1490. II. 14 What appears from the face of the Robinson-Patman Act finds full support in its legislative history. The fair conclusions to be drawn from that history are (a) that § 3 of the Robinson-Patman Act was not intended to become part of the Clayton Act, and (b) that the section was intended to carry only criminal sanctions, except that price discriminations, to the extent that they were common to both that section and § 2 of the Clayton Act, were also understood to carry, under the independent force of the Clayton, Act, the private remedies provided in §§ 4 and 16 of the Clayton Act. In other words, although price discriminations are both criminally punishable (under § 3 of the Robinson-Patman Act) and subject to civil redress (under § 2 of the Clayton Act), selling 'at unreasonably low prices' is subject only to the criminal penalties provided in § 3 of the Robinson-Patman Act.9 This is evident from the Conference Report on the bill, which states: 15 'SECTION 2 16 'The provisions of section 2 of the House bill10 were agreed to without amendment by the Senate. * * * (I)t appears in the conference report as section 2 of the bill itself, rather that as part of the amendment to section 2 of the Clayton Act which is provided for in section 1 to the present bill. 17 'SECTION 3 18 'Subsection (h) of the Senate amendment * * * appears in the conference report as section 3 of the bill itself. It contains the operative and penal provisions of what was originally the Borah-Van Nuys bill (S. 4171).11 While they overlap in some respects, they are in no way inconsistent with th provisions of the Clayton Act amendment provided for in section 1. Section 3 authorizes nothing which that amendment prohibits, and takes nothing from it. On the contrary, where only civil remedies and liabilities attach to violations of the amendment provided in section 1, section 3 sets up special prohibitions as to the particular offenses therein described and attaches to them also the criminal penalties therein provided.' H.R.Rep. No. 2951, 74th Cong., 2d Sess., p. 8. (Italics added.) 19 Further excerpts from the legislative history, set forth in the margin,12 also bear out the conclusions stated at the outset of this part of our opinion. 20 Finally, it is noteworthy, by way of epitomizing the conclusions to be drawn from the legislative history, that in 1950 Representative Patman (a coauthor of the Robinson-Patman Act) stated in testimony before a Subcommittee of the House Committee on the Judiciary (Hearing on H.R. 7905, 81st Cong., 2d Sess., Serial No. 14, Part 5, p. 48): 21 '* * * it happens that section 3, the criminal section of the Robinson-Patman Act, was not, under the terms of that act, made an amendment to the Clayton Act. Moreover, section 3 of the Robinson-Patman Act has never been added to the list of laws designated as 'antitrust laws' in section 1 of the Clayton Act.' 22 For the foregoing reasons, we hold that a private cause of action does not lie for practices forbidden only by § 3 of the Robinson-Patman Act. To the extent that such practices also constitute a violation of § 2 of the Clayton Act, as amended, they are actionable by one injured thereby solely under that Act. Since no such infringement of § 2 is alleged here, the complaint in this case was properly dismissed. 23 Affirmed. 1 Section 3 of the Robinson-Patman Act provides: 'It shall be unlawful for any person engaged in commerce, in the course of such commerce, to be a party to, or assist in, any transaction of sale, or contract to sell, which discriminates to his knowledge against competitors of the purchaser, in that, any discount, rebate, allowance, or advertising service charge is granted to the purchaser over and above any discount, rebate, allowance, or advertising service charge available at the time of such transaction to said competitors in respect of a sale of goods of like grade, quality, and quantity; to sell, or contract to sell, goods in any part of the United States at prices lower than those exacted by said person elsewhere in the United States for the purpose of destroying competition, or eliminating a competitor in such part of the United States; or, to sell, or contract to sell, goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor. 'Any person violating any of the provisions of this section shall, upon conviction thereof, be fined not more than $5,000 or imprisoned not more than one year, or both.' 2 Section 4 of the Clayton Act provides: 'That any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.' Section 16 of the Clayton Act grants a private cause of action for injunctive relief against 'threatened loss or damage by a violation of the antitrust laws.' 3 38 Stat. 730. Section 1 of the Clayton Act provides: 'That 'antitrust laws,' as used herein, includes the Act entitled 'An Act to protect trade and commerce against unlawful restraints and monopolies,' approved July second, eighteen hundred and ninety; sections seventy-three to seventy-seven, inclusive, of an Act entitled 'An Act to reduce taxation, to provide revenue for the Government, and for other purposes,' of August twenty-seventh, eighteen hundred and ninety-four; an Act entitled 'An Act to amend sections seventy-three and seventy-six of the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled 'An Act to reduce taxation, to provide revenue for the Government, and for other purposes," approved February twelfth, nineteen hundred and thirteen; and also this Act.' 4 A total of 71 statutes (including the Clayton Act) are set forth in a compliation prepared by Elmer A. Lewis, Superintendent of the Document Room, House of Representatives, entitled Antitrust Laws with Amendments, 1890—1951 (1951). Of these statutes, 21 were on the books in 1914 when the Clayton Act was enacted, and 49 became law thereafter. 5 The issue now before us was not decided in Bruce's Juices, Inc., v. American Can Co., 330 U.S. 743, 67 S.Ct. 1015, 91 L.Ed. 1219, or Moore v. Mead's Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145. 6 15 U.S.C. § 13(a), 15 U.S.C.A. § 13(a). Section 2 of the Clayton Act, as amended, provides: 'It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality * * * where the effect of such discrimination may be substantially to lessen competition of tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them * * *.' We need not decide whether violations of the price discrimination provisions of § 3 of the Robinson-Patman Act are subject to all of the defenses provided in the case of price discriminations under the Clayton Act. 7 The District Court indicated that the vagueness of the 'unreasonably low prices' provision might give rise to constitutional difficulties, if such questions had to be faced. Cf. United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146. See Comment, 55 Mich.L.Rev. 845, 853 856. Be that as it may, it is worthy of note that the Department of Justice has never, so far as we have been able to determine, brought proceedings under this provision of § 3. 8 In the 1926 U.S.Code, § 1 of the Clayton Act was codified in part as follows (15 U.S.C. § 12): "Antitrust laws,' as used in sections 12 to 27, inclusive, of this chapter (the Clayton Act), includes sections 1 to 27, inclusive, of this chapter.' This codification was correct because §§ 1—27 of Title 15 were the Sherman Act, the Wilson Tariff Act (as amended) and the Clayton Act. The 1934 Code was identical and also correct. The error occurred in the 1940 codification. The Robinson-Patman Act was enacted in 1936. In the 1940 Code the codification of § 1 of the Clayton Act was changed so that it read: "Antitrust laws,' as used in sections 12, 13, 14—21, 22—27 of this title, includes sections 1—27, inclusive, of this title.' Sections 2, 3, and 4 of the Robinson-Patman Act had been codified as 15 U.S.C. §§ 21a, 13a and 13b, respectively. The codifiers partially recognized that these sections were not part of the Clayton Act by changing the figures'12 to 27' in the earlier codifications of 15 U.S.C. § 12 to read '12, 13, 14—21, 22 27.' But the codifiers failed to make a corresponding change in the figures '1 to 27' appearing in the earlier codifications. The result is that the term 'antitrust laws' as used in § 1 of the Clayton Act appears in the 1940 Code to include § 3 of the Robinson-Patman Act, codified as § 13a. The 1946 and 1952 codifications perpetuated this error. 9 Read in context, the legislative excerpts quoted in the dissenting opinion indicate no more than that. 10 The House bill was introduced by Representative Patman. H.R. 8442, 79 Cong.Rec. 9081. Shortly thereafter an identical bill was introduced in the Senate by Senator Robinson. S. 3154, 79 Cong.Rec. 10129. 11 Independently of the Robinson bill, Senators Borah and Van Nuys introduced separate price-discrimination bills. S. 3670, 80 Cong.Rec. 461; S. 3835, 80 Cong.Rec. 1194. These bills were later consolidated, S. 4171, 80 Cong.Rec. 3204, and ultimately the consolidated bill became § 3 of the Robinson-Patman Act. 12 Representative Utterback, senior House Manager of the committee of conference, stated on the floor of the House (80 Cong.Rec. 9419): 'Section 3 of the bill sets aside certain practices therein described and attaches to their commission the criminal penalties of fine and imprisonment therein provided. It does not affect the scope or operation of the prohibitions or limitations laid down by the Clayton Act amendment provided for in section 1. It authorizes nothing therein prohibited. It detracts nothing from them. Most of the acts which it does prohibit lie also within the prohibitions of that amendment. In that sphere this section merely attaches to them its criminal penalties in addition to the civil liabilities and remedies already provided by the Clayton Act.' (Italics added.) Representative Miller, a House Manager of the committee of conference, later said 'Section 3 is the Borach-Van Nuys amendment. * * * The first section of the bill as reported back here amends section 2 of the Clayton Act.' When asked whether § 3 was 'a part of the same act,' Mr. Miller replied (80 Cong.Rec. 9421): 'Of course it is, but it is not a part of the Clayton Act as amended by section 2 (Section 1 of the Robinson-Patman Bill).' (Italics added.)

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355 U.S. 393 78 S.Ct. 381 2 L.Ed.2d 356 Branko KARADZOLE, Consul General of the Federal People's Republic of Yugoslavia, and Robert W. Ware, United States Marshal, petitioners,v.Andrija ARTUKOVIC. No. 462. Supreme Court of the United States January 20, 1958 Messrs. Lawrence S. Lesser and George E. Danielson, for petitioners. Solicitor General Rankin, for the United States. Mr. Robert T. Reynolds, for respondent. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. PER CURIAM. 1 The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States District Court for the Southern District of California for the discharge of the writ of habeas corpus and the remand of respondent to the custody of the United States Marshal in order that a hearing be held under 18 U.S.C. § 3184, 18 U.S.C.A. § 3184. 2 Mr. Justice BLACK and Mr. Justice DOUGLAS dissent.

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355 U.S. 391 78 S.Ct. 381 2 L.Ed.2d 355 CITIES SERVICE GAS COMPANY, a Corporation, appellant,v.STATE CORPORATION COMMISSION OF KANSAS et al. No. 85. Supreme Court of the United States January 20, 1958 Rehearing Denied March 3, 1958. See 355 U.S. 967, 78 S.Ct. 531. Mr. Joe Rolston, (Messrs. Conrad C. Mount, O. R. Stites and Mark H. Adams, on the brief), for appellant. Solicitor General Rankin (Assistant Attorney General Doub, Messrs. Paul W. Sweeney, Robert S. Green, Willard W. Gatchell and Howard E. Wahrenbrock, on the brief), for Federal Power Commission, as amicus curiae. Messrs. Dale M. Stucky and Frank G. Theis (Mr. Clyde Milligan, on the brief), for appellees. Messrs. Bruce Bennett, Atty. Gen. of Arkansas, Duke W. Dunbar, Atty. Gen. of Colorado, John Anderson, Atty. Gen., of Kansas, Jack P. F. Gremillion, Atty. Gen. and Bailey Walsh, Special Asst. Atty. Gen., of Louisiana, Joe T. Patterson, Atty. Gen. of Mississippi, C. S. Beck, Atty. Gen. of Nebraska, Fred M. Standley, Atty. Gen. of New Mexico, Leslie R. Burgum, Atty. Gen. of North Dakota, Mac. Q. Williamson, Atty. Gen. of Oklahoma, Will Wilson, Atty. Gen., and James N. Ludlum, First Asst. Atty. Gen., of Texas. E. R. Callister, Atty. Gen. of Utah, and Thomas O. Miller, Atty. Gen. of Wyoming, as amici curiae. Messrs. Latham Castle, Atty. Gen. of Illinois and William C. Wines, Asst. Atty. Gen., as amici curiae. PER CURIAM. 1 The judgment is reversed. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035; Natural Gas Pipeline Co. v. Panoma Corporation, 349 U.S. 44, 75 S.Ct. 576, 99 L.Ed. 866.

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355 U.S. 392 78 S.Ct. 383 2 L.Ed.2d 356 George ZAVADA, petitioner,v.UNITED STATES of America. No. 65, Misc. Supreme Court of the United States January 20, 1958 George Zavada, pro se. Solicitor General Rankin, Mr. Warren Olney, III, former Asst. Atty. Gen., and Beatrice Rosenberg, for the United States. On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit. PER CURIAM. 1 The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed and the case is remanded to the United States District Court for the Northern District of Ohio for a hearing. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392. 2 Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITTAKER dissent.

01

355 U.S. 389 78 S.Ct. 358 2 L.Ed.2d 350 SAFEWAY STORES, Incorporated, Petitioner,v.Harry V. VANCE, Trustee in Bankruptcy for Frank Melvin Thompson, Bankrupt. No. 69. Argued Nov. 21, 1957. Decided Jan. 20, 1958. Rehearing and Modification Denied March 17, 1958. See 356 U.S. 910, 78 S.Ct. 667. Mr. John B. Tittmann, Albuquerque, N.M., for petitioner. Mr. Robert J. Nordhaus, Albuquerque, N.M., for respondent. Mr. Justice HARLAN delivered the opinion of the Court. 1 This is a companion case to No. 67, Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352. In the present case the Court of Appeals has held that a private action for treble damages1 does lie under § 4 of the Clayton Act for violation of § 3 of the Robinson-Patman Act. 239 F.2d 144. Because of the conflict with the decision of the Court of Appeals for the Seventh Circuit in the Nashville Milk Co. case, 238 F.2d 86, we granted certiorari. 352 U.S. 1023, 77 S.Ct. 590, 1 L.Ed.2d 595. 2 The complaint in this case alleges both sales 'at unreasonably low prices' and price discriminations in violation of § 3 of the Robinson-Patman Act. For the reasons set forth in our Nashville Milk Co. opinion, 355 U.S. 373, 78 S.Ct. 352, we hold that the complaint should have been dismissed insofar as it rests on alleged unlawful selling at unreasonably low prices, and that the respondent was entitled to a trial as to the charges of unlawful price discrimination. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion. 3 It is so ordered. 4 Judgment of Court of Appeals vacated and cause remanded to District Court with directions. 5 The CHIEF JUSTICE, Mr. Justice DOUGLAS, Mr. Justice BLACK and Mr. Justice BRENNAN, dissent. 6 For dissenting opinion of Mr. Justice DOUGLAS, see 355 U.S. 373, 78 S.Ct. 359. 1 The complaint does not ask for injunctive relief under § 16 of the Clayton Act.

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355 U.S. 424 78 S.Ct. 393 2 L.Ed.2d 380 Roy D. HONEYCUTT, Petitioner,v.WABASH RAILWAY COMPANY a Corporation. No. 639. Decided Jan. 27, 1958. Mr. Charles E. Gray, for petitioner. PER CURIAM. 1 The petition for certiorari is granted and the judgment of the St. Louis Court of Appeals of the State of Missouri is reversed and the case is remanded for proceedings in conformity with this opinion. We hold that the proofs justified with reason the jury's conclusion that employer negligence played a part in producing the petitioner's injury. Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed. 511; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. Mr. Justice Harlan, with whom Mr. Justice Whittaker joins, concurs in the result for the reasons given in his memorandum in Gibson v. Thompson, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1. 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, 515, Mr. Justice FRANKFURTER is of the view that the writ of certiorari is improvidently granted.

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355 U.S. 396 78 S.Ct. 369 2 L.Ed.2d 359 FEDERAL TRADE COMMISSION, Petitioner,v.STANDARD OIL CO. No. 24. Argued Nov. 14, 18, 1957. Decided Jan. 27, 1958. Mr. Earl E. Pollock, Washington, D.C., for petitioner, pro hac vice, by special leave of court. Mr. Hammond E. Chaffetz, Washington, D.C., for respondent. Mr. Justice CLARK delivered the opinion of the Court. 1 This case is a sequel to Standard Oil Co. v. Federal Trade Comm'n, 1951, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239, wherein the Court held that § 2(b) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13(b), 15 U.S.C.A. § 13(b), afforded a seller a complete defense to a charge of price discrimination if its lower price was 'made in good faith to meet a lawful and equally low price of a competitor.' 340 U.S. at page 246, 71 S.Ct. at page 248. We remanded the case with instructions that the Federal Trade Commission make findings on Standard's contention that its discriminatory prices were so made. The subsequent findings are not altogether clear. The Commission, acting on the same record, seemingly does not contest the fact that Standard's deductions were made to meet the equally low prices of its competitors. However, Standard was held not to have acted in good faith, and the § 2(b) defense precluded, because of the Commission's determination that Standard's reduced prices were made pursuant to a price system rather than being 'the result of departures from a nondiscriminatory price scale.' 49 F.T.C. 923, 954. The Court of Appeals found no basis in the record for such a finding and vacated the order of the Commission, holding that Standard's "good faith' defense was firmly established.' 233 F.2d 649, 655. In view of our former opinion and the importance of bringing an end to this protracted litigation, we granted certiorari. 1956, 352 U.S. 950, 77 S.Ct. 325, 1 L.Ed.2d 242. Having concluded that the case turns on a factual issue, decided by the Court of Appeals upon a fair assessment of the record, we affirm the decision below. 2 The long history of this 17-year-old case may be found both in the original opinion of the Court of Appeals, 7 Cir., 173 F.2d 210, and in the original opinion of this Court, supra. The case arose as a companion to similar complaints filed by the Commission against Gulf Oil Company, the Texas Company, and Shell Oil Company. In its petition for certiorari, the Commission stresses the existence of an industry-wide 'dual price system,' asserting that the decision below would 'insulate from attack a price pattern deeply entrenched in the industry—not only in the Detroit area, but also elsewhere in the country.' The pendency of the Gulf, Texas, and Shell complaints is mentioned twice, and the Commission states in a footnote that '(p)roceedings thereon have been deferred until the disposition of this case.' However, on April 3, 1957, the Commission decided that 'it will not now be practicable to try the issues raised' in the companion complaints 'irrespective of the final outcome of * * * the matter of Standard Oil Company,' and dismissed all three of the companion cases. The claim that the asserted dual pricing system was of industry-wide scope is not vital to the Commission's position here, was not alleged in its complaint, and is not included among its findings;1 therefore, we limit our consideration of the pricing system contention to Standard alone. 3 The Commission urges us to examine its 8-volume record of over 5,500 pages and determine if its finding that Standard reduced prices to four 'jobbers'2 pursuant to a pricing system was erroneous, as held by the Court of Appeals.3 The Commission contends that a § 2(b) defense is precluded if the reductions were so made. If wrong in this, it maintains that the 'good faith' element of a § 2(b) defense is not made out by showing that competitors employ such a pricing system,4 and in any event is negatived by Standard's failure to make a bona fide effort to review its pricing system upon passage of the Robinson-Patman Act.5 4 On the present posture of the case we believe that further review of the evidence is unwarranted. As stated in Federal Trade Commission v. American Tobacco Co., 1927, 274 U.S. 543, 544, 47 S.Ct. 663, 71 L.Ed. 1193, although '(t)he statement of the petition for certiorari that the judgment and opinion below might seriously hinder future administration of the law was grave and sufficiently probable to justify issuance of the writ,' it now appears that '(p)roper decision of the controversy depends upon a question of fact,' and therefore 'we adhere to the usual rule of noninterference where conclusions of Circuit Courts of Appeals depend on appreciation of circumstances which admit of different interpretations.' Moreover, in Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456, we decided that substantiality of evidence on the record as a whole to support agency findings 'is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.' We do no more on the issue of insubstantiality than decide that the Court of Appeals has made a 'fair assessment' of the record.6 That conclusion is strengthened by the fact that the finding made by the Court of Appeals accords with that of the trial examiner, two dissenting members of the Commission, and another panel of the Court of Appeals when the case was first before that court in 1949, all of them being agreed that the prices were reduced in good faith to meet offers of competitors. 5 Both parties acknowledge that discrimination pursuant to a price system would preclude a finding of 'good faith.' Federal Trade Commission v. A. E. Staley Mfg. Co., 1945, 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338; Federal Trade Commission v. Cement Institute, 1948, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1009; Federal Trade Commission v. National Lead Co., 1957, 352 U.S. 419, 77 S.Ct. 502, 1 L.Ed.2d 438. The sole question then is one of fact: were Standard's reduced prices to four 'jobber' buyers Citrin-Kolb, Stikeman, Wayne, and Ned's—made pursuant to a pricing system rather than to meet individual competitive situations? We have examined the findings of the Commission, which relies most heavily on the fact that no competitors' offers were shown to have been made to Citrin-Kolb, Stikeman, or Wayne prior to the time Standard initially granted them the reduced tank-car price.7 All three of these 'jobbers,' however, were granted the tank-car price before the passage of the Robinson-Patman Act in 1936, and the trial examiner excluded proof of pre-1936 offers on the ground of irrelevancy. The Commission approved this ruling, and on remand failed to reopen the record to take any further proof. In our former opinion in this case, we said, 'There is no doubt that under the Clayton Act, before its amendment by the Robinson-Patman Act, (such) evidence would have been material and, if accepted, would have established a complete defense to the charge of unlawful discrimination.' 340 U.S. at pages 239—240, 71 S.Ct. at page 245. The proof should have been admitted; its absence can hardly be relied on by the Commission now as a ground for reversal. In any event, the findings that were made are sufficient for our disposition of the case. 6 It appears to us that the crucial inquiry is not why reduced prices were first granted to Citrin-Kolb, Stikeman, and Wayne, but rather why the reduced price was continued subsequent to passage of the Act in 1936. The findings show that both major and local suppliers made numerous attempts in the 1936—1941 period to lure these 'jobbers' away from Standard with cut-rate prices, oftentimes much lower than the one-and-one-half-cent reduction Standard was giving them.8 It is uncontradicted, as pointed out in one of the Commission dissents, that Standard lost three of its seven 'jobbers' by not meeting competitors' pirating offers in 1933 1934. All of this occurred in the context of a major gasoline price war in the Detroit area, created by an extreme overabundance of supply—a setting most unlikely to lend itself to general pricing policies. The Commission itself stated: 7 'It may well be that (Standard) was convinced that if it ceased granting tank-car prices to Citrin-Kolb, Wayne, and Stikeman and continued to refuse the tank-car price to Ned's Auto Supply Company it would lose these accounts. It had substantial reasons for believing this to be the case, for all of these concerns, except Ned's Auto Supply Company, had already been recognized as entitled to the tank-car price under the commonly accepted standards of the industry, and Ned's had achieved a volume of distribution which brought it within the range where it was likely to be so recognized by a major oil company at any time.' 49 F.T.C., at 952—953. 8 The findings as to Ned's, the only one of the 'jobbers' initially to receive the tank-car price post Robinson-Patman, are highly significant. After a prolonged period of haggling, during which Ned's pressured Standard with information as to numerous more attractive price offers made by other suppliers, Standard responded to an ultimatum from Ned's in 1936 with a half-cent-pergallon reduction from the tank-wagon price. The Commission concedes that this first reduction occurred at a time when Ned's did not meet the criteria normally insisted upon by Standard before giving any reduction. Two years later, after a still further period of haggling9 and another Ned's ultimatum, Standard gave a second reduction of still another cent. 9 In determining that Standard's prices to these four 'jobbers' were reduced as a response to individual competitive situations rather than pursuant to a pricing system, the Court of Appeals considered the factors just mentioned, all of which weigh heavily against the Commission's position. The Commission's own findings thus afford ample witness that a 'fair assessment' of the record has been made. Standard's use here of two prices, the lower of which could be obtained under the spur of threats to switch to pirating competitors, is a competitive deterrent far short of the discriminatory pricing of Staley, Cement, and National Lead, supra, and one which we believe within the sanction of § 2(b) of the Robinson-Patman Act. 10 Affirmed. 11 Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting. 12 The Court today cripples the enforcement of the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13, 15 U.S.C.A. § 13, in an important area. Section 2 of the Act makes it unlawful for any person engaged in commerce 'to discriminate in price between different purchasers of commodities of like grade and quality' where the purchases are in commerce. Section 2 further provides that as proof of a discrimination 'the burden of rebutting the prima-facie case' shall be on the person charged with the discrimination, provided, however, 'That nothing (herein) contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.' (Italics added.) 13 First. Standard admitted that it gave reduced prices to some retailers and refused those reduced prices to other retailers. Before granting these retailers the reduced prices Standard classified them as 'jobbers.' Standard's definition of a 'jobber' took into account the volume of sales of the 'jobber,' his bulk storage facilities, his delivery equipment, and his credit rating. If Standard's tests were met, the 'retailer' became a 'jobber' even though he continued to sell at retail. Moreover, Standard's test of who was a 'jobber' did not take into account the cost to Standard of making these sales. So Standard's definition of 'jobber" was arbitrary, both as respects the matter of costs and the matter of function. It comes down to this: a big retailer gets one price; a small retailer gets another price. And this occurs at the ipse dixit of Standard, not because the cost of serving the big retailer is less nor because the big retailer, as respects the sales in question, performs a function different from any other retailer. 14 The construction now given the Act flies in the face of the policy expressed by the provisions already quoted and the words in explanation used by Representative Patman himself: 15 'What are the objectives of this bill? Mr. Chairman, there has grown up in this country a policy in business that a few rich, powerful organizations by reason of their size and their ability to coerce and intimidate manufacturers have forced those manufacturers to give them their goods at a lower price than they give to the independent merchants under the same and similar circumstance and for the same quantities of goods. It that right or wrong? It is wrong. We are attempting to stop it, recognizing the right of the manufacturer to have a different price for a different quantity where there is a difference in the cost of manufacture.' 80 Cong.Rec. 8111. 16 Second. It is argued, however, that the discrimination in favor of the big retailers and against the small ones is justified on the ground that Standard did no more than meet competition. 17 To repeat, Standard has given lower prices to some retailers than to others by labeling the favored retailers as 'jobbers,' when in fact they are not 'jobbers.' It seems impossible to justify the statutory burden of showing 'good faith' by reliance upon such a plainly deceptive contrivance as that. 18 The Court concedes that Standard did not meet the burden of proving its good faith if its discriminatory prices were made pursuant to a pricing 'system' within the meaning given that term by Federal Trade Commission v. A. E. Staley Mfg. Co., 324 U.S. 746, 65 S.Ct. 971, 89 L.Ed. 1338; Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1009; Federal Trade Commission v. National Lead Co., 352 U.S. 419, 77 S.Ct. 502, 1 L.Ed.2d 438. The Commission found 'the discriminations in price involved in this proceeding were made pursuant to respondent's established method of pricing.' The record amply supports this finding.1 19 If a seller offers a reduced price for no other reason than to meet the lawful low price of a competitor, then the seller's otherwise unlawful price falls within the protection of § 2(b). But where, as here, a seller establishes a discriminatory pricing system, this system does not acquire the protection of § 2(b) simply because in fact use of the system holds a customer against a competitive offer. In other words, a discriminatory pricing system which in fact meets competition is not a good-faith meeting of competition within the meaning of the Act. The effectiveness of the system does not demonstrate the good faith of its initiator. 20 Third. The mere fact that a competitor offered the lower price does not mean that Standard can lawfully meet it. Standard's system of price discrimination, shown not to be in 'good faith,' cannot be justified by showing that competitors were using the same system. 'This startling conclusion is admissible only upon the assumption that the statute permits a seller to maintain an otherwise unlawful system of discriminatory prices, merely because he had adopted it in its entirety, as a means of securing the benefits of a like unlawful system maintained by his competitors.' Federal Trade Commission v. A. E. Staley Mfg. Co., supra, 324 U.S. at page 753, 65 S.Ct. at page 975. See also Federal Trade Commission v. Cement Institute, supra, 333 U.S. at page 725, 68 S.Ct. at page 815. 21 We said in Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 250, 71 S.Ct. 240, 250, 95 L.Ed. 239, 'Congress meant to permit the natural consequences to follow the seller's action in meeting in good faith a lawful and equally low price of its competitor.' (Italics added.) It is only a lawful lower price that may be met. Were it otherwise then the law to govern is not the Robinson-Patman Act but the law of the jungle. The point we have now reached was seen by Congressman Utterback, one of the managers of the bill in conference. What he said should dispose of this case: 22 'This procedural provision cannot be construed as a carte blanche exemption to violate the bill so long as a competitor can be shown to have violated it first, nor so long as that competition cannot be met without the use of oppressive discriminations in violation of the obvious intent of the bill. 23 'To illustrate: The House committee hearings showed a discrimination of 15 cents a box granted by Colgate-Palmolive-Peet Co. on sales of soap to the A. & P. chain. Upon a complaint and hearing before the Federal Trade Commission, this proviso would permit the Colgate Co. to show in rebuttal evidence, if such were the fact, an equally low price made by a local soap manufacturer in Des Moines, Iowa, to A. & P.'s retail outlets in that city; but this would not exonerate it from a discrimination granted to A. & P. everywhere, if otherwise in violation of the bill. 24 'But the committee hearings show a similar discount of 15 cents a case granted by Procter & Gamble to the same chain. If this proviso were construed to permit the showing of a competing offer as an absolute bar to liability for discrimination, then it would nullify the act entirely at the very inception of its enforcement, for in nearly every case mass buyers receive similar discriminations from competing sellers of the same product. One violation of law cannot be permitted to justify another. As in any case of self-defense, while the attack against which the defense is claimed may be shown in evidence, its competency as a bar depends also upon whether it was a legal or illegal attack. A discrimination in violation of this bill is in practical effect a commercial bribe to lure the business of the favored customer away from the competitor, and if one bribe were permitted to justify another the bill would be futile to achieve its plainly intended purposes.' 80 Cong.Rec. 9418. (Italics added.) When we let Standard classify a 'retailer' as a 'jobber' and grant a discriminatory price pursuant to arbitrary requirements merely because a competitor employs the same system,2 we make this provision of the Robinson-Patman Act ineffective. We should read the Act in a more hospitable way and allow Standard to maintain its discriminatory price schedule for retailers if and only if it can show 25 (a) that that price was justified on the basis of costs or function, or 26 (b) that it was in good faith meeting the lawful offer of a competitor, rather than merely matching a predatory price system, or meeting a competitor's 'pirating' offers, to use the Court's word, with a 'pirating' system of its own. 27 I would reverse this judgment and direct enforcement of the Commission's order. 1 The Commission admits that not all of the major suppliers were using the asserted dual price system, stating in its brief that Standard's two largest competitors in the Detroit area, Socony-Vacuum and Sun Oil Company, sold only at the higher tank-wagon price. The Commission findings reveal that those suppliers who did offer a tank-car price to the Standard customers in question were not offering a uniform price: both Shell and the Texas Company, for example, made offers of two cents per gallon off the tank-wagon price, as contrasted with Standard's one-and-one-half-cent reduction. 2 The particular tag 'jobbers' is of no significance here in the light of our affirmance of the Court of Appeals' conclusion that the reductions in price complained of were not made pursuant to a pricing system. Standard's use of the word, while not an accurate description of the economic function performed by the four purchasers, is as consistent with a desire to placate customers to whom Standard was not forced by lower offers to give a reduced price as it would be with any asserted reduction of prices pursuant to a pricing system. 3 '* * * (W)e are unable to discern any basis for the conclusion that petitioner's prices 'were not the result of departures from a nondiscriminatory price scale.' The record affirmatively demonstrates to the contrary. Petitioner sold invariably at its uniform tank-wagon price, except when at different times it reduced its price to meet competitive offers in order to retain a customer.' Standard Oil Co. v. Federal Trade Comm'n, 233 F.2d 649, 654. (Emphasis added.) 4 This contention falls of its own weight, for the conclusion that the reductions here were not made pursuant to a pricing system negates the fact assumption underlying the Commission's argument that there is no good faith when one price system is being matched against another. There is no showing or serious contention by the Commission that the offers of Standard's competitors were unlawful. Indeed, the Court of Appeals stated, '(I)n the instant situation there is no finding, no contention and not even a suspicion but that the competing prices which petitioner met were lawful.' 233 F.2d at page 654. The Commission admits that it 'did not actually adjudicate the legality of the competing prices which Standard allegedly met * * *.' In the manner of a casual aside, the Commission belatedly suggests now that the competitors' prices were unlawful since they were similar to Standard's reductions and the latter were unlawful because made pursuant to a pricing system. If this be thought sufficient to raise the question, the foundation of the Commission's logic is destroyed by our affirmance of the finding that Standard's reductions were not made pursuant to any price system. 5 Our disposition eliminates the necessity of considering this last point. Nor need we consider the Commission's claim that the Court of Appeals held the question involved here to be one of law. An examination of the court's statement, 233 F.2d at page 651, indicates it had reference to the broader issue of Standard's 'good faith' under § 2(b). 6 National Labor Relations Board v. Pittsburgh S.S. Co., 1951, 340 U.S. 498, 502—503, 71 S.Ct. 453, 455—456, 95 L.Ed. 479; see also National Labor Relations Board v. American National Ins. Co., 1952, 343 U.S. 395, 409—410, 72 S.Ct. 824, 832—833, 96 L.Ed. 1027. Those cases cannot be distinguished from the present one on the basis of the statutes involved. Compare National Labor Relations Act, § 10(e), 61 Stat. 147, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e), with Federal Trade Commission Act, § 5(c) and (d), 52 Stat. 112—113, 15 U.S.C. § 45(c)(d), 15 U.S.C.A. § 45(c, d). In Universal Camera, supra, the Court indicated that the review standard established in that case would apply to all instances of court review of agency decisions. 340 U.S. at pages 488—490, 71 S.Ct. at pages 464—465. 7 The Commission brief also claims that reduction pursuant to a pricing system was admitted in the 1940 answer filed by Standard. That portion of the answer referred to, however, was concerned with establishing an alternative and altogether different defense, namely, cost justification on the basis of functional customer classification. Such defense could be argued even if the reductions were held made pursuant to a pricing method, and therefore is consistent with the claim of good faith meeting of competition. 8 The Commission places great importance on the fact that only one of these offers was a standing offer. This is not a situation involving only one or two competitive raids, however; continuation of reductions once granted is warranted by § 2(b) when competitors' reduced price offers are recurring again and again in a cutthroat market. 9 the findings indicate that similar haggling over an extended period of time occurred before each of the other 'jobbers' obtained a reduced price. The great time consumed in the haggling process tends to negate any idea that the participants were only deciding whether a given purchaser met Standard's four well-defined 'jobber' criteria—annual volume of one to two million gallons, own delivery facilities, bulk storage capable of taking tank-car delivery, and responsible credit rating. 1 Standard's answer to the complaint admits as much if the conclusory allegations as to Standard's good faith are ignored. Paragraph 17 of the answer alleged: 'Respondent alleges that its general policy and practice of bona fidely selecting and classifying gasoline customers as wholesale or jobber customers, as distinguished from retail resellers, is as follows: 'That such wholesale or jobber customer so classified shall have adequate bulk storage of his own; that he be equipped to receive bulk deliveries by tank car or truck train into such storage; that he have adequate distribution and delivery facilities; that he make tank car purchases in substantial volume and do a continuing substantial volume of business as a bona fide gasoline dealer maintaining and operating an established gasoline business; that he have satisfactory credit rating; that he maintain a sufficient personnel and all requisite facilities and equipment to adequately operate his business, service his customers, and perform his functions as a wholesaler or jobber, and assume the hazard and expense of fully operating his own business. 'Respondent alleges that each of the four customers named in Paragraph Three of the Complaint fully, fairly, and reasonably falls within not only the requirements set forth in Paragraph 17 above but within all fair, reasonable, usual and proper requirements for classification as a wholesaler or jobber, and that each maintains its own adequate bulk storage, delivery tank trucks, salesmen and operating personnel; buys in substantial tank car or truck train lots * * *.' Moreover, the manager of Standard's Detroit Division, when asked what characteristics a jobber must have to be entitled to the tank car price replied: 'He must have equipment; he must have equipped himself with bulk storage, and, by bulk storage, I mean sufficient storage so that he can take care of tank car quantities of gasoline; he should have a volume of business amounting to about 1,000,000 to 2,000,000 gallons per year; his credit responsibility and so forth must be satisfactory; he should have an established business.' Also, with one exception for a short period, the favored 'jobbers' always received the same price. 2 The Commission's findings stated: 'In selecting the customers or prospective customers to whom (Standard) will grant the tank-car price on gasoline, the respondent's criterion is now, and for many years has been, that the customer or prospective customer make annual purchases of not less than from one to two million gallons of gasoline, have storage facilities sufficient to accept delivery in tank-car quantities, and have a credit standing assuring payment for large volume purchases. This is the same criterion which for many years has also been applied by the respondent's major competitors, and under it any question of the distributive function performed by the purchaser, that is, whether the purchaser is a retail dealer selling to the public or a wholesaler selling to retail dealers, is wholly immaterial.' 49 F.T.C. 923, 953.

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355 U.S. 411 78 S.Ct. 377 2 L.Ed.2d 370 MOOG INDUSTRIES, Inc., Petitioner,v.FEDERAL TRADE COMMISSION. FEDERAL TRADE COMMISSION, Petitioner, v. C. E. NIEHOFF & CO. Nos. 77 and 110. Argued Jan. 14, 1958. Decided Jan. 27, 1958. Rehearing Denied March 3 and 10, 1958. See 355 U.S. 968, 78 S.Ct. 531; 356 U.S. 905, 78 S.Ct. 559. Mr. Malcolm I. Frank, St. Louis, Mo., for petitioner, Moog industries. Mr. Charles R. Sprowl, Chicago, Ill., for respondent, C. E. Niehoff & Co. Mr. Earl W. Kintner, Washington, D.C., for Federal Trade Commission. PER CURIAM. 1 The general question presented by these two cases is whether it is within the scope of the reviewing authority of a Court of Appeals to postpone the operation of a valid cease and desist order of the Federal Trade Commission against a single firm until similar orders have been entered against that firm's competitors. In proceedings arising out of alleged violations of the price discrimination provisions of the Clayton Act, § 2, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13, 15 U.S.C.A. § 13, two Courts of Appeals reached opposed results on this underlying issue. In order to resolve the conflict we granted certiorari, 353 U.S. 908, 77 S.Ct. 665, 1 L.Ed.2d 662; 353 U.S. 982, 77 S.Ct. 1284, 1 L.Ed.2d 1141. 2 In No. 77, petitioner (Moog Industries, Inc.) was found by the Commission to have violated the Act and was ordered to cease and desist from further violation. 51 F.T.C. 931. Petitioner sought review in the United States Court of Appeals for the Eighth Circuit. Upon affirmance of the order, 238 F.2d 43, petitioner moved the court to hold the entry of judgment in abeyance on the ground that petitioner would suffer serious financial loss if prohibited from engaging in pricing practices open to its competitors. The court denied the requested relief. 3 In No. 110, respondent (C. E. Niehoff & Co.) requested the Commission to hold in abeyance the cease and desist order that had been recommended by the hearing examiner, on the ground that respondent would have to go out of business if compelled to sell at a uniform price while its competitors were not under similar restraint. The Commission found that respondent had violated the Act and, in issuing its order, denied respondent's request. 51 F.T.C. 1114, 1153. On review in the United States Court of Appeals for the Seventh Circuit, the Commission's determination of statutory violation was affirmed; however, the court (one judge dissenting) directed that the cease and desist order should take effect 'at such time in the future as the United States Court of Appeals for the Seventh Circuit may direct, sua sponte or upon motion of the Federal Trade Commission.' 241 F.2d 37, 43. 4 In view of the scope of administrative discretion that Congress has given the Federal Trade Commission, it is ordinarily not for courts to modify ancillary features of a valid Commission order. This is but recognition of the fact that in the shaping of its remedies within the framework of regulatory legislation, an agency is called upon to exercise its specialized, experienced judgment. Thus, the decision as to whether or not an order against one firm to cease and desist from engaging in illegal price discrimination should go into effect before others are similarly prohibited depends on a variety of factors peculiarly within the expert understanding of the Commission. Only the Commission, for example, is competent to make an initial determination as to whether and to what extent there is a relevant 'industry' within which the particular respondent competes and whether or not the nature of that competition is such as to indicate identical treatment of the entire industry by an enforcement agency. Moreover, although an allegedly illegal practice may appear to be operative throughout an industry, whether such appearances reflect fact and whether all firms in the industry should be dealt with in a single proceeding or should receive individualized treatment are questions that call for discretionary determination by the administrative agency. It is clearly within the special competence of the Commission to appraise the adverse effect on competition that might result from postponing a particular order prohibiting continued violations of the law. Furthermore, the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically. 5 The question, then, of whether orders such as those before us should be held in abeyance until the respondents' competitors are proceeded against is for the Commission to decide. If the question has not been raised before the Commission, as was the situation in No. 77, a reviewing court should not in any event entertain it. If the Commission has decided the question, its discretionary determination should not be overturned in the absence of a patent abuse of discretion. Accordingly, the judgment in No. 77 is affirmed, and the judgment in No. 110 is vacated and the cause remanded to the Court of Appeals with directions to affirm the order of the Commission in its entirety. 6 It is so ordered. 7 Judgment in No. 77 affirmed and judgment in No. 110, vacated and cause remanded with directions. 8 Mr. Justice WHITTAKER took no part in the consideration or decision of these cases.

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355 U.S. 415 78 S.Ct. 421 2 L.Ed.2d 374 ALLEGHANY CORPORATION, appellant,v.BRESWICK & CO., Randolph Phillips and Myron Neisloss, as Common Stockholders of Alleghany Corporation. No. 616. Joseph S. GRUSS, Charles H. Blatt, Albert B. Cohen, et al., appellants, v. BRESWICK & CO., Randolph Phillips and Myron Neisloss, as Common Stockholders of Alleghany Corporation, etc. No. 617. INTERSTATE COMMERCE COMMISSION, appellant, v. BRESWICK & CO. et al. No. 618. Supreme Court of the United States January 27, 1958 Messrs. Whitney North Seymour, David Hartfield, Jr. and Edward K. Wheeler, for appellant Alleghany Corporation. Mr. Edward M. Garlock, for appellants Baker, Weeks & Co. and others. Messrs. Harold H. Levin, Joseph M. Proskauer, Marvin E. Frankel and Allen L. Feinstein, for appellants Gruss and others. Mr. Robert W. Ginnane, for appellant Interstate Commerce Commission. Mr. George Brussel, Jr., for appellees Breswick & Co. and others. PER CURIAM. 1 The judgment of the District Court is reversed and the case is remanded for consideration by that court of the only claim that was left open at this Court's prior disposition of this litigation, to wit, whether 'the preferred stock issue as approved by the [Interstate Commerce] Commission was in violation of the Interstate Commerce Act.' Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 175, 77 S.Ct. 763, 1 L.Ed.2d 726. 2 Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissents. 3 These cases are a sequel to Alleghany Corporation v. Breswick & Co., 353 U.S. 151, 77 S.Ct. 763. There, the decision of the District Court was reversed and the case was remanded for further proceedings. Now, the decision of the District Court on remand is being summarily reversed on the ground that the basis of the decision below was precluded by the mandate and opinion of this Court. For the reasons which follow, it is my opinion that probable jurisdiction should be noted in these cases. 4 First. I do not agree that the decision below went beyond the scope of the opinion and mandate of this Court. 5 Alleghany Corporation acquired control of the New York Central Railroad Co., the parent of an integrated system of carriers. Subsequent to the acquisition of control by Alleghany, two of the corporate subsidiaries of the Central system were merged. Alleghany is basically subject to the control of the Securities and Exchange Commission under the Investment Company Act of 1940, 54 Stat. 789, 15 U.S.C. § 80a-1 et seq., U.S.C.A. § 80a-1 et seq. Section 3(c)(9) of that Act exempts companies which are subject to regulation by the Interstate Commerce Commission. The question thus arose as to whether Alleghany, although not a carrier as that term is used in the Interstate Commerce Act, was subject to regulation by the Interstate Commerce Commission because of the merger of the subsidiaries of Central of which Alleghany acquired control and therefore exempt from supervision by the Securities and Exchange Commission. The determination of the Interstate Commerce Commission that Alleghany was under its jurisdiction was reversed by the District Court but this Court then reversed the District Court. 353 U.S. 151, 77 S.Ct. 763. The scope of that holding is the present issue. 6 In order to attain the status of a carrier the noncarrier must satisfy the requirements of § 5(2)(a) of the Interstate Commerce Act. The pertinent portions of that section provide: 7 'It shall be lawful, with the approval and authorization of the Commission * * * (i) * * * for a person which is not a carrier to acquire control of two or more carriers through ownership of their stock or otherwise; or for a person which is not a carrier and which has control of one or more carriers to acquire control of another carrier through ownership of its stock or otherwise * * *' 54 Stat. 899, 905, 49 U.S.C. § 5(2)(a), 49 U.S.C.A. § 5(2)(a). 8 The operation of this section is more easily understood if the two clauses pertaining to a person not a carrier are numbered as follows: 9 Clause I. 'A person which is not a carrier to acquire control of two or more carriers through ownership of their stock or otherwise.' Clause II. 'A person which is not a carrier and which has control of one or more carriers to acquire control of another carrier through ownership of its stock or otherwise.' 10 It is clear that a person not a carrier must acquire at least two carriers before being subject to regulation by the Interstate Commerce Commission. There may be one transaction acquiring control of two carriers under Clause I or control may be acquired consecutively under Clause II. Whichever Clause is applicable to the particular facts, § 5(2)(b) requires the Commission to find that the proposed acquisition is in the public interest. 11 The District Court held in its first decision that the Interstate Commerce Commission did not have jurisdiction under Clause II because, even if Alleghany had control of a carrier, Central, it did not 'acquire control of another carrier' by the device of merging two of the subsidiaries. That court also held that there was no jurisdiction in the Interstate Commerce Commission under Clause I because the Commission had not approved of the acquisition of control of Central. D.C., 138 F.Supp. 123. 12 On appeal, this Court reversed. In deciding 'the substantive issues in the litigation,' viz., '* * * the jurisdiction of the Commission under §§ 5(2) and 5(3) of the Act * * *' The Court held that the order granting Alleghany the status of a carrier was valid. Alleghany Corp. v. Breswick & Co., supra, 353 U.S. at pages 160-161, 77 S.Ct. at page 769. The Court based its decision on Clause II and reasoned that Alleghany controlled Central and had 'acquired' another carrier because of the merger. All of the requirements of Clause II of § 5(2)(a) were satisfied because the Commission had found the merger to be in the public interest within the meaning of § 5(2)(b). Louisville & J. B. & R. Co. Merger, 295 I.C.C. 11, 17. 13 Because the jurisdiction of the Interstate Commerce Commission could be sustained on this ground, the Court found it unnecessary to decide if acquisition of a system required approval because it was the acquisition of 'two or more carriers' under Clause I. The Court stated: 14 'The Commission and Alleghany contend that Commission approval of the acquisition of a single, integrated system is not necessary. We need not decide this question, however, and intimate no opinion on it * * *.' Alleghany Corp. v. Breswick & Co., supra, 353 U.S. at page 161, 77 S.Ct. at page 770. 15 The Court then held that approval under Clause I was not necessary to sustain the jurisdiction of the Commission. 16 Alleghany had not only obtained a status order declaring it to be a carrier but the Commission had also approved a request by Alleghany to issue preferred stock. Accordingly, the Court 'remanded for consideration by the District Court of appellees' claim, not previously discussed, that the preferred stock issue as approved by the Commission was in violation of the Interstate Commerce Act.' Id., 353 U.S. at page 175, 77 S.Ct. at page 777 [Italics added.] 17 On remand, the District Court sustained the stock issue against various attacks on its basic fairness but enjoined the order approving the issue on the theory that the Commission was required by Clause I of § 5(2)(a) of the Act to approve Alleghany's acquisition of control of Central before the stock issue could be approved. Breswick v. U. S., D.C., 156 F.Supp. 227. 18 That holding was based on the premise that § 5(4) of the Act,* which was not construed in our earlier opinion, made it necessary for the Commission to consider the legality of the acquisition of control under Clause I, as well as Clause II, of § 5(2)(a). For § 5(4) makes it 'unlawful' without Commission approval for any person 'to enter into any transaction within the scope' of § 5(2)(a)—whether Clause I or Clause II. And § 5(7) authorizes the Commission to investigate and determine whether § 5(4) has been violated. 19 The holding of the District Court on remand did not question the basis of our earlier holding that the Interstate Commerce Commission, not the Securities and Exchange Commission, had jurisdiction of these transactions. It only determined the issue which we held to be open on remand—whether the transactions were 'in violation of the Interstate Commerce Act.' 353 U.S. at page 175, 77 S.Ct. at page 776. That issue included not only the legality of the preferred stock issue but also the legality of the acquisition of Central by Alleghany. In other words the force of § 5(4) and § 5(7) makes Clause I of § 5(2)(a) applicable as well as Clause II. That at least is the force of the argument under § 5(4) and § 5(7), and I for one cannot say it is frivolous or unsubstantial. 20 This Court decided the conflicting jurisdictional claims of two governmental agencies and remanded the case without precluding the District Court, as I see it, from deciding that approval of the acquisition of a system is required under § 5 before the preferred stock can be issued. No one, at least no lawyer or judge, should be confused by the fact that this Court held approval of the acquisition was not necessary under the facts of this case for one reason (jurisdiction) and the District Court held approval was necessary for another reason (compliance with the Act before the stock could be issued). Respect for the considered and well-reasoned decision of this three-judge District Court alone should convince us there has been no definance of our mandate. 21 Second. Even if there be doubts as to the force of this reasoning, we should hear this case on the merits. The only basis on which it can be argued that the mandate precluded the decision is that this Court not only decided that the Interstate Commerce Commission had jurisdiction over Alleghany but also that the Commission properly exercised that jurisdiction in authorizing the issuance of the stock without approving the acquisition of control of Central. No such issue was presented to us earlier. The only way it is even possible to read such a holding from the opinion and mandate is by implication, since nowhere in the opinion is this particular problem mentioned. The issue is now forcefully presented by the decision of a lower court. By reversing summarily on this appeal a substantial question is resolved sub silentio. 22 The question whether or not the acquisition of a carrier system is the acquisition of 'two or more carriers' within the meaning of § 5(2)(a)(i) of the Act (Clause I) seems plainly to be a substantial one. To repeat, the prior opinion of the Court in this case did not decide this problem. Yet it is arguable that the acquisition of a system is the acquisition of two or more carriers. Until this case, it apparently has been the consistent view of the Commission that such an acquisition was the acquisition of two or more carriers. As Division 4 of the Commission stated: 23 'We long have recognized under section 5, that railroad systems are comprised of 2 or more carriers, and that control of a single system may not lawfully be effectuated without our approval and authorization. [Citations omitted.] That principle is considered basic, almost as a definition. So much so, that the question of acquisition of a carrier system has never been contested before the Commission, and as far as we know, there have been no court decisions touching on that issue.' Louisville & J. B. & R. Co. Merger, 290 I.C.C. 725, 733. 24 The full Commission held, however, without citation of any authority, that approval of the acquisition of the control of Central was not required by § 5(2) of the Act. 295 I.C.C. 11, 16-17. And the courts have not resolved that important question. 25 Moreover, assuming Commission approval is necessary at some time, must it come before the refinancing can be approved? As shown, if the transaction is within Clause I, then § 5(4) makes the acquisition illegal until Commission approval is obtained. Under those circumstances the District Court said: 26 'The approval of acquisition and continued control is an obvious first question in any application by Alleghany because unless the Commission intends to approve this control * * * it would be granting a wrongdoer sanctuary from the Investment Company Act; and it would be authorizing and ordering acts in aid of a known violation of the Interstate Commerce Act. The ultimate crucial result of such temporizing would be that by granting seemingly innocuous piecemeal applications, it would unobtrusively foreclose itself from any realistic determination of the fundamental question, because after the passage of time the disruption of the carriers in the system and of the public service, caused by divestiture, would be so great that it would necessarily be discarded as a practical alternative.' 156 F.Supp. 227, 236-237. 27 Did Congress permit such broken-field running between two statutes, designed to protect the public interest, without a full inquiry by the Commission into the primary acquisition of control of Central by Alleghany? At the very least, there should be a reasoned decision by this Court approving the rule that makes this possible. 28 I would note probable jurisdiction in these cases. * Section 5(4) provides: 'It shall be unlawful for any person, except as provided in paragraph (2), to enter into any transaction within the scope of subparagraph (a) thereof, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of common directors, officers or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. It shall be unlawful to continue to maintain control or management accomplished or effectuated after the enactment of this amendatory paragraph and in violation of its provisions. As used in this paragraph and paragraph (5), the words 'control or management' shall be construed to include the power to exercise control or management.'

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355 U.S. 453 78 S.Ct. 386 2 L.Ed.2d 401 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.DISTRICT 50, UNITED MINE WORKERS OF AMERICA, and Bowman Transportation, Inc. No. 64. Argued Jan. 6, 1958. Decided Feb. 3, 1958. [Syllabus from pages 453-454 intentionally omitted] Mr. Dominick L. Manoli, Washington, D.C., for petitioner. Mr. Crampton Harris, Birmingham, Ala., for respondent. Mr. Justice BRENNAN delivered the opinion of the Court. 1 The National Labor Relations Board found that Bowman Transportation, Inc., committed unfair labor practices by assisting District 50, United Mine Workers, as a means of defeating the efforts of a Teamsters Local to organize its workers.1 The cease-and-desist order which issued was in the standard form directing the company to withdraw and withhold recognition from District 50 unless and until it received the Board's certification as the exclusive representative of the employees. 112 N.L.R.B. 387.2 But the United Mine Workers is not in compliance with § 9(f), (g), and (h), added by the Taft-Hartley amendments to the National Labor Relations Act, 61 Stat. 143, 29 U.S.C. § 159(f), (g), (h), 29 U.S.C.A. § 159(f—h).3 It is therefore not eligible for a Board certification and in consequence the Bowman employees may never have an opportunity to select District 50 as their representative. The Board denied the United Mine Workers' application to delete the requirement for a Board certification. 113 N.L.R.B. 786. The question arises whether the requirement for a Board certification in these circumstances excees the Board's discretionary power under § 10(c), 29 U.S.C. § 160(c), 29 U.S.C.A. § 160(c), to fashion remedies to dissipate the effects of an employer's unfair labor practices in assisting a union. 2 The union petitioned the Court of Appeals for the District of Columbia under § 10(f), 29 U.S.C. § 160(f), 29 U.S.C.A. § 160(f), which authorizes a Court of Appeals to 'enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board * * *.' The Court of Appeals, 99 U.S.App.D.C. 104, 237 F.2d 585, did not delete the provisions for Board certification but modified the order so that the company would be free to recognize District 50 not only when certified by the Board but, alternatively, when District 50 'shall have been freely chosen as such (representative) by a majority of the employees after all effects of unfair labor practices have been eliminated.' 99 U.S.App.D.C. at page 107, 237 F.2d at page 588. 3 The Board's order also required the company to post for at least 60 days a notice prepared by the Board. In the notice the company would state to its employees that it would not discourage membership in, or interrogate the employees concerning their activities on behalf of, '* * * Teamsters * * * Local No. 612, or any other labor organization * * *,' and, further, that the company would '* * * withhold all recognition from District 50 * * * unless and until said organization shall have been certified as such representative by the * * * Board.' 112 N.L.R.B. 387, 391. The parties raised no objection to the notice either before the Board or by the parties in the Court of Appeals. However, the Court of Appeals on its own motion struck from the notice the references to the Teamsters Local, stating its view that 'references to that union in the Board's form of notice are susceptible of being construed as' indicating that the Board 'prefers Teamsters.' 99 U.S.App.D.C. at page 108, 237 F.2d at page 589. The court also added, to the paragraph in the notice stating that the company would withhold recognition from District 50 until the union received a Board certification, the alternative 'or (until District 50) shall have been selected as such (representative) by a majority of our employees at a time at least 60 days later than the date of this notice.' 99 U.S.App.D.C. at page 109, 237 F.2d at page 590. 4 Because important questions of the administration of the Act were raised, we granted certiorari on the Board's petition. 352 U.S. 999, 77 S.Ct. 561, 1 L.Ed.2d 544. 5 The Board's order was fashioned under § 10(c), 29 U.S.C. § 160(c), 29 U.S.C.A. § 160(c), which vests remedial power in the Board to redress unfair labor practices by 'an order requiring such person (committing the unfair labor practice) to cease and desist from such unfair labor practice, and to take such affirmative action * * * as will effectuate the policies of this Act * * *.' The Board's discretionary authority to fashion remedies to purge unfair labor practices necessarily has a broad reach. National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 600, 61 S.Ct. 358, 366, 85 L.Ed. 368. But the power is not limitless; it is contained by the requirement that the remedy shall be 'appropriate,' National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226, and shall 'be adapted to the situation which calls for redress,' National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348, 58 S.Ct. 904, 912, 82 L.Ed. 1381. The Board may not apply 'a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act.' National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377. The Board's provision for a Board certification must therefore be examined in the light of its appropriateness in the circumstances of this case. 6 In formulating remedies for unfair labor practices involving interference by employers with their employees' freedom of choice of a representative, the Board has always distinguished the remedy appropriate in the case of a union dominated by an employer from the remedy appropriate in the case of a union assisted but undominated by an employer. In the case of a dominated union the Board usually orders the complete disestablishment of the union so that it can never be certified by the Board: This Court has sustained such orders. National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831; National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219. On the other hand, in the case of the assisted but undominated union, the Board has consistently directed the employer to withhold recognition from the assisted union until the union receives a Board certification. The basis for the distinction is that, in the Board's judgment, the free choice by employees of an agent capable of acting as their true representative, in the case of a dominated union, is improbable under any circumstances, while the free choice of an assisted but undominated union, capable of acting as their true representative, is a reasonable possibility after the effects of the employer's unfair labor practices have been dissipated. See National Labor Relations Board v. Wemyss, 9 Cir., 212 F.2d 465, 471, 472. 7 The reason for the Board's certification requirement is to invoke the normal electoral processes by which a free choice of representatives is assured. The Board's opinion in this case states that 8 '* * * the Board has, since its earliest days, recognized that the policies of the Act could best be effectuated in cases involving violations of Section 8(a) (2) by directing the offending employers to withhold the preferred treatment afforded to the labor organizations involved until the effect of the unfair labor practices had been dissipated and the majority status of such unions had been established in an atmosphere free of restraint and coercion.' 113 N.L.R.B. 786, 787. 9 Again, 10 '* * * in the case of an assisted but undominated labor organization, the Board has required the offending employer to withdraw and withhold recognition from the assisted union until it was certified, thus enabling the Board to assure the affected employees that their statutory right to freely choose a bargaining representative shall be preserved by conducting an election under conditions which will render such a choice possible.' 113 N.L.R.B. 786, 788. 11 It is thus clear that the most significant element of the remedy is not the formality of certification but an election, after a lapse of time and under proper safeguards, by which employees in 'the privacy and independence of the voting booth,' Brooks v. National Labor Relations Board, 348 U.S. 96, 99—100, 75 S.Ct. 176, 179, 99 L.Ed. 125, may freely register their choice whether or not they desire to be represented by the assisted union. 12 In this case of a noncomplying union, however, requiring the formality of Board certification in addition to an election has the same effect as disestablishment. This is because District 50 can never be certified by the Board so long as the United Mine Workers remain out of compliance with § 9(f), (g), and (h). But disestablishment has been applied by the Board and upheld by the courts only in the case of a dominated union, where a free choice of a truly representative union is improbable under any circumstances, and therefore where an abridgment of the statutory right of employees does not result. District 50 was found by the Board to be an assisted but not a dominated union, so that a free choice of District 50 by Bowman's employees is a reasonable possibility. Therefore the certification requirement here misapplies the Board's own policy by actually defeating the statutory rights of Bowman's employees. 13 The Board reasoned that since this Court has sustained its power under § 10(c) 'to dissipate the effect of an unfair labor practice by completely removing a dominated union * * *, the Board manifestly has the statutory power to impose the lesser sanction of certification in the case of an assisted union * * *.' 113 N.L.R.B. 786, 788. Even if we grant the premise that the Board may remove a dominated union, it does not follow that the Board may remove this merely assisted union. Certification under the circumstances of this case is not the 'lesser sanction' but is substantially the same as removal. Unlike an assisted union, a dominated union is deemed inherently incapable of ever fairly representing its members. National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., supra, 303 U.S. at pages 270, 271, 58 S.Ct. at page 576; National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., supra, 308 U.S. at page 250, 60 S.Ct. at page 208. 14 We do not think, however that the Board lacks authority to effect a remedy in this case which would properly reconcile the objectives of eliminating improper employer interference and preserving the employees' full choice of a bargaining representative. The prohibitions of § 9(f) and (h) against investigation of representatives, the requirement of § 9(c) of Board-conducted elections connected with such investigations, and the prohibition of § 9(g) against certification of a noncomplying union, are concerned not with remedial orders under § 10(c) but with questions of representation and unfair labor practices 'raised by a labor organization.' The single objective of § 9(f), (g), and (h) was 'to stop the use of the Labor Board' by noncomplying unions. National Labor Relations Board v. Dant, 344 U.S. 375, 385, 73 S.Ct. 375, 381, 97 L.Ed. 407. These subsections contain nothing compelling the Board to insist upon a Board certification and thus to deny the employees the right at an election held under proper safeguards to select the noncomplying assisted union for their representative. Nothing in the subsections, for exampel, is a barrier to the conduct by the Board of an election not followed by a certification, or to the making of an arrangement with another appropriate agency, state or federal, for the conduct of the election under conditions prescribed by the Board. Clearly an election under such circumstances will also achieve the Board's prime objective in these cases, viz., to 'demonstrate that * * * (the assisted union's) right to be the exclusive representative of the employees involved has been established in an atmosphere free of restraint and coercion.' 113 N.L.R.B. 786, 788. Indeed, in its brief, the Board impliedly admits the irrelevance of the formality of certification to the effectiveness of the fashioned remedy, stating that '* * * if that view (of certification) is rejected, the Board may perhaps devise other measures which will enable it to make certain that the employees' choice of bargaining representative is in fact made in an atmosphere free of restraint and coercion * * *.' In a footnote the Board suggests such an alternative: '* * * (T)he Board might conduct an election among the employees and certify the union if it wins the election provided it is in compliance but otherwise certify only the arithmetical results. * * *' 15 The Board's opinion also states that to dispense with a certification in the case of a noncomplying assisted union, while requiring a certification in the case of a complying union, 'would negative the policy and intent of Section 9(f), (g), and (h) of the Act.' 113 N.L.R.B. 786, 790. But this misinterprets the scope of those provisions. 'Subsections (f), (g) and (h) of § 9 merely describe advantages that may be gained by compliance with their conditions. The very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from noncompliance.' United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 73, 76 S.Ct. 559, 566, 100 L.Ed. 941. Congress did not in § 9(f), (g), and (h) make the filing required by those subsections compulsory or a condition precedent to the right of a noncomplying union to be recognized as the exclusive representative of the employees. United Mine Workers of America v. Arkansas Oak Flooring Co., supra. Similarly, the Board cannot, through the requirement of a Board certification, make noncompliance a reason for denying the employees the right to choose the assisted union at an election which can readily serve its designed purpose without such certification. Finally, we do not believe that the issuance of an order in the case of a noncomplying assisted union different from the form of order consistently used in cases of complying assisted unions extends 'preferred treatment' to the noncomplying union. What it does in fact is to give the noncomplying union substantially the same treatment as a complying union instead of subjecting it to disabilities not intended by Congress as a result of noncompliance. The Board's order is therefore not appropriate or adapted to the situation calling for redress and constitutes an abuse of the Board's discretionary power. 16 However, the modifications of the cease-and-desist order made by the Court of Appeals go beyond permissible limits of judicial review under § 10(f) and cannot be sustained. The Court's alternative to Board certification dispenses with the necessity of an election and can be interpreted, as the Board argues, to leave to the offending employer and the assisted union the decision when the effect of the unfair labor practice has been eliminated and the employees have regained their freedom of action. Nothing said in the Arkansas Flooring case, upon which the Court of Appeals relied, justifies the Court of Appeals in going so far as to dispense with an election under proper safeguards. This Court has long recognized the propriety of an agency's choice of an election as the proper means to assure dissipation of the unwholesome effects of the employer's unlawful assistance to a union. See Texas & New Orleans R. Co. v. Brotherhood of Railway & S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The Board's discretion here was exceeded only in the inflexibility of the requirement for a Board certification notwithstanding its inappropriateness in the circumstances of this case. 17 The rewriting of the notice to be posted was improper insofar as it deleted reference to the Teamsters Union, because no objection to the notice in this respect was ever raised by the parties before the Board. National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 350, 73 S.Ct. 287, 290, 97 L.Ed. 377; National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388—389, 66 S.Ct. 553, 554, 90 L.Ed. 739; cf. Federal Power Comm. v. Colorado Interstate Gas Co., 348 U.S. 492, 497, 75 S.Ct. 467, 470, 99 L.Ed. 583. Section 10(e) of the Act provides: 'No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the (Court of Appeals), unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.' No extraordinary circumstances were shown here. 18 The orderly administration of the Act and due regard for the respective functions of the Board and reviewing court, require that we vacate the judgment of the Court of Appeals with instructions to remand the case to the Board for further proceedings consistent with this opinion. 19 It is so ordered. 20 Judgment of Court of Appeals vacated with instructions. 1 The Teamsters Local was International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local No. 612. The Board concurred in the Trial Examiner's findings that when the Teamsters Local was picketing the premises the company rendered illegal support and assistance to District 50 by negotiating the details of a contract with officials of that union before a single employee had actually authorized it as a representative, by showing the draft contract to the drivers at a meeting convened by and presided over by the company president, who assured them that if necessary he would advance the money for dues, after which, and within less than three hours, the drivers signed District 50 authorization cards, established a local which held its first meeting, at the president's suggestion, on company premises, and concluded a contract with the company. 2 This remedy was apparently first adopted in Lenox Shoe Co., 4 N.L.R.B. 372, 388, decided December 3, 1937. 3 Subsection (f) provides that no investigation shall be made by the Board concerning the representation of employees raised by a labor organization, and no complaint of unfair labor practices shall be issued pursuant to a charge made by a labor organization, unless the organization and any national or international labor organization of which it is an affiliate or constituent shall have filed with the Secretary of Labor copies of the union's constitution and by-laws and a report showing, among other things, the names of officers and agents whose aggregate compensation and allowance for the preceding year exceeded $5,000, the amounts paid to each, the manner in which such officers and agents were selected, the amount of initiation fees and dues charged to union members, the union's procedures followed with respect to qualification for membership, election as officers and stewards, etc. The subsection also requires the filing with the Secretary of a report showing union receipts, disbursements, and assets and liabilities. Subsection (g) requires, among other things, the filing annually with the Secretary of reports bringing up to date the information required to be supplied under subsection (f). Subsection (h) provides that no investigation of a question of representation raised by a labor organization shall be made and no complaint of unfair labor practices pursuant to a charge made by a labor organization shall issue unless there is on file with the Board an affidavit executed within the preceding year by each officer of the organization and the officers of any national or international labor organization of which it is an affiliate or constituent that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member or supporter of, any organization that believes in or teaches the overthrow of the United States Government by force or by illegal or unconstitutional methods.

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355 U.S. 426 78 S.Ct. 394 2 L.Ed.2d 382 William J. KERNAN, Administrator of the Estate of Arthur E. Milan, Deceased, Petitioner,v.AMERICAN DREDGING COMPANY, as Owner of THE Tug ARTHUR N. HERRON, In the Matter of the Petition for Exoneration From or Limitation of Liability. No. 34. Argued Nov. 21, 1957. Decided Feb. 3, 1958. Mr. Abraham E. Freedman, Philadelphia, Pa., for petitioner. Mr. T. E. Byrne, Jr., Philadelphia, Pa., for respondent. Mr. Justice BRENNAN delivered the opinion of the Court. 1 In this limitation proceeding brought by the respondent under §§ 183—186 of the Limited Liability Act, R.S. §§ 4281—4289, as amended, 46 U.S.C. §§ 181—196, 46 U.S.C.A. §§ 181—196, the District Court for the Eastern District of Pennsylvania denied the petitioner's claim for damages filed on behalf of the widow and other dependents of a seaman who lost his life on respondent's tug in a fire caused by the violation of a navigation rule. 141 F.Supp. 582. The Court of Appeals for the Third Circuit affirmed. 235 F.2d 618, rehearing denied, 235 F.2d 619. We granted certiorari. 352 U.S. 965, 77 S.Ct. 356, 1 L.Ed.2d 320. 2 The seaman lost his life on the tug Arthur N. Herron, which, on the night of November 18, 1952, while towing a scow on the Schuylkill River in Philadelphia, caught fire when an open-flame kerosene lamp on the deck of the scow ignited highly inflammable vapors lying above an extensive accumulation of petroleum products spread over the surface of the river. Several oil refineries and facilities for oil storage, and for loading and unloading petroleum products, are located along the banks of the Schuylkill River. The trial court found that the lamp was not more than three feet above the water. Maintaining the lamp at a height of less than eight feet violated a navigation rule promulgated by the Commandant of the United States Coast Guard.1 The trial court found that the vapor would not have been ignited if the lamp had been carried at the required height. 3 The District Court held that the violation of the rule 'whether * * * (it) be called negligence or be said to make the flotilla unseaworthy,' did not impose liability because 'the Coast Guard regulation had to do solely with navigation and was intended for the prevention of collisions, and for no other purpose. In the present case there was no collision and no fault of navigation. True, the origin of the fire can be traced to the violation of the regulation, but the question is not causation but whether the violation of the regulation, of itself, imposes liability.' 141 F.Supp. at page 585. 4 The petitioner urges first that the statutory violation made the flotilla unseaworthy, creating liability without regard to fault. But the remedy for unseaworthiness derives from the general maritime law, and that law recognizes no cause of action for wrongful death whether occasioned by unseaworthiness or by negligence. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358;2 see Western Fuel Co. v. Garcia, 257 U.S. 233, 240, 42 S.Ct. 89, 90, 66 L.Ed. 210. Before the Jones Act,3 federal courts of admiralty resorted to the various state death acts to give a remedy for wrongful death. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; The Transfer No. 4, 2 Cir., 61 F. 364; see Western Fuel Co. v. Garcia, supra, 257 U.S. at page 242, 42 S.Ct. at page 90; Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756. The Jones Act created a federal right of action for the wrongful death of a seaman based on the statutory action under the Federal Employers' Liability Act. In Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686, the Court held that the Jones Act remedy for wrongful death was exclusive and precluded any remedy for wrongful death within territorial waters,4 based on unseaworthiness, whether derived from federal or state law. The petitioner assumes that under today's general maritime law the personal representative of a deceased seaman may elect, as the seaman himself may elect, between an action based on the FELA and an action, recognized in The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760, based upon unseaworthiness. In view of the disposition we are making of this case, we need not consider the soundness of this assumption. 5 The petitioner also urges that, since the violation of the rule requiring the lights to be eight feet above the water resulted in a defect or insufficiency in the flotilla's lighting equipment which in fact caused the seaman's death, liability was created without regard to negligence under the line of decisions of this Court in actions under the FELA based upon violations of either the Safety Appliance Acts5 or the Boiler Inspection Act.6 That line of decisions interpreted the clause of § 1 of the FELA, 45 U.S.C. § 51, 45 U.S.C.A. § 51, which imposes liability on the employer 'by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.' The cases hold that under this clause, a defect resulting from a violation of either statute which causes the injury or death of an employee creates liability without regard to negligence. San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 484, 36 S.Ct. 626, 629, 60 L.Ed. 1110. Here the defect or insufficiency in the flotilla's lighting equipment due to a violation of the statute resulted in the death of the seaman. The question for our decision is whether, in the absence of any showing of negligence, the Jones Act—which in terms incorporates the provisions of the FELA—permits recovery for the death of a seaman resulting from a violation of a statutory duty. We hold that it does. 6 In denying the claim the lower courts relied upon their views of general tort doctrine. It is true that at common law the liability of the master to his servant was founded wholly on tort rules of general applicability and the master was granted the effective defenses of assumption of risk and contributory negligence. This limited liability derived from a public policy, designed to give maximum freedom to infant industrial enterprises, 'to insulate the employer as much as possible from bearing the 'human overhead' which is an inevitable part of the cost—to someone—of the doing of industrialized business.' Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 59, 63 S.Ct. 444, 447, 87 L.Ed. 610. But it came to be recognized that, whatever the rights and duties among persons generally, the industrial employer had a special responsibility toward his workers, who were daily exposed to the risks of the business and who were largely helpless to provide adequately for their own safety. Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the 'human overhead' of doing business. For most industries this change has been embodied in Workmen's Compensation Acts. In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents. But instead of a detailed statute codifying common-law principles, Congress saw fit to enact a statute of the most general terms, thus leaving in large measure to the courts the duty of fashioning remedies for injured employees in a manner analogous to the development of tort remedies at common law. But it is clear that the general congressional intent was to provide liberal recovery for injured workers, Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508—510, 77 S.Ct. 443, 449—450, 1 L.Ed.2d 493, and it is also clear that Congress intended the creation of no static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry's duty toward its workers. 7 The FELA and the Jones Act impose upon the employer the duty of paying damages when injury to the worker is caused, in whole or in part, by the employer's fault. This fault may consist of a breach of the duty of care, analogous but by no means identical to the general common-law duty, or of a breach of some statutory duty. The tort doctrine which the lower courts applied imposes liability for violation of a statutory duty only where the injury is one which the statute was designed to prevent.7 However, this Court has repeatedly refused to apply such a limiting doctrine in FELA cases. In FELA cases based upon violations of the Safety Appliance Acts or the Boiler Inspection Act, the Court has held that a violation of either statute creates liability under FELA if the resulting defect or insufficiency in equipment contributes in fact to the death or injury in suit, without regard to whether the injury flowing from the breach was the injury the statute sought to prevent. Since it appears in this case that the defect or insufficiency of the flotilla's lighting equipment resulting from the violation of 33 U.S.C. § 157, 33 U.S.C.A. § 157, actually caused the seaman's death, this principle governs and compels a result in favor of the petitioner's claim. 8 In Louisville & N.R. Co. v. Layton, 243 U.S. 617, 37 S.Ct. 456, 457, 61 L.Ed. 931, a railroad employee on one of five freight cars loaded with coal was thrown to the track and injured when an engine pushed a stock car into the last of the loaded cars and drove the five cars against a standing train. Neither the stock car nor the car which it struck was equipped with automatic couplers, as required by the Federal Safety Appliance Act. Had the cars been so equipped they would have coupled when they came together and the five cars would not have run against the standing train. The stated purpose of the automatic coupler requirement was to avoid 'the necessity of men going between the ends of cars,' and the railroad contended that this showed that the Congress intended the requirement only for the benefit of employees injured when between cars for the purpose of coupling or uncoupling them. The Court rejected the argument and affirmed a judgment for the plaintiff. 9 In Minneapolis & St. L.R. Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995, a brakeman walking along the tops of the cars of a moving train was thrown off and killed when the train separated because of the opening of a coupler which resulted in an automatic setting of the emergency brakes and a sudden jerk of the train. This Court sustained a judgment against the railroad although the injury was not one which the Safety Appliance Act aims to prevent. 10 In Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284, the conductor of a moving train holding on to the grab iron directly over the sill-step on which he stood fell because the grab iron was loose and defective. It was contended that the grab iron was required to aid employees engaged in coupling or uncoupling cars or a service connected therewith, not to aid in the transportation of employees. The Court rejected this contention and held that the Layton and Gotschall cases had settled that the employee '* * * can recover if the failure to comply with the requirements of the (Safety Appliance) Act is a proximate cause of the accident, resulting in injury to him while in the discharge of his duty, although not engaged in an operation in which the safety appliances are specifically designed to furnish him protection.' Id., 263 U.S. at page 243, 44 S.Ct. at page 66. 11 In Swinson v. Chicago, St. P., M. & O.R. Co., 294 U.S. 529, 55 S.Ct. 517, 79 L.Ed. 1041, a freight brakeman was releasing a tightly set hand brake at the end of a tank car. Release of the hand brake required the application of considerable force to the brake wheel. The brakeman put his left foot on the running board and his right foot on the grab iron to set himself better to put pressure on the brake wheel. The foot pressure exerted on the grab iron caused the plank to which it was attached to split and one of the bolts securing the grab iron to be pulled through. As a result the brakeman lost his balance and was seriously injured in a fall in front of the moving car. The railroad contended, unsuccessfully, that it was not liable because the grab iron had been used by the brakeman for a purpose for which it was not intended, arguing that the duty to supply grab irons was intended by Congress in order to provide employees with an appliance to grasp with the hands, not to provide a foot brace or support to secure leverage in releasing a hand brake. 12 In Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208, an employee of the railroad, riding a motordriven track car behind a moving freight train, was killed in a crash of the track car into the freight train which stopped suddenly when its brakes locked because of a defect in its braking system. The Supreme Court of Utah affirmed the state trial court's direction of verdict for the railroad upon the ground that, in so far as brakes were concerned, the object of the Safety Appliance Act was not to protect employees from standing trains, but from moving trains. The Utah Supreme Court also reasoned that the stopping of the train in consequence of the leak in the valve was precisely what, as a safety device, it was designed to do. This Court reversed and said, id., 335 U.S. at page 524, 69 S.Ct. at page 277: 13 'The language selected by Congress to fix liability in cases of this kind is simple and direct. Consideration of its meaning by the introduction of dialectical subtleties can serve no useful interpretative purpose. The statute declares that railroads shall be responsible for their employees' deaths 'resulting in whole or in part' from defective appliances such as were here maintained. 45 U.S.C. § 51, 45 U.S.C.A. § 51. And to make its purpose crystal clear, Congress has also provided that 'no such employee * * * shall be held to have been guilty of contributory negligence in any case' where a violation of the Safety Appliance Act, such as the one here, 'contributed to the * * * death of such employee.' 45 U.S.C. § 53, 45 U.S.C.A. § 53. Congress has thus for its own reasons imposed extraordinary safety obligations upon railroads and has commanded that if a breach of these obligations contributes in part to an employee's death, the railroad must pay damages. These air-brakes were defective; for this reason alone the train suddenly and unexpectedly stopped; a motor track car following at about the same rate of speed and operated by an employee looking in another direction crashed into the train; all of these circumstances were inseparably related to one another in time and space. The jury could have found that decedent's death resulted from any or all of the foregoing circumstances.' 14 Finally, in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282, the Court considered a claim based upon an alleged violation of an Interstate Commerce Commission regulation promulgated under the Boiler Inspection Act. The regulation provided: 'Locomotives shall be equipped with proper sanding apparatus, which shall be maintained in safe and suitable condition for service, and tested before each trip. Sand pipes must be securely fastened in line with the rails.' Id., 337 U.S. at page 195, 69 S.Ct. at page 1037. The purpose of the requirement was to provide sand for traction. A fireman employed by the railroad for almost thirty years sued to recover damages for silicosis allegedly contracted from the inhalation of silicate dust emitted by allegedly broken or faulty adjusted sanders into the decks and cabs of the many locomotives on which he had worked. The railroad contended that the ICC rule was designed to ensure an adequate auxiliary braking system, not to protect employees against silicosis, and therefore the employee could not recover for an injury not of the kind the ICC rule sought to guard against. The Court rejected the argument as resting on general tort doctrine inapplicable to this case. 15 The decisive question in this case, then, is whether the principles developed in this line of FELA cases permit recovery for violation of this navigation statute or are limited as the dissenting opinion would have it, to cases involving the Safety Appliance and Boiler Inspection Acts. Our attention is directed to the provisions of § 4 of the FELA, which makes reference to 'any statute enacted for the safety of employees * * *;' and it is ruged that this phrase, in some unexplained manner, creates a special relationship between the FELA and the Safety Appliance and Boiler Inspection Acts. Several answers may be given to this contention. 16 First, § 4 relates entirely to the defense of assumption of risk, abolishing this defense where the injury was caused by the employer's negligence or by 'violation * * * of any statute enacted for the safety of employees * * *.' It is § 1 of the FELA which creates the cause of action and this section, on its face, is barren of any suggestion that injuries caused by violation of any statute are to be treated specially. In formulating the rule that violation of the Safety Appliance and Boiler Inspection Acts creates liability for resulting injuries without proof of negligence, the Court relied on judicially evolved principles designed to carry out the general congressional purpose of providing appropriate remedies for injuries incurred by railroad employees. For Congress, in 1908, did not crystallize the application of the Act by enacting specific rules to guide the courts. Rather, by using generalized language, it created only a framework within which the courts were left to evolve, much in the manner of the common law, a system of principles providing compensation for injuries to employees consistent with the changing realities of employment in the railroad industry. 17 Second, it is argued that the Safety Appliance and Boiler Inspection Acts are special safety statutes and thus may easily be assimilated to the FELA under general common-law principles. But there is no magic in the word 'safety.' In the cases we have discussed it was regarded as irrelevant that the defects in the appliances did not disable them from performing their intended safety function. For instance, in Gotschall the coupling defect parting the cars resulted in the automatic setting of the emergency brakes as a safety measure. In Coray the train stopped due to the operation of the very safety mechanism required by the statute. In Urie the defect in the sanders which caused sand to come into the locomotive cabs in no wise impaired the designed safety function of the sanders—to provide sand for traction. We think that the irrelevance of the safety aspect in these cases demonstrates that the basis of liability is a violation of statutory duty without regard to whether the injury flowing from the violation was the injury the statute sought to guard against. It must therefore be concluded that the nature of the Acts violated is not a controlling consideration; the basis of liability is the FELA.8 18 The courts, in developing the FELA with a view to adjusting equitably between the worker and his corporate employer the risks inherent in the railroad industry, have plainly rejected many of the refined distinctions necessary in common-law tort doctrine for the purpose of allocating risks between persons who are more nearly on an equal footing as to financial capacity and ability to avoid the hazards involved. Among the refinements developed by the common law for the purpose of limiting the risk of liability arising from wrongful conduct is the rule that violation of a statutory duty creates liability only when the statute was intended to protect those in the position of the plaintiff from the type of injury in fact incurred. This limiting approach has long been discarded from the FELA. Instead, the theory of the FELA is that where the employer's conduct falls short of the high standard required of him by this Act, and his fault, in whole or in part, causes injury, liability ensues. And this result follows whether the fault is a violation of a statutory duty or the more general duty of acting with care, for the employer owes the employee, as much as the duty of acting with care, the duty of complying with his statutory obligations. 19 We find no difficulty in applying these principles, developed under the FELA, to the present action under the Jones Act, for the latter Act expressly provides for seamen the cause of action—and consequently the entire judicially developed doctrine of liability granted to railroad workers by the FELA. The deceased seaman here was in a position perfectly analogous to that of the railroad workers allowed recovery in the line of cases we have discussed, and the principles governing those cases clearly should apply here. 20 The judgment of the Court of Appeals is reversed with direction to remand to the District Court for further proceedings not inconsistent with this opinion. 21 Reversed. 22 Memorandum of Mr. Justice FRANKFURTER. 23 Since it has been my general practice for on to a decade to refrain from participating in the substantive disposition of cases arising under the Federal Employers' Liability Act and the Jones Act that have been brought here on writ of certiorari, a word explaining my participation today is in order. 24 After persistent protest against granting petitions for certiorari to review judgments in the state courts and the United States Courts of Appeals involving application of the Federal Employers' Liability Act, I deemed it necessary to register my conviction on the unjustifiability of granting such petitions by noting that the petitions were improvidently granted. See my opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493. All these cases involved evaluation of evidence: evidence on what constitutes 'negligence,' i.e., the common-law conception of negligence which Congress adopted, subject to qualifications regarding 'causation' and withdrawal of common-law defenses, and which remains the statutory requisite for liability. It has become the practice for this Court to review evidence where trial courts have considered it their duty to take cases from juries or to set aside jury verdicts, or where appellate courts have reversed trial court decisions as to what are allowable verdicts by juries. This manifestly ceased to be the function of this Court after Congress, by the Act of September 6, 1916, 39 Stat. 726, abolished appeals to the Court in Federal Employers' Liability Act cases and restricted review of lower court decisions in such cases to the confined scope of our general certiorari jurisdiction. 25 I am aware of the suggestion that these cases, at least those coming from the Courts of Appeals, involve a constitutional issue namely, the application of the Seventh Amendment. That, I should suppose, would be equally true of every case in the federal courts in which the claim is made that a case should have been left to the jury, and equally, of course, such claims (in non-FELA cases, at any rate) are here denied, except in the most flagrant instances. This Court has said again and again, in other than FELA cases, that questions of fact—and that is essentially what these negligence cases involve—afford an inadmissible basis for review by this Court. And this for the conclusive reason that deliberate consideration and wise adjudication of the cases that concededly ought to be reviewed here make a demand greater than the resources of time and thought possessed by this Court, no matter how ably constituted, reasonably afford. See Ex parte Republic of Peru, 318 U.S. 578, 602—603, 63 S.Ct. 793, 836, 87 L.Ed. 1014 (dissenting opinion). 26 This case is different in kind from those in which I have felt it my duty to abstain from consideration on the merits. This is a case which involves a serious question of construction of a statute of nationwide importance. Such questions of construction are among the most important issues for final determination by this Court. I therefore reach the merits, and on the merits I join the opinion of Mr. Justice HARLAN. 27 Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER, Mr. Justice BURTON, and Mr. Justice WHITTAKER join, dissenting. 28 I share the view of the Court that under existing law a cause of action for wrongful death does not lie on principles of unseaworthiness, and that therefore respondent's liability for the death caused by this unfortunate accident depends entirely on the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688, which incorporates the provisions of the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60, and thereby reflects the principles of negligence upon which the FELA is explicitly based. 29 The District Court granted exoneration to respondent upon findings that the accident was not attributable to negligence of any kind on its part, and in particular that respondent was not negligent in carrying the kerosene signal lantern, which ignited the fumes from the petroleum products on the surface of the river, at a height of three feet in a part of the river which had never been considered a danger area. Although the District Court found that the accident was traceable in fact to respondent's violation of a Coast Guard regulation, 33 CFR § 80.16(h), which required a white light to be carried at a minimum height of eight feet above the water,1 the court held that this violation did not of itself give rise to liability in negligence because the sole purpose of the statute authorizing the regulation, 30 Stat. 102, as amended, 33 U.S.C. § 157, 33 U.S.C.A. § 157, was to guard against collisions and not to prevent the type of accident which here resulted. 30 This holding, as the Court seems to recognize, was in accord with the familiar principle in the common law of negligence that injuries resulting from violations of a statutory duty do not give rise to liability unless of the kind the statute was designed to prevent. Indeed that principle, which is but an aspect of the general rule of negligence law that injuries in order to be actionable must be within the risk of harm which a defendant's conduct has created, see Seavey, Principles of Torts, 56 Harv.L.Rev. 72, 90—92 (1942), was established as long ago as 1874 by a leading English case, Gorris v. Scott, L.R. 9 Ex. 125, and has been followed in this country almost without exception. Restatement, Torts, § 286; Prosser, Torts (2d ed. 1955), § 34; Lowndes, Civil Liability Created by Criminal Legislation, 16 Minn.L.Rev. 361, 372—377 (1932); cf. The Eugene F. Moran, 212 U.S. 466, 476, 29 S.Ct. 339, 341, 53 L.Ed. 600 (under admiralty law). 31 The Court neither casts doubt on the District Court's finding that respondent was not negligent in carrying the tug's lantern at three feet above the water surface nor disputes that the sole purpose of the Coast Guard regulation was to guard against the risk of collision, but it nevertheless decides that violation of the regulation in and of itself rendered the respondent liable for all injuries flowing from it. This holding is said to follow from the decisions of this Court in a series of FELA cases based on violations of the Safety Appliance Act, 27 Stat. 531, as amended, 45 U.S.C. §§ 1—16, 45 U.S.C.A. §§ 1—16, and the Boiler Inspection Act, 36 Stat. 913, as amended, 45 U.S.C. §§ 22—34, 45 U.S.C.A. §§ 22—34. These decisions as the Court here properly states, have created under the FELA an absolute liability—that is, a liability 'without regard to negligence'—for injuries resulting from violations of the other Acts. From this, the Court concludes that there is no reason not to extend this absolute liability to cases based on the violation of a statutory duty which are brought under the Jones Act. 32 This conclusion I cannot share. A reading of the cases relied upon by the Court demonstrates beyond dispute that the reasons underlying those decisions have no application in the context of this Coast Guard regulation and the Jones Act. It follows that liability can be impressed on respondent only because of negligence, the theory upon which the Jones Act is founded. 33 In the course of its development of an absolute liability under the FELA for injuries traceable to violations of the Safety Appliance Act or the Boiler Inspection Act, the Court has faced two distinct problems. First, was it necessary for the plaintiff to show that the violation of either of these safety statutes was due to negligence? The answer has uniformly been 'no.' St. Louis, Iron Mountain & S.R. Co. v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061; San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110; Minneapolis & St. L.R. Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995; Southern R. Co. v. Lunsford, 297 U.S. 398, 56 S.Ct. 504, 80 L.Ed. 740; Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411. Second, was the defendant's liability for the injuries suffered limited to those within the character of the risks which these statutes were designed to eliminate? Except for St. Louis & S.F.R. Co. v. Conarty, 238 U.S. 243, 35 S.Ct. 785, 59 L.Ed. 1290, which stands alone and has never since been followed, the answer here has also been 'no.' Louisville & N.R. Co. v. Layton, 243 U.S. 617, 37 S.Ct. 456, 61 L.Ed. 931; Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284; Swinson v. Chicago, St. P., M. & O.R. Co., 294 U.S. 529, 55 S.Ct. 517, 79 L.Ed. 1041; Brady v. Terminal Railroad Ass'n of St. Louis, 303 U.S. 10, 58 S.Ct. 426, 82 L.Ed. 614. 34 The rationale for these earlier cases is not entirely clear, but after a good deal of uncertainty it finally became established in 1948 and 1949 that railway employees suffering injuries in consequence of a violation of safety regulations found in or promulgated under either the Safety Appliance Act or the Boiler Inspection Act could maintain an action under the FELA without reference to the law of negligence. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282; O'Donnell v. Elgin, J. & E.R. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187; Carter v. Atlanta & St. A.B.R. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236. As a result of these cases, the scope of § 1 of the FELA, 35 Stat. 65, as amended, 45 U.S.C. § 51, 45 U.S.C.A. § 51, has been enlarged by making compensable not only injuries 'resulting in whole or in part from the negligence' of the carrier, but also those resulting from violation of the two regulatory Acts, so that in effect these Acts give rise, through the medium of the FELA, to a 'non-negligence' (O'Donnell, supra, 338 U.S. at page 391, 70 S.Ct. at page 204) cause of action. Referring to the nature of that kind of action this Court said in Carter, supra (338 U.S. at page 434, 70 S.Ct. at page 229): 35 'Sometimes that violation (of the Safety Appliance Act) is described as 'negligence per se' * * *; but we have made clear in the O'Donnell case that that term is a confusing label for what is simply a violation of an absolute duty. 36 'Once the violation is established, only causal relation is in issue. And Congress has directed liability if the injury resulted 'in whole or in part' from defendant's negligence or its violation of the Safety Appliance Act.' (Italics added.) 37 These cases then certainly do not establish any broad rule under the FELA that the term 'negligence' as used in that Act is not subject to the limiting doctrine of Gorris v. Scott, supra, which the District Court applied. Rather, they are based on a theory of liability wholly divorced from negligence. And in fact, the Court today invokes these decisions to support its conclusion that a 'non-negligence' action based on violation of this Coast Guard regulation lies under the Jones Act. Its reasons for this conclusion are that the Jones Act 'incorporates the provisions of the FELA' and 'expressly provides for seamen the cause of action and consequently the entire judicially developed doctrine of liability—granted to railroad workers by the FELA.' The Court thus reads these decisions to establish a doctrine under the FELA that injuries following any violation of any statute, not simply the Safety Appliance and Boiler Inspection Acts, are actionable without any showing of negligence, and it is this doctrine which, the Court argues, the Jones Act absorbs. 38 So unjustifiably broad a view of the doctrine this Court is said to have established disregards the basis upon which these earlier decisions proceed. In brief, they concentrate and explicitly rest upon the peculiar relationship between the Safety Appliance and the Boiler Inspection Acts, on the one hand, and the FELA, on the other. In view of this relationship, the Court recognizing that neither of these safety Acts gives rise to a private cause of action of its own force, see, e.g., Urie v. Thompson, supra, 337 U.S. at page 188, 69 S.Ct. at page 1033, has read the FELA to provide the private remedy to enforce the absolute liability which the Court considered the other Acts to establish. The Court's opinion here makes no effort to show either that the statute authorizing the Coast Guard regulation was intended to give rise to an absolute liability for injuries resulting from its violation or that the Jones Act, a statute founded on negligence, was intended to be the medium of enforcement of such a liability. 39 In the cases involving the Safety Appliance and the Boiler Inspection Acts, the Court has repeatedly emphasized that the manifest purpose of Congress was to foster through these particular Acts the safety of employees and to make employees secure in their jobs, a purpose partially evidenced by statements prefacing each of these Acts as they were originally enacted: 'An Act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to * * *' follow the rules of each Act, 27 Stat. 531; 36 Stat. 913; Illinois Central R. Co. v. Williams, 242 U.S. 462, 466 467, 37 S.Ct. 128, 129, 61 L.Ed. 437; Urie v. Thompson, supra, 337 U.S. at pages 190—191, 69 S.Ct. at pages 1034—1035. In keeping with this statement of purpose, two sections of the Safety Appliance Act expressly refer to the civil liability of employers to injured employees by abrogating the commonlaw defense of assumption of risk and by preserving such civil liability over a particular exception to the general liability for fines payable to the United States which is imposed on carriers for violation of the provisions of the Act. 27 Stat. 532, 45 U.S.C. § 7, 45 U.S.C.A. § 7. 36 Stat. 299, 45 U.S.C. § 13, 45 U.S.C.A. § 13. 40 Paralleling the provision of the Safety Appliance Act referring to assumption of risk is § 4 of the FELA, 35 Stat. 66, as amended, 45 U.S.C. § 54, 45 U.S.C.A. § 54, which abolishes the defense of assumption of risk not only with respect to actions grounded on negligence but also 'in any case where the violation * * * of any statute enacted for the safety of employees contributed to the injury or death of' an employee. This quoted clause is included also in § 3 of the Act, 35 Stat. 66, 45 U.S.C. § 53, 45 U.S.C.A. § 53, which substitutes for the absolute connon-law defense of contributory negligence what is in effect a rule of comparative negligence, but bars this defense completely in actions based on the violation of such a statute. The phrase 'any statute enacted for the safety of employees' of course refers to the Safety Appliance Act, Moore v. Chesapeake & Ohio R. Co., 291 U.S. 205, 210, 54 S.Ct. 402, 404, 78 L.Ed. 755, and to the Boiler Inspection Act, Urie v. Thompson, supra, 337 U.S. at pages 188 189, 69 S.Ct. at pages 1033—1034. The use of this phrase in juxtaposition with the term 'negligence' in these sections confirms the congressional purpose to accord special treatment to employees injured by violations of these Acts. 41 These express indications of congressional intent to impose strict liability for injuries traceable to violations of these statutes underlay the holdings on which the Court relies. The intimate relationship between the Safety Appliance Act and the FELA was summed up by the Court in San Antonio & A.P.R. Co. v. Wagner, supra (241 U.S. at page 484, 36 S.Ct. at page 630), in the following language: 42 'If (the Safety Appliance Act) is violated, the question of negligence in the general sense of want of care is immaterial. * * * (T)he two statutes (Safety Appliance Act and the FELA) are in pari materia, and where the (FELA) refers to 'any defect or insufficiency, due to its negligence, in its cars, engines, appliances,' etc., it clearly is the legislative intent to treat a violation of the safety appliance act as 'negligence,' * * *.' (Italics in original.) And in Urie v. Thompson, supra (337 U.S. at page 189, 69 S.Ct. at page 1034), the Court concluded: 43 'In this view the Safety Appliance Acts, together with the Boiler Inspection Act, are substantively if not in form amendments to the (FELA). * * * (They) cannot be regarded as statutes wholly separate from and independent of the (FELA). They are rather supplemental to it, having the purpose and effect of facilitating employee recovery * * *.' 44 Finally, as noted above, the Court in Carter v. Atlanta & St. A.B.R. Co., supra, 338 U.S. at page 434, 70 S.Ct. at page 229, observed that 'Congress has directed liability' under the FELA for injuries resulting from negligence or from violation of these Acts. 45 In short, I think it is evident that this Court's past interpretation of the FELA to provide a cause of action based on absolute liability for injuries traceable to violations of these two particular safety statutes has rested entirely on its view of congressional intent, and that no general rule of absolute liability without regard to negligence for injuries resulting from violation of any statute can fairly be said to emerge from these decisions. 46 Despite the explanations in the past cases for creation of this absolute liability, the Court now asserts that 'the nature of the Acts violated is not a controlling consideration.' Indeed, it does not even appear to be a pertinent consideration, for the opinion makes no effort to show that a similar congressional intent to create absolute liability in favor of seamen, or even to afford additional rights to seamen, can be discerned either in the terms of the statute authorizing this Coast Guard regulation or in its relationship with the Jones Act. It is abundantly clear from the face of the regulation, and its setting, that its purpose was simply to prevent collisions, rather than to guard against such unforeseeable occurrences as the explosion in this case.2 This is confirmed by the tenor of the section of the statute under which the regulation issued: 47 'The Commandant of the United States Coast Guard shall establish such rules to be observed on the waters mentioned (in the preceding section) by steam vessels in passing each other and as to the lights to be carried on such waters by ferryboats and by vessels and craft of all types when in tow of steam vessels * * * as he from time to time may deem necessary for safety * * *.'3 48 Moreover, although another section of the same statute indicates that violation of this regulation does give rise to an absolute liability on the part of the master or mate of the tug for damages suffered by passengers, that section makes no reference to seamen's remedies and provides generally that liability of the vessel or owner is not to be affected by the statute.4 Finally, there are no cross provisions between this statute and the sections of the FELA incorporated into the Jones Act comparable to those found between the FELA, on the one hand, and the Sefety Appliance and Boiler Inspection Acts, on the other. In short, unlike the situation as to those statutes, one can look in vain for evidence of a congressional purpose to supplement the remedies for injuries due to negligence available to seamen under the Jones Act by a cause of action based on absolute liability for damages suffered in consequence of a violation of this Coast Guard regulation. In these circumstances, the argument that such a cause of action arises because the Jones Act 'expressly provides for seamen the cause of action * * * granted to railroad workers by the FELA' seems to me an empty one. 49 The premise of the Court that the FELA was intended to leave to federal courts the duty of fashioning remedies 'to meet * * * changing concepts of industry's duty toward its workers' underlies today's holding. In carrying out this duty, the courts, as shown by this decision, are not to consider themselves confined by doctrines deeply ingrained in the common law of negligence upon which the FELA was predicated but instead are to be free to develop other theories of liability. Indeed, not content with its particular conclusion that violation of a statutory duty leads to absolute liability under the FELA and the Jones Act, the Court goes on to say that 'the theory of the FELA is that where the employer's conduct falls short of the high standard required of him by this Act, and his fault, in whole or in part, causes injury, liability ensues * * * whether the fault is a violation of a statutory duty or the more general duty of acting with care * * *.' Thus the Court in effect reads out of the FELA and the Jones Act the common-law concepts of foreseeability and risk of harm which lie at the very core of negligence liability, and treats these statutes as making employers in this area virtual insurers of the safety of their employees. 50 Whatever may be one's views of the adequacy of 'negligence' liability as the means of dealing with occupational hazards in these fields, Congress has not legislated in terms of absolute liability. 'The basis of liability under the Act is and remains negligence.' Wilkerson v. McCarthy, 336 U.S. 53, 69, 69 S.Ct. 413, 421, 93 L.Ed. 497 (concurring opinion of Douglas, J.). And, except as expressly modified by Congress, the term 'negligence' as it appears in § 1 of the FELA has always been taken to embody common-law concepts. Thus in Urie v. Thompson, supra (337 U.S. at pages 174, 185, 69 S.Ct. at pages 1027—1030), one of the principal cases on which the Court here relies, it was said: 51 'The section (§ 1 of the FELA) does not define negligence, leaving that question to be determined * * * 'by the common law principles as established and applied in the federal courts.' * * * 52 'We recognize * * * that the Federal Employers' Liability Act is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms.'5 53 I cannot agree that Congress intended the federal courts to roam at large in devising new bases of liability to replace the liability for negligence which these Acts imposed on employers. 54 I would affirm. 1 33 CFR § 80.16(h). 'Scows not otherwise provided for in this section on waters described in paragraph (a) of this section shall carry a white light at each end of each scow, except that when such scows are massed in tiers, two or more abreast, each of the outside scows shall carry a white light on its outer bow, and the outside scows in the last tier shall each carry, in addition, a white light on the outer part of the stern. The white light shall be carried not less than 8 feet above the surface of the water, and shall be so placed as to show an unbroken light all around the horizon, and shall be of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least 5 miles.' The Commandant is empowered by 30 Stat. 102, as amended, 33 U.S.C. § 157, 33 U.S.C.A. § 157, to establish rules 'as to the lights to be carried * * * as he * * * may deem necessary for safety * * *.' This section was contained in the Act of June 7, 1897, the purpose of which was to codify the rules governing navigation on inland waters and to conform them as nearly as practicable to the revised international rules for preventing collisions at sea adopted at the International Marine Conference in October 1889. 30 Cong.Rec. 1394; H.R.Doc. No. 42, 55th Cong., 1st Sess., p. 1. 2 The Harrisburg disapproved lower federal court cases, among them a decision of Chief Justice Chase at Circuit, The Sea Gull, 21 Fed.Cas. page 910, No. 12,578a, which had given a right of action for wrongful death. Reliance was placed on the fact that English admiralty law did not recognize the cause of action although continental maritime law did. By statute, English admiralty courts now entertain a cause of action for wrongful death. 23 Halsbury's Laws of England (2d ed. 1936), § 979. 3 'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. (I.e., Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60.) Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.' 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688. 4 Where death occurs beyond a marine league from state shores, the Death on the High Seas Act, 41 Stat. 537, 46 U.S.C. §§ 761—768, 46 U.S.C.A. §§ 761—768, provides a remedy for wrongful death. Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent's death would survive, at least if a pertinent state statute is effective to bring about a survival of the seaman's right. See Holland v. Steag, Inc., D.C., 143 F.Supp. 203; cf. Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260; Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903. Claims for maintenance and cure survive the death of the seaman. Sperbeck v. A. L. Burbank & Co., 2 Cir., 190 F.2d 449. For a discussion of the applicability of a state wrongful-death statute to an action for death of a nonseaman based upon a breach of the warranty of seaworthiness, see Skovgaard v. The Tungus, 3 Cir., 252 F.2d 14. 5 27 Stat. 531, as amended, 45 U.S.C. §§ 1—16, 45 U.S.C.A. §§ 1—16. 6 36 Stat. 913, as amended, 45 U.S.C. §§ 22—34, 45 U.S.C.A. §§ 22—34. 7 The trial court reflied upon Restatement, Torts, § 286, Comment on Clause (c), h: 'A statute or ordinance may be construed as intended to give protection against a particular form of harm to a particular interest. If so, the actor cannot be liable to another for a violation of the enactment unless the harm which the violation causes is that from which it was the purpose of the enactment to protect the other.' 8 The dissenters argue that the Safety Appliance and Boiler Inspection Acts were each prefaced by the statement: 'An act to promote the safety of employees and travelers * * *.' But we are not persuaded that liability under the FELA should depend on the title of the Acts whose violation is alleged. Were we to rely on such indicia we could point out that the statute here involved empowered the Commandant of the Coast Guard to establish rules 'as to the lights to be carried * * * as he * * * may deem necessary for safety * * *.' 30 Stat. 102, 33 U.S.C. § 157, 33 U.S.C.A. § 157. (Emphasis added.) 1 This finding must rest on the assumption of the District Court that the regulation forbade respondent to carry any signal light at a height of less than eight feet above the water. However, it is questionable whether the regulation had the effect of proscribing a light at three feet, as well as requiring a light at a minimum height of eight feet. That is, the violation of the regulation may have consisted solely in the absence of a light eight feet above the water, not in the presence of a light three feet above the water, in which case the accident could not be attributed to violation of the regulation. For the purpose of this opinion, I shall assume, as the District Court necessarily concluded, that the violation of respondent consisted in carrying the light at three feet and was thus the factual cause of the accident. 2 The particular regulation violated by respondent, 33 CFR § 80.16(h), appears under Subchapter D of 33 CFR, which is entitled: 'Navigation Requirements For Certain Inland Waters.' Section 80.16 itself bears the caption: Lights for barges, canal boats, scows and other nondescript vessels on certain inland waters on the Atlantic and Pacific Coast.' Other sections under Subchapter D regulate for signals (§ 80.12), speed in fog (§ 80.13), and navigation near bends and curves (§ 80.5). Section 80.16(h) itself states that a light shall be carried at a minimum height of eight feet above the surface of the water '* * * and shall be so placed as to show an unbroken light all around the horizon, and shall be of such a character as to be visible on a dark with a clear atmosphere at a distance of at least 5 miles.' 3 This section, 30 Stat. 102, as amended, 33 U.S.C. § 157, 33 U.S.C.A. § 157, appears under Chapter 3 of Title 33, which bears the title: 'Navigation Rules for Harbors, Rivers, And Inland Waters Generally.' Other sections under Chapter 3 refer to sound signals (33 U.S.C. § 191, 33 U.S.C.A. § 191), speed in fog (33 U.S.C. § 192, 33 U.S.C.A. § 192), and ascertainment of risk of collision (33 U.S.C. § 201, 33 U.S.C.A. § 201). Section 157 was originally enacted as part of the Act of June 7, 1897, and the clear purpose of that Act was simply to effect a codification of all rules governing navigation on inland waters so that they would conform in the highest possible degree to prevailing international rules for the prevention of collisions at sea. H.R.Doc. No. 42, 55th Cong., 1st Sess., p. 1. 4 30 Stat. 102, as amended, 33 U.S.C. § 158, 33 U.S.C.A. § 158, was also enacted as part of the Act of June 7, 1897, note 3, supra. It provides in part that: 'Every pilot, engineer, mate, or master of any steam vessel * * * and every master or mate of any barge or canal boat, who neglects or refuses to observe the provisions of * * * the regulations established in pursuance of (§ 157, text at note 3, supra) * * * shall be liable to a penalty of one hundred dollars, and for all damages sustained by any passenger in his person or baggage by such neglect or refusal: Provided, That nothing herein shall relieve any vessel, owner, or corporation from any liability incurred by reason of such neglect or refusal.' As originally drafted, preceding its enactment in 1897, present § 158 read substantially as it does now, except that it did not contain the last 'Provided' clause. H.R.Doc. No. 42, 55th Cong., 1st Sess., p. 9. In the House debates concerning the Act of 1897, discussion was directed in part to this section and the question was raised whether its effect might be to impose liability for injury to passengers exclusively upon officers of the vessels, who might be financially irresponsible. 30 Cong.Rec. 1395. To end these doubts, the section was amended prior to its enactment by addition of the 'Provided' clause. Representative Payne stated that the amendment's purpose was to make clear that liability of the vessel or owner of the vessel for damages would remain entirely unaffected by the section. 30 Cong.Rec. 1465. In other words, the Act of 1897 was not intended either to define to any extent liability of a vessel or its owner or to advance the remedies or broaden the rights of seamen, but simply afforded passengers remedies against officers personally liable because of breach of regulations. 5 The qualifications of course refer to those provisions of the FELA not applicable to the facts of this case which modify or abrogate the common-law defenses of contributory negligence, § 3, 35 Stat. 66, 45 U.S.C. § 53, 45 U.S.C.A. § 53, and assumption of risk, § 4, 35 Stat. 66, as amended, 45 U.S.C. § 54, 45 U.S.C.A. § 54.

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355 U.S. 465 78 S.Ct. 425 2 L.Ed.2d 419 AMERICAN AIRLINES, Inc., petitioner,v.NORTH AMERICAN AIRLINES, Inc., and Civil Aeronautics Board. No. 55. Supreme Court of the United States February 3, 1958 Mr. Howard C. Westwood, for petitioner. Mr. O. D. Ozment (Solicitor General Rankin, Assistant Attorney General Hansen, Messrs. Daniel M. Friedman, Franklin M. Stone and Robert L. Toomey, on the brief), for respondent Civil Aeronautics Board. On writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. PER CURIAM. 1 The judgment is reversed insofar as it set aside the Board's order. American Airlines, Inc. v. North American Airlines, Inc., 351 U.S. 79, 76 S.Ct. 600, 100 L.Ed. 953. Mr. Justice ODUGLAS dissents

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355 U.S. 600 78 S.Ct. 530 2 L.Ed.2d 523 William H. BLACK and Ruth F. Black, petitioners,v.A. M. AMEN et al. No. 13. Supreme Court of the United States March 3, 1958 Mr. Dean Acheson (Messrs. Stanley L. Temko, Scott W. Lucas and Malcolm Miller, on the brief), for petitioners. Mr. Douglas F. Smith (Messrs. Arthur R. Seder, Jr., D. Arthur Walker, Jack O. Brown and Oliver H. Hughes, on the brief), for respondents. On writ of certiorari to the United States Court of Appeals for the Tenth Circuit. PER CURIAM. 1 Petitioners' amended motion, concurred in by the attorneys for respondents, is granted. The case is remanded to the Court of Appeals with directions to remand the cause to the United States District Court for the District of Kansas to enable the parties to file their joint motion for the entry of judgment dismissing the action, as provided in paragraph 3 of the Settlement Agreement dated February 27, 1958, a copy of which is annexed to the amended motion. 2 Mr. Justice FRANKFURTER desires to have it added that he assumes that the legal effect of the Court's order, in which he joins, upon the opinion and judgment of the Court of Appeals in this case is the conventional one when a case has become moot here pending our decision on the merits. United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36.

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